Findings of Fact in Mesothelioma Case - Jim Hester, Parklane Plowden Chambers
25/10/21. This is another case where the court (and parties) have had to consider findings of fact in relation to historic events, in this case with respect to a fatal mesothelioma claim.
Jackman v Harold Firth [2021] EWHC 1461 (QB) per HHJ Bird, sitting as a Judge of the High Court.
The Facts
Mr Jackman died in November 2016 of mesothelioma. The claim was brought by his widow.
The dispute centred on whether Mr Jackman had been exposed to asbestos when working for the Defendants at premises owned by ICI.
Evidence from the era included the HMRC Schedule. Accordingly to this, Mr Jackman had worked for a number of employers between 1961 and 1975.
Mrs Jackman had made some notes as to her husband’s employment between 1972 – 1983.
The Claimant relied on witness statements from two of the Deceased’s colleagues. Sadly both witnesses had also died prior to trial.
The contemporaneous notes showed that the Deceased worked for the Defendants from about April 1969 – April 1972. It was possible that the Deceased had also worked for the Defendants later in 1972. By 1973 he was working elsewhere.
The witness statements of his colleagues suggested that whilst working for the Defendants at ICI Huddersfield, labourers, laggers and maintenance engineers would be exposed to asbestos fibres. Pipes were said to be insulated with asbestos. If they were in need of repair, then the asbestos would need to be removed to effect a repair. The asbestos was then swept up and disposed of. Overalls were covered in asbestos.
Mrs Jackman said that her husband (upon receiving the mesothelioma diagnosis) stated that he would have been exposed to asbestos with the Defendants at ICI. The Deceased mentioned his job at ICI over the years, and described it as a ‘filthy job’. It is said that he did not like the job, nor his boss – Eddie Firth.
Mrs Jackman accepted that the Deceased could be resentful towards Eddie Firth and others, and that Eddie Firth was ‘one of his things’.
Consideration of Historical Evidence
The court considered how it should approach such historical evidence.
Bannister v Freeman was considered and paragraphs 73 – 77 were set out.
The court considered paragraph 1.3 of the Appendix to PD57 AC. This gives the court guidance as to principles considering witness evidence and memory. Though intended for the business and property courts it was considered to be of general application.
Further, the court was mindful not to ‘allow the tragedy inherent in every mesothelioma case’ to lead to a lax approach to fact finding (Sienkiewicz).
The court considered that the Claimant still needed to prove her case, notwithstanding the lack of evidence from the Defendants.
The Findings
The court noted the contemporaneous medical note created when the Deceased received his diagnosis of mesothelioma. This made reference to working with pipes at ICI in the 1970s.
The court further considered that Mrs Jackman recalled that Mr Jackman stated that he had been exposed to asbestos with the Defendants at ICI, between diagnosis and his death.
It was further noted how the Deceased ‘exploded’ on the mention of the word ‘Firth’ with his complaints centred on the nature of the job and how dirty it was.
The court found Mrs Jackman to be a careful, honest and impressive witness. She had corrected part of one of her witness statements by pen before signing it. The Judge was cautious as to her recollections from the era (1968 – 1973) itself, but found the evidence from 2016 to be more reliable. This was collaborated by medical notes. This evidence (about what Mr Jackman said) could itself be inaccurate, but the court found that it was.
The court found that the Deceased was exposed to asbestos, not from cleaning asbestos pipes, but when dealing with the lagging from pipes and the removal of the same.
Accordingly, since liability was accepted if exposure could be proved, the Claimant’s case was allowed.
Quantum
The court needed to determine 3 heads – PSLA, care and loss of services of a husband.
PSLA was determined on the facts of the case, as was the claim for care.
As to the claim for loss of services of a husband, the Judge accepted that this was a head of loss which was recoverable. A sum of £2,000 was allowed since though the Deceased helped around the house, this was not to a great extent.
Conclusion
It now seems that the caselaw in relation to how courts should approach evidence in historic cases is somewhat settled.
Memories are considered to be fallible and so any supporting evidence (even in this case evidence of what the Deceased said on diagnosis) was considered helpful, as, of course, was documentation.
In a future article I shall provide an overview as to how courts approach such cases involving historical evidence.
This article was originally published at https://jimhester.me
Image ©iStockphoto.com/DIMUSE
