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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Sloper v Lloyds Bank Plc  EWHC 483 (QB) (08 March 2016)
Cite as:  EWHC 483 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Carole Sloper
|- and -
|Lloyds Bank Plc
David Platt QC (instructed by BLM LLP) for the Defendant
Hearing dates: 2nd, 3rd 4th 5th, 8th February 2016
Crown Copyright ©
Mr Justice Spencer :
(1) At the Freshwater branch, was there a suspended ceiling with asbestos tiles which were disturbed during the course of maintenance work to the fluorescent strip lights, such as to expose the claimant to asbestos inhalation? If not, the claim in respect of the Freshwater branch must fail.
(2) If there was such exposure from asbestos ceiling tiles at the Freshwater branch, was it such as to create a material increase in the risk of contracting mesothelioma, applying the principles in Fairchild v Glenhaven Funeral Services Ltd [ 2003] 1 AC 32?
(3) At the Yarmouth branch was there a suspended ceiling with asbestos tiles which were disturbed during the course of maintenance work to the fluorescent strip lights, such as to expose the claimant to asbestos inhalation?
(4) Further or alternatively, was the claimant present at the Yarmouth branch when substantial building works took place involving the taking down of an asbestos tiled ceiling, thereby exposing her to the risk of asbestos inhalation? If so, it is common ground that this would have caused a material increase in risk sufficient to establish liability.
The issue of dispute between the doctors (mentioned above) would arise only under (2) and (3), and comes down to whether the increased risk of mesothelioma (assuming a finding that there were suspended ceilings with asbestos tiles) was not material and/or was de minimis at levels below an annual elevated risk of 1 in 1 million.
The claimant's evidence
The Freshwater branch
Other witnesses on behalf of the claimant
The contemporary documentation
"f) Prepare as described existing plaster and emulsioned ceiling and apply two coats vinyl emulsion….. 48 sq.m.
g) Ditto but sloping ceiling….. 2 sq.m.
h) Ditto but sides and soffites (sic) of ceiling beams and friezes with cornices in party colours….. 36 sq.m
i) Prepare, wash off and apply two coats vinyl emulsion to existing emulsioned perforated fibre-board ceiling linings….. 3 sq.m.
j) Prepare as described existing plastered decorated surfaces and apply two coats vinyl emulsion to surfaces of column….. 18 sq.m. "
Other witnesses on behalf of the defendant
The Yarmouth branch
Other witnesses on behalf of the claimant
Witnesses on behalf of the defendant
Approach and analysis
"It is important that judges should bear in mind that the Fairchild exception itself represents what the House of Lords considered to be the proper balance between the interests of claimants and defendants in these cases. Especially having regard to the harrowing nature of the illness, judges, both at first instance and on appeal, must resist any temptation to give the claimant's case an additional boost by taking a lax approach to the proof of the essential elements. That could only result in the balance struck by the Fairchild exception being distorted…"
"The process of attempting to remember events in the distant past is an inherently fallible one; it is a process that is highly susceptible to error and inaccuracy. Our efforts to think back many years to recollect the details of past events are liable to be affected by numerous external influences; involvement in civil litigation can in itself operate as a significant influence. All remembering of events many years ago involves processes of a reconstructive nature; these processes are largely unconscious with a result, as Leggatt J said, that the strength, vividness and apparent authenticity of memories are often not reliable markers of their truth. Having seen and heard the pursuer give evidence, I have come to the view that I must evaluate the reliability of his claimed recollections with caution. I have, wherever possible, tested his evidence against other evidence in the case and have considered objectively where the probabilities lie."
"The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces."
(1) Was there a suspended ceiling with asbestos tiles?
(2) If so, was the claimant present when the ceiling was taken down as part of refurbishment works prior to 1985, when she was required to attend the bank over a period of several weekends as key holder?
73. There is bank correspondence confirming that a cash point machine was installed at Yarmouth in 1992, for which the landlord's consent and planning permission were obtained. The installation had been completed by 2nd July 1992. The claimant accepted in her oral evidence that until she saw the inland revenue documentation she had forgotten about going back to work for the bank in 1992. She recalled the bank asking whether she wanted to earn some extra money when the cash point was put in.
"I went in over several weekends. It was very dusty work. The builders moved a section to make the main area larger, some of the internal walls were moved as well and the false ceiling tiles were removed. These were white in colour and had to be pushed up to be removed. Builders also did work in the safe. The safe was a dusty place and when we closed it we banged it which caused dust dispersion."
"Five years after I left Lloyds, asbestos materials were removed from the stairs, the staff room and the first floor at the Freshwater branch. The first floor at the Freshwater branch is where I processed standing orders and then pinned them to the walls. I am not sure what the walls were made of."
In her oral evidence the claimant recalled the suspended ceiling "across the whole of the banking hall because it was quite an area but if you had done one part of it and not another it would have looked particularly odd…" . That is completely contrary to the evidence of Mrs Cotton and Mrs Morris that the suspended ceiling did not extend to the public area at all, i.e. the banking hall, and was confined to only part of the staff area.
"These tiles were not only on the ceiling above where I worked, but where the majority of the staff worked. I do not recall seeing them in the public areas."
In her oral evidence, when reminded that the building work in 1978 involved the introduction of two new steel beams across the ceiling at one end of the staff area, she described and marked on the plan (No 34/11) a much smaller area of ceiling than "where the majority of the staff worked", as she had put it in her witness statement. As already explained the area she marked stretched from the strongroom across the width of that part of the building, embracing the supervisor's desk (as shown on the plan) but not above any of the area where the cashiers and clerks were seated (as shown on the plan).
The 3 sq. m. area of ceiling under the stairs
"The reconstructed premises of Lloyds Bank, in Sutton Coldfield, offer a good example of the maximum use of the fire-protective qualities of asbestos, which also increases total thermal insulation and helps to overcome acoustic problems. The ceilings at the bank had been made of asbestos insulation board with a finishing coat of sprayed asbestos."
The defendants' liability expert, Mr Stear was also cross-examined about an article he had written in 2013 entitled "Let's talk shop", in which he traced the history of the use of AIB in the 1950s, 1960s and 1970s. Thus, if this 3sq.m. section of ceiling was fitted after the mid to late 1950s it is quite possible that it contained asbestos.