EWJ Dec 2023 - Journal - Page 38
Ness v Carillion Capital Projects Ltd
& Ors [2023] EWHC 1219 (KB)
In this article Cressida Mawdesley-Thomas considers the judgment of HHJ Lickley KC
in Ness v Carillion Capital Projects Ltd & Ors [2023] EWHC 1219 (KB). Ness was a
successful fatal mesothelioma claim.
asbestos during the course of his employment with
Bovis. Nor was Bovis mentioned as an employer who
exposed the deceased to asbestos in his applications
to the DWP. Further, it was only in the deceased’s
November 2018 statement that the millboard was
prefixed with ‘asbestos’.
The Issues
The central issues were: (1) did the deceased work
with asbestos millboard? (2) even if he did not work
with asbestos millboard was his exposure from asbestos cement sufficient to establish breach of duty
where the exposure was over 10 to 14 days between
1966 and 1968?
l The deceased described the millboard in
contradictory terms which often better aligned with
non-asbestos containing millboard (Martin Stear’s evidence was that brown millboard that could be broken very easily was likely to be non-asbestos
containing). For example, in the July 2018 engineering report and his second statement dated August
2018 the deceased described the Millboard as being
“brownie”. However, when he gave evidence by deposition in July 2019 he variously described the asbestos millboard as: “pretty hard stuff ”; “quite hard
but could be cut with a saw” and at other times as
“very soft”. In April 2019, in response to the defendant’s part 18 questions he said that the asbestos millboard was light grey in colour, quite hard but could
be cut with a saw.
The defendant’s case was that Mr Harrison’s (‘the
deceased’) exposure from asbestos cement was de
minimis and the guidance at the time did not mandate precautions where exposure was limited and sporadic. However, the defendant accepted that they
would have difficulty defending liability if the court
found that the deceased also worked with asbestoscontaining millboard for 10-14 days in 1966-1968.
Background
The deceased worked for Bovis on the construction
of the Guardian Insurance building in Blackpool as a
specialist joiner, installing insulation and panels beneath windows. He used a handsaw to cut the insulation and paneling to size and only worked inside. It
was not disputed that he used asbestos cement for
around 10-14 days to do this work between 1966 and
1968. However, it was disputed that he also used asbestos containing millboard. It was agreed that at the
relevant time some millboard contained asbestos, and
some did not.
Conclusion – Not Asbestos Millboard
The judge concluded that he could not be satisfied on
the balance of probabilities that the millboard contained asbestos for 10 reasons, in summary: initially
there was no suggestion that Bovis exposed the deceased to asbestos; there is no explanation where the
information came from to suggest exposure to asbestos millboard in the second engineering report; the
deceased’s august 2018 witness statement describing
the millboard was at odds with the description in
Laura Martin’s report; the millboard was first described as browney which suggests it did not contain
asbestos; the part 18 responses and evidence on commission gave confused descriptions about the millboard; there were no contemporary records; overall
the evidence was contradictory and unpersuasive.
Did the millboard contain asbestos?
The court was not persuaded that the millboard
contained asbestos. The Claimant faced a number of
difficulties:
l The Claimant’s occupational hygienist, Laura
Martin, based her view that the millboard contained
asbestos on the fact that when she interviewed the deceased, she showed him photographs of products and
he had identified to her asbestos containing millboard
as that which he worked with. However, those photos
were not indexed and exhibited to her report and
there were no agreed photos before the court.
l The second report of Laura Martin, wherein it was
stated that the deceased was exposed when working
for Bovis with asbestos millboard was produced when
she only had the deceased’s first statement (which did
not mention working with asbestos-containing millboard) and when she had not undertaken a further
interview with the deceased.
The Legal issues
What Was Known
It was found as fact that the deceased would have to
handle, then cut the asbestos cement panels to size
with a saw and fit them to the building under construction. The dust and debris that his work produced
was brushed to one side by him to be removed. He
did that work for 10-14 days between 1966/67 and
1967/68.
l Neither the first statement of the deceased (July
2017) nor the first report of Laura Marin (also July
2017) mentioned the deceased being exposed to
To determine whether this work was in breach of duty
the court examined the degree of knowledge and
understanding of the risks in 1966/67.
EXPERT WITNESS JOURNAL
36
DECEMBER 2023