The Phurnacite group litigation order
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.