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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Corus UK Ltd v Cavendish (UK) Ltd & Ors [2009] EWHC 2058 (QB) (07 August 2009) URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/2058.html Cite as: [2009] EWHC 2058 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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CORUS UK LIMITED |
Claimant |
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- and - |
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CAVENDISH (UK) LIMITED WOODS BUILDING SERVICES LIMITED |
1st Defendant 3rd Defendant |
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Mr Oliver Campbell (instructed by Kennedys) for the 1st Defendant
Mr Yash Kulkarni (instructed by DRG Solicitors LLP) for the 3rd Defendant
Hearing dates: 8th, 9th, 10th, 11th & 15th June 2009
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Crown Copyright ©
Mr Justice Foskett :
Introduction
The background what happened
"This sample was of a sheet material [approximately] 5mm thick with a density of approximately 390Kg/m³. The sheet was manufactured from a mixture of particles and chrysotile fibres and had been painted on one face. The sample provided was extremely weak and readily crumbled releasing asbestos fibres. If the material which the sample represents is of similar strength it will be easily damaged causing the release of asbestos fibres. It is recommended this material be replaced by an asbestos free substitute. Any work on this material should be in accordance with the Control of Asbestos at Work Regulations."
"The main objective of this project is to safely rewire and replace light fittings and provide protection from Asbestos fibres during these works to all operatives and employees of British Steel.
In the approach to this project 3 options are available:
1. Total Removal of the Asbestos containing ceiling on an occupied phased programme and replace with new lights and ceiling.
2. To allow ACM to remain and replace wiring/lights under controlled conditions.
3. Item 1 with a vacated building.
We strongly recommend option 1 for the following reasons: (We also believe this would be the local authorities view once they are informed)
a. The extensive logistics, specialist equipment and disruption would have to be repeated if the material were disturbed or refurbishment carried out at some future date.
b. Employee awareness of the project, post announcement, will cause concern over any 'dust' found in the future.
c. Due Diligence statement for any future sale would have to include a statement.
d. Annual inspection checks and labelling of ACM will have to be carried out together with supporting documentation, which will be audited by the local authorities.
e. Maintenance procedures will be difficult and all maintenance staff should be trained on handling the material and health monitored."
"This contract is placed generally as your proposal 5076/1 option one. For the total removal of asbestos containing ceiling with encapsulation and labelling of over-spray, replacement suspended ceilings, complete rewire of lighting and power circuits and replacement recessed lighting to category 2 standard. All electrical work to comply with the IEE wiring regulations 16th edition 1991."
"I was present on site when the operatives were working to the original method (cutting out the Expamet ceiling) and I remember very clearly that from the very start of the job it was apparent that the proposed method was not workable. It had been anticipated that the ceiling would cut and break relatively easily, but it did not. This meant that a very high level of heavy cutting was necessary. This caused high noise levels in parts of the building that remained in use as offices. British Steel [was] not happy with this."
"Further to our site meeting yesterday, I write to confirm the points discussed.
The method used to remove the complete ceiling has proved difficult, as the ceiling is in fact a prefabricated slab with metal reinforcing, necessitating power tools and excessive labour. Health and Safety problems are created both in the enclosure and on the floors below. The risk from this method is unacceptable and needed to be reviewed.
Air tests on the floors below and above proved to be within the clearance limit of 0.01 f/ml.
Cavendish tabled a new method for discussion. This method was agreed in principle and is set out as attached.
British Steel expressed their concern that not all the asbestos would be removed. A "trial" room will be offered for their inspection as soon as possible.
British Steel are seeking an undertaking that all asbestos will be removed. Cavendish are prepared to give such an undertaking subject to certain caveats, ie.
- Does not include other asbestos material, other than the decorative coat. [When he gave evidence, Mr Allen confirmed that the "decorative coat" referred to here was the covering of asbestos on the Expamet ceiling.]
- Areas that are totally inaccessible. These would be sealed or further building works would be required to expose e.g. Director's Lounge.
- Any hidden areas we are not aware of are missed.
Subject to this method being agreed, the weekly programme could be met and will resume with the 5th floor on 8/9/97. The 6th floor being complete on 6/9/97. The HSE will be advised of the change to method once approved by British Steel."
"8. Manually scrape asbestos decorative coating from ceiling.
9. Ensure all material is removed, including overspray.
10. Spray with ET10 encapsulating material on surface of ceiling, light boxes and suspect areas."
"
The following points were made by S. Allen:-
An "interesting" week had passed with some considerable problems encountered.
The ceiling was found not be plaster on mesh with reinforcing rods but was a structure of 6ft x 3ft concrete panels, bolted together, suspended to ceiling and then over sprayed. This was therefore considered a structural slab on where the asbestos had been sprayed.
This had caused some major problems which were:-
A major change in the method of removal which caused excessive vibration on the floor and ceiling above and below due to the need to use power tools to remove and cut the slabs into easy to handle pieces.
A major concern was the vibration on the ceiling of the floor below.
Air testing facilities had been stretched to the limit. All readings on the floors below or anywhere had shown no significant figures. (Highest was 17, normal ambient is 8).
Graham Taylor confirmed along with Steve Allen that given this exceptionally "heavy" method of removing the ceiling structure they were concerned primarily with the possible high risk of some part of a ceiling falling in an inhabited office "a disaster waiting to happen".
The options left open until yesterday were:
1) to proceed as described but to sheet the ceilings to catch possible dislodged asbestos.
2) Evacuate the floor below.
3) Work night shift.
However a successful trial had been undertaken spraying the ceiling using a surfactant to assist penetration and wetting and removing by scraping. The concrete was cleaning up perfectly, with the wet scrapings easily bagged.
A minor problem with leaving the slab up was that the new suspended ceiling would be lower.
S. Allen confirmed that with this new method of removal he could see no problem in achieving one floor per week.
It was agreed that the programme would be re-scheduled, completing the 6th floor by next Friday and then following floors on the weekly programme.
It was confirmed by Cavendish that they would rewrite the method statement and submit an urgent copy to British Steel and the HSE.
J. Fellows confirmed that British Steel wished to inspect the stripped ceiling by the new proposed method of removal prior to electrical work commencing.
Steve Allen could see no problems with this new method of removal giving as good a removal, if not better, than the previous method.
A. McGibbon required in writing a confirmation that this method of removal was as good as if the total ceiling area had been removed as in the previous proposal, and that the completed job was as good, if not better, than in the previous specification. This was essential for the future management and development of the building in respect to the qualification of an asbestos free structure.
"
"It was agreed that it was a reasonable decision to change the method from dismantling the entire "Expamet" ceiling to scraping and sealing with encapsulant considering the issues encountered on site."
The state of the roof voids 10 years or so after the work
"The upper void has essentially been used as a cable tray to support the heavy fire cables. The very act of installing these cables (when pulled through the light wells) has abraded the encapsulated edges of the Expamet causing debris to drop on to the secondary suspended ceiling. The cables will have also pulled asbestos overspray from the upper void, creating the debris now seen on the secondary suspended ceiling. Virtually all visible debris lying on the upper surface of the secondary suspended ceiling tiles [is] immediately below the light wells and does not extend more than a 200mm beyond. In my view all of the debris on the suspended ceiling has been caused by these uncontrolled cable projects."
"It was agreed that debris on the back of new suspended ceiling was likely to have occurred as a result of the uncontrolled works (with regard to asbestos considerations) within the void (specifically running cables in the upper void and pulling them through to the lower)."
"What I viewed was a job that appeared to have been properly undertaken. Those parts of the expamet ceiling that I was able to view were visibly clear of the sprayed asbestos coating, and the surface of the ceiling was encapsulated. The areas in the void above the expamet ceiling, around the lightwells, had also been encapsulated. I did observe some debris on the top of the secondary suspended ceiling. These (sic) debris were predominantly beneath the lightwells, and were of a size and composition that lead me to believe that they had come from the upper void, or possibly from the edges of the expamet ceiling, where the lightwells had been cut-out. The debris had clearly not come from the surface of the expamet ceiling which was a relatively smooth, stable and hard surface. I can readily accept that debris originating from the upper void might contain asbestos. There was certainly oversprayed asbestos within the voids.
I have returned to the site on several occasions since my initial inspection, and my view has not changed. The surface of the ceiling has been thoroughly cleaned, and what residues remain have been encapsulated. There is clearly overspray which has penetrated through the numerous lightwell openings and settled on to the void above. This has also been encapsulated."
"From my inspection in March 2009 I saw no evidence that an encapsulant with the appearance of an emulsion was applied in 1997. The majority of the surfaces that I inspected did not have a visible sealant encapsulating the remaining asbestos."
"Given what I saw in March 2009, I believe that Woods failed to complete its work to the standard that one would have expected competent professional asbestos removers in 1997. Woods' work left asbestos in exposed and friable condition and asbestos on the surface of the expamet ceiling. If Woods applied any ET10, it did not do so properly or in sufficient quantities as I could not detect any evidence of any encapsulant in March 2009."
8.7 The "bottom" surface of the Expamet ceiling has a relatively rough finish.
On some of the lower floors (Fourth to First e.g. Room 301) there are occasional small "patches" commonly one to two centimetres in diameter, thickness less than 1.5 mm, and sealed with PVA, which may contain residual sealed asbestos material.
8.8 It is my opinion that it is likely that during the original works in 1997 that these "patches" on the Expamet ceiling would have been difficult/impractical to remove and they were sealed with a PVA based adhesive after the visual inspection of the area/s and the subsequent air tests were passed by the analyst/s on site employed by Cavendish Laboratories.
8.9 The removal of all ACMs is never a realistic option for this type of material due to the nature of the product which gets into small crevices, cracks, etc and can never be completely removed without demolishing the structure.
Summary of findings so far
i) It was known to the Claimant, even on the first version of the contract with CUK, that not all asbestos would be removed and that encapsulant would be used as a sealant to prevent the escape of such traces of asbestos as were to be left in the remaining roof void.
ii) Under the revised version of the contractual arrangements, those considering the position within the Claimant at the time must have appreciated that a larger number of areas enclosed by encapsulant, including areas on the retained Expamet ceiling, would be the consequence of those arrangements.
iii) The revised approach was an entirely reasonable approach to adopt.
iv) The works were in fact carried out (including the provision for new electric cables) without an asbestos hazard being created.
v) The "asbestos problem" that manifested itself in 2007 was caused by the "uncontrolled" dragging of wires and cables through the two roof voids in the intervening period.
vi) The "asbestos problem" in 2007 was one that could be solved by means that do not require the removal of the Expamet ceiling or further cleaning of its surface.
The way the Claimant's case against the First Defendant is put
(a) negligent misstatement
(b) other claims in negligence against the First Defendant (and the Third Defendant)
" the First Defendant and/or the Third Defendant each was in breach of its duty of care in tort in failing to exercise reasonable skill and care in removing the ACMs from the Building and in damaging the Building by leaving ACMs in a disturbed and loose condition."
"The First Defendant failed to carry out a thorough visible inspection to ensure that all visible traces of asbestos debris was removed from the Expamet ceilings."
Limitation
" includes knowledge which he might reasonably have been expected to have acquired
(a) from facts ascertainable or observable by him; or
(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek;
but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."
Conclusion
"In addition, the court shall determine the following issue (if necessary): if the Claimant is entitled to damages in respect of remedial work, what remedial work would it have been reasonable for the Claimant to undertake on the basis of the case advanced by the Claimant and the Defendants prior to 18 May 2009 provided that the determination of this issue shall be without prejudice to such case as the Claimant or Defendants may advance at the quantum stage."