This post by Ivan Bowley – who acted for the claimant in the case – comments on the recent decision of the High Court in Pinnegar v Kellogg International & ICI. This case was a decision on the facts but dealt with a number of issues that sometimes arise in very old asbestos claims.
The deceased, Mr Skeen, worked for Kellogg International as a pipe fitter at ICI Wilton for about 6 – 8 months in the tax year 1966/67. He alleged that during this employment he had worked alongside laggers who were stripping old asbestos lagging and preparing replacement lagging, mixing asbestos paste and cutting asbestos sections. The deceased stated that at the end of a typical working day he was covered in white asbestos dust. He developed mesothelioma and died in 2017.
The only factual evidence on exposure was a single statement from the deceased taken shortly before he died. In that statement the deceased provided detail about his entire working life including his work at ICI Wilton. Some 50 years after the alleged exposure took place he recalled particular details about the site, the work that was generally taking place on site at that time and a number of specific details that were of limited relevance to the facts in issue but nevertheless demonstrated the quality of his recollection.
At an early stage the claimant sought judgment on Show Cause against both defendants, but this was successfully resisted. The defendants relied upon a preliminary report from their expert engineer, Dr Alan Jones of the IOM, who questioned the reliability of the deceased’s account. In common with many such claims with limited factual evidence the presentation of a preliminary report by defendants, questioning the veracity of that evidence, was sufficient to persuade the Master that the defendants had overcome the threshold test in Silcock v HMRC and should avoid judgment.
ICI’s defence asserted that at the material time it was aware of the dangers of asbestos, had in place suitable guidance about the risks of asbestos exposure and effective precautions designed to protect its own employees and the employees of contractors working on its sites. ICI’s disclosure supported this assertion, but it did not serve any witness evidence to show that such guidance had been given to workers or that precautions had been implemented.
ICI also disclosed a number of other important documents, one of which, a spread sheet showing the dates of the construction of various buildings at ICI Wilton, indicated that the deceased had probably worked on the construction of a particular building that had not been lagged with asbestos. A further document, described as an “as built” specification for the lagging within that building, recorded that all the lagging materials used were non-asbestos. Armed with this evidence the defendants denied exposure to asbestos and continued to deny the claim.
After exchange of experts’ reports and the preparation of their Joint Statement the Claimant’s expert engineer, Chris Chambers, identified an ICI document that had not been disclosed by ICI but which demonstrated that the non-asbestos lagging alleged by the defendants to have been used on site had only been developed close to the end of the tax year in which the deceased was exposed. The claimant’s case at trial was that the deceased must therefore have been describing exposure to asbestos lagging (a) because the non-asbestos alternative was not yet available commercially when he was on site, and (b) because the deceased had described being covered in “white” asbestos dust whereas the new non-asbestos lagging being developed at that time was coloured either “yellow” or “pink”.
It was against this background that the Judge had to consider the quality and reliability of the deceased’s original statement. As can been seen from the judgment (paras 6 and 42) the judge accepted that the deceased’s recollection was reliable.
At trial the defendants attacked the reliability of the deceased’s statement. They relied upon the decision of Leggatt J in Gestmin SGPS v Credit Suisse (UK) Ltd  EWHC 3560, and in particular his comments at paras 16 – 20 of his judgment about the questionable reliability of claimant lay witness evidence. Gestmin is frequently relied upon by defendants, particularly at the Show Cause stage, to seek to undermine a claimant’s lay witness evidence and avoid judgment, often in circumstances where the defendant in question has no witness evidence of its own. A number of other judges have made similar comments to Leggatt J. However, more recent decisions, including CXB v North West Anglia NHS Foundation Trust  EWHC 2053 and Smith v Secretary of State for Transport  EWHC 1954 (QB) provide helpful commentary on the limitations of what was said in Gestmin. Ultimately, as HHJ Platts observed in the present case (para 5), these judgments do no more than remind judges of their fact-finding obligations. They do not provide statements of legal principle.
As part of the process of seeking to undermine the deceased’s evidence, at an early stage in the litigation the defendants sought disclosure of attendance notes prepared by the claimant’s instructing solicitor at the time the deceased’s statement was taken. This request was unsurprisingly refused on grounds of legal professional privilege. At trial the defendant brought the relevant correspondence to the attention of the judge and invited him to take the claimant’s refusal into account when assessing the deceased’s evidence. The object of this exercise was to add weight to the defendant’s assertion that the deceased’s statement may have been the product not only of his own recollection but was drafted with assistance from his solicitor. Correctly, in the writer’s opinion, the judge refused to attach any weight to the claimant’s refusal to disclose the relevant attendance notes (para 6).
The claimant succeeded at trial. Damages were agreed but the claimant’s solicitor had made an effective Part 36 Offer and the claimant therefore recovered an additional sum pursuant to CPR 36.17(4). This case is a useful reminder of the potential benefit to claimants using the Part 36 procedure.