UK: Historic Asbestosis Claim Successful Despite Claimant's Communication Difficulties

Smith v Secretary of State for Transport [2020] EWHC 1954 (QB)

The High Court recently found in favour of the Claimant who alleged he had been exposed to asbestos 60 years ago whilst working for British Rail. The only evidence of daily work was provided by the Claimant, who suffered from his own communication difficulties.

These difficulties meant that his oral evidence required careful consideration; the parties agreed that the Court should give reference to principles from relevant case law.

Ultimately, the Court accepted that and found him to be an honest witness. The available British Rail documentation emphasised the need for protective measures in the Claimant's line of work, so the Judge was satisfied the Claimant was exposed to the risk of asbestos dust.

The passage of an extensive period of time and his own communication difficulties did not prevent the Claimant from establishing that he had been exposed to occupational asbestos.

Background

The Claimant alleged that he was exposed to asbestos, in breach of the 1937 and 1961 Factories Acts, whilst working for British Rail repairing train carriages between 1956-1963. The alleged exposure resulted in pulmonary fibrosis, reducing his life expectancy by three years. The Defendant contended the Claimant has idiopathic pulmonary fibrosis, for which the Defendant could not be held responsible.

However, the Defendant accepted that if the Claimant could prove he was exposed to substantial quantities of asbestos dust, it had failed to take all practical steps to protect him from exposure.

It was agreed by the medical experts that if the Claimant's cumulative exposure amounted to 25 fibres per millilitre per year then the Claimant could be considered to have asbestosis.

The parties agreed it was likely that some of the train carriages the Claimant worked on were sprayed with blue asbestos for insulation. The Claimant did not do any repair work himself that would have disturbed the asbestos, but removal of ceiling panels by his colleagues would have released asbestos dust into the carriages.

The Claimant provided a statement confirming he remembered getting "completely covered in blue dust" when his colleagues stripped the train carriages and that a typical working day would involve breathing in dust; this was not swept away until the end of the day.

The Claimant's daughter provided a statement confirming her father had suffered a stroke in 2001 which affected his speech, memory and concentration.

The Defendant submitted the Claimant's evidence should be treated with considerable caution as "every claimant in an asbestos case says there is a lot of dust". Furthermore, when first diagnosed with pulmonary fibrosis the Claimant had been unaware of where he might have been exposed to asbestos.

Given the Claimant's communication difficulties, the parties agreed that Mrs Justice Thornton should approach the Claimant's oral evidence with reference to principles from relevant case law (paragraph 40 of the judgment). The Court was invited to be aware of the unreliability of human memory, yet there may be a kernel of truth even if a witness is somewhat unreliable.

The Defendant argued there were "material inconsistencies" between the Claimant's evidence in chief and his evidence under cross-examination, and that these inconsistencies showed "words had been put into [the Claimant's] mouth". The Defendant was particularly concerned with whether the ceilings had been stripped and how often work to the ceiling was undertaken. In his evidence in chief the Claimant said he remembered "work mates fixing ceilings and stripping parts of the train back", but on cross-examination when asked if he knew anything about stripping he replied "no".

Outcome

Mrs Justice Thornton was satisfied that based upon the expert evidence and consequential findings of fact that the Claimant was exposed to a cumulative exposure of more than 25 fibres per millilitre per year. The Claimant's claim therefore succeeded.

Although the Claimant's stroke meant he was "considerably hindered" in communicating, he was found to have given "clear and consistent evidence on a number of aspects of his day to day working career, which are consistent with the history of the period".

The Claimant had given unchallenged evidence in relation to removal of the ceiling panels releasing blue asbestos dust which fell onto him and the floor where it would remain until the job was done. The judge found that given there were internal British Rail memos emphasising the need for protective measures for the removal of ceiling panels, the removal of the panels exposed the Claimant to the risk of asbestos dust.

What can we learn?

• The judgment clearly outlined how oral evidence should be considered by the court with reference to a number of cases (Gestmin SPGS SA v Credit Suisse (UK) Ltd, Kogan v Martin, Arroyo v Equion Energia Ltd). Of note, courts should be alive to unreliability of human memory, and this does not relieve judges of the task of making proper findings of fact. Inconsistencies or exaggeration should not exclude the possibility of a core of acceptable evidence.
• This will prove to be useful guidance for those legal representatives considering how their witness' evidence of historic events will be interpreted at trial, not only those where a party has communication difficulties. This will be of particular relevance in cases alleging some form of asbestos exposure. It is expected that many claimants in these cases will be elderly with associated memory and communication difficulties.

Originally published by Clyde & Co, August 2020

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