PROVING THINGS 176: RELYING ON MEMORY FROM EVENTS A LONG TIME BACK
I am grateful to David Platt QC for sending me a copy of the judgment given today of Geoffrey Tattersall QC (sitting as a Deputy High Court Judge) in Bannister -v- Freemans Public Limited Company  EWHC 1256 (QB).
The claimant widower brought an action for damages on the basis that her husband had died of malignant mesothelioma. It was alleged that the the death occurred due to exposure in the course of employment with the defendant 35 years previously when a partition wall was removed and cleared up over several days.
The judge had to determine issues of fact. The deceased had given evidence on commission shortly before his death and this was played on video to the court. The claimant also called a witness who had been a fellow employee of the deceased.
THE JUDGE’S CONSIDERATION OF THE EVIDENCE
The judge reviewed the guidance given in relation to the assessment of witness evidence.
The reliability of historical lay evidence
73. Before I set out the parties` closing submissions on the facts and my findings of fact in relation to the evidence given before me, it is appropriate that I should note that in Sienkiewicz Lord Rodger stated:
“166. 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 these cases. Especially, having regard to the harrowing nature of the illness, judges, both at first instance and on appeal, 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.”
74. In Kimathi v Foreign and Commonwealth Office  EWHC 2066 (QB), where Stewart J had to evaluate evidence given in relation to events at the time of the State of Emergency in Kenya in the early 1950s, he cautioned against the overuse of historical lay evidence which is otherwise unsupported by documentary evidence and cited from various authorities. From the analysis of decided cases, which appear at para 95 of his judgment onwards, he observed that memories are believed to be more faithful than they in fact are, that it is erroneous to believe a recollection is more likely to be accurate the stronger and more vivid the recollection is or the more confident way in which it is expressed, that even memories of particularly shocking or traumatic events are fluid and malleable, and that events can come to be recalled which did not happen at all and the process of civil litigation subjects the memories of witnesses to powerful biases.
75. For present purposes I believe it is sufficient to cite dicta from Leggatt J, as he then was, in Gestmin SPGS SA v Credit Suisse (UK) Limited  EWHC 3560 (Comm) when he stated:
“15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.
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. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people`s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.
The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or least not to prejudice, the party who has called the witness or that party`s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. …The statement may go through several iterations before it is finalized. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her statement and the other written material, whether they be true or false, and to cause the witness`s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.
… This does not mean that oral testimony serves no useful purpose … But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.” 76. Such cautionary words were echoed by Lord Pentland in Prescott v The University of St Andrews  SCOH 3, where the learned judge, having referred to the above observations of Leggatt J in Gestmin, stated:
“42. The process of attempting to remember events in the distant past is an inherently fallible one; it is a process that is highly susceptible to error and inaccuracy. Our efforts to think back many years to recollect the details of past events are liable to be affected by numerous external influences; involvement in civil litigation can in itself operate as a significant influence. All remembering of events many years ago involves processes of a reconstructive nature; these processes are largely unconscious with a result, as Leggatt J said, that the strength, vividness and apparent authenticity of memories are often not reliable markers of their truth. Having seen and heard the pursuer give evidence, I have come to the view that I must evaluate the reliability of his claimed recollections with caution. I have, wherever possible, tested his evidence against other evidence in the case and I have considered objectively where the probabilities lie.”
77. So it was that in Sloper v Lloyds Bank Plc  EWHC 483 (QB), where Spencer J had to determine whether a claimant`s mesothelioma was caused by, inter alia, either her exposure to asbestos in premises where a suspended ceiling made of asbestos tiles disturbed in the course of maintenance shedding asbestos dust and/or or over several weekends when she was present while substantial building works, including the removal of an asbestos tiled ceiling were undertaken, having cited the above authorities, he stated:
“64. These latter observations [referring to para 19 in Gestmin] are, in my view, particularly apposite in the present case in relation to the evidence of the witnesses called by the claimant. The tragic nature of the case and the natural desire to assist in any proper way, are inevitable human reactions. These, and the other factors referred to in the passages quoted above, make it all the more important to test the recollection of the witnesses against contemporaneous documentation.”
78. I bear in mind that in this case no documentary evidence has been produced by either party to support or call into question the oral evidence which was given by the Deceased and Mr Ford.
79.Mr Steinberg sought to diminish the effect of such dicta in this case in that Kimathi was a case in which Stewart J was referred to `an abundance of documents` which did not support the evidence given by the test claimant and there was witness to corroborate his evidence; Sloper was another case where the claimant`s evidence was contradicted by contemporaneous documentation and evidence; and Gestmin was simply an eloquent reminder of the fallibility of human memory, which must apply in every case. He submitted that on the particular facts of this case the position was very different because two witnesses had given clear and corroborative evidence which, although challenged, was never undermined and there was no evidence adduced to the contrary.
80. There is some merit in this submission, subject to the qualifications referred to below.
81. In so far as it relies on the Defendant`s failure to keep or maintain records, it is unrealistic and I reject it because in my judgment it is not reasonable to have expected the Defendant to have kept records from such a long time ago. I do not find the decision or reasoning of the Court of Appeal in Keefe v Isle of Man Steam Packet  EWCA Civ 683 to be of assistance.
82. Moreover, although Mr Steinberg stated that Lord Rodger`s dicta in Sienkiewicz were simply ‘a reminder that the relaxation of the causation test did not apply to or eliminate the other ingredients of tortious liability’, I am satisfied that such dicta and the other judicial observations in Kimathi, Gestmin and Sloper, whilst in no way binding on me, are important as a helpful and cautionary general guide to evaluating oral evidence and the accuracy or reliability of memories and I do not propose to allow the Defendant, in Mr Steinberg’s words ‘to convert one of the inherent difficulties in asbestos litigation – the inevitably long latency periods of the disease – into its first line of defence.’
83. In making my findings of fact I have had regard to the detailed submissions of both Mr Steinberg and Mr Platt, although to set them out in detail would inevitably unnecessarily lengthen this judgment.
84. Having regard to all that is set out above, I set out my findings of fact.
THE JUDGE’S FINDINGS
The judge found that:
- Although ” both the Deceased and Mr Ford did not give their evidence with any intention to deceive, there were a number of matters which made me have substantial doubt as whether the Deceased`s recollection of events could be relied upon”
- The deceased’s exposure to asbestos whilst in the defendant’s employment did not constitute a material increase of his developing mestohelioma.