Confiding in Evidence Pertaining to Historic Asbestos Exposure from a ‘Vulnerable Man with Brain Damage’: Smith v Secretary of State for Transport [2020] EWHC 1954 (QB)

Given the long latency period associated with asbestos-related diseases, it is unsurprising for claims to be brought by elderly claimants with fading recollection of historic events. This summer, the High Court heard the case of Smith v Secretary of State for Transport [2020] EWHC 1954 (QB), which brought into question the credibility of fragile claimant testimony when scrutinised alongside documentary evidence.

An industrial disease claim was brought by a 77-year old claimant, with proceedings having been issued on 13 February 2019.

In 1956, aged 15, he was employed by the defendant (formerly British Rail) as an apprentice. From the age of 16, he started work repairing train carriages (fixing seats, tables, doors and windows, etc.) and did so for 4 or 5 days-per-week in a gang of 4 to 5 men.

During the course of his employment with the defendant, ending in 1963, he alleged that he had been regularly exposed to substantial quantities of asbestos, and developed asbestosis as a result. Further, that the defendant had failed to take all practicable measures to protect him, in breach of s.47 of the Factories Act 1937, s.63 of the Factories Act 1961 and in negligence under common law principles.

Nonetheless, the defendant maintained, at trial, that the claimant had idiopathic pulmonary fibrosis, which it could not be held responsible for, as liability hinged on a ‘post-facto rationalisation’ (he was not aware of any asbestos exposure and only arrived at the possibility ‘by process of elimination’).

It was agreed between the parties’ instructed occupational hygienists that the claimant could only prove that he had asbestosis if he could demonstrate that he had inhaled substantial quantities of asbestos dust, i.e. if he could show that his cumulative industrial exposure to asbestos surpassed the Helsinki (January 1997) criteria (25 fibres-per-millilitre-per-year / 25 ‘fibre years’), which is considered to be:

‘… the main criterion for the attribution of a substantial contribution by asbestos to lung cancer risk – relative risk is roughly doubled for cohorts exposed to asbestos fibres at a cumulative exposure of 25 fibre years’.

As such, it was necessary for the court to assess the frequency and levels of exposure to asbestos that the claimant would have endured, by reference to:

  • Official documentation held by the defendant (a 1966 memorandum: ‘Asbestos hazards in British railway workshops’; a 1972 memorandum: ‘Notes of a Meeting held at Southern House, Croydon, on Monday 5th June 1972 to discuss blue asbestos insulation in Coaches at Regional Repair Depots’; a 1974 memorandum: ‘Blue Asbestos’; and a 1976 memorandum: ‘Blue Asbestos: Protection of Staff in Depots’);
  • Academic literature [‘Asbestos Dust Concentrations in Ship Repairing: A Practical Approach to Improving Asbestos Hygiene in Naval Dockyards’ (Harries PG, 1971);[i] ‘Buildings insulated with Sprayed Asbestos: a potential hazard’ (Lumley KPS, Harries PG & O'Kelly FJ, 1971);[ii] ‘Extreme airborne asbestos concentrations in a public building’ (Ganor E, Fischbein A, Brenner S & Froom P, 1992);[iii] and ‘Monitoring an asbestos spray process’ (Skidmore JW & Jones JSP, 1975)[iv]]; and
  • A general history of railway carriage repair practices (‘The railway workshops of Britain 1823 to 1986’ (1988), published by Larkin EJ & Larkin JG;[v] and ‘An Illustrated history of British Railway Workshops’ (1992), also by Larkin EJ).

In cases where claimant histories are ‘reliable’, they are said to provide the ‘most practical and useful measure of occupational asbestos exposure’.

In this particular case, the only first-hand evidence about working conditions was the claimant’s own account, with no lay witnesses having been called by the opposing party.

However, the claimant suffered a stroke, back in 2001, and this had impaired his speech, memory and concentration. He was, as the trial judge recorded, ‘a vulnerable man with brain damage’.

In spite of these openly acknowledged issues, he produced multiple written witness statements and subsequently gave oral evidence, when deposed in October 2019.

Although he did not personally carry out work on the ceiling panels and walls of train carriages, he recollected that his colleagues did conduct those types of repairs and that when working underneath them, he would be ‘completely covered’ in ‘blue grey dusty powder’, which would not be swept away ‘until the job was finished’.

A considerable number of train coaches built at that time used blue asbestos (crocidolite) for body insulation, which went some way to support the claimant’s remembrance of events.

Helpfully, counsel provided a summary of how the court should assess evidence relating to historic incidents, in accordance with the guiding case law:

‘a. In assessing oral evidence based on recollection of events which occurred many years ago, the Court must be alive to the unreliability of human memory. Research has shown that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts (Gestmin[vi] and Kogan[vii]).

b. A proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party's sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence (Kogan).

c. The task of the Court is always to go on looking for a kernel of truth even if a witness is in some respects unreliable (Arroyo[viii]).

d. Exaggeration or even fabrication of parts of a witness' testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony (Arroyo).

e. The mere fact that there are inconsistencies or unreliability in parts of a witness' evidence is normal in the Court's experience, which must be taken into account when assessing the evidence as a whole and whether some parts can be accepted as reliable (Arroyo).

f. Wading through a mass of evidence, much of it usually uncorroborated and often coming from witnesses who, for whatever reasons, may be neither reliable nor even truthful, the difficulty of discerning where the truth actually lies, what findings he can properly make, is often one of almost excruciating difficulty yet it is a task which judges are paid to perform to the best of their ability (Arroyo[ix])’.

In line with Gestmin, counsel for the defendant submitted that the claimant’s evidence should be treated with ‘considerable caution’, seeing that ‘every claimant in an asbestos case says there is a lot of dust’.

This was accepted by Mrs. Justice Thornton, though she concluded that the claimant had largely prepared ‘specific, clear, consistent and unchallenged evidence about his day to day working experience’, which was ‘consistent with the history of the period’.

That being said, defendant counsel insisted that there were ‘material inconsistencies between key aspects of Mr Smith's evidence in chief and his evidence under cross examination’, which were both ‘obvious’ and ‘repeated’. These regarded the nature of works undertaken on the ceiling and the frequency of those works taking place.

More specifically, the claimant spoke vaguely and anecdotally about the way that the ceilings were ‘stripped’ and ‘scratched’, but in an interchangeable sense. It was argued that the former suggested major disruptive works, while the latter implied minor, cosmetic works. In addition, the claimant mentioned, ‘ambiguously’, that ‘only a few’ carriages needed repairing, but also contradictingly admitted that he might see blue grey dust ‘every day’.

When viewed in context, Thornton J reasoned that the claimant’s hesitance and lack of clarity about the source of asbestos exposure was likely to be caused by his lack of responsibility in his former job role, while preferential evidence as to the frequency of exposure was more likely to be the clearer answer to the more direct question, i.e. ‘every day’.

The claimant’s stroke had left him ‘considerably hindered in his ability to communicate before the Court’, but once allowances were made for these hindrances, the judge was not persuaded that there were ‘material inconsistencies’ and that he was an ‘honest witness’.

Additionally, the judge observed that the documentary evidence corroborated aspects of the claimant’s evidence which had insinuated that asbestos disturbances occurred more frequently.

Having made ‘indicative’ estimates of exposure based on their own views about the claimant’s working conditions, Mr. Chambers (the claimant’s hygienist expert) derived a mean concentration of asbestos dust ranging from 20-100 fibre/ml, which resulted in a cumulative exposure ranging between 100-500 fibre years (exposed every day), i.e. surpassing the Helsinki threshold. By contrast (and due to differing views as to the factual reality of the claimant’s working life), Mr. Stelling (the defendant’s hygienist expert) derived a mean concentration of asbestos dust ranging from 2-25 fibre/ml, which resulted in cumulative exposures of either 7-14 fibre years (exposed once per week) or 1.75-3.5 fibre years (exposed once per month), i.e. both falling short of the Helsinki threshold.

In light of the court having treated the claimant’s written and oral evidence as trustworthy, Mr. Chambers’ calculations on dosimetry were favoured on this occasion.

Accordingly, the claimant’s claim succeeded, with quantum having been agreed.

Full text judgment can be accessed here.

 

[i] The Annals of Occupational Hygiene, Volume 14, Issue 3, September 1971, Pages 241–254 <https://academic.oup.com/annweh/article-abstract/14/3/241/144866?redirectedFrom=fulltext> accessed 12 October 2020.

[ii] The Annals of Occupational Hygiene, Volume 14, Issue 3, September 1971, Pages 255–257. <https://academic.oup.com/annweh/article-abstract/14/3/255/144884?redirectedFrom=fulltext> accessed 12 October 2020.

[iii] Br J Ind Med. 1992 Jul; 49(7): 486–488. <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1039269/pdf/brjindmed00019-0032.pdf> accessed 12 October 2020.

[iv] The Annals of Occupational Hygiene, Volume 18, Issue 2, September 1975, Pages 151–156. <https://academic.oup.com/annweh/article-abstract/18/2/151/289676?redirectedFrom=fulltext> accessed 12 October 2020.

[v] <https://link.springer.com/book/10.1007/978-1-349-08074-8> accessed 12 October 2020.

[vi] Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm), at paragraphs 16-22.

[vii] Kogan v Martin & Ors (Rev 1) [2019] EWCA Civ 1645, at paragraphs 88-89.

[viii] Ocensa Pipeline Group Litigation, Re [2016] EWHC 1699 (TCC) [2016] EWHC 1699 (TCC), at paragraphs 250-251.

[ix] Citing A (A Child), Re (No 2) [2011] EWCA Civ 12, at para 20