EWJ June 61 2025 web - Flipbook - Page 81
l 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
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.
l 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.
(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.
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.
(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:
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.
l 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];
l 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];
l 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];
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 au-
l 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];
EXPERT WITNESS JOURNAL
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JUNE 2025
