PROVING THINGS 192: WHEN A WITNESS GIVES EVIDENCE OF MATTERS THAT TOOK PLACE 50 YEARS AGO: HOW THE JUDGE WEIGHS THE EVIDENCE

In Pinnegar v Kellogg International Corporation & Anor [2020] EWHC 3431 (QB)  HHJ Platts (sitting as a High Court judge) considered the weight to be given to evidence of matters that had happened some 50 years previously.  It shows that the utmost care has to be taken in preparing a witness statement to ensure that as much relevant detail as possible is included and that it is a statement the court can accept as being credible.

“The fact that Mr Skeen was able to recollect detail that has no relevance to the claim such as his recollection that the pipework being worked on by the first defendant was painted green and his recollection that there was some animosity between pipefitters or plumbers on the one hand and the laggers on the other adds weight to his general reliability. This part of his evidence is unlikely to have been misremembered or fabricated”

THE CASE

The claimant brought an action following the death of her father. He had died in 2017 as a result of mesothelioma.   The evidence in support of his case on liability rested on a witness statement the father had made in 2017 shortly before his death. The statement dealt with matters that occurred for several months in 1966/67 when the father worked on the first defendant’s site. He worked as a plumber/pipe fitter and he was working alongside pipe laggers.

THE CLAIMANT DID NOT WAIVE PRIVILEGE

One factor in this case was the defendant’s request that the claimant waive privilege of the notes of the meetings between the father and the solicitor in which the witness statement was taken.  The defendant argued that the claimant’s refusal to waive privilege was a matter that the court could take into account. This was not accepted by the jduge.

THE JUDGE’S FACT FINDING EXERCISE

The judge set out the nature of the fact finding exercise they  had to undertake.

    1. My consideration of Mr Skeen’s account is essentially a fact finding exercise. I have been assisted by expert evidence from Mr Chambers instructed by the claimant and Dr Jones instructed by the defendants. Both experts have expressed views in relation to the issues of fact which I have identified but it is trite to say that this is not a trial by expert and issues of fact are for me to determine on the totality of the evidence. To that end I have been referred to a number of documents disclosed by the second defendant concerning some of its operations at the Wilton site during the mid-1960s. There are no documents disclosed by Mr Skeen’s employer, the first defendant.
    2. Reference has been made to the way in which some first instance judges have approached issues of fact and assessed the reliability of witnesses in other cases. In particular I was taken to the judgments of Leggatt J in Gestmin SGPS -v- Credit Suisse (UK) Ltd [2013] EWHC 3560, at paras. 16 to 20; His Honour Judge Gore QC in CXB v North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) paragraphs 8 to 13; and Thornton J in Smith v Secretary of State for Transport [2020] EWHC 1954 (QB) paragraph 40. These judgments contain helpful reminders of the factors which might affect the reliability of a witness’ recollection and which a fact finding tribunal should bear in mind when considering that witness’ evidence, but, as HHJ Gore QC commented, they are not statements of legal principle. As Thornton J said at paragraph 40:
“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. Heuristics or mental short cuts are no substitute for this essential judicial function….”
    1. In assessing the evidence of Mr Skeen, I take into account the following factors:
(a) The passage of time between his employment and when he was first asked to remember his history of asbestos exposure. He only had to recall this history after his diagnosis of mesothelioma in August 2016 some 50 years after his employment at the Wilton site.
(b) At the time he made his witness statement in February 2017 he was very ill.
(c) It is probable the he had the assistance of his solicitor and that there were discussions between them before his statement was prepared and signed. That is an inevitable part of the litigation process. The extent to which those discussions might have informed the content of the statement and the words used by Mr Skeen in his statement is a factor which I will have to consider.
(d) The defendants have commented that the claimant refused a request for disclosure of attendance notes of the meetings between her father and his solicitor. This request was justifiably refused on the grounds of legal professional privilege. Miss Foster, rightly, drew back from inviting the court to draw an adverse inference from this refusal but invited me nonetheless to take it into account when assessing Mr Skeen’s evidence. In my judgment I do not think it would be proper to give any weight to it. To do so would tend to undermine the privilege and, in any event, I do not think that it adds anything to my assessment of the evidence in this case.
(e) It is probable that Mr Skeen knew why the statement was being prepared. Indeed, the claimant’s own evidence is:

“I can recall the first meeting with the solicitor who came to the house once we became aware of his mesothelioma diagnosis. Myself my father and the solicitor sat in the kitchen ….. He knew exactly what the purpose of the meeting was for. He had a very good recollection of his work history from leaving school until he retired and was able to give, what I thought to be, a very detailed account.” (paragraph 18).”

The claimant has not given oral evidence. However, in making reference “to the purpose of the meeting”, I infer that she meant that her father knew a) that the statement was for the purpose of identifying his exposure to asbestos during his working life; b) that that was for the purposes of making a claim; and c) that the claim would essentially be for compensation that would be used to provide care for his wife after his death.

CRITICISM OF THE WITNESS EVIDENCE

The judge considered criticism of the evidence.

(a) The defendants point out that in so far as the claim against them is concerned the evidence lacks detail of when he was exposed, where he was exposed, what he was doing at the time of exposure and the context in which it occurred. There is no description of the work environment whether outdoors or indoors, whether at ground level or at height. There are no references to frequency or duration of the alleged exposure. It is submitted that the reference to new and old pipework in buildings is opaque; and that his statement “I didn’t take a great deal of notice of the laggers….” is inconsistent with the statement or inference that it was their work caused him to be covered in asbestos dust.
(b) The claimant points out that Mr Skeen gives a detailed and complete account of his work history both before and after his employment with the first defendant; that he was careful to identify during which of his employments he was exposed to asbestos and which not; and that when he could not recall details he said so. His recollection of work with the first defendant does contain detail such as the name of his “gaffer” and parts of the Wilton site, namely Nylon 7 and Olefines, which have subsequently been shown to be probably correct. He gives detail which has little relevance to the claim such as the reference to green markings on pipes which related to the first defendant’s work and his relationship with the laggers. It is pointed out that this was the only job in his working life when he worked alongside laggers and therefore he was more likely to remember events which involved them. Further, it is submitted that his description of the work of the laggers which led to his exposure is consistent and credible.
THE JUDGE’S FINDINGS

The judge accepted the father’s evidence was substantially correct.

    1. This largely comes back to the extent to which I accept Mr Skeen’s description contained in his witness statement. The defendants validly make the point that, in this case, the fact that Mr Skeen developed mesothelioma is not evidence that he was exposed to asbestos with these defendants. He has always acknowledged that he had asbestos exposure in other employments which could equally have caused or contributed to his condition.
    2. I make the following observations:
(a) Mr Skeen Skeen’s description of his working history generally appears to be accurate and appears to be consistent with his daughter’s recollection that he had “a very good recollection of his work history”.
(b) The lack of detail as to the nature and duration and frequency of his exposure at Wilton is, in my judgment, entirely to be expected of a person seeking to recollect events that occurred to some 50 years earlier.
(c) His account is consistent with the very brief account he gave in support of this application for Industrial Injuries Disablement Benefit.
(d) In certain matters of detail concerning this employment he has been shown to be accurate. In particular, his reference to the fact that the ICI plant was expanding rapidly, the existence of a new Nylon 7 plant, and his recollection that olefin plants were being constructed at the time are all confirmed by the documentary evidence which has subsequently been disclosed.
(e) He did not work with laggers at any other time during his working life and therefore his description of the work they did and their use of insulating materials can only have come from his observation of laggers working at Wilton.
(f) His description that “I can recall watching them tip large asbestos bags out into drums…” implies not just a vague recollection but an actual memory of something which in fact happened which he witnessed.
(g) The fact that Mr Skeen was able to recollect detail that has no relevance to the claim such as his recollection that the pipework being worked on by the first defendant was painted green and his recollection that there was some animosity between pipefitters or plumbers on the one hand and the laggers on the other adds weight to his general reliability. This part of his evidence is unlikely to have been misremembered or fabricated.
(h) Although the way the work is described in the statement may have been informed by discussions between Mr Skeen and his advisers, that of itself is unremarkable. What is important is that he has signed a statement of truth confirming that he believes the facts stated in the statement to be true. Dr Jones confirmed that Mr Skeen’s description of what the laggers were doing and the way they worked was entirely consistent with normal practice at the time. I have no reason to suppose that what he describes in the statement is other than an accurate articulation of his recollection.
(i) For the reasons given above I am satisfied that the material used by the laggers was in fact probably asbestos as Mr Skeen describes.
  1. I take into account all the points made on behalf of the defendants about the quality and therefore reliability of Mr Skeen’s evidence including the fact that there is no reference to the work being outdoors (which I find it probably was having seen the photographs of the BUTADIENE 2 plant) and that his reference to “buildings” in his description of the work is not entirely accurate.
  2. However, looking at the totality of the evidence I find that Mr Skeen’s account is broadly reliable and I accept it. Importantly, I accept his evidence that “at the end of a typical day my work clothing, hair and face would be covered in white asbestos dust”. It may well be that his exposure was less frequent than that sentence implies, but I am satisfied that on many occasions Mr Skeen’s clothing face and hair were covered in a white dust at the end of the day and that that dust was probably asbestos which emanated from the work of laggers. I accept that that probably happened as a result of laggers either stripping asbestos in order to enable the steam pipes to be branched out of and into the existing network; and/or cutting pre-formed asbestos sections with hacksaws; and/or tipping large asbestos bags out into drums in order to mix it on site.