It is a common feature of most industrial disease litigation that the relevant events often took place a long time ago. A trial judge determining such cases is frequently faced with limited documentary evidence and with evidence from lay witnesses (some of whom may have died before trial) who have limited recall of historic events in question. It is necessary, in those circumstances, to analyse the evidence of lay witnesses with particular care. This blog outlines the way in which the court has done so to date, with a particular consideration of two recent decisions.

The judicial analysis of lay witness evidence in the context of historic claims began most notably with the decision of Mr Justice Leggatt in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm). That was a commercial case in which there was, as is so often the case, a large volume of contemporaneous documentary evidence to consider alongside the oral evidence of witnesses. In analysing the lay witness evidence, Leggatt J set out at [15-22] a detailed summary of the difficulties with evidence based upon recollection. He noted the “unreliability of human memory” and considered that “While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony”. His analysis should be read in full but, in summary, he highlighted that recall inevitably involves revision, that human memory is vulnerable to interference – particularly from the process of civil litigation and the procedure of preparing for trial – and that confidence in recollection should not be conflated with accuracy.

The analysis of Leggatt J has since been applied outside the commercial arena and, in particular, in industrial disease litigation. Most reported judgments have arisen in the context of mesothelioma claims, given the particularly long incubation period of the disease and given the fact that, taking place in the High Court, there are simply more reported judgments. The first notable judgment was in Sloper v Lloyds Bank plc [2016] EWHC 483 (QB). There was then a particularly helpful trio of judgments in 2020: Bannister v Freemans Public Ltd Co [2020] EWHC 1256 (QB), Smith v Secretary of State for Transport [2020] EWHC 1954 (QB) and Pinnegar v Kellogg International Corp & ICI Chemicals & Polymers Ltd [2020] EWHC 3431 (QB). These are, of course, all first instance decisions and each case will turn on its own facts. As HHJ Platts noted in Pinnegar at [5], “These judgments contain helpful reminders of the factors which might affect the reliability of a witness’ recollection and which a fact finding tribunal should bear in mind when considering that witness’ evidence, but … they are not statements of legal principle”.

A full analysis of all the above decisions is beyond the scope of this blog, but they provide useful reading. This blog looks at how the analysis to lay witness evidence has since been applied in two relatively recent cases: one in which the lay witness evidence was accepted (Dean v Armstrong Oiler Company Ltd [2023] EWHC 3445 (KB)) and one in which it was not (Evans v Secretary of State for Health and Social Care [2024] EWHC 496 (KB)).

Dean v Armstrong Oiler Company Ltd

This was a decision of HHJ Coe KC, sitting as a Deputy High Court Judge.

The case was brought by Mrs Rosemary Dean, the widow of Mr Philip Dean who died on 9 June 2020 after contracting mesothelioma. Mr Dean had been employed by the Defendant between 1959 and 1972. It was alleged that he had been exposed to asbestos between about 1964/65 through to 1972 when he was required to inspect and work on an air compressor located outside the factory building. It was alleged that the compressor was located near to a boiler which was insulated with lagging containing asbestos and that, as a result inter alia of Mr Dean brushing past the lagging in order to get to the compressor, he was exposed to respirable dust containing asbestos. A statement from Mr Dean had been obtained before he passed away.

As to the issue of the reliability of Mr Dean’s evidence, the Defendant raised two key points. Firstly, they relied upon various entries in Mr Dean’s medical records which suggested that he did not have a reliable recollection of any asbestos exposure. A GP entry in January 2019 recorded “no asbestos exposure” and there then followed references to “Never knowingly been exposed to asbestos”, “Ex engineering, no asbestos” and “He has no known exposure to asbestos” and there then followed a CT scan report which stated that “there is no evidence of previous asbestos exposure”. By August 2019 when Mr Dean had been diagnosed with mesothelioma, it was reported that he had said that he did not recollect any asbestos exposure, but that he had worked in places where there could potentially have been asbestos. There was then an oncology manuscript note which read “Boiler in the first role probably had asbestos” and stated that the Claimant had various roles “Through the 50s, 60s and 70s with potential exposure to asbestos, although nothing he can clearly identify”. Secondly, the Defendant relied upon the unlikelihood of the insulation on the boiler being unprotected and containing asbestos while being exposed to the elements; the Defendant suggested that it was more likely that the insulation was encapsulated in a plaster coating such that any dustiness came simply from that and/or general ambient dust.

The judge analysed the reliability of Mr Dean’s recollection in the context of the medical records at [51-61]. As to the law, she noted that “while I was referred to the case of Gestmin v Credit Suisse [2013] EWHC 3560, I do not find that it is helpful in terms of any general principle in this case, which is not a commercial case with a large volume of documents going to liability”. She analysed the facts as follows:

  • She considered it important that the medical records be viewed in their context: they are “clinical notes and do not constitute the sort of detailed exploration of work history that would be taken by a solicitor” and “Mr Dean’s diagnosis would obviously have come as something of a shock and he may not therefore have been concentrating on his employment history”;
  • She noted that the medico-legal evidence from Dr Beckles outlined that “Patients often do not recall exposure when asked, particularly if the question is whether or not they worked with asbestos”;
  • She noted that it was not known what precisely Mr Dean was asked when he first went to his GP in January 2019 and any questions would not have been “particularly probing at that stage”;
  • She considered that the records which followed the first in January 2019 were likely a case of repetition from the first, rather than a statement from Mr Dean on each occasion;
  • She found that there were some errors in the records, where Mr Dean had been noted as working in the Navy when he had not;
  • She considered that once Mr Dean had been diagnosed with mesothelioma, and was aware that it is almost always caused by exposure to asbestos, he was able to consider and identify the boiler as a possible cause; and
  • She accordingly concluded that, in the circumstances and context of the records, Mr Dean’s evidence and recollection followed an “unremarkable pattern” such that she found his account “reliable” and “convincing”.

The issue in respect of the insulation on the boiler being unprotected and containing asbestos was also found in the Claimant’s favour – the judge, again, accepted Mr Dean’s evidence. She provided a detailed analysis of all the evidence in the case at [62-84] and it was most notable in her determination on this issue that Mr Dean’s account was supported by the expert evidence (which the judge evaluated in some detail and with the benefit of cross-examination).

The Claimant ultimately went on to succeed in her claim overall.

Evans v Secretary of State for Health and Social Care

This was a decision of Andrew Kinnier KC, sitting as a Deputy High Court Judge.

The case was brought by Mrs Teresa Evans, the daughter of Mrs Maria Drinkwater who died on 1 May 2019 after contracting mesothelioma. Mrs Drinkwater had been employed by the Defendant’s predecessor as a carer at Bradwell Grove Hospital in Burford between 1974/75 and 1986. It was alleged that she had been exposed to asbestos during the course of several months in 1975/76 when works were being carried out on the hospital building. It was alleged that she had been exposed to “visible clouds of dust floating around in the corridor along which I had to walk every day for months whilst the building was demolished” and that such dust contained asbestos from the works. A statement from Mrs Drinkwater had been obtained before she passed away.

As to the issue of the reliability of Mrs Drinkwater’s evidence, the Defendant raised four key points. Firstly, in Mrs Drinkwater’s application for compensation under the Pneumoconiosis etc (Workers’ Compensation) Act 1979 on 19 March 2018 she denied any occupational asbestos exposure. Secondly, Mrs Drinkwater had accepted unrelated secondary asbestos exposure when laundering her husband’s work overalls such that the Defendant asserted that that exposure was the more likely explanation for the development of mesothelioma. Thirdly, the Defendant’s case was that it was inherently implausible that the presence of “clouds of dust” as described by Mrs Drinkwater would have been tolerated in a hospital for several months. Fourthly, some of Mrs Drinkwater’s evidence about the presence of asbestos in the hospital was considered by the experts to have been incorrect.

Before turning to an analysis of the facts, the judge outlined seven helpful factors in assessing lay witness evidence in historic cases [37]:

“(a) The burden rests at all times on the Claimant to prove that there was exposure to asbestos dust and that such exposure was caused by the Defendant’s breach of duty: Brett v. Reading University [2007] EWCA Civ 88, para. 19 (per Sedley LJ) and para. 26 (per Maurice Kay LJ).

(b) The usual standard of proof applies with the same rigour in mesothelioma claims as in any other. In that regard, it is important that judges should bear in mind that the Fairchild exception itself represents what the House of Lords considered to be the proper balance between the interests of claimants and defendants in mesothelioma cases. Having regard to the harrowing nature of the illness, judges must resist any temptation to give the claimant’s case an additional boost by taking a lax approach to the proof of the essential elements. That could only result in the balance struck by the Fairchild exception being distorted: Sienkiewicz [2011] 2 AC 229 at 288E-F, para. 166 (per Lord Rodger).

(c) It is not the duty of fact-finders to reach conclusions of fact, one way or the other, in every case. There are cases where, as a matter of justice and policy, a court should say that the evidence adduced (whatever its type) is too weak to prove anything to an appropriate standard, so that the claim should fail: Sienkiewicz [2011] 2 AC 229 at 296C-D, para. 193 (per Lord Mance).

(d) The process of attempting to remember events in the distant past is an inherently fallible one and it is a process that is highly susceptible to error and inaccuracy. Efforts to think back many years to recollect the details of past events are liable to be affected by numerous external influences and involvement in civil litigation can itself operate as a significant influence: Jackman v. Harold Firth & Son Ltd [2021] EWHC 1461, para. 13; Bannister v. Freemans [2020] EWHC 1256 (QB), paras. 73-77; Sloper v. Lloyds Bank [2016] EWHC 483 (QB), para. 62.

(e) When a witness recalls events from the past, he or she is in fact unconsciously reconstructing those events. The description the witness provides of the relevant event or events is in fact a description of the reconstruction undertaken at that point: Jackman [2021] EWHC 1461, para. 13(iii); Sloper [2016] EWHC 483 (QB), para. 62; Prescott v. The University of St Andrews [2016] SCOH 3, para. 42; Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), paras. 15-23.

(f) Testing recollection against contemporaneous documents is a useful and important exercise because it gives the court an opportunity to compare a near contemporaneous version of events (subject to no or little reconstruction) with a re-constructed version of events: Jackman [2021] EWHC 1461, para. 13; Bannister [2020] EWHC 1256 (QB), para. 77; Sloper [2016] EWHC 483 (QB), para. 60.

(g) The judge should be careful not to allow the defence to convert one of the inherent difficulties in asbestos litigation – the inevitably long latency periods of mesothelioma – into its first line of defence: Bannister [2020] EWHC 1256 (QB), para. 82.”

The judge went on the analyse the facts as follows:

  • He did not accept Mrs Drinkwater’s evidence of encountering large clouds of dust bearing in mind the inherent implausibility of it and the absence of corroboration: “Maintenance of cleanliness and hygiene in a hospital is obviously important and in that very particular context it is unlikely that generation of visible clouds of dust into occupied parts of an operational hospital on a consistent and daily basis would have been tolerated for a prolonged period of time, let alone for months.” [44];
  • He considered that Mrs Drinkwater had “thought carefully about when she might have been exposed to asbestos” after her diagnosis and her records exclusively suggested exposure from her husband’s clothes [45];
  • Mrs Drinkwater had thought that the building was being “demolished” when the works, although substantial, “could not be reasonably confused with demolition” such that he considered that “the basis for her firm, but mistaken, belief that the building was demolished is not obvious” [46];
  • He was concerned by the fact that, on the expert evidence, Mrs Drinkwater’s recollection of the locations in the building where asbestos may have been present was mistaken [47];
  • He highlighted the limits (and total absence in many respects) of Mrs Drinkwater’s evidence about the actual work which was being undertaken while she alleged that she was present, how far away she was from the work and the extent to which that work and any resultant dust cloud contained asbestos [55-71]; and
  • His conclusion was that, having rejected the main tenant of Mrs Drinkwater’s evidence and in the absence of any detail in relation to other relevant matters, “The short point is that it is not now possible reliably to estimate, measure or quantify any exposure because of limitations of the evidence”[81-84].

The Claimant’s case accordingly failed.

Comment

Whilst the decisions in Dean and Evans are fact specific, they provide very helpful examples of current judicial analysis of lay witness evidence in historic claims.

The decisions highlight that whilst the general propositions from Gestmin about human memory are important for a trial judge to bear in mind in an industrial disease case, one must also consider the commercial context in which some of Leggatt J’s comments were made. Indeed, as exemplified by Dean, documents such as medical records in industrial disease cases may be less useful than contemporaneous commercial documents when one considers the purpose for which medical records are prepared, the nature of the questions asked / matters discussed and the emotions of the subject patient. On the other hand, documents such as an application for compensation or even later medical records may be persuasive evidence (as in Evans) where one has had time to reflect. The important point is that each record must be viewed in its context.

Further, the seven factors highlighted in Evans are particularly helpful for future cases. It is notable that the judge there drew upon the inherent unlikelihood of the Defendant in fact exposing Mrs Drinkwater to what would be significant levels of dust; this is an argument which progressively carries more force in modern cases where the court is concerned with asbestos exposure periods which are increasingly substantially post-watershed. What was particularly difficult for the Claimant in Evans was that there was limited evidence on the actual asbestos work and Mrs Drinkwater’s proximity to it. It is not known whether Mrs Drinkwater simply could not give any detail on those points or whether they simply weren’t explored with her when her statement was taken, but the absence of such detail is stark bearing in mind the comments in Dean of “the sort of detailed exploration of work history that would be taken by a solicitor”. What is key in these cases is that if a statement can be taken, it should be taken as soon as possible and as thoroughly as possible.

Whilst Dean and Evans concern mesothelioma cases, the principles discussed above are equally applicable to claims involving, for example, historic vibration exposure resulting in hand-arm vibration syndrome or noise exposure resulting in hearing loss. In the author’s experience, experts dealing with exposure in such cases frequently emphasise caution when evaluating statements of lay witnesses and frequently apply a broad reduction (sometimes as much as 50%) to stated ‘anger times’ in accepting that many individuals overestimate such times (albeit innocently in most cases).

What is clear from Gestmin and its subsequent application in industrial disease cases is that lay witness recollection evidence of historic matters should always be viewed with particular care.

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