AB & Ors v British Coal Corporation & Anor

MRS JUSTICE SWIFT: This case concerns the resolution of disputes that have arisen between four claimants and the Department of Trade and Industry (DTI) in relation to the smoking history of four miners, (three of them now deceased), in respect of whom claims for damages have been made within the British Coal Respiratory Disease Litigation (BCRDL). Those claims are made under the provisions of the Claims Handling Agreement (CHA).

The CHA was agreed between the DTI and the co-ordinating group (CG) representing claimants' solicitors in the BCRDL, pursuant to the judgment and the successful lead actions of AB and others v British Coal Corporation, given by Mr Justice Turner in 1998. The DTI had succeeded to the liabilities of the British Coal Corporation (BCC) on 1st January 1998.

Calculation of the appropriate level of damages under the CHA depends on a combination of factors, including, but not confined to, the individual claimant's total respiratory disability, employment history and smoking history. Information relating to these and other matters is fed into a computer, which is programmed to calculate the total value of the claimant's claim and the proportion of that total value which is recoverable. A claimant's smoking history can have a significant effect on the proportion of the total value of his claim which will be recoverable under the CHA.

When making a claim, a live claimant is required to complete a claims questionnaire (CQ) which includes a section relating to the claimant's smoking history. When a claimant makes a claim on behalf of a deceased miner she or he must complete a deceased mineworker's CQ. This also requests information about the deceased's smoking history.

In cases which proceed to the medical assessment process (MAP) the respiratory specialist (RS) conducting the MAP will examine the completed CQ and the available medical records, (usually the general practitioner (GP) and British Coal medical records) and will record in the MAP report whether or not there are any entries in the medical records relating to smoking.

If there are, he will set out the contents of those records in the MAP report. The RS then makes a judgment as to whether the smoking history recorded in the CQ is broadly correct. If he concludes that it is not, he will set out in the MAP report those amendments to the smoking history which he considers to be necessary. It is this amended smoking history which is then used by the DTI (acting by its claims handlers Capita) in the calculation of the level of damages to be offered to the claimant.

A document known as the Smoking History Agreement, which was agreed between the DTI and the CG in 2004, provides inter alia for the resolution of disputes where an RS amends the smoking history contended for in the CQ and the claimant disputes that amended history. It is unnecessary for me to refer to the Agreement in any detail. It provides that, in most cases, disputes as to smoking history should be dealt with under the provisions of the general disputes procedure set out in the CHA.

In July 1999 Mr Justice Turner imposed a stay on litigation to permit the resolution of claims by means of the CHA. As I shall relate in due course, each of these claims exhausted the disputes procedure and each claim, accordingly, reached an impasse.

Applications were made in each claim to lift the stay so as to permit it to proceed through the courts in the usual way. The DTI opposed those applications and others like them. I do not need to deal in detail with their reasons. One arose from a concern at the proliferation of litigation that might result if every claim in which there was a dispute about smoking history were to be pursued through the courts. There was an issue between the parties also as to whether, if the stays were lifted, the claims should proceed to a resolution by a court of the dispute about smoking history alone or whether all issues (save for liability of the apportionment) should be at large.

In the event it was agreed by the parties that the stay in respect of these four cases should be lifted and particulars of claim served. I would then hear and determine the dispute about smoking in each case. It was hoped that this process might afford some guidance to the parties as to the basis on which similar disputes might be resolved in the future.

I shall now deal with the individual cases, beginning with that of Mr Edward Gordon Walker, deceased.

Mr Walker was born on 11th May 1921 and died on 31st March 1998, aged 76 years. The claimant is his widow and administratrix and brings this action by her daughter and attorney, Mrs Jennifer Wright.

Between 1935 and 1967, save for a period of war service between 1941 and 1946, Mr Walker was employed as a miner at the Holmwood Colliery in Derbyshire. The colliery was privately owned at first and, after nationalisation, was run by the National Coal Board (NCB), predecessor of BCC.

From about 1977 Mr Walker suffered from chronic bronchitis and chronic obstructive pulmonary disease which, towards the end of his life, rendered him substantially disabled. Mr Walker made a claim in the BCRDL for damages. At the time of his death his claim had not been resolved and it was subsequently continued by his widow.

On 27th January 1998, only two months before his death, Mr Walker was required by his solicitors, Graysons, to complete a chest disease questionnaire. This was an internal document to be used in the preparation of his case and was not prepared with a view to disclosure to the DTI. It contained questions about Mr Walker's smoking history. The answers to the questionnaire were recorded by a representative of his solicitors, presumably on his instructions, and the questionnaire was signed by him. In the document he stated:

Enclosed within the copy questionnaire, which was available to the court, was a page on which the deceased had written details about his employment history and the various jobs he had performed.

On 17th August 2000, some time after the deceased's death, his widow signed a deceased mine worker's CQ in which she stated that he had never smoked. It appears from the evidence that she completed the CQ with the assistance of her daughter, Mrs Wright. Their evidence was that at the time they did this both were unaware of the existence of the chest disease questionnaire completed by Mr Walker and of the fact that he had stated in that document that he had smoked lightly and for a short time in the 1940s. The CQ was forwarded to the DTI without any correction of the entry relating to smoking history.

The RS who carried out the MAP assessment, Dr Rogers, had before him the completed CQ. He did not have the chest disease questionnaire. The RS examined the deceased's GP records. He did not examine the hospital records. The GP records contained an undated summary sheet, stating that Mr Walker had smoked 20 cigarettes per day until 1960. On the basis of that entry, the RS concluded that the smoking history recorded in the CQ was not correct. He amended the smoking history and recorded that Mr Walker had smoked 20 cigarettes per day from 1939 -- that is the age of 18 -- until 1960. His conclusion was that Mr Walker had been an average smoker (defined in the MAP report as a person who smoked 15 to 25 cigarettes a day) for 21 years.

The RS's assessment of Mr Walker's smoking history was fed into the calculation of the award payable to his widow under the provisions of the CHA. This resulted in an offer made in August 2003. That offer was based on a recoverable proportion of 3.5 per cent of the total value of the claim.

The offer was not accepted. Instead, the claimant's solicitors sought an amendment of the smoking history and, in support, forwarded a number of short witness statements from members of Mr Walker's family and from friends to the agency responsible for organising MAP assessments on the DTI's behalf. Those statements were to the effect that Mr Walker had never smoked. That step met with no success and the issue was referred to the disputes procedure.

The DTI, acting through Capita, confirmed the assessment of smoking history contained in the MAP report and declined to change the basis of its offer. Mediation was suggested, but was considered inappropriate since a dispute of fact was involved. An impasse was reached.

Meanwhile, on 11th May 2006, the claimant's solicitors had disclosed to the DTI the completed chest disease questionnaire and had indicated that they were prepared to concede that Mr Walker had smoked to the extent referred to in that document. They asked whether the DTI was now prepared to agree that smoking history.

The DTI obtained a report dated 18th October 2006 from Dr John Moore-Gillon, a respiratory specialist. It appears that he concluded on the basis of the available evidence that Mr Walker had been a moderate smoker for 12 years. The DTI recalculated the award on the basis of Dr Moore-Gillon's assessment of the smoking history and made a further offer, dated 14th March 2007. That offer represented 5.87 per cent of the total value of the claim. It was still not acceptable to the claimant. Accordingly, on 25th October 2006 she made an application for the stay on her claim to be lifted in order to enable her to commence proceedings.

The claimant relies on witness evidence from the claimant herself; the couple's daughters, Mrs Wright and Mrs Ann Barlow; Mr Geoff Barlow (son-in-law of the deceased); Mr Stuart Walker (the deceased's brother); Mrs Margaret Thomas (sister of the deceased); Mr Thomas Wilmot (a neighbour of the deceased); Mr John Davis (a neighbour and ex-colleague of the deceased); Mr Robert Pond (a school friend of the deceased); and Mr Joe Cutts-Bland (a former colleague and friend of the deceased).

Mr Stuart Walker, Mrs Thomas, Mr Wilmot, Mr Davis, Mr Pond and Mr Cutts-Bland were unable to attend court to give evidence by reason of ill health, and their evidence was received under the provisions of the Civil Evidence Act. The DTI did not require Mr or Mrs Barlow to give oral evidence. The claimant and Mrs Wright gave oral evidence.

The evidence discloses that the deceased lived at home with his parents until 1914, when, at the age of 20, he went to serve with the RAF at a ball bearing factory in Staffordshire. Mr Pond went to school with the deceased and was a close friend until the start of the 1939-1945 war. In his witness statement he said that nobody in their circle of friends, including Mr Walker, smoked at that time as they could not afford to do so.

Members of Mr Walker's family said that smoking was not permitted in his parents' home. His mother did not approve of smoking and his father (who was an ex-miner and had been a heavy smoker) had severe breathing problems caused by dust and smoking. His brother, Mr Stuart Walker, said that he could not recall ever having seen Mr Walker smoke. His sister, Mrs Thomas, lived at home until 1941. She said that she never saw him smoke. Money was in short supply in the household and she did not believe that he could have afforded to smoke. Mr Walker's relationship with his wife began in 1938. She said that he was a non-smoker then, and indeed for the whole of the 60 years that she knew him.

During the period between 1941 and 1946 the deceased lived in lodgings in Staffordshire. His wife was staying with his sister in London, where she was doing war service. The couple met up only for the occasional weekend during this period and Mr Walker saw little of his family.

In 1947 he moved back to Derbyshire, and he and his wife lived together continuously thereafter. He worked as a miner. There was a period of several months in 1951 when he injured his back and required constant nursing from his wife. In her witness statement she said that he could not have been smoking during this period or she would undoubtedly have known.

The couple's daughters, Mrs Wright and Mrs Barlow, were born in 1944 and 1950 respectively. Mrs Barlow lived at home until her marriage in 1965. Both Mrs Wright and Mrs Barlow said that they never saw their father smoke. Nobody in the family smoked and Mrs Barlow did not recall ever seeing cigarettes or an ashtray in the family home.

Mr Cutts-Bland worked with the deceased in the colliery from 1948. They were very friendly. In his witness statement he said that neither he nor the deceased smoked. Money was tight and, with a young family to support, the deceased would not have been able to afford to smoke. Mr Cutts-Bland remained a close neighbour and friend of the deceased and saw him almost every day throughout his life.

Mr Wilmot lived with his parents, next door to Mr Walker and the claimant, between 1947 and 1951. In 1953 he moved elsewhere, but continued to visit his parents at least twice a week. He saw Mr Walker regularly right up to his death. Indeed, he gave a good deal of assistance to him during the last year of his life. He said that he never remembered seeing him smoke.

Mr Davis, a neighbour and former colleague of Mr Walker, said that he was a non-smoker during the whole of the period that Mr Davis knew him, between 1947 and 1998. Mr Walker's son-in-law, Mr Barlow, first met Mr Walker in the late 1950s and spent a lot of his time at his home. He said that he never saw Mr Walker smoke.

Members of the family described Mr Walker as a family man who did not habitually visit public houses or miners' clubs. He drank little alcohol. He spent his spare time doing jobs around the house and garden, working on his motorcycle and going on motorcycling rallies and outings with friends and family.

Mrs Wright was asked about the completion of the CQ. She told me that she assisted her mother by asking her questions and writing down the answers. She also looked at various papers which her father had accumulated in connection with his claim. These included information that he had written down about his employment history. She said that she had not known about the contents of the chest disease questionnaire until quite recently.

The DTI rely on the entry in the GP records which I have already mentioned. It appears on a summary sheet, the purpose of which was to enable a doctor treating Mr Walker to see at a single glance the main features of his medical history. The first five entries appear to have been made by the same person. They bear dates from 1953 to 1989. There are then five further entries dated between 1992 and 1998. The handwriting suggests that these were written by at least three different people. Further down the page are two entries. One relates to smoking and the other to alcohol intake, "Four units a week".

At the bottom of the page there is a single blood pressure reading with the date "1989". All the other entries are undated and all are unsigned. It is likely that most, if not all, of the entries on the summary sheet were made by doctors. It is, however, possible that some were made by practice nurses or even members of the practice administrative staff who had been given the task of summarising information contained within the GP notes.

There is no indication of the source of the information about Mr Walker's smoking and drinking habits. It may have been recorded direct from information given by him. It may have been derived from some other source within the records which no longer exists. No other reference to smoking appears within the GP records.

In her witness statement Mrs Wright described the difficulties that she, her brother and her father had experienced with the misfiling and mislaying of records by the relevant GP practice. On one occasion her father's records were confused with those of another patient at the practice, as a result of which her father was mistakenly believed to be suffering from dementia. It is relevant to note that the envelope containing Mr Walker's GP records bore a label with the warning, "Caution, similar name". Mrs Wright suggested that information about the smoking habits of another patient might have been recorded on Mr Walker's summary sheet in error.

There are two relevant entries in the hospital records. The first of these was made on 25th January 1992. Late in the evening on that date Mr Walker was admitted to hospital, through his GP, as an emergency with acute chest and other problems. The eventual diagnosis was pneumonia. On admission, a doctor took a detailed note which extends over more than two pages. In a section headed "SH (social history)" the doctor recorded:

Mrs Wright gave evidence about this hospital admission. She said that she accompanied her father to hospital. Her mother did not go. She gave staff at the hospital some details about her father and handed over the GP's referral letter. She said that this was what was referred to at the beginning of the doctor's note, which records "History from daughter". She said that she was not present when the doctor examined her father and took a detailed account of his symptoms and history. She described her father as a very private person who would not have wanted her to stay with him while he saw the doctor. The information in the note must have come directly from her father. She was not present when he gave the doctor information about his living conditions and smoking and drinking habits. She said that, apart from the information about smoking, of which she had no knowledge, the information contained in the passage which I have quoted was correct and accurate.

The second relevant entry in the hospital records appears in a note made on 14th November 1996 on the occasion of an outpatient visit to Dr Hadfield, consultant physician, whom Mr Walker saw from time to time in connection with his chest problems. Mrs Wright told me that she would take her father to hospital for his outpatient appointments, but would wait outside while he went in alone. Any information recorded in the consultant's notes would have been given to him by her father. In the note Mr Walker is recorded as being a non-smoker, information which is followed by the comment:

Other records describe Mr Walker either as a current non-smoker or an ex-smoker. They are therefore of no help in determining for how long he smoked or how much.

In assessing Mr Walker's smoking history it is necessary to look at the evidence as a whole. The starting point is Mr Walker's own evidence that he smoked ten cigarettes a day for the period of five years in the late 1940s. Can I be satisfied, on a balance of probabilities, that the account given to his solicitors of his smoking habits was accurate? Or is that account, as the DTI suggested, so seriously undermined by the contents of the medical records that I must conclude that his consumption was considerably greater?

When assessing the accuracy of a man's account of his smoking, it is necessary to bear in mind that there is a general tendency for smokers to underestimate their cigarette consumption. This is particularly so in the context of a claim for damages for a respiratory condition, when the man may well be aware that a history of heavy smoking is likely to depress the value of his claim.

The witness statements in this case, which cover the entirety of Mr Walker's life, provide compelling evidence that he was known by his friends and family as a non-smoker. I heard oral evidence from his widow and daughter, both of whom impressed me as honest and reliable witnesses. They were adamant that they had never known Mr Walker to smoke. I accept their evidence and that of the other witnesses.

It is possible to reconcile the evidence of the witnesses with Mr Walker's own account if the five years smoking to which he referred occurred during the period of his war service. During that time he was living away from home and was seeing his family on only an occasional basis. It is perfectly plausible that he smoked during this period and at no other time during his life, and that his friends and family remained ignorant of the fact that he had done so.

In January 1992, as I have related, Mr Walker told a hospital doctor that he had stopped smoking at the age of 22 years. That information was given in the context of an emergency admission to hospital, when Mr Walker was experiencing acute chest problems. While he was obviously very unwell at the time, he appears to have been capable, nevertheless, of providing a coherent and accurate history to the doctor. All the other aspects of the account of his living circumstances were correct. The hospital admission occurred well before he was aware that he might have a claim under the BCRDL, and thus could not have been coloured by any considerations of advantage relating to that claim.

Given the context in which the information was given, it seems highly likely that Mr Walker should have been doing his very best to give an accurate account. The account was recorded by the doctor as part of a highly detailed note. There is no reason to doubt the reliability of the record made. Of course the information does not correspond exactly with the period of Mr Walker's war service. If he had stopped smoking at 22, this would have been in 1943, not 1946. But the import of the note is clear; namely that Mr Walker was saying he had given up smoking very early in life. This is entirely consistent, both with the information given by him in the chest disease questionnaire, and with his having smoked between 1941 and 1946.

In November 1996, again at a time before he made a claim in the BCRDL, Mr Walker told the consultant that he had stopped smoking 45 years previously. This information was given in the context of a consultation about his chest problems. It was recorded by the consultant as part of a fairly detailed note.

Once again, the context in which the information was given and recorded makes it highly likely to be reliable. Once again, also, the information does not fit in exactly with Mr Walker having smoked between 1941 and 1946. If he had indeed stopped 45 years before 1996, this would have been in 1951.

However, bearing in mind the time that had elapsed, it would perhaps be surprising if he had been correct to the nearest year. Clearly, what Mr Walker was saying was that he had given up smoking many years previously. That would be broadly consistent with the account given to his solicitors in 1998.

The entry in the GP notes upon which the DTI rely is wholly different in nature and quality from the two entries in the hospital records to which I have referred. It is unsigned and undated. It was probably written by a doctor, but may have been written by someone else. It is impossible to know from what source the information about Mr Walker's smoking habits was derived. The information contained in the note is wholly inconsistent with the other evidence in the case. If Mr Walker had indeed smoked 20 cigarettes a day until 1960, it is inconceivable that his family and friends would not have been aware of that fact. It is, moreover, difficult to see why he should not have given the same information to the doctors in 1992 and 1996 when asked.

It seems to me that the note must have been made as a result of some sort of misunderstanding or (perhaps more likely) through a confusion between Mr Walker and another patient with the same or a similar name, as Mrs Wright suggested.

Whatever the explanation, I am satisfied that it would be wholly unsafe to rely on that note as the basis of a finding that the accounts given by the witnesses, and at various times by Mr Walker himself, were inaccurate and untrue.

I am entirely satisfied, looking at the evidence as a whole, that Mr Walker smoked, as he told his solicitors, for a period of five years only and that this occurred during his war service. I am satisfied also that the account which he gave about the extent of his cigarette consumption, that is ten cigarettes a day, was accurate.

I now go to the case of Reginald Arthur Williamson, deceased.

Mr Williamson was born on the 26th October 1921 and died on 1st December 1981, at the age of 60 years. The claimant is his daughter, Mrs Carol Ann Bramhall, his widow (previously the claimant) having died.

Between 1935 and 1981, when he took voluntary retirement (having ceased work in May 1980) Mr Williamson was employed as an underground face worker at the Oxcroft Colliery at Chesterfield and the Whitwell Colliery at Worksop. These collieries were run by the NCB.

Mr Williamson suffered from chest problems for many years. In 1981 he was diagnosed with bronchial carcinoma, from which he died. On 20th October 2000 Mr Williamson's widow (who was then the claimant) signed a deceased mineworker's CQ, in which she stated that he had smoked an average quantity of 10 to 15 cigarettes a day. She did not know when he had started to smoke or when he had stopped. The RS who carried out the MAP assessment, Dr Sinclair, had before him the completed CQ and Mr Williamson's hospital records. The GP records were not available.

There was only one entry in the hospital records relating to smoking. That entry was made on 15th August 1981, after Mr Williamson had been diagnosed as having cancer and only months before his death. At that time he was recorded as smoking "16 a day". No information was given about the period of time for which he had smoked.

In the MAP report the RS made the assumption that Mr Williamson had started smoking at the age of 18 and that he had therefore smoked for 42 years at the date of his death. He assessed his smoking level at average, (defined as 15 to 25 cigarettes a day).

The RS's assessment of Mr Williamson's smoking history was fed into the calculation of the award payable to his widow under the provisions of the CHA. This resulted in an offer made in September 2003. That offer was based on a recoverable proportion of 9.64 per cent of the total value of the claim. The offer was not accepted.

A joint witness statement dated 14th January 2004 was made by Mr Williamson's widow and Mrs Bramhall (now the claimant). In that statement, they indicated that they accepted that Mr Williamson had started smoking at about the age of 18 and that he had stopped smoking only a short time before his death in 1981. They accepted also that he may have smoked as many as 15 cigarettes after he ceased work in 1979. In fact we now know that he ceased work in May 1980. However, they made two contentions.

First, they said that he did not smoke as many as 15 cigarettes a day up to the time he ceased work. They maintained that when he was working as a miner underground there just would have not have been enough time to smoke 15 cigarettes a day and he did not do so. They contended that his maximum consumption was about 10 to 12 cigarettes a day.

Second, they said that Mr Williamson went for periods without smoking at all. In particular, there was a period of at least five years (probably in the 1970s) when he stopped altogether. They suggested that overall he smoked about 10 to 12 cigarettes a day from the age of 18 to the age of 30, and after that a similar number each day for about half of the time between the age of 30 and 60, with an increase to about 15 a day from the time he ceased work.

That witness statement was submitted to Capita and the disputes procedure was implemented. The DTI, acting through Capita, maintained its position. Further discussions produced a final offer, which was still based on the smoking history contained in the MAP report. As a consequence, in October 2006 the claimant made an application for the stay on her claim to be lifted in order to enable her to commence proceedings.

The claimant relies upon the joint witness statement to which I have already referred, together with a further witness statement which she made on 16th April 2007. In that statement she said that she remembered her father beginning to have breathing problems when she was about nine years old. That would have been in 1959, when he was in his late 30s. She believed that his chest problems limited his smoking. She recalls that he was told repeatedly over the years by his doctor that he should stop smoking altogether. He did try to do so but, because her late mother was also a smoker, it was difficult for him to give up.

The claimant said that her mother had been adamant that her father never smoked more than 10 to 12 cigarettes a day. She was responsible for buying cigarettes for herself and her husband. These were purchased in packets of ten. The claimant said that as a consequence, she was confident that her mother would have known exactly how many cigarettes her father smoked. She observed that when he finished work in May 1980 he had a lot more time to spare. She believed that it was at this stage that he increased the number of cigarettes that he smoked.

When the claimant gave oral evidence she expressed some doubts about whether her father had in fact been smoking as many as 16 cigarettes a day in August 1981. She said that he was very ill then. He had suffered from really bad breathing difficulties for many years. She had tried to persuade him to give up smoking. He had tried to do so on several occasions and at one point managed to stop smoking for five years. Then he started again. He would smoke at home and, at weekends, he would go out on his own for a couple of hours to the miners' welfare club to socialise with his friends and colleagues.

In assessing the smoking history in this case, my starting point is the note made at hospital in August 1981. At the time the note was made, Mr Williamson had been diagnosed with bronchial cancer. He was seen and examined by a doctor, who gave instructions that he should be treated by means of radiotherapy.

Although the note is quite brief, the significant aspects of his history, the results of the doctor's examination and the previous investigations which he had undergone are all recorded. It seems that the information about Mr Williamson's symptoms and smoking history must have come directly from Mr Williamson himself. This information was given at a time when no claim was in prospect. The context in which the information was given makes it highly likely that Mr Williamson was doing his best to give an accurate account of his current level of smoking. The figures, "16 a day", is strikingly precise. It is likely also that the information which he gave was correctly recorded. In my judgment, the note is highly likely to be reliable.

The figure of 16 a day is of course only a snapshot, reflecting Mr Williamson's account of his consumption in August 1981. In oral evidence the claimant appeared to doubt that her father could have been smoking as many as 16 cigarettes a day in 1981. Bearing in mind his poor condition at the time, I can understand her doubts. He was suffering from severe breathlessness and wheezing and he was aware that he had been diagnosed with cancer. His condition had been deteriorating since he ceased work 15 months before.

However, the information about his consumption came from Mr Williamson himself and, as I have found, is highly likely to be reliable. The claimant's evidence about this matter seems to me to illustrate the real difficulty which she had in making an accurate estimate of her father's cigarette consumption, even at the end of his life. This is perhaps not surprising, since he died more than 25 years ago.

The suggestion in the witness statements was that Mr Williamson had increased his cigarette consumption after ceasing work in May 1980. The reason he ceased work was his increasing chest problems and the onset of symptoms arising from his cancer. It seems intrinsically unlikely to me that, at a time when he was experiencing increasing symptoms, he would have increased his cigarette consumption. It is much more likely in my judgment that he would merely have continued smoking at the level to which he was accustomed or even reduced his consumption.

I note that in her CQ Mr Williamson's widow estimated his cigarette consumption as 10 to 15 cigarettes a day. The upper end of that bracket corresponds very closely with Mr Williamson's figure of 16 a day in 1981. I find, on a balance of probabilities, that he was smoking about 16 cigarettes a day throughout the whole period of his smoking career.

In reaching that conclusion, I am not suggesting that Mrs Bramhall or her mother were being deliberately inaccurate or untruthful. On the contrary, Mrs Bramhall impressed me as an entirely honest witness who was doing her best to give an accurate account, but estimating another person's cigarette consumption is a difficult exercise, particularly when it is done many decades later. Neither his wife nor Mrs Bramhall was with Mr Williamson 24 hours a day, and it seems to me unlikely that either of them could have been precise about his consumption to the nearest two or three cigarettes a day.

It is not disputed that Mr Williamson's smoking extended over a period of 42 years. It is said, however, that from time to time he managed to give up, as a result of which he smoked for only about half the time between the ages of 30 and 60. I have no doubt that, in common with many smokers, Mr Williamson made intermittent efforts to stop. However, I cannot be satisfied that those efforts accounted for as many as 15 years of his smoking career. That was an estimate that was made decades after the period in question and is in my view unlikely to be accurate.

I do, however, accept the evidence of Mrs Bramhall and her mother that there was a period of at least five years continuously when Mr Williamson ceased smoking altogether. That is a period of cessation which is likely to have remained in their memories. I therefore find, on a balance of probabilities, that he was an average smoker with a consumption of 15 to 16 cigarettes a day for a period of 37 years.

Mr Anthony was born on 30th July 1909 and died on 5th October 2001 at the age of 92 years. The claimant is his daughter and administratrix, Mrs Barbara Dixon.

Between 1923 and 1970, Mr Anthony was employed as a miner at various collieries at Alfreton and Chesterfield. At first he was employed by private companies. After nationalisation he worked for the NCB.

He suffered from chest problems, at least from the mid 1960s. Towards the end of his life those rendered him substantially disabled.

Mr Anthony made a claim in the BCRDL for damages. At the time of his death his claim had not been resolved, and it was continued by his daughter, his wife having predeceased him.

Mr Anthony submitted a CQ, dated 16th June 2000. This was completed and signed on his behalf by his daughter, since Mr Anthony himself was partially sighted. In the CQ Mr Anthony stated that he had never smoked.

The RS who carried out the MAP assessment, Dr Kedia, examined Mr Anthony at home on 15th September 2001. He had the completed CQ and Mr Anthony's GP and medical records and his DSS records. He did not have the hospital records.

Dr Kedia recorded in the MAP report that there was no entry in the records relating to smoking. He treated Mr Anthony as a non-smoker. In August 2002 Dr Kedia prepared an amended MAP report after he had had sight of Mr Anthony's death certificate and hospital records. He did not alter the smoking history.

On 6th August 2004 Capita sought clarification of the MAP report. Staff at Capita had found a reference to smoking in Mr Anthony's GP records. That reference occurred in the record of a routine medical check conducted on 15th November 1990 by a practice nurse. Beside the word "smoking" the nurse had written "stopped 1950".

The MAP report was referred back to Dr Kedia, who amended it in August 2004 to take account of the information contained in the entry in the GP records. He assumed that Mr Anthony had started smoking at the age of 18 and had continued for 23 years until 1950. No information was available about the number of cigarettes smoked, so Dr Kedia was unable to categorise the smoking as light, average or moderate.

An offer was made to the claimant in June 2005. This offer was based on the assumption that Mr Anthony's smoking had been medium (defined in the CHA as 15 to 24 cigarettes a day) for 23 years. The offer represented 9.07 per cent of the total value of the claim. The offer was not accepted.

The claimant submitted a short statement, dated 22nd September 2005, stating that she believed that her father had never smoked, together with a letter dated 23rd November 2005 from a partner in his GP practice, Dr Timothy Parkin. He had examined Mr Anthony's full GP records and had discovered that the reference to smoking that I have referred to was the only mention of smoking contained within the records. He noted that in the records of all other routine checks, the entry against the word "smoking" was "-", signifying that Mr Anthony did not smoke. Dr Parkin made the following comment:

These communications produced no response from Capita. A notice of dispute was served by the claimants' solicitors on 30th June 2006 and acknowledged by Capita on 6th July. There was no response thereafter. Accordingly, on 16th October 2006, the claimant made an application for the stay on her claim to be lifted in order to enable her to commence proceedings.

The claimant relies on the witness statement to which I have already referred, together with two further witness statements from herself. In those statements she said that she was born in 1935 and so was aged 15 in 1950. She was certain that she did not remember her father smoking. She said that no one in her family smoked. She remembered her father having problems with his chest. She said at the time she completed the CQ on his behalf she discussed with him whether he had ever smoked and he was adamant that he had not.

She said that Mr Anthony was brought up from the age of nine by his elder sister, who had a son, Mr Sid Cuttel. Mr Cuttel died shortly before Christmas 2005, aged 91 years. He grew up with Mr Anthony and remained close to him for the rest of their lives. The claimant said that she discussed with Mr Cuttel whether or not her father had smoked and Mr Cuttel told her that he had never seen him smoke a cigarette. She believes that the entry in the GP records must have arisen as a result of a misunderstanding or an error.

In her oral evidence, Mrs Dixon confirmed that she had completed the CQ on her father's behalf. She said that he gave the answers to the questions and she filled them in. She was also with her father when he was assessed by Dr Kedia. She said that she had never seen her father smoke and believed that he had never smoked in his life.

The claimant also relies on a witness statement from Dr Parkin in the same terms as the letter which I have already mentioned. The DTI did not require Dr Parkin to attend to give evidence.

The entry of 15th November 1990 forms part of the record of a health check carried out by a practice nurse at Mr Anthony's home. Dr Parkin has explained that such checks were offered to patients of the practice who were aged over 75. The record is made on a pro forma card, which requires information to be entered about, inter alia, the patient's weight, blood pressure, pulse, general appearance, mental state, eyesight, hearing, hygiene, dentures or teeth, continence, mobility, manual dexterity, feet and any diseases. Each of these categories has a manuscript entry against it. Against "mental state" is written "memory-fairly good". In addition, information is requested about the patient's smoking and alcohol intake and about diet. Against these items the nurse wrote:

It seems clear that the information contained within the record was elicited directly from Mr Anthony. It was given at a time well before he made a claim within the BCRDL. In evidence Mrs Dixon confirmed that, leaving aside the smoking history, the information in the nurse's record was generally accurate. She did not agree that her father was ever "scruffy" or "pale", as noted. However, the source of that information would have been the nurse's own observations, not Mr Anthony.

There is no reason to believe, based on the contents of the note, that the information communicated to the nurse by Mr Anthony was wrongly recorded in any way. Could the note about smoking history have been made as a result of a misunderstanding, as Mrs Dixon and Dr Parkin suggest? It is, I suppose, possible, although it is difficult to see how a question as to whether Mr Anthony was a smoker or a denial that he had ever smoked could have been misconstrued so as to produce the answer "stopped 1950".

What other evidence is available? The DTI rely on an entry in a hospital note made on 18th August 2001, after Mr Anthony had been admitted to hospital by his GP with chest and abdominal problems. On admission a detailed note extending over three pages was made by a junior doctor. That note includes information about Mr Anthony's circumstances and habits as follows:

It also states, as was the case, that Mr Anthony was blind and deaf.

Mrs Dixon was asked about this hospital admission. She told me that she accompanied her father to hospital. At first she appeared to suggest that she had provided some of the information contained in the note. In particular, she said that she had provided the information about her father's circumstances, save for the information about his smoking and drinking habits, which she said were not mentioned. Later in her evidence she said that she had stayed with her father until he was seen by the doctor, but had not been with him during his interview and examination. She said that her father must have provided the information about him contained within the note.

The note records that Mr Anthony was a "difficult historian" (presumably because of his deafness) and records also that he had "SOB, shortness of breath, speaks in short sentences". These observations tend to confirm Mrs Dixon's evidence that the source of the information contained in the note was Mr Anthony. Mrs Dixon told me that the information about Mr Anthony's circumstances and habits was accurate, save for that relating to his smoking habits. She did not believe that all the details about his symptoms and the duration was accurate, although she agreed that, as recorded in the note, he was feeling bloated and was passing blood on the day of his admission.

The DTI also rely on a further entry in the clinical notes made on 13th September 2001 during the same hospital admission. This is one of a series of entries made daily or almost daily, presumably in the course of the regular ward rounds. The entry contains notes about Mr Anthony's circumstances and habits, which read as follows:

In her evidence the claimant said that she was not present when this note was made, so that the information must have been given to the doctor by her father. The DTI say that this is further information coming direct from Mr Anthony, to the effect that he had smoked in the past.

For the claimant, Mr Phillips argued that the information contained within this note may well have been derived, not from Mr Anthony, but from the earlier entry of 18th August. In support of that contention he pointed to the similarity in the information about living arrangements, mobility, meals on wheels, daughter's provision of meals and smoking.

In my view there is considerable force in Mr Phillips' contention. While it is true that, as Mr Cooper for the DTI submitted, the information in the entry of 13th September appeared in a slightly different order to that of the earlier note, it is nevertheless very similar. Moreover, the entry starts by reciting information contained at the beginning of the note of 18th August:

It also refers directly to the date of his admission on 18th August. It seems to me highly likely that the first part of the entry of 13th September was taken from the earlier entry, perhaps to spare Mr Anthony the difficulty of giving the details all over again. For those reasons the note cannot be relied upon as "new" information about Mr Anthony's smoking habits.

Despite that, I am satisfied, on the basis of the practice nurse's note made in 1990 and the entry in the hospital records of 18th August, that Mr Anthony was a former smoker. In both instances the information must have come directly from him in circumstances when he could be expected to be doing his best to give correct information. Each note was part of a detailed record, the accuracy of which there is no reason to doubt. Even if (and I regard it as unlikely) a misunderstanding had occurred on one occasion, it is highly improbable that a similar misunderstanding would have happened on two separate and independent occasions. I do not share Dr Parkin's surprise, if Mr Anthony was indeed a former smoker, that there was no other mention of this in the GP notes. The notes start in 1966, well after 1950, when he is said to have finished smoking. By 1966 his chest problems were well-established and the notes were mainly concerned with treating his chest and other problems, not with establishing their cause.

I note that it is recorded in Mr Anthony's medical records that in 1958 he underwent an pneumonectomy to remove a (presumably benign) tumour from his lung. It appears likely that he had some chest problems before then, and indeed the claimant confirmed that this was so.

Therefore it seems quite plausible that he may have stopped smoking at that period in response to his symptoms. It may well be that the claimant does not recall her father smoking. She told me that she did not remember him undergoing surgery on his lung in 1958 and her memory of his admission to hospital in 2001 did not appear very clear. I accept that her father told her, when they were completing the CQ in 2000, that he had never smoked. That was before his hospital admission in August 2001, so his denial cannot have been caused by a lapse of memory on his part. It seems likely that he said he had not smoked because he knew that if he admitted doing so it would depress the value of his claim. Alternatively, he may have believed, erroneously, that his past history "did not really count", having occurred more than 50 years before. Either way, I am entirely satisfied that his response in the CQ did not represent the true position.

I find, on a balance of probabilities, that he started smoking at the age of 18 years and continued, as he told the practice nurse, until 1950, a total period of 23 years. In the absence of any evidence about his cigarette consumption, I also find, on a balance of probabilities, that his smoking was at the average level of 15 to 25 cigarettes a day.

Finally, I come to the case of Charles William Dickens.

The claimant was born on 30th March 1940 and is now aged 67 years. Between 1955 and 1987, with some periods when he worked elsewhere, he was employed by the NCB at the Arkwright and Markham collieries.

From about 1966 the claimant suffered from chest problems. He has been diagnosed with chronic bronchitis.

The claimant made a claim in the BCRDL for damages. He submitted a CQ, dated 26th September 2001, in which he stated that he had never smoked. The claimant attended for a MAP assessment on 17th April 2002. The RS, Dr Windebank, had the completed CQ and the claimant's GP and British Coal medical records, together with his DSS records. He did not examine the hospital records.

Dr Windebank noted that within the GP records there was a letter dated 9th September 1966, written by a consultant chest physician, Dr Lewis, to the claimant's GP, after the claimant had been referred to him as an outpatient at the Walton Hospital. That letter referred to the fact that the claimant was worried by a lump on his chest wall and had difficulty in breathing which caused him to need to take a deep breath occasionally. It recorded that Dr Lewis had found a small localised swelling which he thought was a small lipoma. He observed that Mr Dickens' vital capacity and peak flow rate were within normal limits. He suggested leaving the lipoma alone for the present but that, if it got more larger or more painful, it may be necessary to excise it.

The letter finished with the following comment:

It should be noted that the medical records show that the lump persisted for several years thereafter.

Dr Windebank also noted that there were later entries in the GP records, dated 1989 and 1992, stating that the claimant was a non-smoker. He concluded that the smoking history recorded in the claimant's CQ (i.e. that he had never smoked) was "broadly correct". He therefore assessed the claimant on the basis that he had never smoked.

In his CQ, the claimant had indicated that while working underground at a BCC mine after 4th June 1954 he coughed up phlegm from his chest. He said that he did this occasionally. He said that he had coughed up blood or had blood mixed with his phlegm just a few times. Dr Windebank concluded, on the basis of the claimant's answers in his CQ, that he did not meet the necessary criteria, as defined by the Medical Research Council, for a diagnosis of chronic bronchitis. His solicitors were informed of this finding.

They wrote to the organisation responsible for MAP assessments and indicated that the claimant had "misinterpreted" some of the questions on the CQ and now wished to change his answers. It was said that on reflection he felt that he did in fact cough up phlegm while working for the BCC on most days of the working week for at least three months of the year. Attention was drawn to entries in his GP records in 1980 and 1987 which indicated the presence of bronchitis. As a result, on 19th February 2003 the MAP report was reviewed and amended by another RS, Dr Lyall (Dr Windebank having retired) to include a diagnosis of chronic bronchitis.

Capita then requested a review of the amended MAP report in the light of the hospital letter of 9th September 1966. That review was carried out by another RS. He amended the smoking history in the MAP report, concluding that the claimant had smoked from 1958 (i.e. the age of 18) until 1966, it being assumed that he had taken the advice proffered by Dr Lewis in that year. In the absence of other information, the RS assumed that the claimant's smoking was average (i.e. 15 to 25 cigarettes a day) over a period of eight years.

The claimant did not agree with the smoking history as now contained in the MAP report. He submitted witness statements from himself, his sister, his wife and a friend to the effect that he had never smoked. I shall refer to their evidence in greater detail later in this judgment. The witness evidence was not accepted, and in December 2005 the DTI, through Capita, made an offer based on the second amended MAP report. That offer was for a recoverable portion of 21.3 per cent of the total value of the claim.

Following that offer, the claimant's solicitors implemented the disputes procedure. The DTI, through Capita, declined to change the basis of the offer. Accordingly, on 18th September 2006, the claimant made an application for the stay on his claim to be lifted in order to enable him to commence proceedings.

The claimant relies on witness evidence from himself, Mrs Maureen Dickens (his wife), Mrs Maureen Fox (his sister) and Mr Gordon Butler (a former neighbour, colleague and friend). He and Mr Butler gave oral evidence. Mrs Dixon and Mrs Fox were unfit to do so.

In his witness statement, the claimant said that he had never smoked. He contended that he had never told Dr Lewis that he was a smoker. He did not understand how the reference to smoking had got into the letter. He said that the information contained within the letter was wrong in other respects also. He said that he "most definitely never had" a lump on his chest wall. His complaint was, he said, of breathlessness and blood in his sputum. He was kept in hospital for about three days, during which time he had x-rays. He said that there was no discussion about smoking during his stay. He said also that he had only ever attended Walton Hospital on that one occasion.

By the time that the claimant gave evidence, he had seen his GP records and was aware that the admission to Walton Hospital had occurred in 1967, not 1966. An entry in his GP records for 5th September 1966 read:

This information (and that contained on a x-ray request form bearing the same date) corresponds precisely with the information about the claimant's signs and symptoms and possible diagnosis in Dr Lewis' letter. It is clear that it relates to the same incident.

The claimant told me that he had not recognised the description of a lump on his chest wall because his lump had in fact been sited on his back, below the shoulder blade. He was aware that he had been to Walton Hospital on two separate occasions but thought, when making his witness statement, that he was being asked only about any occasions when he had stayed there for more than a day. He told me that he was not "worried" about the lump, as Dr Lewis stated in his letter, and did not remember undergoing any lung function tests by breathing through a tube during his consultation with Dr Lewis. He conceded that he could not remember a great deal about this consultation. However, he went on to say that he recalled the doctor asking him questions about himself. In particular, he said that he was asked whether he smoked, to which he had replied that he did not.

The claimant was asked about his failure to include full details of his chronic bronchitis in the first version of his CQ. He told me that at the time he completed the CQ he had cancer and was not thinking about his answers. I note that he underwent an excision of a sarcoma of the small intestine in 1998. However, it appears from his GP records that he was reasonably well and working in late 2001 when his CQ was completed.

In his witness statement Mr Butler, a friend and former colleague of the claimant, said that he had been at school with the claimant between 1942 and 1952. Both of them went to work in the pit and they socialised together. He said that they were both non-smokers. He himself started smoking at the age of 18, but the claimant did not. He said that the claimant was known within their social circle as a non-smoker.

Mr Butler saw the claimant less frequently after 1951, but said that he never knew him to smoke. In his oral evidence Mr Butler repeated that he had never seen the claimant smoke. He told me that he himself started smoking at about the age of 18, which would have been in 1956.

In cross-examination he was asked about the claims he had made within the BCRDL and the BCVWF schemes. In his CQ in the BCRDL Mr Butler had stated that he had smoked five cigarettes a day from 1964 to 1978 and ten cigarettes a day between 1978 and 1999. When asked how that statement could be reconciled with his evidence that, in contrast to the claimant, he had started smoking at the age of 18 in 1956, Mr Butler replied that he had smoked only one or two cigarettes a week from 1956 until 1964, and so had not classed himself as a "smoker" during that period.

In the BCVWF litigation he had told the examining doctor that he had smoked ten cigarettes a day from 1977 to 1997. He was unable to explain the inconsistency between those dates and the dates given in the BCRDL CQ.

In their witness statements the claimant's wife and sister said they had never known him to smoke. Mrs Fox had lived in the family home until 1963. His wife had met him in 1961.

In addition to the letter from Dr Lewis, the DTI relied on an entry in the hospital records made in the early hours of 26th August 1982, after the claimant had been admitted to hospital as an emergency, having suffered chest pains while at work. The entry appears in a fairly detailed note made by a doctor, setting out the claimant's symptoms, past medical history, family and social history, the doctor's findings on examination and treatment plan for the future. It seems that the information contained within the note must have come from the claimant himself, and indeed I understood him to accept in evidence that this was so.

The entry states:

This entry is somewhat ambiguous. It could mean that the doctor was told that the claimant had only smoked when he was 14 to 15 years old (although in fact he denies that he did so). It could also mean that he had ceased smoking 14 to 15 years before 1983. That would have been in 1968/1969, ie quite shortly after, according to the letter of 1966, Dr Lewis had advised him to stop smoking.

In evidence the claimant denied that this latter interpretation was correct. He suggested that a misunderstanding may have occurred and that the quotation "14/15 yo" might have referred to his son, who was aged 13 years at the time. He was adamant that he would not have told the doctor that he had smoked.

There are a number of other references in the GP and hospital records dated between 1979 and 2003, all indicating that the claimant at that time was a non-smoker. A computerised note dated 29th July 2005, probably made by a practice nurse, states:

This note was made at a time when the claimant was disputing the smoking history, as contained within the amended MAP report.

The reference to smoking in Dr Lewis' letter was made in the context of a consultation about problems with his chest which the claimant was experiencing. It is correct, as Mr Phillips points out, that no record of the consultation with Dr Lewis appears among the hospital records, so it is impossible to crosscheck that record with the contents of the letter. However, from its date, the letter must have been written within a short time of the consultation, if not immediately afterwards, and it is therefore unlikely that the information was rendered inaccurately.

The claimant's evidence that he remembered telling Dr Lewis that he did not smoke is inconsistent with the contents of the letter and I reject it. I do not accept that he has any real recollection of the consultation, a fact borne out by his witness statement to the effect that he had only attended Walton Hospital on one occasion. I do not accept his explanation that he mistakenly believed that he was being asked only about admissions lasting more than a day. There is no reason why he should think this and it does not accord with his statement:

The reference to smoking in Dr Lewis' letter is consistent with what is, in my view, the only sensible interpretation of the note of 26th August 1983, namely that the claimant ceased smoking in the late 1960s. Moreover, it is quite plausible that the claimant would have given up smoking in the late 1960s, at the time when he was experiencing chest problems. It is plausible also that he took Dr Lewis' advice to cease smoking very shortly after it was proffered.

I am afraid that I find the claimant to be an unreliable witness in a number of respects. His confusion about his two attendances at hospital is understandable, given the time that has passed. However, his claim to remember his earlier outpatient visit and the discussion about smoking that took place there is unconvincing. Nor do I accept that he had such difficulty in understanding and dealing with the CQ that he wholly misdescribed his symptoms as a result.

There were other errors in the CQ in relation to his employment history, which I accept may have occurred without fault on his part. However, it is difficult to avoid the conclusion, both in respect of the change in his description of his respiratory symptoms and his evidence about his smoking, that he was tailoring his evidence to maximise his award of damages.

Mr Butler has given several different versions of his own smoking habits and in my view no reliance can be placed on his evidence about those of his friend.

I am entirely satisfied on the evidence that the claimant smoked until at least 1966. I find, on a balance of probabilities, that he started smoking in 1958, at the age of 18, making eight years in all. I also find, on a balance of probabilities, that his smoking was at the average level of 15 to 25 cigarettes a day.

As I said earlier in this judgment, it was hoped that by bringing these four claims to trial it might be possible for some guidance to be given on the approach to be adopted when seeking to resolve the disputes about smoking history which are likely to arise in many claims under the BCRDL. Plainly, it is highly undesirable that disputes of this kind should have to be fully litigated in every case, whether within the BCRDL or in the courts. Since each of the cases depends on its own facts, the respects in which guidance can be given are necessarily limited. I shall, however, attempt to draw together some features, common to the four cases, which I hope may be of assistance, and I hope also that the detailed account that I have given of my reasoning in each case will also be of some assistance to those approaching these problems.

1. It is in my view essential when assessing the smoking history to look at the evidence as a whole, rather than focusing (in the case of a CR) solely on the evidence provided by the claimant's witnesses or (in the case of the DTI) upon a single entry in a medical record which is adverse to the claimant's contention.

In order that an overall assessment can be made at the earliest opportunity, both parties should have access at an early stage in the disputes process to all potentially relevant material, including hospital records. In two of these four cases the claimant's solicitors saw the hospital records only a very short time before the hearing. I am not saying that by way of criticism, merely stating it as a fact. It is very common for hospital records to contain important material relating to smoking history which may have the potential to resolve the dispute altogether. Other potentially relevant documents are GP records, DSS records and BCC medical records.

It is necessary for the records to be scrutinised with care so as to ensure that all relevant entries are identified and considered. It is not unusual, in litigation involving the examination of medical records, for important entries to be missed until a late stage in the proceedings.

It is important also that claimants' representatives check their files to ensure that the information given to the DTI was accurate. I have in mind the case of Mr Walker, where it was not until three years after the original offer had been made, and at a time when the disputes procedure - if not actually exhausted - was at an advanced stage, that the DTI were informed about the information contained in the original chest disease questionnaire completed by Mr Walker. As it happens, disclosure of that information did not result in resolution of the dispute in that case, but it might easily have done so in other circumstances. Valuable time and resources will be wasted and claims may progress unnecessarily to litigation if a careful scrutiny of all the potentially relevant material is not undertaken at an early stage.

As with any other evidence, consideration must be given to the weight, if any, to be attached to an individual entry in the records. The evidence contained in the records is hearsay, the reliability of which must be assessed according to the principles set out in the Civil Evidence Act 1995. The same reliance cannot be placed on every entry, whatever its provenance and whatever the circumstances in which it was made.

The process of consideration will involve asking questions such as (but not confined to) these: What was the source of the information contained in the entry? Did the information come directly from the miner or someone close to him, or has it come from some other more distant source or a source that cannot be identified? Plainly, information which has come direct from the miner or someone likely to know his history is more likely to be accurate than that which comes third or fourth hand or from an unknown source.

In what circumstances and for what purpose was the note or entry made? Is it part of a detailed history which appears to have been taken with some care or is it part of a short note that appears to have been made in a hurry? When was the note or entry made? If it contains information from the miner was it given at a time or in circumstances when he might have had a motive to misrepresent his smoking history? Was it given before or after a claim was contemplated?

Each relevant entry must also be considered in conjunction with other entries. For example, in a case where a miner denies ever smoking, the existence of two entries, each apparently containing information from the miner himself suggesting that he smoked, and each entirely independent of the other (as was the case in the claims of Mr Anthony and Mr Dickens) would constitute strong evidence that he had in fact been a smoker. An error may possibly occur once, but is unlikely to be repeated.

This is all part of the process that I mentioned previously, namely, of considering all the available evidence and looking at the whole picture with an objective eye. Once both parties have made an objective assessment based on all the available evidence, they should be in a position to adopt a realistic stance in any negotiations aimed at resolving the dispute about smoking history.

Inevitably there will be some cases where the evidence is sparse or contradictory and it is difficult to determine where the truth lies. However, I hope that in most cases the application of the approach outlined above, and illustrated in my judgments relating to the individual cases, will lead to a successful resolution.