WITNESS EVIDENCE: CREDIBILITY;FACEBOOK;TWITTER AND THE CLAIMS GO UP IN SMOKE…

This blog has looked at issues relating to witness credibility many times. It is one of the most under-examined aspects of the civil litigation process. The decision of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB) is a case that is going to receive a lot of attention for many reasons (not least the detailed examination of the scientific evidence by the judge). However I want to concentrate upon the judge’s assessment of the witness evidence. There were twenty claimants. The judge found some to be palpably honest whilst others were palpably dishonest. It is a “modern” case where both Twitter and Facebook played a part in the assessment of evidence.  Further the difficulties of accurate recollection and the dangers of suggestion are also significant.

THE CASE

Twenty “test cases” were brought against the defendant alleging injury arising out of a fire at the Defendant’s plant in June 2011.  The claimants were local residents and their case was that they had suffered injury due to the smoke from the fire. There were some 16,626 claimants in total with the figure narrowed to twenty test claimants as part of the case management process.

KEY POINTS

Normally I select one key quote from the judgment.  However here there are several.

“recall bias is always an issue in scientific research based on retrospective evidence, and this phenomenon is hugely magnified when one brings into the equation the obvious corollaries of the medico-legal component. Human beings are naturally susceptible and suggestible, particularly if they are made to believe that they form part of a coherent group with shared experiences, and if they risk none of their own resources in bringing a claim.”
“The standard-form questionnaires asked a series of leading questions. Many of the questionnaires examined in the context of the Test Claimants were shown to be inaccurate and exaggerated, calling into question the objectivity and integrity of the whole process. Nor does the whole set up of pop-up shops and cold-calling of potential Claimants inspire any degree of confidence.”
“Misleading information of this sort had the obvious tendency to encourage the bringing of claims, on the basis that the Defendant was a soft target and this was easy money. That this information was understood in exactly this way is revealed by the terms of the Facebook posts referred to at paragraphs 9, 10 and 12 of Ms Wilson’s witness statement, as well as by the evidence in Leon Swift’s case. I strongly deprecate this sort of practice. Not merely does it sail close to the wind in terms of its professional propriety, it is severely counter-productive as and when the case comes to trial.”

THE JUDGMENT IN RELATION TO WITNESS EVIDENCE

  1. Evidence bearing on the individual Test Claimants is derived from a number of sources. First, they were asked to complete questionnaires as part of the litigation process. Most of these were completed in the first half of 2013, already well over a year after the incident. Secondly, each Claimant has provided a witness statement, and in some instances a supplementary witness statement, in line with court orders. The vast majority of these statements were signed in September 2014. Thirdly, there is the evidence of what each Claimant told the examining clinicians as recorded by them. Finally, but only in some cases, there are relevant contemporaneous GP records. All this evidence needs to be compared and evaluated in this case, assessed as appropriate against the oral evidence given from the witness box.
  2. I will examine the Test Claimants in the order in which they gave evidence before me. I need to explain my approach. At this stage I will be doing so without express reference to the plume modelling evidence. This is to avoid the potentially mechanistic thinking which underlay the Defendant’s clinical experts’ approach, namely that because any given Test Claimant was insufficiently exposed it must follow that s/he could not have suffered any symptoms from exposure. I believe that I have already made clear that a more fluid, less rigidly “scientific”, approach is required (at least at this stage in my decision-making), although I certainly should not be understood as saying that the plume modelling evidence can be ignored or circumvented. I will be returning to it at a later stage of my analysis. In assessing the Test Claimants, the focus will be primarily on the individual features of their cases, but I will be keeping an eye on a possible “bigger picture” and identification of patterns and constellations. However, this “bigger picture” cannot drive my inquiry, since that would be to commit the logical fallacy of assuming what needs to be proved. I have already said that I will be taking on board all the available evidence, but an issue does arise as to the weight to be given to expert clinical opinion on the Claimants’ side that, generally speaking, the Test Claimants were honest individuals who gave reliable accounts. Dr Swift and Dr August spoke in different terms but to the same effect of intuitive judgments forged from lengthy experience in history-taking and clinical examinations. The Defendant’s experts, on the other hand, deferred to me on these matters.
  3. I have thought very carefully about this last point, but I cannot agree with Mr Redfern that I should be affording “significant weight” to these expressions of opinion. It is striking in this case that by the stage any Test Claimant was seen by the experts in this case, there were no relevant signs to witness, and no enduring symptomatology. Accordingly, there was no possibility of correlating claimed symptoms with any meaningful clinical examination. It follows that the clinical experts were really in no better position than I was to assess matters of individual credibility and reliability, especially in a medico-legal (as distinct from a purely clinical) context. With respect to them, it might well be said that I was in a somewhat better position inasmuch as the Test Claimants’ accounts were thoroughly tested in the crucible of the forensic process. I do not propose to ignore the Claimants’ experts’ generally favourable impressions; the weight to be accorded to them should, however, be moderate.
  4. Another generic point which falls to be addressed at this stage is the absence, in all bar one case, of any contemporaneous medical note either recording a complaint about the fire or linking symptoms to the fire. I do not accept that there is any solid evidence supporting the proposition that some GP surgeries had signs discouraging appointments and encouraging over the counter remedies. Dr Hardy told me about this, but his sources are unclear and I did not hear it directly from any Test Claimant. I do accept Dr August’s point that it is understandable that some Claimants might not mention symptoms to their GPs at appointments for other complaints, but I cannot accept that this should be treated as a universal panacea. Nor can it explain a failure to mention the fire in instances where Claimants were attending their GPs complaining of what they now say are fire-related symptoms. On the other hand, I do accept and understand the bewildering variability across human nature: some patients are not interested in possible causes and explanations; all they seek is a remedy.
  5. As a related matter, a number of the Test Claimants told me that their GP records are either inaccurate or incomplete. I accept this possibility inasmuch as GPs are extremely busy professionals who may not always write down everything that is said, and may occasionally err. I am more inclined to accept the possibility of a record being incomplete than erroneous. If a trained history-taker records “symptoms 1/52”, that will almost invariably be his or her best interpretation of the account being given.
  6. The final generic point to be made at this stage concerns the approach I should be taking to the obvious delays in this case. Owing to these, and to the fallibility of human recollection, it is inevitable that witnesses may be unreliable historians and unable to give me more than a general sense of what happened. Some allowances need to be made for this, but not to the point of excess. The burden of proof remains on the Claimants, and they need to satisfy me that they suffered the symptoms they claimed. In very many cases, apart from recourse to the wider picture of apparently similar complaints, the Claimants have nothing else to go on apart from their own evidence.
Mr Gary Mangan
  1. Mr Mangan was born on 5th April 1985 and at the material time lived 0.53km from the Sonae plant. In 2011 he was working as a retail supervisor, but he is now employed in a very responsible role as a submarine engineer in the Royal Navy. Mr Mangan does not smoke but he had a history of upper respiratory tract infections, including one incident of shortness of breath in 2008. At about 16:00 on Friday 10th June he went home and could see black or dark grey smoke from the factory. There was an unpleasant burning smell and a lot of smoke. Mr Mangan went running on the Friday evening, and again on the Saturday, modifying his route on account of the smoke plume. He felt a bit chesty when running, and his chest was “quite tight” that Saturday evening (he denied any symptoms on the Friday). He did not go running on the Sunday, but remained at home all day. On Monday he went to his GP, without a prior appointment, where he was diagnosed with an upper respiratory tract infection for which antibiotics were prescribed. He had symptoms of a tight chest, a cough, and phlegm. These symptoms, including those of low energy and disturbed sleep, lasted for about 10 weeks, and he remembered returning to his doctor some weeks later.
  2. Under cross-examination, Mr Mangan said that he had no difficulty obtaining an off-the-street consultation with his GP. Paragraph 9 of his witness statement, which stated that he “decided to make an appointment to see his GP”, was incorrect. In my judgment, it is difficult to understand why so elementary a mistake was made, if it was indeed made. The GP noted the presence of ulcers on the right side of the palate by the right tonsil. Mr Mangan explained that he did not mention the smoke to his GP on this occasion because he just attended “for my health”, and obviously everyone was aware in the area what was going on. He had made the connection between his symptoms and the fire.
  3. The GP records show that he returned to the practice on 16th August 2011 for a night cough. He made no mention of the fire. His explanation for this omission was that “I go to the doctors for my health”. I understood that to mean that Mr Mangan is not concerned with the underlying reasons for any ill-health, but just practical solutions.
  4. Dr Hind felt that Mr Mangan is likely to have suffered a coincidental upper respiratory tract infection. Dr Hardy, taking into account the absence of a temperature, the ineffectiveness of the antibiotics, and the fact that an ulcerated palate is not commonly associated with infection, originally concluded on the balance of probabilities that this Claimant did suffer from the effects of smoke inhalation. However, in cross-examination it was pointed out to Dr Hardy that Mr Mangan claimed to develop symptoms before 12th June (i.e. before the date of any significant exposure to the smoke), and Mr Kent pressed him on the GP record. Dr Hardy then said, “possibly he had an infection; it is likely at that stage he had an infection”. He agreed that in his report he could equally have said that Mr Mangan’s account was consistent with smoke exposure.
  5. In my judgment, Mr Mangan was no better than a reasonable witness who, like many others, could not remember much of the fine detail of what happened. In such circumstances, I cannot conclude that his account was particularly reliable. Not without some hesitation, I do not find that on Friday 10th June he had already booked an appointment to see his GP on the following Monday (had I made such a finding, it would ineluctably have followed that he was suffering from an upper respiratory tract infection before he was aware of any of the effects of smoke inhalation). Even so, on the balance of probabilities I conclude that Mr Mangan was probably suffering from a coincidental throat infection. His symptoms started before there was any significant exposure to the smoke plume, and Dr Hardy agreed in cross-examination that it was likely that this Claimant had an infection.
  6. In any event, I am not satisfied that Mr Mangan’s symptoms lasted for anything like as long as 10 weeks. If, as a fit young man he was concerned to see his GP for what he believed to be a mere throaty cold, suggesting a low complaint threshold, and had it not gone away after the usual week or so, I regard it as inconceivable that he would not have arranged to see his GP whilst still apparently suffering symptoms. Furthermore, when he did see his GP on 16th August, there was no mention of the fire.
  7. I will set out my final conclusions in relation to Mr Mangan’s case only after considering all the plume modelling evidence in conjunction with the evidence of the other Test Claimants.
Mrs Tracey Beatham
  1. Mrs Beatham was born on 21st August 1972 and lives 1.96km from the Sonae plant. She works as a domestic at hospital, in proximity to cancer patients, and the nature of her employment means that she has to be particularly cautious in not bringing ordinary colds and infections into her work environment.
  2. Mrs Beatham is a moderate smoker and in February 2010 was suffering from a persistent cough.
  3. According to paragraph 5 of her witness statement:
“I was not aware of the fire until the following morning when I got up to get ready for work. I noticed a terrible smell of burning. When I looked out of the window, I could see that the whole area was covered with smoke. In particular, I noticed that my garden was covered in dust and ash. The smoke was extremely thick and dark and was blowing towards my house and into my estate. I cannot recall the plume being particularly high at the time of seeing it.”
This was at about 06:15, when the wind was blowing eastwards from the plant. Mrs Beatham also noticed considerable quantities of ash and dust which lasted for weeks, as did the pungent smell. She could not hang her washing outside. Many other Claimants gave evidence to similar effect.
  1. Mrs Beatham complained of symptoms including a severe cough and chest tightness which lasted for approximately 8 weeks in all. She saw her GP on 24th June, and the following medical record has been retained:
“Upper Respiratory Tract Infection NOS 1/52 tired, sore throat, cough, running nose. o/e throat red nil pus chest clear advice given. Delayed script”
  1. Mrs Beatham has given inconsistent accounts of when her symptoms started. The natural interpretation of the GP note is that her symptoms commenced at around 17th June. According to her questionnaire, they developed within two weeks. Her history as given to Dr Hardy was “2 days after the onset she developed cough and phlegm so much that she vomited after coughing the phlegm”. According to her witness statement, they started within the first week of the fire. In the witness box, Mrs Beatham said that her cough started on the third day, and that after about a week she took time off work. She had to wait 3-4 days for the doctor’s appointment.
  2. In her oral evidence, Mrs Beatham said that she linked her chest symptoms to the fire straight away, as soon as she had her cough (i.e. at around the 2 day point). She said in evidence that she asked her GP if her cough could be related to the fire, but he did not answer. Her witness statement had said that she could not recall mentioning the fire to her GP at the time. This is consistent with what she told Dr Hind, namely that she assumed that she had picked something up. She could not explain this discrepancy.
  3. Under cross-examination, Mrs Beatham said that she also had eye symptoms which she mentioned to her GP. Her questionnaire and witness statement had made no such claim. She could not explain this inconsistency. When asked about the GP note, Mrs Beatham denied that her chest was clear. When it was put to her that she told Dr Hind that “she was not aware of dust inside the house”, she denied that she was exaggerating the position.
  4. Dr Hardy accepted in evidence that if the symptoms did not begin until one week after the fire, as the GP note recorded and other evidence suggested, then it is less likely that her symptoms were caused by the smoke: the more probable explanation is viral infection.
  5. In my judgment, Mrs Beatham was an unreliable witness whose oral evidence could not be accommodated within the far more reliable documentary record. Her account, particularly in relation to the extent of the accumulation of dust and the duration of any symptoms, contains elements of subconscious exaggeration. I express the matter in those terms because I do not believe that Mrs Beatham was intent on deliberately misleading the court, and that in any event has (wisely) not been suggested. Mrs Beatham is, however, a good example of a suggestible witness who could not remember what actually happened, and therefore tended to say what she assumed could be right because that fitted into her mindset of what this fire must have caused.
  6. In my judgment, Mrs Beatham’s case cannot succeed on the basis of her own testimony. I accept that the unsatisfactory nature of her evidence does not exclude the possibility that she may have suffered from relatively minor symptoms hovering at the threshold of legal actionability, but (at least as regards her own evidence viewed in isolation) she has failed to discharge the burden of proof which remains on her. Unless the plume modelling evidence is supportive and/or she is able to rely on a powerful intra-cohort “constellation of symptoms” effect, her claim should fail.
Ms Jessica Alexander
  1. Ms Alexander was born on 17th October 1993 and was only 17 at the time of the fire. She was studying at a sixth form college which was 1.42km away from the Sonae plant. Her home is 1.56km away from it.
  2. Ms Alexander is a non-smoker who had pre-existing eczema, including a flare-up over her elbows and knees in January 2011. According to her witness statement, but not her questionnaire, she had previously suffered from styes in or near her eyelids which could cause swelling and streaming.
  3. According to Ms Alexander’s questionnaire completed on 22nd February 2013, she suffered a range of symptoms, all of immediate onset and floridly described. Her eyes were sore and dry, she was constantly rubbing them, and although her symptoms resolved within two weeks, she believes that her myopia was brought on by this experience. She developed red and itchy patches across her torso and face, which made her self-conscious at school and caused problems with sleep. After two months, her GP diagnosed contact dermatitis, and after treatment it took a further two months for symptoms to resolve. She developed migrainous headaches which interfered with her exams, and rendered her unable to attend her maths A level exam (this must be a typographical error: according to her witness statement, this was a GCSE maths re-sit). These acute symptoms lasted for around 2 weeks. She also experienced dizzy spells, an increased temperature, and a sore throat.
  4. In her witness statement, Ms Alexander stated that there was a lot of dust and ash in the area at the time of the fire. It was sufficiently tenacious to seep into the house, and it was a “constant job” to keep on top of it.
  5. Ms Alexander was neither a confident nor a reliable witness. In my judgment, she was self-conscious about her appearance before the fire, as many young women are, and it is difficult to link cause with effect. Her myopia could not have had anything to do with the fire, and it became clear from contemporaneous, pre-fire documents that Ms Alexander was experiencing eye problems which were either due to a fly entering her left eye, causing swelling, and/or pre-existing lid margin problems – a feature of meibomian gland dysfunction. Mr Clearkin agreed in cross-examination that it could have been either, but appeared to favour the manifestation of symptoms from the pre-existing condition.
  6. Although Ms Alexander was a regular attendee at her GP, she did not make an appointment to see him after the fire. Indeed, when she saw him on 14th June she made no mention of the fire, explaining to me that she was self-medicating and that “everyone knew about the fire”. Reading through her substantial, pre-fire medical history, I cannot accept that explanation – it would only make sense if she had not associated her symptoms with the fire at all, which was not her case. She saw her GP again on 8th July and he gave her a sickness certificate covering the period 4th – 11th July, presumably to excuse her from attendance at college. However, by then the exam season had concluded. On 16th August her GP diagnosed “contact dermatitis”, and it is surprising that on this occasion Ms Alexander did not mention the fire if she believed, as she told me, that it had caused it. Dr August agreed with the proposition that the itchy patches across the torso described by Ms Alexander are difficult to explain because more naturally exposed parts of the body would receive greater toxicological insult.
  7. There is no medical evidence supporting Ms Alexander’s other claimed symptoms. Given her unreliability as a witness, I do not accept that she has proved her case in these respects. Her elevated temperature, for example, is highly unlikely to have had a toxicological origin. Her eye and skin problems were pre-existing, and in her case there is nothing to cause me to wish to depart from the advice of Professor Hay regarding the absence of evidence linking dermatological symptoms to smoke. I cannot exclude the possibility that smoke exposure exacerbated Ms Alexander’s pre-existing eye condition, but the resolution of that issue depends mainly on the plume modelling evidence. Otherwise, Ms Alexander’s case is in the same category as Mrs Beatham’s.
Ms Kelly Colebourne
  1. Ms Colebourne was born on 29th October 1979 and lived 2.16km from the Sonae plant. She continues to work as a fitness instructor. She remains a non-smoker, and save for one issue relating to possible pre-existing asthma, she enjoyed very good health.
  2. Ms Colebourne told me that she awoke at about 05:40 on Friday 10th June to see a thick black cloud of smoke crossing the clear blue sky. By 14:45, when she returned from work, it was “just smoggy, foggy, cloudy – like smog”. The smokiness and dustiness continued that weekend, and Ms Colebourne described a “char-grilled smell, acid-y at the back of the throat”. She said that her breathing felt a bit funny. After about one week of the fire, according to her questionnaire, Ms Colebourne experienced severe respiratory symptoms, and a deep and chesty cough, which was very uncomfortable. She also suffered sore, itchy and runny eyes, which became red and bloodshot. Her eye symptoms lasted for about 4 weeks. These symptoms also caused low energy and a general feeling of being increasingly worn down.
  3. On 5th July 2011 Ms Colebourne suffered a severe asthma attack which resulted in her being hospitalised.
  4. Ms Colebourne was cross-examined closely in relation to the timing of the onset of her asthma symptoms. According to her questionnaire:
“I was absolutely fine before the fire, and only started to suffer these horrible symptoms after it started. As I mentioned above, I had no history of asthma at all before this, and I was not exposed to any other irritants that could have induced it, so it seems obvious that the fire was to blame. ”
  1. In fact, an examination of Ms Colebourne’s medical record reveals that she was complaining of general tiredness symptoms in July 2010, of acute tracheitis in November 2010, and that asthma was diagnosed in February 2011 – in the context of complaints of wheeziness and general malaise. Ms Colebourne informed me that this diagnosis was incorrect, notwithstanding that she was given an inhaler.
  2. On 15th June 2011 Ms Colebourne saw her GP, was diagnosed with hay fever, and was advised to take her inhaler. It did not enter her head, she said, to mention the fire to her GP, notwithstanding (a) the terms of her witness statement, to the effect that it seems obvious that the fire was to blame, and (b) the apparent need to contradict the GP’s diagnosis if there appeared to be some more plausible explanation for her symptoms.
  3. On 5th July the history as recorded by the OOH service was as follows:
“… since yesterday has had problems with chest since November, not formerly diagnosed with asthma but given a ventolin inhaler. Non smoker. Since yesterday has been coughing phlegm and struggling to clear chest. Feels SOB and has used ventolin 4 + times today. On the phone able to speak in long full sentences but sounds congested …”
  1. I read the “since yesterday” as a reference to the more serious symptoms Ms Colebourne was obviously experiencing. However, it rather excludes the sort of serious respiratory problems, dating back to one fire after the fire, mentioned in her questionnaire. I also mention the hospital record dated 6th July which states that “over the past several months has been suffering from increased shortness of breath”.
  2. I was not impressed by Dr Hardy’s evidence in relation to this Claimant. He attributed her symptoms to the fire because of the temporal association, and because she had a life-threatening attack after the fire. However, even a cursory examination of the contemporaneous medical records does not bear this out. I much prefer Dr Hind’s evidence on this issue. Nor can I remotely accept Dr Hardy’s attempt to attribute six months’ of symptoms to smoke inhalation.
  3. In my judgment, Ms Colebourne was not a dishonest witness but she has persuaded herself into believing, some considerable time after the relevant events, that the fire caused her asthma attack. Ms Colebourne told me that Camps (or their agents) knocked on her door to recruit her to this litigation, and it is also noteworthy that her questionnaire contains serious errors relating to her “very physical life” which, to be fair to her, she disowned.
  4. It is possible that Ms Colebourne experienced respiratory problems between 10th June and 5th July which were due, at least in part, to the fire, but the only way that she can prove that she did is with regard to the plume modelling evidence and/or the possible constellation of symptoms effect.
Ms Dawn Bunting
  1. Ms Bunting was born on 13th January 1974 and lives 0.44km from the Sonae plant. As the crow flies, she is the closest of all the Claimants to the original source of the smoke plume. However, that does not mean that her exposures were likely to have been the greatest.
  2. Ms Bunting is a moderate smoker and in the past suffered from rosacea at times of stress.
  3. Her case is complicated, if not bedevilled, by the fact that she has completed two questionnaires containing different information. In her first questionnaire, she stated that she first developed a sore throat, sore eyes and a headache within two days of the fire, and that these symptoms resolved within three to four months. She denied that she smoked or had any pre-existing skin condition. In her oral evidence, Ms Bunting agreed that the questionnaire was “highly inaccurate”, but a genuine mistake on her part. In her second questionnaire, completed about two months later, she stated that she developed symptoms within 24 hours of the fire, and that her respiratory symptoms lasted two months, her eye symptoms one week, and her skin problems three weeks. Her witness statement times the onset of symptoms at “within 48 hours”.
  4. There were thick layers of dust or ash inside and around the house. This was really bad within the first week, and took about one month to settle down.
  5. There were numerous inconsistencies in Ms Bunting’s evidence, which in my view were not satisfactorily explained. According to her first questionnaire, “I did only think it was a passing flu at first”. However, in her oral evidence she said that she associated her symptoms with the fire straight away, and her sons had the same symptoms. When her attention was then drawn to the questionnaire, she said that it was a long time ago, and “maybe I did think it was a passing flu at the time”. In my judgment, this is the more likely explanation, particularly when it is noted that Ms Bunting attended her GP on 20th June 2011. She went to see him for a long-term problem, but sought to persuade me that she did tell her GP about her cough and sore eyes. She could not explain why this was not recorded. She did accept that she could not recall if she attributed these problems to the fire. I cannot accept that there was any complaint to the GP on 20th June. Ms Bunting’s witness statement makes no mention of it.
  6. Ms Bunting was recruited to this group when she was out shopping and saw a sign “were you affected by the fire?” In my view, she was another Claimant who has permitted herself to embrace a narrative which gained full currency long after the event. I am not to be understood as finding that her solicitors have created a false account; I am making the more parsimonious point that certain individuals are vulnerable, compliant and suggestible.
  7. Dr August was asked about the opinions expressed in his report:
Past History Rosacea. This has been present for the last 5-6 years beginning in 2008-2009 when it was severe for 3 months. This became worse after the fire, particularly on the cheeks and around the eyes where the skin became lumpy and cracked. This seemed to be bad for about 2 months and then settled back to its pre-fire severity.
…
Opinion She seems to have had redding [sic] of the face which was worse than before. The rash was certainly confined to the face only. The overall impression is that of rosacea exacerbated by the fire for a period of 3 weeks, possibly longer.”
  1. Dr August agreed that the evidence in Ms Bunting’s case was “complicated” because she has not given a consistent account. On any view, her skin problems were not mentioned to her GP on 20th June. There is sparse evidence linking dermatological conditions to smoke exposure, but in any event I am not satisfied on her oral evidence that the case is made out.
  2. Hers is another case which is not necessarily doomed to fail on account of her unreliable testimony, but requires a solid basis on the plume modelling and/or a constellation of symptoms effect to stand any realistic chance of succeeding.
Mr Terence Dunn
  1. Mr
    was born on 12th January 1948 and lives 2.31km from the Sonae plant. He is retired, and in June 2011 went out for substantial morning runs.
  2. Mr Dunn had no pre-existing health history of note. He gave up his modest smoking habit in 2006 or thereabouts.
  3. According to his questionnaire, Mr Dunn suffered from the immediate onset of respiratory, eye, nose and throat symptoms, together with headaches, dizziness and stomach pain. More specifically, he had a nasty chesty cough, producing shortness of breath, mainly on exertion. This prevented him from going running. His eyes were sore and stinging, and he suffered from what he told me was “extreme discomfort”. His nose was very blocked and he had an “incredibly sore” throat.
  4. On the first morning of the fire, Mr Dunn told me that he was on his usual 6½ mile run but could only do about half. He could not breathe; there was coughing, spluttering and his eyes were watering. Mr Dunn described a “real putrid, horrible smell”. First of all, he thought it was akin to a pig farm (he might have been smelling the ammonia in the wood); it left an acid-y biting taste in the mouth.
  5. The quantities of dust and ash were such that Mrs Dunn insisted that their vertical blinds be replaced. He paid cash – £200-300. The manner in which Mr Dunn’s evidence was given was convincing and credible.
  6. Overall, Mr Dunn appeared to give his evidence in a moderate and understated manner. He said that his nose symptoms resolved within one week, and the remaining symptoms within a further two weeks. He self-medicated for these.
  7. Provisionally impressed as I was by Mr Dunn’s reliability as a witness, I asked him to describe the colour of the smoke plume to me in more detail. He said this:
“From the first time I saw, it was black, very black.
MR JUSTICE JAY:  Very black, yes.
  1. And then over a period, it would go blackish grey, if you was looking over that way, but we didn’t tend to a lot, and then it would sometimes go a bit white.  That was the colours I seen when I looked.
MR JUSTICE JAY:  After about a week or so, was it still going black?
  1. No.
MR JUSTICE JAY:  Was it –
  1. It had changed colour, my Lord, after a week.  It wasn’t black anymore.
MR JUSTICE JAY:  In terms of the quantities of smoke, can you give me an idea of that?
  1. First few days, my Lord, was really bad.  Really bad, and then it just started to settle down.  Just keep — you know, there was smoke coming from it all the time, rising, but never as serious as the first few days, in my opinion.
MR JUSTICE JAY:  Yes.  I know it’s difficult to describe, but after the first few days, just give me a picture of the quantities of smoke.
  1. It’s very difficult to, you know — because, as you say, it had changed colour.  So it was not as though you could look over and see something black all the time. You know, you’d notice all the time, wouldn’t you?  But there were a change in colour.  Sometimes it would go very easy and then sometimes it would flare up again and you’d see a white plume or a grey plume.  But that’s only if you was out looking over all the time.”
  2. Entirely credible as a witness though Mr Dunn was, this seam of evidence demonstrates how witnesses can be unreliable when it comes to the detail of describing events that happened years before. The memory can pick out the worst features of the event (in some people, the memory can blot these out completely), and in Mr Dunn’s case he has unwittingly prolonged the period of the black smoke well beyond its proper confines of the afternoon of Friday 10th June – as vouched by all the expert and photographic evidence.
  3. The same unwitting process of prolongation and exaggeration may have impacted on Mr Dunn’s evidence regarding his physical symptoms, and the ash and dust. That evidence needs to be balanced against the plume modelling evidence in his case. I will be examining this with care before expressing any further conclusions about him.
Ms Julie Carney
  1. Ms Carney was born on 9th March 1977 and lives with her five children (all of whom are also Claimants) 1.94km from the Sonae plant.
  2. She is a light smoker who had pre-existing dermatitis, on and off, from the early 2000s, and asthma-like breathing problems for which she had been receiving no treatment.
  3. According to Ms Carney’s questionnaire, she suffered from a range of respiratory, skin and nose problems “soon after the fire started”. These problems are ongoing. She did not link her symptoms to the fire until early 2013.
  4. Ms Carney’s primary complaint related to her dry, scaly skin – according to her questionnaire, “most noticeable on backs, arms and torso”.Plainly, these were the covered areas of the body where one would least expect to see evidence of contact-related skin problems, setting aside the causation difficulties that she in any event faced as regards the dermatology.
  5. Ms Carney was taken in cross-examination to her GP records which showed that she was complaining of similar skin problems before the fire. These may have been partly stress-related. She tried to persuade me that the spots on her skin had completely cleared by the time the fire started, but I simply cannot accept her evidence in this regard. Paragraph 24 of her witness statement said “I have not suffered with my skin since 2009 prior to the fire”.
  6. The following passage taken from Ms Carney’s expert, patient cross-examination by Mr Michael Jones serves to demonstrate the overall poor quality of her evidence:
“Can you explain why these very serious symptoms are described in this witness statement, when it seems that’s not your recollection of the symptoms that you have?
  1. It’s human error, isn’t it?  It’s a misprint on that — that bit.  I’d said — when I’ve described my symptoms to the lady who was writing it down, I said my nose was congested and my chest felt heavy and I found it difficult to breathe.
  2. When you were answering questions from my learned friend Mr Redfern, he asked you whether you went to your GP and you said you didn’t, and the reason you wouldn’t go to your GP was because you had a little cough.  You wouldn’t trouble a GP with a little cough.
  3. I don’t trouble the GP with anything.
  4. I haven’t asked you the question yet. What you’re describing in this witness statement could not fairly be described as a little cough, could it?
  5. I just got on with it.  I’ve got five kids.  I’m on my own looking after them.  So I haven’t got time to sit in the doctor’s to be told: it’s stress and I can’t give you antibiotics.”
  6. Ms Carney went to see her GP on 13th September 2011. She was advised that her rash and cough were down to stress. Ms Carney now feels that they are down to both. However, she agreed in cross-examination she had not made the link with the fire. Given the smell that she described (akin to a hamster cage – not implausible in itself), and the quantities of “billowing” smoke that she witnessed, it is very difficult to accept that she did not make the connection – on the premise, that is, that her descriptions are correct.
  7. Unfortunately for Ms Carney and for others, her cross-examination concluded on an extremely damaging series of notes:
“Q.  What I suggest, Ms Carney, is that you have no idea if any symptoms you have had since June 2011 are related to this fire, do you?
  1. I’m not a specialist, am I?
  2. No.  So you’ve no idea?
  3. No, because the doctor hasn’t turned round to me and said: this is all down to the Sonae factory fire.  He said it’s down to stress.  But in the area people have got the exact same symptoms and had the same problems.
  4. So you think because other people might have symptoms that they say are caused, you say yours might be caused?
  5. There’s got to be a link somewhere, hasn’t there?
  6. In fact, in 2013, when you went to that shopping centre in Kirkby, you jumped on a passing bandwagon, didn’t you?
  7. No, I was asked a question and I answered.
  8. What was the question?
  9. If I’d suffered anything — any of these conditions.  It was chest, any chest symptoms from the fire, and I said yes, I had.  And then they said, would you like to come along and talk to us, and I said yes, because I don’t want something like that in the area where my kids are. My kids have got to live here, haven’t they?  It’s not jumping on a bandwagon.  It’s looking after your family, isn’t it?”
Ms Karen Court
  1. Ms Court was born on 23rd July 1964 and lives 2.27km from the Sonae plant. She now works in a responsible position as a volunteer care co-ordinator. At the time of the fire she was a training manager.
  2. Ms Court completed, and apparently signed, two separate questionnaires. I deploy that adverb because her two signatures look rather different, but she assured me that they were both hers. I have to accept her evidence in this respect.
  3. In her first questionnaire (Tandem Law), Ms Court stated that she had not had the opportunity to review her medical records, but to the best of her recollection and knowledge she first developed serious symptoms “some two weeks after the fire started”. These symptoms included chest pain, a sore throat, reflux, itchy eyes, itchy skin and a cough. She only became aware of the causal link when she realised that other people in the area were experiencing similar symptoms. According to this questionnaire, she received medical attention at her GP surgery.
  4. In her second questionnaire (Walter Barr) she first suffered symptoms on 9th/10th June and these comprised a chesty cough (“coughing a lot”), itchy eyes and itchy skin, and it took three weeks for the eyes and two or three months for the remaining symptoms to recover. Ms Court gave a different smoking history in this questionnaire. She claimed that the Tandem Law questionnaire was rushed, and that she was happier with the Walter Barr one, but it looks the other way round to me.
  5. In her oral evidence, Ms Court described a big white cloud of smoke coming towards her house. The smell was “a little bit like rubber”.  There were “loads and loads” of debris. Like many other witnesses, Ms Court was unable to hang out her washing. Her oral evidence was to the effect that her itchy eyes lasted for four months, and her cough for approximately four months. In my judgment, it was clear that she was exaggerating the length of any symptoms, which calls into question her characterisations of the extent of any ash and dust.
  6. As with the previous Test Claimant, Ms Carney, Ms Court unwittingly let slip some very revealing answers during her cross-examination by Mr Jones:
“No, you asked me, when did you first become aware of something; right?  And I remember seeing that and thinking — first thing I thought, I’ll be honest, is we were at risk.  That fire means that we were at risk. I’d forgotten about it because no one come to the house and said you need to be screened, you could have been at risk, you might have got respiratory whatever.
  1. You had forgotten about the fire?
  2. When I seen that I thought, oh, there’s been fault with Sonae.  There’s a claim.  Where there’s claim, there’s blame.  And I thought: hang on a minute, my itchy skin and everything, what have I been exposed to?
  3. So that was the first time you’d made a connection between your itchy skin?
  4. Yes.
  5. I think you said that was two years later?
  6. Yes.
….
  1. Let me ask you a narrower question.  You’d forgotten about the fire; yes?  That’s your evidence?
  2. Yes.
  3. You’re walking through Kirkby centre.  You see the unit and it says that Sonae is at fault, I think, is the phrase you used a moment ago. Had you not seen that sort of material saying Sonae is at fault, one, you probably would have forgotten about the fire still.
  4. I didn’t forget about the fire.  I’d forgotten about Sonae itself, if you know what I mean.”
  5. Ms Court was convinced that she first saw thick smoke after 20:00 on the evening of 9th June. She must be mistaken about that. Notwithstanding her first questionnaire, she claimed that she first experienced symptoms immediately, in other words, that night. Her feeling at the time was that her symptoms would be a temporary inconvenience, but her prolonged dermatitis suggested otherwise.
  6. Ms Court saw her GP on 10th and 13th June in relation to other matters. She said that although there was no mention of any symptoms from the fire, she was sure that she did discuss it. The GP’s advice was to take Betnovate for the dermatitis. She was convinced that this advice was given on the second occasion. Paragraph 19 of her witness statement claimed that she could recall one occasion on which her cough was so bad that she thought that she would die. According to her oral evidence, this was the immediate impact of the fire, which must have been before 13th June. If that is right, one would have expected the GP to have noted a complaint; and even if Ms Court is wrong and this occasion was after 13th June, it is very surprising that symptoms of this severity did not attract a specific visit for medical advice. I note too that Ms Court disowned paragraph 32 of her witness statement, which claimed that a week after the fire she took her son to the GP because he was unwell, and the GP recommended lotion for her skin.
  7. Finally, I should state that Ms Court agreed that her claim in the sum of £500 for additional paint and cleaning material was probably overestimated.
  8. In my judgment, Ms Court was an unsatisfactory witness the reliability of whose evidence I cannot accept. Her claim only has a prospect of success if it supported by the plume modelling evidence and/or a constellation of symptoms effect.
Mrs Annette Farrell
  1. Mrs Farrell was born on 18th April 1952 and lives 1.81km from the fire. She was an administrative officer at a sports college, and retired in September 2011.
  2. She is a light smoker and had pre-existing problems with bronchitis and shingles.
  3. According to her questionnaire, Mrs Farrell suffered a range of respiratory, eye and ENT problems following the Sonae fire. These all developed within 48 hours. Her respiratory problems are ongoing; her eye symptoms resolved within one month, her ENT problems within three months.
  4. In her oral evidence Mrs Farrell described the colour and quality of the smoke, in particular its horrible, chemical smell – “a bit like glue”. She said that it burnt the back of her throat, went inside her nose and made her eyes water. The gritty atmosphere, which was similar to the morning after bonfire night, lasted for two to three days.
  5. Mrs Farrell was diagnosed with asthma in September 2011, and in November 2011 went onto the asthma register.
  6. In cross-examination, Mrs Farrell said that she had not suffered from breathing problems before the fire. However, a letter from the Aintree Chest Centre to her GP dated 10th November 2010 indicates clearly that she had a wheezy cough and was quite breathless on exertion. The physician wondered if she had bronchial hyper-reactivity.
  7. On various occasions in 2010 and 2011, Mrs Farrell was prescribed Salbutamol. On 23rd March 2011 she was prescribed steroids for her chest. According to his report, she told Dr Hind that she used an inhaler approximately once a day during the year before the fire. She could not remember telling him this, nor could she really explain why her questionnaire had denied any asthma symptoms.
  8. Mrs Farrell told me that she was sure that she working at the time of the fire. She was taken to a series of medical records showing that she was given sick certificates for shingles between April and August 2011. She said that some of these were backdated, and that she was back at work on 6th June. At the time she was giving evidence, her occupational health records were not available, but now that they have been obtained they clearly show that the sickness certificates were not backdated and that Mrs Farrell was off work with shingles over the whole of this period. I accept that Mrs Farrell was not seeking deliberately to mislead me, and – as her recent witness statement says – that she may have become confused about the exact dates. However, the revelation of these records significantly undermines the reliability of her evidence.
  9. Mrs Farrell attended her GP on 23rd June 2011 but there is no record of her mentioning any eye and nose complaints to him. She told me that this was an omission in the GP notes, and that she did; but that answer is difficult to reconcile with the note of a complaint of a wheezy cough, which was in very similar vein to previous complaints. If there had been something new, it is highly likely that the GP would have recorded it. I have taken on board Mr Swift’s point, made in the context of Mrs Farrell’s case, that when people go to their GP they do not always mention all their symptoms; but her evidence was that she did so on this occasion.
  10. Mr Swift also had this to say about Mrs Farrell’s case, which I considered to be illuminating:
There is also — it’s not necessarily the person that’s trying to tell mistruths.  It may be their perception of things. So you find that if someone suffers from, say, anxiety and depression, which are quite common disorders, certainly in the rhinology field, their perception of having a stuffy nose will be much greater than someone who is happy with life.  I’ll quite often sit in clinic, trying to work out why they’ve come to see me, because my nose is generally much worse than theirs, and that is an honest opinion on that.”
  1. Overall, Mrs Farrell was not a reliable witness, and her case cannot in my view succeed on the basis of her own testimony. As with other Test Claimants falling within this category, she requires the plume modelling evidence and/or a constellation of symptoms effect to support her.
Mr James Reece
  1. Mr Reece was born on 21st January 1953 and lives 3.1km from the Sonae plant. He works as a night janitor at Knowsley business park. He has a history of chest symptoms and hay fever, and is a heavy smoker.
  2. According to his questionnaire, he developed symptoms on or about 12th June 2011. He described these as “a bit of a cough and … cold flu like symptoms”. He believes that he now has asthma as a result of being exposed. Maybe it was for this reason that he described his symptoms as“ongoing”. It was not until he saw an advert in a newspaper that other people had apparently suffered similarly that he made the link between his symptoms and the fire.
  3. In his oral evidence, Mr Reece explained that he felt that his symptoms – of what he believed was hay fever – came on a bit stronger. He felt miserable.
  4. Under cross-examination, Mr Reece said that he was sure that he saw the fire before 04:00 on 10th June, when he went outside for a smoke during the course of his employment. He must be mistaken about that. He made an appointment to see his GP on 22nd June but did not attend. He told me that he wasn’t thinking straight, although the appointment was probably arranged for his symptoms. On 5th December 2011 he attended his GP complaining off a cough which had lasted for two months. The GP records show that asthma was not diagnosed until 19th October 2012.
  5. Dr Hardy’s report ascribes conjunctivitis and rhinitis to smoke inhalation, and also a severe acute bronchitis which became chronic. Dr Hardy is unclear about the aetiology of Mr Reece’s asthma. Dr Hind defers to my view of Mr Reece’s credibility and the plume modelling. In my judgment, Mr Reece was an entirely unconvincing witness, and I would be unwilling to attribute any symptoms to smoke inhalation unless the plume modelling evidence and/or a constellation of symptoms effect is available to support him.
Mr Edmund Kenny
  1. Mr Kenny was born on 8th December 1951, and lived 1.8km from the Sonae plant. He is retired and for some years cared for his mother, who sadly passed away in February 2015.
  2. Unfortunately, Mr Kenny’s overall health is not good. He has a heart condition and is diabetic. He was a heavy smoker for many years, suffers from hay fever, and has experienced episodes of shortness of breath. Mr Kenny has also been an asthmatic since 1990, but he told me that he manages to keep it under control.
  3. Mr Kenny was at home at the time of the fire. He told me that he was aware of it during the evening of 9th June. By the morning, the smoke was a grey/white colour. At lunchtime, it went black. There was loads of it; it was like the smoke coming off the top of a volcano. Mr Kenny also described an awful, glue-like smell with chemical overtones.
  4. Unlike many other witnesses, Mr Kenny has given a consistent account throughout the course of this litigation. In his oral evidence, he said that his breathing “went terrible” within a couple of days. His eyes were sore; he had a blocked nose and sore throat; he just felt rotten. Consequently, Mr Kenny had to use his inhaler twice as normal, and he used Optrex 4-5 times a day. His symptoms lasted for approximately three weeks in all.
  5. Mr Kenny also told me about “an awful lot” of dust and ash in the smoke. It was grey, and got everywhere. It was completely different from“Sahara sand dust”. He had to clean and wash more often, and try to keep the windows closed. He placed masking tape on the gap over the double-glazing. A sense of the duration of this phenomenon did not clearly emerge from Mr Kenny’s evidence in chief, but he told Dr Hardy that he had to keep the windows and doors closed for 2-3 days. Under cross-examination, he said that the dust etc lasted for at least a week.
  6. On 20th June 2011, Mr Kenny saw his GP, Dr Mohammed Khan. The computer records reads:
“H/O; asthma. Flare up after recent Sonic factory fire. Speaking full sentences. Resp sys – b/l air entry equal. b/l scattered wheeze+. RR-18/min. Was more worse over w/e, it seems. P]- Oral steroids. Continue inhalers …”
  1. The Defendant accepts that Mr Kenny suffered an exacerbation of asthma in mid-June 2011. The issue is what caused it. Mr Kenny said in cross-examination that his hay fever tends to be worse in May/June, and then in August/September. He agreed that the general pattern was of “good and bad days”. There had been a deterioration in 2010 and Mr Kenny was on inhalers throughout that and the following year. He was taking prednisolone before the fire.
  2. Mr Kenny was asked about Dr Khan’s note, “was worse over weekend”, which he agreed was accurate. He said that it was still musty and foggy over the weekend on 18th/19th June. He was not sure whether there was still smoke and dust. Mr Kenny made no mention to his GP of any nose and eye symptoms. He agreed that his cough was getting better by then.
  3. Mr Kenny suffered from a serious bout of food poisoning at the end of June 2011. When hospitalised on 2nd July it was noted that he had no respiratory symptoms.
  4. In my judgment, Mr Kenny was an entirely honest witness. He is the sort of person who I would also describe as being reliable, but an issue arises as to the quality of his recollection, as it would in relation to anyone being asked to recall events of this nature occurring some time ago.  Thus, if he tells me that the dust lasted for a week, I believe him; but he could simply be mistaken about it.
  5. Mr Kenny is convinced that cause and effect has been established in these circumstances, and I fully understand his reasons. A final decision cannot be made in his case without considering the plume modelling evidence.
Mr Paul McLoughlin
  1. Mr McLoughlin was born on 26th January 1962, and lives 1.61km from the fire. He is a taxi driver who works school shifts and a number of night shifts. He is a light smoker, and has no pre-existing health history of note.
  2. For obvious reasons, given the nature of Mr McLoughlin’s work, the plume modelling in his case has been difficult to undertake. It has been tethered to his home address; no other modelling exercise would have been possible. I have to take a sensible view about this. Mr McLoughlin’s driving would have taken him over a reasonably broad area; and, on occasion, closer to the Sonae plant than his home. There is no satisfactory evidence as to the extent to which the “boxed” environment of a motor vehicle provides any measure of protection.
  3. According to Mr McLoughlin’s questionnaire, he developed respiratory, eye and skin symptoms within 48 hours of the onset of the fire, as well as headaches. He complained of a persistent cough, sometimes painful and causing difficulties in sleeping. His eyes felt dry, itchy and sore, and would water when driving such that he had to pull over to the side of the road and apply eye drops. His forearms turned red and itchy, and the skin flaked as he scratched. He had to apply Sudacrem and an anti-bacterial soap. The headaches caused a lot of pain in his forehead and elsewhere. All his symptoms resolved within about two weeks.
  4. Mr McLoughlin told me that he was at home when the fire started. He saw grey, dark soot-coloured smoke and experienced the “very unpleasant smell” of burning wood and creosote. He also said that there were substantial quantities of ash and dust, which meant that he and his family had to keep the windows and doors closed.
  5. An issue arose in cross-examination as to whether Mr McLoughlin was working on 12th/13th June. The computer record suggests not, but he said that he worked because he had to, and would have used a different computer code. I accept his evidence on this point.
  6. On 23rd June 2011 Mr McLoughlin saw his GP. He is not a frequent attendee. The computer record reads as follows:
“C/O – cough had cough for a few weeks now, has been taking OTC medication, chest seems clear. Advised to continue with meds and come back in 2 weeks if no better.”
  1. Mr McLoughin said that he did not mention his other symptoms to his GP; he was more concerned about the cough. He said that he thought that the fire was mentioned to his doctor in passing. I do not find that it was, otherwise the other symptoms would surely have been raised.
  2. Dr August was cross-examined about “the main symptoms of pruritus unspecified” which “could be inferred as irritant dermatitis (but there is no direct clinical evidence)” or “urticaria … or prurigo”. Dr August agreed that, as a general proposition, one would expect such condition(s) to be more widespread, and not confined to the forearms. However, a lot is not known about the distribution of skin rashes. Further:
“MR KENT:  It sounds as though this is quite difficult retrospectively to diagnose.
DR AUGUST:  Yes.  It’s inspired guesswork, really.  It’s a hunch, what do you think is the best fit.”
  1. In my judgment, Mr McLoughlin’s skin symptoms require consideration within the ambit of the overall frame of the toxicological evidence in this case. As I have already made clear, that evidence is unsupportive. As for his eye complaints, Mr Clearkin’s view is that these lasted just two weeks, but he did not accept that this presentation was more consistent with infection than tear film instability. I have difficulty with Mr Clearkin’s logic, and I take Mr Marsh’s point that eye problems do not appear to have been mentioned at the GP consultation on 23rd June.
  2. I have found Mr McLoughlin to be one of the most difficult witnesses to assess. He came across as a reliable person, pleasant and understated. I have little doubt that some key features of this experience have remained in his mind: the smoke; the unpleasant smell; the quantities of ash; the cough; the itchiness. However, as with other witnesses, I was left without a clear impression of timing, duration and severity.
Mr Peter Shaw
  1. Mr Shaw was born on 31st May 1967. He works as a driver and labourer. His depot is the premises of his employer, Kings Construction, which is based on the Knowsley Industrial Estate 0.55km from the Sonae plant.
  2. Mr Shaw is a non-smoker who had no chest symptoms of any note for a number of years.
  3. Mr Shaw falls into a different category from other witnesses. His workplace is south-east of the Sonae plant. For him, therefore, Saturday 11thJune is a potentially important date.
  4. Mr Shaw normally works Monday-Fridays. His work pattern was and remains such that he is at the depot for approximately 80-90 minutes a day; otherwise, he is on the road. Mr Shaw arrived at work at approximately 06:50 on Friday 10th June. He saw fire engines and a lot of black/grey smoke. He started to suffer from a cough the day after the fire started and while he was at work. Over the weekend, he began to suffer from itchy eyes. He found it difficult to breathe and his work and sleep were affected.
  5. Mr Shaw told Dr Hardy that he was “probably” working on Saturday 11th June, and Mr Clearkin that he was working on that date. Since then, his payslips have been obtained, and these contradict his account. His explanation is that he “may have been mistaken”. It was put to Mr Shaw that he well knew that his case would be enhanced if he could show that he was exposed to the smoke plume on that date, and that in effect he has sought deliberately to misrepresent the position. Not without some hesitation, I acquit Mr Shaw of that aspersion. He was not a particularly impressive witness, but I do not conclude that he would so brazenly have attempted to mislead.
  6. A clear issue arises as to the timing of the onset of Mr Shaw’s cough. Under cross-examination he said that his sore throat developed over the Friday afternoon, and the sore eyes, cough and phlegm over the weekend. On 13th June he saw his GP who recorded “cough one week” and prescribed amoxicillin. At that stage, Mr Shaw said that he had not made a link in his mind between the smoke and his cough. However, he contested the accuracy of the note. On 20th June he re-attended: he was still “bunged up”, and the GP prescribed a short course of steroids. Mr Shaw told me that on that occasion he did not mention the fire. It was only “maybe a week or two after” that he began to make that connection.
  7. Mr Shaw also said that his cough largely cleared after one week, but he was not totally better until 6-8 weeks later.
  8. In my judgment, Mr Shaw’s case faces problems whichever way the evidence is interpreted. If the medical record is correct, which in my view it probably is, then his cough was not due to the fire. The possibility that the fire exacerbated his symptoms cannot be excluded, but cannot be substantiated on the balance of probabilities on the basis of Mr Shaw’s account alone. If the cough in fact developed on Saturday, when Mr Shaw as at home far away from the scope of the smoke, Dr Hardy conceded that “it’s not due to the smoke, I guess”.
Mrs Teri O’Brien
  1. Mrs O’Brien was born on 25th June 1981, and lives 2.63km from the Sonae plant. Until recently, she worked as an emergency operator for Merseyside Police, and is now a Probation Service officer.
  2. Mrs O’Brien is an ex-smoker. She suffers from hay fever, intermittent chest symptoms from smoking-related bronchitis, and possibly late-onset asthma.
  3. According to her questionnaire, Mrs O’Brien suffered from a range of eye, respiratory, throat and nasal symptoms, accompanied by headache and fatigue, all starting about 48 hours after the onset of the fire. She had never experienced similar symptoms before. These symptoms all resolved after three weeks. She was working normally throughout this period – she could not take time off, because the Police are sticklers for sickness absences.
  4. Mrs O’Brien was asked about the timing of the onset and offset of the smoke and accompanying acrid, chemical smell. She said this:
“That day it was quite intense, for the first few days leading off, and then obviously towards the end of that week it petered out a bit.”
  1. In answer to my questions, Mrs O’Brien said that she saw black smoke at around 13:30 on Friday 10th June, when it was close to her house, although she could not say how far away. Given that the wind had been blowing from the west for the past five hours, at the very least Mrs O’Brien’s timings must be incorrect. On subsequent days, she said that the atmosphere was smoggy and murky.
  2. She also said that she attempted to make an appointment at her GP. She gave similar evidence to other witnesses about dust and not hanging out washing outdoors.
  3. Under cross-examination, Mrs O’Brien was asked to be more precise about the severity of her symptoms. Her evidence was that they were more intense during the first week, but began to abate thereafter. Mrs O’Brien said that her symptoms were “alarming”, but I agree with Mr Kent that if this were really the case it is difficult to understand why she was unable to fit a doctor’s appointment into her part-time work schedule. Her explanation was that the appointments she was offered were inconvenient, and that she had other things to do.
  4. In my judgment, Mrs O’Brien was a reasonable witness but, in common with many others, imprecise on key issues such as timing and intensity of symptoms. As I have already observed, the notion that her symptoms were “intense” does not tally with her explanation for not seeing her GP. Another difficulty from her perspective is her distance from the Sonae plant at all material times. I will be returning to this issue in the context of the plume modelling evidence.
Mr Francis Glascott
  1. Mr Glascott was born on 17th November 1945. He lives 2.1km from the Sonae plant, and is retired. Owing to mental health difficulties, his witness statement was admitted in evidence under the Civil Evidence Act 1968. I also acceded to Mr Redfern’s application that a Litigation Friend be appointed.
  2. Mr Glascott has a history of chest pain and hypertension. COPD was diagnosed after the fire. He claims that within two weeks of the commencement of the fire, he developed respiratory symptoms which lasted for 10-12 weeks. Inexplicably, Dr Hardy has attributed six months’ symptoms to the fire. In Dr Hind’s view, the entirety of Mr Glascott’s symptoms are ascribable to smoking and undiagnosed COPD.
  3. On 30th May 2013 Mr Patrick White of GT Law, Solicitors, wrote a “Final Chaser” to Mr Glascott. He was told that the Statement of Truth to be appended to his questionnaire had to be completed and signed by him immediately, so that it could be returned to the Defendant. He was told that if he failed to comply, there could be costs sanctions against him personally. Aggrieved by the peremptory terms of this letter, Mr Glascott wrote to Clyde & Co (undated, but stamped as received on 11th June 2013) and said this:
“1. Cold called on doorstep by young man regarding fire at Sonae factory in Kirkby.
  1. Was asked had it affected me and although I said no, I was persuaded to give my details and answer some questions (including health questions).
  2. As I had breathing difficulties (and told him so) I decided to go ahead and sign the, what I thought, the questionnaire.
  3. Was subsequently phoned by GT Law about signing a statement of truth.
  4. Had been diagnosed that my breathing problem was mild emphysema caused by my long-term smoking so I informed GT Law that I did not wish to proceed and I did not believe that the Sonae fire had any bearing on my current health problem.
  5. Was told that I couldn’t withdraw my claim as the 7 day cooling off period from the date of the cold caller visit had expired.
  6. I told them I did not wish to proceed with what would then be a fraudulent claim and was informed that if I withdrew I would have to pay their costs.
  7. Subsequently received enclosed letter reiterating their claim for costs …”
  8. The Defendant has now pleaded that Mr Glascott’s is a fraudulent claim. It should be noted that, notwithstanding the terms of his letter, he has signed a witness statement and did submit to examination by the respiratory physicians.
  9. Mr Patrick White agreed to give evidence in line with his witness statement dated 21st May 2015. He denied that Mr Glascott had been cold-called, and said that the latter would have attended GT Law’s Kirkby office. He agreed that GT Law’s agents went round to Mr Glascott’s home in order to ask him to sign the questionnaire. Mr White told me that when Mr Glascott spoke to him on 14th May 2014, he did not wish to proceed. Mr White accepted that he explained to Mr Glascott that he might suffer a costs penalty if he withdrew. Under the terms of the CFA, it was open to GT Law to claim costs from the client, but Mr White said that it is unlikely that they would have done so. According to the terms of the attendance note of the call, Mr Glascott was warned that if he backed out now, the Defendant “will seek him for any charges”. This was notwithstanding the terms of Clyde & Co’s letter dated 11th July 2012 under which the Defendant irrevocably undertook not to seek payment of their legal costs. Mr White tried to suggest that it would have been negligent of him not to mention possible costs consequences, but in my judgment the letter could not have been clearer. Mr White denied that he was treating Mr Glascott as a “cash cow”. He said that Mr Glascott terminated the call by saying,“f – off”.
  10. Mr White was asked a close series of questions about Mr Glascott’s questionnaire and the signature on the Statement of Truth. There are obvious errors and inconsistencies in it. The signature looks nothing like Mr Glascott’s signature elsewhere, including his signature on the letter to Clyde & Co. Mr White maintained that it was Mr Glascott’s signature. I am not satisfied that it is.
  11. Mr White sought to persuade me that he was acting at all material times in Mr Glascott’s best interests. In my judgment, he was a poor, rather self-important witness who was acting in what he thought were the interests of his firm rather than those of his client.
  12. I am not satisfied that Mr Glascott is guilty of advancing a fraudulent claim. He cannot be held responsible for the conduct of his solicitors. In order to reach such a conclusion, I would need to know more about the circumstances in which he agreed to sign a witness statement and to submit to medical examination. However, he cannot persuade me by dint of his oral evidence (or indeed Dr Hardy’s exorbitant attributions) of any causal connection between the fire and symptoms. He is solely reliant on the plume modelling evidence.
  13. This leaves the position of Mr Patrick White and GT Law. Mr White is not a solicitor, but he was acting under the direction of his principals. I direct that a copy of this judgment be sent to the Solicitors Regulation Authority for investigation of the issues raised by Mr Glascott’s case.
  14. This nugget of evidence not merely leaves an unpleasant miasma of concern and dubiety in relation to Mr Glascott’s case, it has the potential to infect the integrity of GT Law’s processes overall, and other claims. Whether that potential is achieved in all the circumstances of this GLO will need to be addressed later.
Mr Leon Swift
  1. Mr Swift was born on 14th February 1989 and at the time of the fire was a trainee accountant (he is now chartered). His place of work was 0.88km east north-east of the Sonae factory.
  2. Mr Swift arrived at work at about 08:45 on Friday 10th June. Whilst driving to work along the East Lancs road he could see a large cloud of pale-coloured smoke. Nearer the office, it was smoggy and foggy. From closer-up, the smoke was in a vast quantity and a lightish/dark grey. The smell was strange and different from normal. It did not appear to impact on his breathing at that point.
  3. Later on, while Mr Swift was in his office, he began to suffer from itchy eyes and sinuses. This caused him to sneeze. Everyone was talking about the fire.
  4. On Monday 13th June the atmosphere was not as foggy as on the Friday, but there was “definitely” still a large cloud above the factory. Although there was less ash on his car, his symptoms had deteriorated. He had a slight headache, and his eye and sinus problems continued. Mr Swift told me that he tends not to visit his GP, and so he self-medicated. He bought stronger anti-histamines than he ordinarily used, but these did not really work. It took him 2-3 months to recover completely.
  5. Given other evidence in this case which I will be addressing below, the Defendant has pleaded that this is a fraudulent claim. In these circumstances, it is necessary to examine the evidence Mr Swift gave under cross-examination with particular care.
  6. Mr Swift completed the standard questionnaire on 27th August 2013. He stated that his symptoms lasted “3-6 months” (cf. his oral evidence), and that he made the connection with the fire only several weeks after the incident, following talking to colleagues. Given that the symptoms were apparently of immediate onset (cf. his oral evidence, which suggests a short delay) I find that difficult to accept. Mr Swift also accepted in cross-examination that the 3-6 month attribution was “excessive”.
  7. Mr Swift was taken to an undated and unsigned “Sonae Enquiry Form” which appears to relate to him, and states that his symptoms of headaches and nausea lasted for 4 months. He denied writing it. However, in his supplemental witness statement dated 15th May 2015, Mr Swift said that he“completed and returned” this form on 19th March. In the witness box he said he may have chatted to someone over the phone. He tried to persuade me that he did not know what the word “nausea” meant.
  8. On or about 22nd March 2013, Mr Swift completed a short questionnaire. In it he stated that “days after the fire I began to be affected with headaches as well as this I suffered breathing problems/ an irritating cough developed”. Thus, here appears a somewhat different account. Paragraph 3 of this questionnaire is also relevant:
When did your symptoms reach a stage when you informed your employer or GP?
Unfortunately I did not as I believed the headaches related to working at a computer. It is only now that it has been brought to my attention that I have linked the symptoms to the fire.”
  1. Mr Swift told Dr Hardy that he worked on Saturday 11th June. Dr Hind’s note of Mr Swift’s history is somewhat internally inconsistent. Mr Swift’s oral evidence was that he did not work on the Saturday. He believed that his account must have been lost by Dr Hardy in the translation.
  2. Mr Swift agreed that in the first week after the fire he played 5-a-side football and went to the gym as usual.
  3. In December 2008 and December 2009 Mr Swift was involved in road traffic accidents, and brought claims for compensation which were successfully resolved.
  4. On 22nd February 2013, Mr Swift was involved in the following conversation on Twitter:
Leon Swift either of you’s jumped on this sonae claim bandwagon?
TC been all over the radio
MC residents living close going to solicitors due to harmful emissions from the plant
MC looks like everyone’s doing it now because it’s shut down
Leon Swift they’ve admitted liability so anyone living or working in the area at the time of the fire can claim
MC get on it ken/tom
MC not for me #too honest
Leon Swift too honest ya, good one matt. I’m getting involved I reckon, pays for the summer holiday if it goes thru
TC ha ha you’re a bad man Leon
MC he’s a fraud Tom
Leon Swift takes a fraud to know a fraud Matthew. Mr ‘I was in that car that crashed ye’ #showmethemoney
MC my neck was sore when Dave crashed #thetruth
Leon Swift Asking for trouble driving in flip flops
MC if you crash give us a shout #whiplashclaim
MC I’m sure you was fine that time Dave had a crash
Leon Swift least I was in the car though Matthew
MC so was I”
  1. Mr Swift tried to dig himself out of the massive hole created by these exchanges. He said that the use of the term “bandwagon” was not the best choice of words. He agreed that the Tweets could be construed as indicating that any claim he made would be fraudulent. However, he told me that he was not saying at the time that his claim was not genuine. He well understood, he said, that an admission of liability did not mean that one could recover  damages regardless of injury.
  2. I watched Mr Swift very closely during the course of Mr Jones’ well-briefed and well-constructed cross-examination. One possible explanation for his extreme discomfiture and obvious embarrassment was that his Tweets were being taken out of context, and he was ashamed by the impression they may have been making. Another explanation is that he well knew that the Tweets contained accurate insights into his true state of mind. Making allowances as I do for the degree of banter that may accompany much discourse over these social networks, but having regard to all the available evidence, I regret that I have to favour the second explanation.
  3. Mr Swift is a well-educated young man and ought to be ashamed of himself. The Defendant’s pleaded case of fraud has been proved to the requisite standard. His claim fails.
  4. Extremely damagingly not merely for him but potentially for others, is the following exchange with counsel at the end of Mr Swift’s cross-examination:
“Q.  If you were able positively to make a link, you would have made that link when the fire was burning, not later?
  1. Yes.
  2. You have just said “yes”.  Are you agreeing with that proposition?
  3. No.  Like it is difficult to remember exactly when you do make the association of the two.  As I said previously, a lot of symptoms that I did experience are very similar symptoms to what I experienced on a regular basis.  So it is difficult to differentiate between the two.
  4. Exactly.  Mr Swift, what happened is this.  You would have great difficulty differentiating between symptoms you had anyway and symptoms from the fire, which is why you didn’t make any association in those two months or so that you’ve said occurred before you made an association.
  5. Yes, but that’s not to say that there wasn’t necessarily an association between the two sets.
  6. That’s a separate question.  The question is whether you can say there’s an association. What I suggest is it was only a very significant period later, whether months or in fact I suggest early 2013, that you saw advertising literature, and you thought: well, I can say that those symptoms — I’m not sure how they were caused — were caused by that fire and I can get some money; do you accept that?
  7. That may have been the trigger that made me think about it again, but it wasn’t the financial thing that I was thinking about in terms of making a claim.  It was just I realised that the nuisance it had caused at the time, that I basically wanted to bring the claim.
  8. The nuisance it had caused?  What do you mean by the nuisance it had caused?
  9. Basically, if you’re sitting in an office and you’ve got itchy eyes and tickly cough and sore nose, it’s just — it’s inconvenience that you could do without when you’re trying to work, isn’t it?
  10. But those are symptoms that are so similar to the symptoms you had anyway at the time of the year each year that you couldn’t positively link those symptoms to the smoke, could you?
  11. As I said, though, those symptoms were heightened considerably.  For example, I take Cetirizine, and that  controls my hay fever.  Things like that.  I don’t need to take anything additional during the time of the fire, I had to then go and purchase additional in order to try and appease the symptoms that I was referring to.
  12. If that was true, Mr Swift, you would have made the link there and then, wouldn’t you?  You would have thought: why is any normal medication that always resolves my problems not resolving my problems?
  13. You would think so, yes.”
  14. Finally, I note that in his report Dr Hardy fairly stated that Mr Swift developed no chest symptoms whatsoever in consequence of smoke inhalation, but then felt able to say that he probably suffered from conjunctivitis, rhinitis and acute bronchitis (cough) for “up to six months”. My only observation is that his sort of expression of opinion discloses the dangers of leading with the chin.
Mr Shaun West
  1. Mr West was born on 29th December 1988 and lives with his mother 0.58km from the Sonae plant. In 2011 he worked in Aintree as a sales’ advisor.
  2. Although a virtual non-smoker, Mr West has a history of skin rash (2001-2009), asthma (since 1999), URTIs (1994-2010), rhinitis, sore throat, eczema and hay fever.
  3. At paragraph 17 of his questionnaire, Mr West stated that he experienced respiratory symptoms for a period of less than 2 months, eye symptoms for less than 1 week, skin problems for less than 3 weeks, nasal symptoms for less than 2 months, and generalised dizziness, fatigue and aches and pains for less than 2 months. In the witness box he said that he felt that he had “short-changed” some of his symptoms, in particular the eyes.
  4. In his oral evidence Mr West said that when he came home from work on the evening of Thursday 9th June he was aware of the fire almost immediately. He had a clear view from the hallway window of his home. Between 20:00 and 21:00 that evening, he could see flames and smoke; he was very confident of that (his confidence was misplaced). The next day, in the morning, the fire was really bad and the smoke was starting to billow. It was relentless, and a very dark colour. He could smell and taste it – Mr West, in common with others, described a “chemically” smell. By the time he returned home at around 16:00 to 17:00, the smoke “still looked incredibly bad”. Once he was in the house, he shut all the windows.
  5. Mr West said that it was very likely that he remained at home that weekend. There was no real respite from the smoke. He figured that everyone was in the same position, and that his GP would not be able to change his environment.
  6. In terms of the evolution of the smoke plume, Mr West said this:
“But I’d say a couple of days in, after the immediate fire getting very severe, there was one or two days when it would be a lot worse in terms of maybe the smoke being lower.  The house, I was always surrounded by it, and to be honest, I constantly had the curtain shut.”
and subsequently:
“Q.  One final question. What was the atmosphere outside the house like in the period of the fire and the period immediately following it?  The air quality, if you like.
  1. Very poor.  It felt like I was trapped in the house. Any instance where I would have normally walked to the shop to get, you know, even bread and milk, I would have drove to a garage in (inaudible) because I didn’t really want to go walking down the road.
  2. That’s what you did as a result of it, but what was the air quality like?  Can you describe it?
  3. I would cough immediately.
  4. That’s a consequence.
  5. A consequence.
  6. What was the air quality like?
  7. Okay.  Sorry, could you rephrase that?
  8. Yes.  When you walked outside, was it a nice clear day or what?
  9. It obviously got worse on some days.  So some days I couldn’t see across the fields because of the direction the smoke was going in and I live very close to the fields. It was constantly smelling of the smoke and the fire and whatever else.  God knows what was in there.  But it was pretty horrid, to be honest.”
  10. In this sequence of evidence, Mr West was certainly not guilty of short-changing himself or the Claimants generally. Being much closer to the Sonae plant than almost every other Claimant, he was well-placed to describe the direct and obvious consequences of the fire. However, his account bears no sensible relation to all the objective evidence in the case, in particular the expert evidence of Dr Mitcheson, the lay evidence of Dr Jowett and Mr Whitrow (in particular), and the photographs which were separately provided to me by the Defendant on a memory stick, including the photograph I mentioned at paragraph 76 above. Unwittingly or otherwise, Mr West’s account was heavily freighted with hyperbole.
  11. Mr West was cross-examined closely about his claim that there were considerable quantities of dust, ash and debris on the field between his property and the plant. He said in his questionnaire that the field was covered in dust and debris, and he was unable to take his usual walk. The photographs do not bear him out at all. Under cross-examination Mr West made clear that he did not examine the field in any detail, because it was not a good place to be. He later said that there was bound to be dust and debris after a fire, but could not support that assertion with his own evidence.
  12. On 24th August 2011 Mr West saw his GP, complaining of eye symptoms. On examination, the GP noted the complaint of soreness, but recorded that “there was not much to see”. Mr West claimed that he had a long conversation with his GP about his other symptoms, about possible causes for them, including the fire, and that he was self-medicating. If that was the case, the GP would surely have made some note of it.
  13. In my judgment, Mr West was a poor witness who was neither credible nor reliable. His evidence was replete with exaggeration and, at times, evasion. The weaknesses in his oral evidence will need to be balanced against the plume modelling evidence.
Mrs Kathleen Tully
  1. Mrs Tully was born on 12th January 1970 and lives 1.53km from the Sonae plant. She has a history of coughs, respiratory tract infections, chest pain (but not for some years), conjunctivitis and sore throat.
  2. Mrs Tully said that she suffered from a number of symptoms following the fire, including a sore throat, breathing problems, a chesty cough, sore eyes and a congested nose.
  3. In her oral evidence, Mrs Tully described a very intense, acid-y smell and smoggy, heavy conditions. It looked like the day after bonfire day, and cars were white with dust.
  4. On 16th June 2011 Mrs Tully went to see her GP. His computerised records reads as follows:
Diagnosis Ganglion of wrist right-sided, noticed a few weeks ago, some constant discomfort, able to use hand normally, no pins/needles. O/E – ganglion, radial – N, sensation – N. Explained and reassured.
Symptom Has a sore throat last 3 days, no fever, feels achy all over, able to eat and drink a little, some diarrhoea, foul smelling, no blood. O/E  -well hydrated, systemically well, throat – tonsils inflamed, pus bilate[ral] explained bacterial tonsillitis …”
  1. Under cross-examination, Mrs Tully said that she had made a connection between her symptoms and the fire, and when she put this to her GP he said that he was not sure. Mrs Tully said that she was sure it was then, but immediately retracted this and said that it was possible that she mistaken about it. Given that there is no mention of this account in her witness statement, I have difficulty in accepting it.
  2. On 27th June Mrs Tully returned to her GP complaining of the symptoms of acute conjunctivitis “for 5/7 now”. She had sore, itchy eyes. As regards the timing, Mrs Tully said in evidence that she did not think that her eye symptoms started on 22nd June, and that she must have misremembered the position when she spoke to her GP. She did associate her eye symptoms with the fire, but was unsure why she did not mention this to the doctor on 16th June.
  3. In Dr Hardy and Dr Hind’s opinion, Mrs Tully suffered from severe bacterial tonsillitis which was unrelated to the fire. Mr Swift’s contrary conclusion that there was a causal relationship with smoke inhalation was based only on clinical judgment and the temporal association. He said that the GP must have failed to investigate the matter with sufficient care. Given the signs on examination, the clear presentation of a severe bacterial infection, and his own expert judgment that such infections are not the result of smoke inhalation, in my view Mr Swift’s approach rather demonstrates the dangers of relying on ex post facto clinical judgments in this sort of situation. Nor can I accept Mr Clearkin’s diagnosis of tear-film instability. The clinical findings, Mr Marsh’s sound opinion, and Occam’s Razor all point strongly in favour of an unrelated bacterial conjunctivitis.
  4. Mrs Tully was a pleasant and entirely reasonable witness. I will be examining the plume modelling evidence in her case, but all the reliable and compelling evidence in her case points towards this being a coincidental infection.
Master Bradley Woods
  1. Bradley was born on 30th April 2005 and at the time of the fire was aged only 6. He lives with his mother and sister 0.8km from the Sonae plant.
  2. Bradley is reliant on the witness statement of his mother and Litigation Friend, Mrs Kathleen Woods. According to his questionnaire, Bradley developed respiratory, eye and skin problems within 24 hours of the fire. He had a persistent cough and complained of a frequent wheeze. His eyes became very itchy following the fire, and he developed a temperature. Bradley’s symptoms had resolved within 2 weeks of the fire.
  3. Mrs Woods does not have other than a vague recollection of conditions in the days following the fire, although she spoke of light grey smoke and “ashy” conditions outdoors.
  4. On 14th June 2011 Bradley was taken to see his GP, who recorded that he had been coughing and suffering from a temperature for two days. This is inconsistent with the questionnaire. The GP diagnosed an upper respiratory tract infection.
  5. Mrs Woods agreed that she did not mention her son’s eyes to the GP: her explanation was that she was just bathing them.
  6. Bradley clearly did suffer from a coincidental viral infection which was properly diagnosed on 14th June. It is of course possible that smoke inhalation might have aggravated his symptoms from this, but I would only be prepared to reach such a conclusion on the back of, at the very least, compelling plume modelling evidence supporting an above threshold exposure.
Mr Steven Woolvine
  1. Mr Woolvine was born on 2nd June 1984. He lives 2.59km from the Sonae plant, and works as a customer service advisor at a location 1.65km from the fire.
  2. Mr Woolvine has a history of hay fever, childhood eczema and dry skin complaints. He is a moderate smoker.
  3. Mr Woolvine’s solicitors throughout have been Walter Barr. There are two questionnaires relevant to his claim. Walter Barr told Mr Woolvine that this was due to “administrative error”. The first questionnaire, dated 8th August 2013, was completed and signed by Mr Woolvine. The second questionnaire, dated 16th September 2013, was neither signed nor completed by him. It contains several errors, and Mr Woolvine told me on oath that the signature is not his. I accept his evidence. It follows that Walter Barr, or their agents, have forged Mr Woolvine’s signature. This is a serious matter, and I direct that a copy of his judgment be sent to the Solicitors Regulation Authority for investigation of this issue.
  4. According to the first questionnaire, Mr Woolvine developed symptoms “right away” and these comprised cold sores, a cough, chapped lips, a chest infection and an eczematous rash. He claimed to have received medical treatment at his GP surgery. This questionnaire is vague and unsatisfactory.
  5. Mr Woolvine’s witness statement does provide further detail. He said that he developed a range of breathing, eye and skin problems in consequence of the fire. They were particularly bad for the first couple of weeks, and took approximately two months to resolve.
  6. Under cross-examination, Mr Woolvine accepted that he did not make the connection between the fire and his symptoms until April 2013. He said that his eye and chest symptoms resolved within two weeks, but it took two months for the skin problems to recover.
  7. Mr Woolvine saw his GP on 8th July 2011 in relation to an unrelated matter. He accepted that his questionnaire was incorrect in relation to medical treatment, and explained that he had misunderstood it.
  8. Mr Woolvine was an unimpressive witness. Counsel began to fathom the bottom of his case during this sequence of cross-examination:
“Q.  Why didn’t you go to the GP before 8 July, if you had the symptoms you’ve talked about?
  1. Because the symptoms that I had, I felt were manageable. I don’t want to go to the GP about every little thing, because I obviously go quite a lot with regards to my depression and anxiety.  I don’t want to bombard him with every little thing.
  2. No.  So your cough never got so bad that you thought, well, I really need to go and see a doctor?
  3. No.
  4. Nor your shortness of breath?
  5. No.  Because at that time my shortness of breath, initially I put it down to smoking, until it carried on for a couple of weeks, and then, because of the other symptoms I got, I related it to the fire.
  6. It’s just it was suggested at one point in the papers [the account given by Mr Woolvine to Dr Hardy] that at one point you got so breathless you had to sit down on a wall when you got to the church because you were too breathless; is that right or not?
  7. Yes.  That’s correct.
  8. If you really had that symptom at this time, you would have gone to the GP, wouldn’t you?
  9. No, because, as I say, initially, I did put it down to smoking and I did try and cut down at that stage, and after the two weeks it did ease off.
  10. So when you cut down the cigarettes, the symptoms reduced?
  11. Yes, but I’ve never had problems — I’ve smoked for 10, 12 years, on and off, so I’ve never experienced problems like that before, and it was just a bit coincidental that that happened at that period.
  12. The association you made between your symptoms and the fire came very much later, didn’t it?  The association in your mind that the fire may have caused problems came much later?
  13. When I properly thought about it, yes.”
  14. In my judgment, Mr Woolvine grossly exaggerated his symptoms to Dr Hardy, and he has also given an exaggerated account to me. I entirely accept that this conclusion does not rule out the possibility of less severe symptoms resulting from exposure to the smoke plume, which symptoms may have crossed the threshold of actionable injury. However, as with other Test Claimants in his position, Mr Woolvine’s difficulty is that he has to invoke something other than his oral evidence to persuade me of that proposition.
LATER IN THE JUDGMENT
  1. In my judgment, the lay evidence viewed as a whole was unimpressive. It was vague, impressionistic, imprecise, sometimes inconsistent with the known behaviour of the smoke plume, and often internally inconsistent. Only three of the Test Claimants gave evidence which impressed me as being potentially reliable. Given that no one appears to have kept a contemporaneous record of his or her experiences, this generic failure to provide a coherent, consistent account of what occurred is hardly surprising, but in my judgment cannot be a factor in the Claimants’ favour.
  2. Had there being a critical mass of impressive, reliable lay evidence from the Claimants, I might have been prepared to revisit the toxicological thresholds and the plume modelling evidence. In the absence of these desiderata, I have absolutely no proper basis for lowering the bar.
  3. The three Test Claimants who did impress me were Messrs Dunn, Kenny and McLoughlin. They all live north-west of the Sonae plant, but some considerable distance away. Mr Dunn, in many ways the most impressive witness, lives 2.3km away. His exposures were modest. Mr McLoughin gave quite convincing evidence in relation to his skin problems, but in the end I cannot accept that the science could be so wrong that he could be right. Mr Redfern submitted that the absence of any relationship between the good cases/witnesses and the modelled exposures somehow avails the Claimants, but in my judgment the true position is exactly the converse.
  4. This brings me to the “constellation of symptoms” effect, and Dr Hardy’s eloquent foray into quasi-epidemiology (Mr Swift and Mr Clearkin were less impassioned, but gave evidence to like effect). The difficulty with these arguments is that they entail an overly generous and macroscopic view of the Test Claimants’ evidence. Ultimately, they are founded on the apparent temporal association. What I have to call this ersatz epidemiology falls away as soon as the individual cases are scrutinised with the care they deserve in a forensic setting. As soon as that process occurred, the inconsistencies and weaknesses in most of the Test cases became evident. Furthermore, as soon as the plume modelling evidence is factored into the equation – as it has never been by the Claimants’ clinical team – the claims become weaker still. In my judgment, these experts have sought to discern a constellation by gazing hopefully into the sky, without taking time to look closely at the individual stars.
  5. The possibility arises that the science is just plain wrong, and that in many years’ time a proper epidemiological study will prove that the residents of Kirkby were right all along. I cannot exclude that possibility. However, I have to use the best scientific evidence that is available, and then balance it against the lay evidence. Performing that exercise, I am satisfied on the balance of probabilities that the lay evidence I have heard cannot outweigh the combined effect of the science. Indeed, I would put the matter higher than that – in my view, the lay evidence creates no significant dent into the science, the latter emerging unscathed.
  6. In my judgment, there are serious weaknesses in the Claimants’ overall case which I need to make explicit. I have already alluded to some of them. First, the case is severely damaged by the delay in bringing these claims and the absence of any contemporaneous evidence. Had 16,000 people really suffered symptoms of the severity claimed, one would surely have seen evidence of complaints to newspapers and to the local council, increases in GP attendances, and some contemporary record of a problem. None has been brought to my attention. Secondly, recall bias is always an issue in scientific research based on retrospective evidence, and this phenomenon is hugely magnified when one brings into the equation the obvious corollaries of the medico-legal component. Human beings are naturally susceptible and suggestible, particularly if they are made to believe that they form part of a coherent group with shared experiences, and if they risk none of their own resources in bringing a claim. The standard-form questionnaires asked a series of leading questions. Many of the questionnaires examined in the context of the Test Claimants were shown to be inaccurate and exaggerated, calling into question the objectivity and integrity of the whole process. Nor does the whole set up of pop-up shops and cold-calling of potential Claimants inspire any degree of confidence.
  7. My concerns in this regard are heightened by the fact that two of the questionnaires were shown to bear forged signatures, and that whole families have been signed up, apparently willy-nilly, to the group. The Defendant has drawn my attention, through the evidence of Ms Adele Wilson, to the sort of behaviour that has been going on. According to paragraph 6 of her witness statement:
“In approximately January 2012, I was at work when I received a telephone call from my partner, Greg Taft. Greg told me that a lady had visited our home in Tower Hill who had told him that she was acting on behalf of GT Law solicitors who was dealing with claims against Sonae relating to smoke inhalation from the fire in June 2011. She said that Sonae had accepted liability and that compensation had already been paid out to claimants. The lady was attempting to encourage Greg to sign up in order to put forward a claim against Sonae for symptoms relating to smoke inhalation. Greg told her that he was not interested in making a claim and asked her to leave.”
Ms Wilson was not cross-examined about this evidence, which is admittedly hearsay. However, there is no reason to doubt its accuracy. The information Mr Taft was given was inaccurate – there had been no admission of liability, and no money had been paid. Misleading information of this sort had the obvious tendency to encourage the bringing of claims, on the basis that the Defendant was a soft target and this was easy money. That this information was understood in exactly this way is revealed by the terms of the Facebook posts referred to at paragraphs 9, 10 and 12 of Ms Wilson’s witness statement, as well as by the evidence in Leon Swift’s case. I strongly deprecate this sort of practice. Not merely does it sail close to the wind in terms of its professional propriety, it is severely counter-productive as and when the case comes to trial.

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