EWJ June 61 2025 web - Flipbook - Page 79
The Shadow of Gestmin Analysing Lay Witness Evidence in
Historic Industrial Disease Cases
by Samuel Shelton - www.ropewalk.co.uk
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
the 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.
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 article, 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)).
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.
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
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
EXPERT WITNESS JOURNAL
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JUNE 2025
