Mr Platt QC, for the defendants, drew my attention to a very recent Scottish decision in a mesothelioma claim with some similarities to the present case, where Lord Pentland made some helpful observations on the reasons for caution: Prescott v The University of St Andrews SCOH 3 (13 th January 2016).That could only result in the balance struck by the Fairchild exception being distorted…” 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. “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. In relation to mesothelioma cases, there is a particular need for caution in this regard, as Lord Rodger emphasised in Sienkiewicz v Greif UK (Ltd) 2 AC 229, having regard to the special rule of causation in such cases, established in Fairchild (supra).It follows that however credible the testimony of a witness may seem, the reliability and accuracy of the details of that testimony have to be assessed against any objective evidence. Witnesses have had to try to recall what, at the time, would have been unremarkable details of these buildings 30-40 years later. On the central issue of whether there were suspended ceilings with asbestos tiles at either or both the Freshwater or Yarmouth branches there is a stark conflict of evidence.THE APPROPRIATE APPROACH OF THE COURT TO DISPUTED WITNESS EVIDENCE There were factual issues that the court had to decide. The claimant called witnesses who said that there had been asbestos tiling and asbestos generally in some of the banks she had worked in. Her case was that this developed due to working at the defendant bank in the 1970s and 1980s. But for the reasons already explained, that is quite a different matter from the reliability of what the witness recollects, tested objectively.”
“ I must emphasise at the outset of my analysis of the evidence that I am quite sure that no witness has to come to court, or made a witness statement, intending to do other than his or her very best to recall events fairly and truthfully.In Sloper -v- Lloyds Bank Plc EWHC 483 Mr Justice Spencer had to consider issues relating to the reliability of witnesses.
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