AB & Ors v British Coal Corporation & Anor

Smoking history in a compensation claim must be assessed from the evidence as a whole. The court should avoid concentrating either on the claimant’s evidence or on a single adverse medical-record entry. Relevant records should be obtained and scrutinised early, including hospital, general practitioner, occupational and social-security records. Each entry must be assessed according to its source, purpose, circumstances, timing and reliability. Information given directly by the miner, or by someone likely to know the history, will generally carry greater weight than information from an unidentified or distant source. Independent and consistent entries may provide strong corroboration. The assessment remains fact-sensitive, but a careful objective review should enable the parties to adopt a realistic position and resolve many disputes without litigation.

Four claims within the British Coal Respiratory Disease Litigation concerned disputes over the smoking histories of miners whose damages were being calculated under a Claims Handling Agreement. In each case, the respiratory specialist’s assessment affected the recoverable proportion of the claim. The disputes procedure had reached an impasse, and the parties agreed that the stays should be lifted so that the court could determine the smoking issue in each claim.

The court considered conflicting questionnaires, witness evidence and entries in general practitioner, hospital, British Coal and other records. The central issue was the proper assessment of the available evidence when determining the smoking history to be used for each claim, and the broader guidance that could be given for similar disputes.

The court determined the smoking history in each of the four claims and gave guidance for future disputes.

1. Assessment of the whole evidence. The evidence had to be considered objectively as a whole. It was unsafe to focus solely on the claimant’s witnesses or on one medical-record entry adverse to the claimant’s case.
2. Records and early disclosure. Both parties should have early access to all potentially relevant material, including hospital, general practitioner, Department of Social Security and British Coal medical records. The records should be carefully scrutinised so that important entries are not overlooked and inaccurate questionnaire information is identified promptly.
3. Weight of records. Medical-record evidence is hearsay, whose reliability must be assessed under the Civil Evidence Act 1995. The same weight cannot be given to every entry. Relevant considerations include the source of the information, whether it came directly from the miner or someone likely to know the history, the purpose and detail of the record, the circumstances in which it was made, its timing in relation to any claim, and the possibility of a motive to misrepresent.
4. Consistency and corroboration. Each entry must be considered with the other evidence. Two apparently independent entries recording information from the miner that he had smoked could strongly support that conclusion, since an error was less likely to be repeated independently.
5. Results. Mr Walker was found to have smoked ten cigarettes a day for five years during his war service. Mr Williamson was found to have smoked 15 to 16 cigarettes a day for 37 years, allowing for a continuous five-year cessation. Mr Anthony was found to have smoked at an average level for 23 years. Mr Dickens was found to have smoked at an average level for eight years. The guidance was intended to assist realistic negotiation and avoid unnecessary litigation, although each case remained fact-sensitive.

First-instance determination in the Commercial Court. The judgment records that stays were lifted by agreement so that the smoking-history disputes could be decided by the court.