PI Brief Update

Pinnegar v Kellogg and ICI - Jim Hester, Parklane Plowden Chambers

03/02/21. This case is the latest in a series where the issue as to the reliability and credibility of historic witness evidence has been raised. I have written about similar cases of Bannister v Freemans and Smith v Secretary of State for Transport in previous articles.

The Defendants conceded that breach of duty would be established if the factual case as to the Deceased’s employment was made out. Quantum was agreed, subject to liability. The matter hinged, therefore, on the Deceased’s evidence as to asbestos exposure, in the form of a witness statement drafted shortly before his death. There was also a small amount of documentation from the site from that era. The Deceased worked at the premises for only a few months during the tax year 1966/ 67.

Historical Evidence – Assessment

The Judge noted other cases which have raised similar issues including Smith. The Judge noted that in assessing the evidence of the Deceased, the following factors should be considered:

1. That the Deceased had been asked to recall employment some 50 years a prior to his diagnosis of mesothelioma.

2. That he was very ill when he made the witness statement.

3. That the witness statement was prepared with the assistant of a solicitor. Also that there were probably discussions before the statement was prepared and signed. This was considered to be an inevitable part of litigation.

4. The Claimant’s refusal to disclose any attendance note between the Deceased and his solicitor was not given any weight. To do so would be to go behind legal privilege.

5. The Deceased was aware of the purpose of the witness statement, that was to give evidence for the case.

It was noted that prior to making this statement, the Deceased had also made an application for Industrial Injuries Disablement Benefit. This also gave a brief description of his exposure to asbestos.

The Court’s Factual Findings

The first issue was to establish exactly when the Deceased worked and where. On the site, documentary evidence showed that there were some plants which were completely asbestos free. Other plants on site used materials not containing asbestos at some points in time.

On analysis of the facts of this case, which are largely specific to the ICI Wilton plant, the Claimant was able to make out that the Deceased worked at a time and a place where asbestos was probably used by pipe laggers.

The court then considered the specific nature of the Deceased’s work. It considered as a pipe fitter, he was not exposed to asbestos from his own work. However, he would have been had he been working in the vicinity of pipe laggers.

The court accepted that the pipes would have to be fully fitted and tested before lagging could be conducted. However, the nature of the plant was such that one pipe maybe being fitted, whilst another in the vicinity was being lagged.

Exposure

The court finally considered the extent of the exposure. Again, the court made a number of observations which are useful in relation to many such a historic cases:

1. That the general description by the Deceased of his working history appeared to be accurate and consistent with the his daughter’s recollection that the Deceased had a good memory as to his work history.

2. The lack of details as to the nature and duration and frequency of exposure was to be expected of a person recalling events some 50 years prior. 

3. The account was consistent with a brief account made in support of the Industrial Injuries Disablement Benefit claim.

4. That in matters of the detail, some were confirmed by documentary evidence in relation to the nature of the premises.

5. That this was the only point during the Deceased’s lifetime where he did this particular type of work, that is working alongside laggers.

6. That a description of watching laggers tip large asbestos bags into drums was not just a vague recollection. This was an actual memory of something which he witnessed. 

7. There were matters of detail which had no relevance to the claim but showed that the Deceased had a good recollection. For example, that pipework belonging to the First Defendant was always painted green. Also that there was some animosity between pipefitters and laggers. There was no reason for this evidence to be misremembered or fabricated.

8. Although the work described may have been informed by discussions with solicitors, that is unremarkable. The important feature is that a statement of truth was signed.

9. The Defendants’ expert confirmed that description of what the laggers were doing was consistent with the practise at the time.

Accordingly, the Judge found that the claim was made out.

Conclusion

This is another case which is useful reading for those practising in this area.

Relevant factors are set out above, and do not just consist of the basics such as duration, frequency and extent of exposure. Background information, especially if consistent with any available documentation, may bring (or if inconsistent detract from) credibility to the evidence on the whole.

Judgment in full: Pinnegar v Kellogg International Corporation and ICI Chemicals & Polymers Limited [2020] EHWC 3431 (QB).

This article was originally published at <a href="/content/https://jimhester.me">https://jimhester.me</a>

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