Jackman v Harold Firth & Son Ltd [2021] EWHC 1461 (QB)

This blog post by Cressida Mawdesley-Thomas considers the judgment of HHJ Bird in the case of Jackman v Harold Firth & Son Ltd.

This was a mesothelioma trial in which the central issue was whether the deceased, Bernard Jackman, had been employed by the Defendant, Harold Firth & Son whilst working at Imperial Chemical Industries (“ICI”) in Huddersfield. The Defendant accepted, without formally admitting liability, that if this was established liability would likely follow.

The available evidence

There was no evidence from the deceased. HMRC records showed that the deceased started to work for the Defendant at some point between April 1968 and April 1969 and left at some point between April 1972 and April 1973. There were medical records which notably included a letter, from the date of the Deceased’s diagnosis, recording that he “worked in construction industry and also worked with asbestos pipes in the 1970’s at ICI”.

Mrs Jackman’s evidence went to the central issue of whether the Defendant employed the deceased. Her evidence consisted of two witness statements. In the first statement she recalled that her husband worked for the defendant at ICI in Huddersfield, that he did not like the work and talked about Eddie Firth (his boss) “for ages afterwards”. She recalled that when he was given his diagnosis he told her that “he would have been exposed to asbestos when he worked at ICI cleaning pipes out”. She goes on to say: “when he told me this, I remembered that he had mentioned at the time, in the 1970’s while he had been working at ICI that he had been working cleaning out pipes. …” When cross examined about this part of her evidence Mrs Jackman said that her husband “had mentioned over the years working at ICI. It was a filthy job – he said this quite often. He would chunter on about it.”

The Judge read witness statements from two men who worked at ICI Huddersfield, one from 1969 to 1970 and the other from 1956 to 1981. Whilst both witnesses had sadly died before trial it was agreed that their evidence could be relied upon in the proceedings. Their statements described the general working conditions at the plant at those times and the Judge held that: “the clear impression from each statement is that over a long period and at least covering the period from 1969 to 1972 labourers, laggers and maintenance engineers working at the ICI plant at Huddersfield were exposed to asbestos fibres.”

The proper approach to witness evidence

The Judge reminded himself of the principles summarised by Geoffrey Tattersall QC in Bannister v Freemans [2020] EWHC 1256 QB:

“i) A strong recollection of events expressed in evidence with confidence is not a reliable guide to the accuracy of the recollection (see paragraphs 74 and 75)

ii) The fact that a witness has a considerable amount to gain if his or her recollection of events is accepted by the court as fact, means that the witness’ recollection is very likely to be biased towards that which supports the outcome he or she seeks (see paragraph 75)

iii) When a witness recalls events from the past, he or she is in fact unconsciously reconstructing those events. … (see paragraphs 73 to 77 but in particular paragraph 76).

iv) Testing recollection against contemporaneous documentation is a very useful and important exercise (paragraph 77).”

HHJ Bird also reminded himself that he: “must not allow the tragedy inherent in every mesothelioma case and the natural “desire to assist in any proper way” to lead to a “lax” approach to fact finding”.

Analysis of the evidence

The Judge considered the Mrs Jackman’s evidence in three chronological parts: (1) her recollection of events post 2016 and the conversations she had with her husband up to his death on 4 November 2016; (2) her recollection of conversations from 1968 to 1973; and (3) her general recollection of matters after 1973, namely the deceased’s complaining about the Defendant and the unpleasant and dirty job he did for him.

The Judge treated the second part of her evidence with caution as “it seems that her recollection of events about the second part was triggered by what Mr Jackman said after his diagnosis.” The Judge was impressed with the third part of her evidence, “I was struck that Mrs Jackman recalled in evidence that her husband would “explode” if the name “Firth” was mentioned and that she went out of her way not to mention a relative by marriage who had the same surname.” He also noted that her evidence was in part supported by the medical notes.

HHJ Bird concluded that the claimant had “the hallmark of a careful witness” having marked up her statement by hand before signing it.

The findings

On the basis of the evidence the Judge came “to the clear view that on the balance of probabilities, Mr Jackman was exposed to asbestos fibres whilst working at ICI for the defendant.” The Judge had no difficulty subsequently finding “that in the circumstances the defendant was in breach of the duty owed to Mr Jackman and that that breach caused Mr Jackman to suffer personal injury.”

General damages for PSLA

The appropriate starting point for cases of mesothelioma is chapter 6 (C) of the JC Guidelines (15th ed.) which provides a bracket of £59,730 to £107,410. It is stated (emphasis added):

“There are a large number of factors which will affect the level of award […]  duration of pain and suffering; extent and effects of invasive investigations; […]  level of the symptoms; domestic circumstances; age, level of activity, and previous state of health; extent of life loss; and concern for spouse and/or children following death. Most reported decisions other than those involving extremely short periods of symptoms or very elderly claimants fall within the middle and upper parts of the bracket. Note that where mesothelioma cases are still dealt with under pre-LASPO conditional fee agreements, the column without the 10% uplift is applicable.”

The deceased died at the age of 76 having suffered seven months of symptoms. The Judge noted that his “decline was particularly steep in the last 6 weeks of his life” and he suffered from “faecal incontinence, collapses and pressure sores.”

The Judge made an award of £75,000. This award is surprising low – in the last ten years general damages awards in mesothelioma cases have very rarely fallen below £90,000 (after adjustment for inflation). The closest comparable case appears to be Zambarda v Shipbreaking (Queenborough) [2013] EWHC 2263 (QB) in which John Leighton Williams QC awarded £77,500 (£93,701 when adjusted for inflation) in respect of a mesothelioma victim who died aged 70 after a 7 month illness. HHJ Bird made no reference to any comparable cases and it may be that he was not taken to any in the course of argument.

Loss of intangible benefits

HHJ Bird accepted that this head of loss was recoverable in the light of the “overwhelming” trend of the case law against Mosson v Spousal.

Comment

This case is a helpful reminder that witness evidence must be looked at in context and as part of the entire evidential picture. This includes looking at the contemporaneous evidence as well as the fact that the Defendant failed to produce any evidence of its own. The evidence of a single, detailed and careful, witness which is consistent with the documentary evidence (even when there is no other live evidence) should be sufficient to establish key facts on the balance of probabilities.

A busy few weeks in the Court of Appeal 

There are three upcoming hearings in the Court of Appeal which will be of interest of those who follow this blog. Here is a reminder of what each case is about and the dates on which they are due to be heard, according to the Civil Appeals Case Tracker. 

We will blog about each decision once handed down. 

Sivaji v Ministry of Defence

CA hearing date: 15 or 16 June 2021 

First instance judgment

A fatal mesothelioma claim brought on behalf of the deceased and his dependants. The Deceased’s alleged exposure to asbestos took place in the Sembawang naval dockyard in Singapore between 1953 and 1968. The case gave rise to various issues including whether the applicable law was the law of England or the law of Singapore and whether the action was time-barred. 

The issue before HHJ Allan Gore QC (sitting as a High Court Judge) at first instance was whether the Claimant should have permission to amend the Claim Form and Particulars of Claim. On the MOD’s case, these amendments were outside the limitation period under Singaporean law and the effect of giving permission for the amendments would be to deny the MOD the benefit of that limitation defence, at least in respect of the dependency claim, due to the doctrine of relation back, The Judge granted permission for the amendments. 

Rix v Paramount Shopfitting Company Limited 

CA hearing date: 23 or 24 June 2021 

First instance judgment

Mr Justice Cavanagh’s decision concerned the scope of the Fatal Accidents Act 1976. The Deceased was a successful businessman whose business had continued to thrive after his death from mesothelioma. The Judge held that notwithstanding the ongoing success of the business, his widow had a substantial financial dependency claim. 

John-Paul Swoboda and Cressida Mawdesley-Thomas previously blogged about the first instance decision here and Rachit Buch spoke about the case at 12KBW’s Asbestos Webinar Day 2020 which you can watch here. The permission hearing before Lord Justice Bean can be viewed here

Witham v Steve Hill Limited

CA hearing date: 6 or 7 July 2021 

First instance judgment

Another mesothelioma case concerning the scope of the Fatal Accidents Act. Anthony Metzer QC (sitting as a Deputy High Court Judge). As a result of the untimely death of the Deceased, his widow had been forced to give up work to look after her foster children. The Judge held that there was dependency claim, which he assessed on the basis of the cost of care to replace the services the Deceased would have provided but for his death. 

Steven Snowden QC and John-Paul Swoboda (who acted for the Claimant at trial) blogged about the case here. Kate Boakes spoke about the case at 12KBW’s Asbestos Webinar Day 2020 which you can watch here.