Smith v Secretary of State for Transport [2020] EWHC 1954 (QB) concerns a claim for asbestosis. Both parties’ medical experts had agreed that the Claimant would be diagnosed with asbestosis subject to his asbestos exposure. A cumulative exposure to asbestos amounting to 25 fibres per millilitre per year (fibre years) was required for the diagnosis.
The only matters for the Court were what exposure to asbestos the Claimant had on a daily basis, and so as a result whether the 25 fibre years level had been met or exceeded.
I would fully recommend that anyone who regularly deals with asbestos related disease cases reads the Judgment in full. The Judgment undertakes a careful analysis of the witness evidence. It also highlights some of the various types of documentary evidence which can be useful in such cases. It is useful to see how the court approached the evidence in the case.
Factual background
The Claimant was, as is so often the case, recalling events from many years ago (1950s and 1960s). However, consideration of his evidence was complicated further by the fact that he had had a stroke in 2011. His daughter had provided witness evidence as to the effects. Both his speech and memory were affected, and since then he has taken a long time to remember things.
The Claimant was employed by British Rail to repair train carriages between 1956 and 1963. His work personally did not involve touching or disturbing asbestos. He would simply repair any items of wood or metal which were damaged within the carriages. However, he worked alongside those who were disturbing ceiling panels which contained asbestos. The result was that asbestos would fall into the carriage and be circulated within the carriage. From documentation of the era, it was conceded that British Rail coaches, or at least some of them, had been sprayed with blue asbestos, known as ‘limpet’ asbestos and containing crocidolite.
The Claimant originally did not even realise that he had been exposed to asbestos when he first developed symptoms. It was only on examination of his working background that it came to light that he was likely to have been exposed during his employment with British Rail.
Exposure to asbestos and breach of duty
The Court explained that the 25 fibre years came from the Helsinki criteria and quoted that:-
“Asbestosis is defined as diffuse interstitial fibrosis of the lung as a consequence of exposure to asbestos dust. Neither the clinical features or the architectural tissue abnormalities sufficiently differ to allow confident diagnosis without a history of significant exposure to asbestos dust in the past.”
The Court noted that a reliable work history would provide the most practical and useful measure of occupational asbestos exposure.
As far as breach of duty was concerned, on the basis of Section 47 of the Factories Act 1937 and Section 63 of the Factories Act 1961 (which required the Defendants to take all practical measures to protect employees against inhalation of substantial quantities of asbestos) it was agreed that if the Helsinki criteria was met, breach of duty would follow.
The evidence
It follows that much of the decision-making for the Court did not concern legal tests but assessing the factual evidence. Evidence consisted of: the Claimant’s written and oral evidence by prior deposition; there was a witness statement from the Claimant’s daughter who could not attend for cross-examination due to her own illness; medical records from the Claimant; British Rail’s own documentation from the era; a book called ‘The Railway Workshops of Britain 1823 – 1986′ which gave some detail as to British Rail workshops at the time; a variety of academic studies as to asbestos exposure; and expert evidence by an occupational hygienist for each party.
The Court first considered the Claimant’s evidence.
Consideration of historical evidence
Paragraph 40 of the Judgment provides useful context for considering historical evidence. Regular readers will recall that this was only recently considered in the case of Bannister v Freemans PLC.
Six points were set out. In brief there are:-
- That the Court must be alive to the unreliability of human memory.
- 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.
- The task of the Court is always to go on looking for a kernel of truth even if the witness is in some respects unreliable.
- Exaggeration or even fabrication does not exclude the possibility that there is a hard core of acceptable evidence within the body of a testimony.
- The mere fact that there are inconsistencies or unreliability in parts of witness evidence is normal in the Court’s experience.
- Wading through a mass of evidence, much of it usually uncorroborated and often coming from witnesses who for whatever reasons may be neither reliable or even truthful, the difficulty discerning where the truth actually lies, what findings he can properly make, is often one of the most excruciatingly difficult tasks yet it is a task the Judges are paid to perform.
Consideration of the evidence of this case
A large part of the Judgment is concerned with the assessment of the evidence of this particular case. This is well worth reading the Judgment for this reason when the time allows. However, it is difficult to condense and does not need to be reviewed herein for present purposes. The Court then compared the Claimant’s evidence with both documentary evidence from the era including the book about the history of railway workshops. It then attempted to draw all the factual evidence together.
The Judge found that in fact the occupational hygienist experts evidence differed very little as to calculations of the levels of exposure. The differences between the experts’ figures was due to different conclusions on what the Claimant did on a daily basis. So whether the Helsinki criteria had been met depended upon each expert’s interpretation of the tasks that the Claimant was doing. This included the regularity of the ceiling repair task, and the nature of the task itself.
It was accepted by both experts that the total amount of asbestos dust inhaled by ccc could be calculated by comparing the activities in question with levels in comparable activities identified in the academic studies.
Finding of Fact
Notwithstanding some of the difficulties the Claimant had in communicating, the Judge found the Claimant to give clear and consistent evidence as to a number of aspects of his working career. The court did not find any material inconsistencies.
The Judge found that colleagues would remove ceiling panels to do repair work. This would release blue asbestos dust which fell onto the Claimant and onto the floor. It would then remain on the floor until swept up which was after the job was complete. The asbestos dust would be disturbed throughout the day as the workers were moving about the carriage in the course of their work.
A number of documents from British Rail showed that there was a need for protective measures for the removal of ceiling panels. The Judge found therefore that this exposed the Claimant to a risk of asbestos dust.
The Judge further found that the Claimant regularly was exposed to such asbestos dust. He and his colleagues were expected to do a range of repair work. Historical evidence showed that this was a difficult/ busy time for British Rail repair workshops. The British Rail documentation from the era repeatedly made reference to protective measures being necessary.
Cumulative exposure
Based on the Judge’s findings she found that the experts’ opinions varied only a little in their calculations. Based on the Claimant’s case the Claimant’s expert had concluded an exposure in the region of 20 to 100 fibre years. This figure was not disbuted with by the Defendants’ expert based upon the Claimant’s evidence.
Accordingly the Judge found that the exposure was in the region of 20 to 100 fibre years. Accordingly, the total exposure was likely to have exceeded the Helsinki threshold of 25 fibre years.
Judgment was for the Claimant.
Conclusions
As set out at the beginning of the Judgment (paragraph 13) reliable work histories provide the most practical and useful measure of occupational asbestos exposure.
The case is a useful reminder that a detailed description of an individual’s work is vital in Industrial Disease cases. The nature of the task(s) should be described together with how long such tasks would take and how regularly they would be performed.
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