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Asbestos in Schools

Appeal at the Royal Court of Justice

(14 October 2009)

 


Mesothelioma caused by asbestos exposure at school as a pupil

In July 2009 Liverpool High Court found Knowsley Metropolitan Borough Council liable for damages for negligent exposure of Dianne Willmore to asbestos fibres while she was a pupil at her secondary school in Huyton, she joined the school in 1972 at the age of 11 and left in 1979.  Dianne Willmore was diagnosed in March 2007 as suffering from mesothelioma.

The school was opened in 1972 when asbestos was widely used so that asbestos materials were prevalent throughout the building. The court accepted evidence of possible asbestos exposure from: work on the AIB ceiling tiles in a corridor while the Claimant and other pupils walked through the corridor. The disturbance of ceiling tiles by pupils' misbehaviour. Ceiling tiles in the girls' toilets being damaged. Dianne Willmore gave evidence and stated:

“I remember by the Sports Hall, tradesmen routing wires through the ceiling, they stood on step ladders to do it. ...Routing of cables went on right across the school. They had to take the ceiling tiles down to do this....  she remembered the ceiling tiles being stacked in the corridor while the workmen were on the ladders and working in the ceiling void.”

.... some of the boys in the school would seize the blazers, coats or briefcases of others whom they wished to victimise. They would push up the loose ceiling tiles and conceal these items in the ceiling void. The tiles would get broken or damaged

A lot of the bullying [in the school] took place in the toilets. There would be smoking in the toilets and vandalism of the toilets frequently. The toilets, sinks, walls and ceilings were damaged or defaced, some of the toilet blocks had fires set in them too.”

One of the country’s leading mesothelioma consultants, Dr Rudd, gave evidence that:

 “Mesothelioma can occur after low level exposure and there is no known threshold dose below which there is no risk”.

“...'significant' is defined in accordance with the definition adopted in relation to mesothelioma causation by the Industrial Injuries Advisory Council in their 1996 report (Cm 3467): 'a level above that commonly found in the air in buildings and the general outdoor environment.' It would be appropriate for the Court to conclude that each such exposure materially increased the risk that she would develop mesothelioma.'

The Judge, The Hon Justice Nicol, accepted that the exposure had occurred and that to be causative it had to above de miminis, he summarised:
“I have looked at the evidence regarding each of those situations. I could not find that any of them created a risk which was only de minimis. However, even if I am wrong about that, I must consider their collective effect. I am clear that when viewed together the risk was not minimal and that they materially increased the risk to the Claimant that she would develop mesothelioma much later in her life.”

He concluded that negligence had occurred and stated:
“The Amended Defence admits that the Defendant knew or ought to have known that any more than minimal exposure to asbestos dust was foreseeably hazardous. In the course of the hearing Mr Feeny did not dispute that if there was a reasonably practicable alternative that did not expose the pupils to such dust, it ought to have been used....

There was little evidence as to what precise work had led to a need for the ceiling panels to be removed. There was no evidence that it was of such urgency that it could not be done during the school holiday, or at weekends, or even at night when the school would have been empty....
....There must also have been reasonably alternative places to store the ceiling tiles rather than leaving them stacked in a busy corridor along which pupils were passing back and forth. If tiles were left there, the risk of them being knocked and damaged should have been obvious.
Second, the pupil misbehaviour in hiding belongings above the ceiling tiles ....As time passed, it becomes harder to accept that no word of it reached the staff. In any case, the damage to the ceiling panels would have been visible to the school authorities. Had they been alive to the risks from disturbed asbestos, they should have realised that the panels needed replacing and with a material which would not expose pupils to danger if they were damaged again.

For the same reasons, the damage to the ceiling tiles in the girls' toilets should have been detected and led to their replacement with a non-asbestos product. It would have been readily foreseeable that ceiling tiles stacked in the toilets might be knocked and broken.

In short, I conclude that all three of the situations which I have found exposed the Claimant to a material risk, amounted to a breach of duty on the part of the Defendant.” (1)

This judgement is most relevant as it applies to many of the other incidents that have happened over the years in schools throughout the country, where asbestos has been disturbed, contamination taken place and where exposures of individuals is likely.  The court accepted that the authorities were aware of the dangers and yet because they failed to prevent the exposures they had been negligent, they had breached their duty of care.

On 22 September Lord Justice Moses recognised the importance of the case by granting Knowsley Metropolitan Borough Council permission to appeal.  Given the extreme gravity of Mrs Willmore's condition, he ordered an urgent hearing of the case, which will now go before the Court of Appeal on 14th October 2009.

(1) Case No: 8LV90020 HIGH COURT QUEEN'S BENCH DIVISION Liverpool District Registry  Hon Justice Nicol 24 Jul 2009