Fallibility doesn’t mean futility—overcoming evidential difficulties in historical injury cases (Smith v Secretary of State for Transport)

Article summary

Personal Injury analysis: The High Court found that a claimant was exposed to harmful levels of asbestos at work in the late 1950s and 1960s such that it was found to have caused his pulmonary fibrosis. The court had to resolve key factual issues of whether Mr Smith had been exposed to asbestos and, if so, whether that exposure met the threshold of 25 fibre years. It was concerned about how to approach his evidence, which was the only lay evidence in the case and was at times inconsistent and fallible due to his recall and communication challenges arising from ill-health. Historical personal injury cases present evidential obstacles for both sides in establishing the facts, more so to the claimant who bears the burden of proof, but it is still possible to discern where the truth lies and make findings of fact from the totality of the lay, expert and related, near-contemporaneous...