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Widow of mesothelioma sufferer exposed to asbestos at William Penn School secures compensation

The widow of a man who was exposed to asbestos while working on the construction of a school in East Dulwich has secured compensation from his employers.

Posted on 06 December 2019

Harminder Bains, partner at Leigh Day, dealt with Trudy McGuinness’ case for compensation arising from her husband Derek Rowe’s death from the asbestos-related cancer mesothelioma
Derek was exposed to asbestos whilst working as a carpenter’s mate employed by a building company called Thomas & Edge Ltd in the 1950s.  He was only 16 years old when he was sent by Thomas & Edge Ltd to build shuttering for concrete on buildings for the William Penn School, which was being constructed.
Derek was diagnosed with mesothelioma in January 2017 and died in September 2017. Upon Derek’s death Trudy continued to pursue the legal case. 
Thomas & Edge Ltd denied they were responsible for Derek’s death and disputed the claim.  The case was set down for a four day trial on the 15th to 18th October 2019 in the Royal Courts of Justice, London.  However, on the morning of the third day, after two days of evidence from the negligence experts Christopher Chambers, on behalf of Trudy, and Andrew Stelling, on behalf of the defendants, lawyers for Thomas & Edge Ltd confirmed that they would voluntarily consent to a judgment being entered rather than the case continuing and allowing the judge to enter a judgment. The judge had asked Andrew Stelling whether he was resiling from his previous evidence more than once. Trudy thereafter received a substantial sum by way of compensation. 
This case was relatively unusual in that it concerned asbestos exposure in the 1950s, almost a decade before the true dangers of asbestos were widely known.  It was accepted that whilst Derek was on the building site, asbestos was sprayed on to two of the buildings under construction, for fire prevention purposes.  However, T&E maintained that their duty of care owed to Derek did not extend to preventing his exposure to asbestos, as he was not undertaking the spraying himself.  He was merely on the construction site whilst the spraying took place.   
On behalf of Trudy it was argued that the Asbestos Regulations 1931, the Factories Act 1937 and the Building (Safety, Health & Welfare) Regulations 1948 applied.  In particular: 

Breach of duty - The Building (Safety, Health and Welfare) Regulations 1948

1.    These were made pursuant to s. 60 of the Factories Act 1937 and came into force on 1 October 1948.  As set out in Regulation 2 (1):
“These Regulations shall apply to the following operations where undertaken by way of trade or business… namely, the construction, structural alteration, repair or maintenance of a building (including re-pointing, re-decoration and external cleaning of the structure) … and the preparation for, and laying the foundation of, an intended building…and to machinery and plant used in such operations…”
2.    In this case, the 1948 Regulations clearly applied as Thomas & Edge Ltd was engaged in the construction of buildings.   The obligations under the Regulations are set out in Regulation 4:
“It shall be the duty of every contractor and employer of workmen who is undertaking any of the operations to which these Regulations apply (i) to comply with such requirements of Regulations… 80-84… as affect any workman employed by him…”
3.    Regulation 82 states:
“Where in connection with any… spraying or manipulation of any material, there is given off any dust or fume of such character and to such extent as to be likely to be injurious to the health of persons employed all reasonably practicable measures shall be taken either by securing adequate ventilation or by the provision and use of suitable respirators or otherwise to prevent inhalation of such dust or fume.”
4.    This Regulation applies the same structure found in the principal Act, at s. 47:
“In every factory in which in connection with any process carried on, there is given off any dust or fume or other impurity of such a character and to such extent as to be likely to be injurious or offensive to the persons employed, or any substantial quantity of dust of any kind, all practicable measures shall be taken to protect the persons employed against inhalation of the dust or fume or other impurity… and in particular, where the nature of the process makes it practicable, exhaust appliances shall be provided and maintained, as near as possible to the point of origin of the dust of fume or other impurity, so as to prevent it entering the air of any workroom.”
5.    It was argued that any interpretation of Regulation 82, therefore, had to be consistent with the interpretation of s. 47 of the Factories Act 1937 which spawned it.  Section 47 was considered in detail in the case of McDonald v. National Grid [2015] AC 1128.  The Supreme Court held that:
“… the application of s. 47 should extend to those employed persons liable to be affected by the dust or fume, not merely to those employees who were responsible for producing those substances.”
Breach of duty under common law negligence was also argued on behalf of Trudy.  As there was no judgment it is not known which arguments would have been accepted by the judge.  However, Harminder obtained the transcript of the defendant’s expert Andrew Stelling’s evidence which shows that some concessions were made by Thomas & Edge Ltd,, which may be important for future cases: 

  1. Guidance, even back in the 1950s, recommended that exposure to asbestos should be reduced to the lowest levels that were reasonably practicable.
  2. There was no known safe level of exposure.
  3. A common sense approach would be to take steps in line with the hierarchy of control measures.
  4. Exposure was probably variable and that safety measures had to be considered against the maximum danger, not the average. 
  5. Being in the path of someone spraying asbestos – even at some considerable distance from the spray – ought to have been considered dangerous. 

Trudy said:
“I cannot thank Harminder and her team enough. Harminder is a passionate supporter for justice and, over a period of more than two years, worked tirelessly with empathy, energy and intelligence to obtain all the information and expertise needed for our case. Her handpicked team of Rob Weir QC, Patrick Kerr, as well as her assistants could not have devoted themselves more.
“I felt looked after and cared for; an experience which could have been painful, became fascinating and indeed a pleasure. Thank you all of you for wonderful work and support.”
Counsel representing Trudy were Robert Weir QC, Devereux Chambers and Patrick Kerr, 12 Kings Bench Walk. 
Transcript of the proceedings

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