Smith v Secretary of State for Transport

In assessing occupational disease claims based on events many years earlier, the court must evaluate the whole evidential picture. Human memory is fallible, but that does not relieve the court of making findings of fact or permit it to disregard sworn evidence without explaining why. A witness’s communication difficulties, inconsistencies or exaggeration do not prevent the court from identifying a reliable core of evidence. The court may combine that evidence with documents, expert evidence and known or probable facts.

Where liability depends on cumulative asbestos exposure, the court may determine whether the evidentially established exposure probably exceeded the applicable medical threshold. Once substantial exposure is proved, the employer’s failure to take practicable protective measures may establish liability under the relevant statutory duties.

The claimant, a former British Rail employee, alleged that asbestos exposure during carriage repair work caused his asbestosis. He had pulmonary fibrosis and communication difficulties following a stroke. The defendant disputed both the diagnosis and the extent of exposure.

The court considered the claimant’s deposition evidence, historical British Rail documents, railway workshop literature and expert occupational-hygiene evidence. The central issues were the reliability of the claimant’s evidence, the frequency and nature of asbestos exposure from removed ceiling panels, and whether cumulative exposure exceeded 25 fibre years under the Helsinki criteria. Quantum was agreed.

1. The claim succeeded. The court found that the claimant was an honest witness whose stroke affected communication but did not prevent reliable evidence being identified. The court applied the approach discussed in Gestmin SPGS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), Kogan v Martin [2019] EWCA Civ 1645 and Arroyo v Equion Energia Ltd (formerly BP Exploration Co (Colombia) Ltd) [2016] EWHC 1699 (TCC).
2. The court was required to consider the evidence as a whole. It could not treat ambiguity or inconsistency as determinative without considering the witness’s communication difficulties and the surrounding evidence. The claimant’s account that colleagues removed ceiling panels, releasing blue asbestos dust which settled on the floor and was later disturbed, was accepted and supported by the documentary evidence.
3. The claimant was regularly exposed to asbestos dust. The experts agreed that, on the accepted factual basis, exposure concentrations of approximately 20–100 fibres/ml were reasonable. The court therefore found, on the balance of probabilities, that cumulative exposure exceeded the Helsinki threshold of 25 fibre years.
4. Factories Act 1937, section 47, and Factories Act 1961, section 63, required British Rail to take all practicable measures to protect employees against inhalation of substantial quantities of asbestos. The defendant accepted that the statutory duty had been breached if substantial exposure was proved. The negligence claim added nothing because the statutory protection was more stringent.
5. Judgment was entered for the claimant. Quantum was agreed.