Judgment handed down by the High Court – Judge finds that lung cancer and respiratory disease can be caused by exposure to dust and fumes at the Phurnacite plant.
Having been appointed by the High Court, Hugh James represented hundreds of ex-workers and families of ex-workers of the Phurnacite plant in Abercwmboi, South Wales.
Judgment was handed down by The Honourable Mrs Justice Swift DBE at the Royal Courts of Justice, London, on 23 October 2012.
The High Court findings in the test cases are that:
The court found that the defendants were aware of the risk to workers and of the association between exposure at the plant and respiratory disease / lung cancer for many years.
The result means that further compensation will now be recovered by other members of the cohort, with a large amount of contentious issues having been resolved by the court.
The Phurnacite plant produced smokeless fuel by crushing coal and mixing it with coal tar pitch. The mixture was then pressed into ovoid briquettes which were carbonised at the plant by being heated in ovens. The plant employed up to 1,200 men.
Until its closure in 1990, the Phurnacite plant was operated by successive subsidiaries of the National Coal Board and later of the British Coal Corporation. The case was brought against one of those subsidiaries, Coal Products Limited, and against the Department of Energy and Climate Change, which took over the liabilities of the British Coal Corporation after the latter ceased to exist.
A total of 183 claims were brought by the claimants for various forms of respiratory disease and lung, skin and bladder cancers which were alleged to have been caused by the exposure of men to harmful dust and fumes.
Hugh James instructed Mr David Allan QC as Leading Counsel and Mr Ivan Bowley as Junior Counsel.
Out of the 183 claims, eight ‘test’ claims were selected for trial. The six week trial was held partly in Cardiff and partly in London in October and November 2011. The parties made available to the judge a huge amount of evidence about working conditions at the Phurnacite plant, about the chemical composition and properties of the dust and fumes produced there, about the concentrations of harmful substances to which employees working in various parts of the plant would have been exposed, and about the medical effects of that exposure. Phurnacite ex-workers and their families as well as experts in engineering, occupational hygiene, toxicology, epidemiology and medicine gave evidence.
The evidence covered a period of almost 50 years and involved an examination by the judge of the circumstances in which each of the employees involved in the test claims had worked and of their individual medical histories.
The judge found that from the very early years of its operation there were serious concerns about the dust and fumes produced by the Phurnacite manufacturing process and emitted from the plant into the surrounding atmosphere. Those concerns, which persisted throughout the life of the plant, were initially raised by residents who lived nearby and by the local council and the judge said that the dust and fumes of which they complained affected those working at the plant to an even greater extent.
Mrs Justice Swift describes in her judgment the large quantities of dust that were constantly in the atmosphere of the briquetting buildings where the Phurnacite ovoids were formed and pressed, and the hot and fume laden conditions experienced by men working around the ovens where the ovoids were carbonised. The judge found that conditions in those and other areas of the plant were very unpleasant. In the pitch bay, where until the late 1970s solid pitch was broken up by hand, the conditions were described to the judge by a former member of management as “pretty dreadful”, an assessment with which the judge agreed.
It was found that the dust and fumes to which men were regularly exposed contained substances which were known to be carcinogenic and that conditions in most parts of the plant remained very poor right up to the time of its closure in 1990. Overall the attitude of the management to the safety of its workforce appeared to have been reactive rather than proactive.
The claimants were successful in establishing breach under the Factories Acts 1937, 1959 and 1961, the Patent Fuel Manufacture (Health and Welfare) Special Regulations 1946 and the Control of Substances Hazardous to Health Regulations 1988 and in common law negligence. The judge decided that the operators of the plant were in breach of the statutory duties owed to their employees throughout the period of its operation. There were many measures that they could have taken to minimise or eliminate altogether the risks to their workforce had they chosen to do so.
Mrs Justice Swift concluded that the claimants had succeeded in establishing the necessary causal link between exposure to dust and fumes at the Phurnacite plant and the development of lung cancer, chronic bronchitis and chronic obstructive pulmonary disease.
Mr Richards from Mountain Ash was employed at the Phurnacite plant for almost 30 years. He was one of the successful test cases in the litigation.
Mr Richards had a number of roles during his employment including exhauster man / pumps man, oven foreman and yard foreman. The court found that he was exposed to considerable dust, fume and noxious substances at the plant which resulted in him suffering from respiratory disease.
Hugh James instructed Dr Robin Rudd, a London based respiratory expert to examine Mr Richards. Dr Rudd’s opinion is that Mr Richards is suffering with Chronic Bronchitis and Chronic Obstructive Pulmonary Disease. Dr Rudd and the Defendants’ expert agreed that exposure to dust at the Phurnacite Plant increased the risk of respiratory illness. The judge also accepted Dr Rudd’s opinion that one year’s occupational exposure on the oven floor at the Phurnacite plant would produce the same loss of lung function as a year’s average smoking.
Mr Richards said:
“I know the conditions these men had to work in and I know the dedication they put in. This ruling should have come years and years ago, but you can’t dwell on that. It’s better late than never, and although the men should have lived to see the money they were entitled to, at least now there will be some sort of legacy for their widows and their children.”
Mrs King from Mountain Ash instructed Hugh James to make a claim on behalf of the estate of her father, Mr Davies. Mr Davies was employed at the Phurnacite plant in Abercwmboi between 1959 and 1987.
Mr Davies worked as a labourer and rough brush painter. The role of a labourer entailed working all over the premises undertaking a range of different jobs including on the oven tops and on the presses, where raw ovoids were formed. His job as a rough brush painter involved using compressed air tools to sandblast metal work, which disturbed accumulated dust.
The court found that Mr Davies was exposed to considerable dust and carcinogenic fumes during his employment which resulted in him suffering from lung cancer. He suffered with breathlessness, cough and fatigue and passed away just 2 weeks after diagnosis.
The respiratory expert instructed by Hugh James, Dr Robin Rudd, was of the opinion that the exposure which Mr Davies had at the plant contributed to the cause of his cancer.
The defendants denied that they exposed Mr Davies to fumes or other noxious substances or that this caused Mr Davies’ lung cancer. The defendants argued that dust masks provided adequate protection and that Mr Davies’ smoking history was the cause of his lung cancer.
Mrs Justice Swift found that Mr Davies’ risk of developing lung cancer was more than doubled by his exposure at the Plant and awarded compensation. Mrs King’s compensation included the cost of care provided to Mr Davies, travel costs and funeral costs.
Mrs King said:
“I am relieved that the fight has now reached a conclusion. I am pleased that other workers and their families will now also be able to claim compensation as a result of my test case. Hugh James has been wonderful to us.”
Mr Robson brought a claim on behalf of the estate of his father who worked at the plant for over 30 years.
His late father was employed firstly as a labourer and a fitter, which meant that he worked all over the premises. He then became a shift foreman, when he worked mainly in the briquetting plant and on the shuttle car floor. For the last 20 years of his employment, the deceased was a shift superintendant. He was then required to inspect and supervise work all over the premises as needed.
Mr Robson suffered with chronic bronchitis and chronic obstructive pulmonary disease (COPD). He relied on the use of a nebuliser and oxygen. COPD was sadly the cause of Mr Robson’s death in 1990.
Hugh James instructed Dr Robin Rudd, a respiratory expert, who concluded that occupational exposure had materially contributed to the causation of respiratory disease.
The defendants denied that they exposed the deceased to dust, fumes or other noxious substances or that they caused his respiratory disease. They argued that Mr Robson’s respiratory disease was caused by his smoking history or exposure to dust and harmful chemicals in other employment. The defendants also argued that the estate’s claim had been brought out of time.
Mr Robson’s test case was heard during a 6 week trial. The court found that part of the late Mr Robson’s respiratory disability was attributable to his occupational exposure to dust at the plant and that Mr Robson’s claims for COPD and chronic bronchitis should therefore succeed.
The compensation included damages for the deceased’s pain and suffering and travel costs which he incurred in seeking treatment for his injury and aids, and equipment purchased. Damages were also received in respect of household assistance, DIY, decorating and gardening which the late Mr Robson was no longer able to carry out. The estate was also received compensation for funeral costs.
Mr Robson said:
“My father was a ‘man manager’ who men had huge respect for. He would be delighted to know that men who worked under him will now be able to claim compensation for their injuries as a result of his test case. This judgment finally brings justice and closure 22 years after the plant closed its doors.”