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Garner v Salford City Council & McGuinness & Co Ltd, High Court, 13 June 2013

26 June 2013
The issues

Mesothelioma – causation

The facts

The claimant, Penny Garner, was 45 at the time of the trial. She had begun to feel discomfort from 2010 onwards but in May 2011 was diagnosed as suffering from mesothelioma. She had gone to school at SeedleyInfants & JuniorSchool starting in 1972 and leaving in 1979. The school was next to Seedley Baths. Although insufficient documentation survived to prove precise dates, the baths were demolished some time around 1978 and 1979. They were demolished at the orders of the council who owned the baths and by their contractors, P McGuinness & Co. The claimant could recall no other exposure to asbestos in her life and brought a claim on the basis that her condition had been caused by exposure to asbestos dust during that demolition. On the evidence, the likelihood was that some dust from the demolition of the baths drifted into the playground of the school.

The decision

It was likely that there was at least some lagging to the pipe-work in the boiler house. It was unlikely on the evidence that there was any lagging on the boilers themselves.

Did the lagging contain asbestos? Asbestos-free lagging was used from time to time in the 1960s. Whether the lagging used at the baths was the original lagging or whether it had been removed and updated at some time before the end of the 1960s, it was likely to have contained some asbestos. The expert evidence agreed on that. The probability was that the lagging had been removed from the pipe-work by the company’s workmen in the course of the demolition.

How was it removed? By 1978 it was known that dry-stripping of insulation material would have been an inappropriate technique. This follows from the publication in 1976 by the Asbestosis Research Council of a guide entitled ‘Stripping & Fitting of Asbestos containing Thermal Insulation Materials’ which recommended reduction of dust levels by pre-wetting and soaking. So far as the evidence could reconstruct what had happened, it was probable that the lagging on the pipe-work had been removed whilst it was still in the boiler house; that the process of removing it lasted a day or two; that water was used to prevent the liberation of dust when the lagging was removed and that it was hosed down and not just sprayed before being removed. The effect of that was that the chance of dust containing asbestos fibres being released into the atmosphere was minimal. Such dust as on a balance of probability was likely to have drifted into the playground, having regard to the process of removal, and the distance from the boiler house to the playground, would have been exposed to between 0.1 f/ml to 1 f/ml at respective distances of 60 to 90 ft and 40 to 60 ft. A guidance note issued by the Health & Safety Executive in December 1976 recommended the reduction of asbestos dust to the minimum which was reasonably practicable but when it came to occupational exposure, recommended that that exposure should never exceed 0.2 f/ml in the case of Crocidolite and, for other types of asbestos, 2 f/ml and in terms of short term exposure, 12 f/ml over a ten minute period. Consequently there was no certainty had the claimant been in the playground when dust containing asbestos fibres had drifted over would have been exposed to an exposure exceeding the relevant control limit at the time.

Claim dismissed.

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