This post was written by Megan Griffiths.
The High Court has recently found for a claimant who was exposed to asbestos at work in the late 1950’s and 1960’s in Smith v Secretary of State for Transport [2020] EWHC 1954. The key issue in dispute was whether his exposure met the requisite threshold for a diagnosis of asbestosis: the threshold being 25 fibres per millilitre per year (“fibre years”). The judge considered Mr Smith’s lay evidence on his daily duties, documentary evidence of his employer’s use of asbestos and expert evidence on the likely levels of exposure to find that it did.
Background to claim
Mr Smith was employed by British Rail from 1956 to 1963. His work involved repairing train carriages and he alleged that he was regularly exposed to asbestos dust in the course of this work. His case was that this exceeded 25 fibre years meaning he now suffered from asbestosis. He claimed that the Defendant had breached its statutory duties under the Factories Acts to take all practicable measures to protect its employees against inhalation of substantial quantities of asbestos: s.47 of the 1937 Act and s.63 of the 1961 Act [15-16]. His secondary claim in negligence did not add to the matters in issue [17].
The Defendant denied that Mr Smith’s exposure met the fibre years threshold for asbestosis. It did however accept that if the court found Mr Smith did meet the threshold, it was in breach of statutory duty [16]. Subject to liability, quantum was also agreed.
The liability only trial took place over Skype in June 2020. Live evidence was heard from the parties’ expert occupational hygienists, with Mr Smith’s oral evidence having been given on commission in October 2019.
There were three key issues that the court decided upon at trial, with the latter two pertaining to liability.
Issue one: how should the court approach Mr Smith’s evidence, given that he suffered an stroke in 2001 that had impacted his ability to communicate?
Mr Smith gave the only first-hand evidence of his daily working habits and exposure to asbestos, in two witness statements and the evidence on commission. However, he had communication difficulties as a result of a stroke in 2001 which were apparent from the video of his evidence on commission, at one point saying “I can’t talk properly” [38]. Thornton J was concerned as to how to properly approach his evidence and asked both counsel to agree a summary of the relevant principles from the case law which is set out at [40] of the judgment. The principles are applicable to all witness evidence and helpful reading for any litigator considering how their witness’ evidence of historic events will be interpreted at trial.
Thornton J bore Mr Smith’s particular difficulties and those principles in mind when assessing his evidence. She mentioned in her judgment that having access to the transcript as well as the video of the evidence on commission was “particularly useful” in his case [43].
Issue two: to what extent was Mr Smith exposed to asbestos in the course of his work?
It was agreed that Mr Smith was exposed to asbestos when his colleagues removed ceiling panels in the carriages which released asbestos dust [8]. Documentary evidence of British Rail’s use of asbestos at the time suggested that at least some of the carriages contained high concentration blue asbestos [9]. Mr Smith did not remove the ceiling panels himself and the extent to which he was actually exposed to the asbestos dust was disputed [10].
Thornton J carefully considered Mr Smith’s evidence on the nature and levels of his exposure. She took Mr Smith’s known communication difficulties into account when coming to a view on the credibility and persuasiveness of his evidence (for example, [50 and 73]).
Although the judge acknowledged that there were some inconsistencies following cross examination, they were by no means fatal to Mr Smith’s evidence which was ultimately “clear and consistent” on the issue of his exposure [73]. In particular, Mr Smith gave unchallenged evidence of chunks of blue dust falling onto him and the floor during his work and staying there until the end of the job which supported his case [45].
Mr Smith’s evidence alongside the documentary evidence of asbestos use at that time by British Rail and the expert evidence, led Thornton J to find that Mr Smith had been exposed to asbestos dust “on a regular basis” [76].
Issue three: did that exposure meet the 25 fibre years threshold required for a diagnosis of asbestosis such that his claim succeeded?
The experts agreed that if Mr Smith’s exposure met the threshold of 25 fibre years then the correct diagnosis was asbestosis in accordance with the 1997 Helsinki criteria [2 and 11]. Therefore, the issue for the court was whether this had been met on the facts, using the experts’ estimated calculations to inform that decision [31 to 34].
Having accepted Mr Smith’s evidence on the nature and extent of his exposure, Thornton J adopted Mr Smith’s expert’s mean concentration figure to find that he was exposed to 20 to 100 fibre/ml on a regular basis and that, on the balance of probabilities, his total exposure was over the diagnostic threshold [82].
Comment
Mr Smith’s success is encouraging for claimants in historic asbestos exposure cases. This was a case where the only evidence of his daily work was from the claimant himself, without statements from colleagues or other ex-employees. Additionally, Mr Smith had communication difficulties to overcome in giving a clear account of events over 60 years ago. Notwithstanding these challenges, the judge was able to form a clear view of Mr Smith’s evidence in his favour, no doubt thanks in part to the work of his legal team in preparing clear and convincing witness statements.
Whilst the circumstances giving rise to Mr Smith’s communication difficulties are somewhat unusual, many claimants in asbestos cases are elderly and may well have unrelated communication difficulties that need to be taken into account. The passing of long periods of time and/or individual communication challenges will not prevent the right claimant from establishing the exposure required to succeed in a claim against their ex-employer, like Mr Smith was able to in this case.
ASBESTOS LAW 