Pinnegar v Kellogg International Corporation & Anor

In an asbestos-exposure claim, factual issues concerning a deceased witness’s recollection must be decided by the court on the totality of the evidence. Expert evidence may assist with factual issues, but does not replace the judge’s fact-finding function. The passage of time and the fallibility of memory require careful assessment, not the substitution of heuristics or mental short cuts for findings based on all the evidence. Legal professional privilege should not be undermined by drawing an adverse inference from the refusal to disclose privileged attendance notes. Where the evidence establishes, on the balance of probabilities, that a claimant was exposed to asbestos dust while working in close proximity to laggers, and that the exposure materially increased the risk of mesothelioma, liability follows where breach and causation are otherwise established.

The claimant, as executrix of Peter Skeen’s estate and on behalf of his widow, claimed damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. Mr Skeen had developed mesothelioma after working as a pipe fitter for the first defendant at the second defendant’s Wilton site during 1966 and 1967. The claim alleged exposure to asbestos dust released by laggers working nearby. Liability was denied, but damages were agreed at £180,000 subject to liability. The central issue was whether Mr Skeen’s late witness statement reliably established the timing, location and nature of his work, his proximity to lagging operations, and exposure to asbestos.

1. Fact-finding and expert evidence. The assessment of Mr Skeen’s evidence was principally a fact-finding exercise. Expert evidence could assist, but the case was not a trial by expert. The court had to determine the factual issues on the totality of the evidence.
2. Reliability of recollection. The court considered the passage of approximately 50 years, Mr Skeen’s illness, the litigation context and the evidential detail available. The authorities concerning memory provided helpful reminders, but were not statements of legal principle. Awareness of the fallibility of memory did not relieve the court of making findings of fact; heuristics and mental short cuts were no substitute for that function.
3. Privilege. No adverse inference was drawn from the claimant’s refusal to disclose solicitor attendance notes. The refusal was justified by legal professional privilege, and taking it into account would tend to undermine that privilege.
4. Findings on exposure. On the balance of probabilities, Mr Skeen worked in close proximity to laggers at the Butadiene 2 plant and observed them stripping asbestos lagging, cutting pre-formed asbestos sections and mixing asbestos material. The white dust which covered his clothing, face and hair on many occasions was probably asbestos dust from that work. The court rejected the suggestion that it was concrete dust as speculative and unsupported.
5. Liability and order. The defendants conceded that working alongside laggers and becoming covered in asbestos dust through that process would constitute breach of duty and establish liability. The court found that the exposure was tortious and materially increased the risk of mesothelioma. The claim succeeded, with judgment for the claimant in the agreed sum of £180,000.