Justice for Mr Justice

In May 2015 following his diagnosis with Mesothelioma Mr Anthony Justice instructed Boyes Turner specialist Asbestos Claims Lawyers to pursue a claim against his former employers Universal Asbestos Manufacturing Company Limited.

Exposure to asbestos

Mesothelioma is an aggressive form of lung cancer, resistant to treatment. By the time Mr Justice received his diagnosis his disease was already advanced and he was offered palliative care. Although shocked by his diagnosis of Mesothelioma Mr Justice was not surprised as he knew he had been exposed to asbestos. In 1967 he had heavy exposure to asbestos on a daily basis when he worked as a laggers mate for Universal Asbestos Manufacturing Company Limited for approximately three months. He worked in Scotland on behalf of the company. He emptied bags of new asbestos into a spraying machine which was the mixed with a solution. Whilst Mr Justice stood nearby a lagger then sprayed the asbestos. At the end of the day Mr Justice swept up the asbestos dust and debris with a broom and shovel. He was never provided with any protective clothing or equipment nor was he ever warned about the dangers of asbestos.

Mr Justice’s health continued to decline. He was admitted to the Hospice of St Francis on 18 July 2015 where he remained until his death on 31 July 2015.

Heavily disputed claim

Following his death, his daughter Debbie Smith instructed us to continue with the claim. The claim was difficult. Almost every aspect of the claim was disputed by the defendants. The defendant challenged

1. Whether Mr Justice was in fact ever employed by Universal Asbestos Manufacturing Company Limited.
2. If so when he was employed.
3. The defendant has alleged that Mr Justice worked for Universal Asbestos Manufacturing Company Limited as a kitchen porter and not as a laggers mate.
4. The defendant disputed whether Mr Justice had sufficient exposure to asbestos to have caused or contributed to his Mesothelioma.
5. Mr Justice was able to provide us with a statement which described the work that he did. This was difficult for Mr Justice to do for the following reasons.  He had to recall details of his employment that occurred over 48 years ago. He had worked for numerous employers throughout his working life both before and after his employment with Universal Asbestos Manufacturing Company Limited.

The Judges' statement

 Mr Justice was unable to read or write. At the time Mr Justice was providing a statement his disease was quite advanced. He was very poorly and confused. The judge noted this in his judgment stating:

“As is common in claims of this type the court is asked to make finding of fact about events occurring a long time ago on the basis of very limited evidence. Sadly it is a feature of asbestosis and Mesothelioma that it can be diagnosed many years after the exposure which caused the terrible conditions, long after memories have faded and relevant documentation has been lost”.

The judge went on to outline five main propositions to apply in cases such as this which can be summarised as follows:

• A lax approach finding proof of essential elements of a claim should be avoided.
• An honest witness efforts to recollect details of long past events can lead to unconscious reconstruction, effected by persuasive external influences including involvement in litigation (with its often unrealistic demands for certainty where there can be none) and the process of preparing of witness statements.
• Evidence of recollection by witness which is only presented to the court in the form of written statements has not been subjected to cross-examination and should accordingly be viewed with caution, and in any event the strength of a witness’s certainty or description of detail are not reliable indicators of accuracy.
• Such evidence should be tested carefully against information contained in and inferences drawn from contemporaneous documentary records.
• The evidence of recollection can and should be tested by examining inconsistencies between various accounts given by the same witness, but in doing so regard must be had to the possibility that inconsistency can be a mark of honesty and that what can be as important is the consideration of whether there is a core of consistency in the various accounts about the matters which are central to the issues which have to be decided, and whether any inconsistencies are less significant detail.

The judge then distilled these key principles into four helpful points for this particular case which are as follows:

• Are there inconsistencies between various accounts of the deceased, and, if so, whatever the reason for the inconsistencies, do they undermine the reliability of his accounts insofar as they might otherwise be probative of the material allegations necessary to establish liability.
• Does such contemporaneous documentary material exist to support the relevant accounts of the deceased of such matters or undermine them?
• Does the evidence of the deceased make sense when any available circumstantial evidence is considered?
• If the evidence if insufficient to prove a specific period of relevant employment and exposure for which the defendant was responsible is it sufficient to prove that there was a period of more than minimal exposure for which the defendant was responsible?

The judge examined the evidence of this case in detail against these four pointers and decided the claimant had proven her case.

Summary

This was a very difficult case in which every aspect of the case was challenged and disputed by the defendant, including who the claimant worked for, what he did there, how he was exposed to asbestos and when he was exposed to asbestos. The evidence, including the evidence of Mr Justice was at times inconsistent but despite all these issues the judge was satisfied that Mr Justice had been exposed to asbestos by his employer in the way that Mr Justice had described and the judge found in favour of the claimant.