“(2) A construction site must be, so far as is reasonably practicable, made and kept safe for, and without risks to, the health of a person at work there.”
“Evidence based on recollection 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. 16. 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. 17. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). 18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. 19. 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 at 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. 20. 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 is made after the witness’s memory has been ‘refreshed’ by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. 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 own statement and 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. 21. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth. 22. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. 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.”
“16. Where witnesses are accused of lying […] cross-examination still remains the gold standard test (see generally the analysis of Mostyn J in Carmarthen County Council v Y[2017] EWFC 36 and Stewart J in Kimathi & Ors v Foreign and Commonwealth Office[2018] EWHC 2066 (QB) . […] Most first instance Judges across a range of jurisdictions undertake the assessment of veracity on a very regular basis and the proper approach as set out in a number of cases and articles requires no exegesis from me. It is now well recognised that caution must be exercised before placing weight on how the evidence was given. […] However, the assessment of witness evidence is not a beauty parade and Judges should not treat it as such. As Peter Jackson LJ said in B-M[2021] EWCA Civ 1371 at pp.23-5: “No judge would consider it proper to reach a conclusion about a witness's credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence….” 17. Demeanour in court is not entirely irrelevant; it can on occasions be instructive. It is usually far easier to tell the truth than to lie. There may be pauses as a witness may try to think through implications and remain consistent. There may be a failure to answer a direct question by deliberately going off at a tangent; so appearing to answer; but not answering at all. However, the way evidence is given or “demeanour” must not be given disproportionate weight. The difficulty some witnesses will have in giving evidence (for a range of reasons) must be taken into account. The overriding objective sets out that it is the aim of the Court to ensure a witness can give their best evidence, but the process often cannot be an entirely level playing field. Judges give due allowance for the fact that the court room is often an unfamiliar and frightening place for those who appear as parties or to give evidence, and that some witnesses will find the process more stressful and difficult than others particularly if they have a mental health issue such as depression. Allowances must also made for education and use of language. On the other hand some witnesses may be calm and assured, but calculated and accomplished liars. I took these matters into account when assessing all the witness evidence in this case. There are numerous article and books that cover this issue. See e.g. Lord Bingham’s essay "The Judge as Juror: The Judicial Determination of Factual Issues. See generally Lord Shaw in Clarke-v-Edinburgh Tramways [1919] SC (HL) 35 at p 36 18. Each Judge will have his or her own approach to the factors referred to by Jackson LJ. I usually take as a first step in the analysis of the veracity of a witness, establishing the relevant base of facts that cannot be in dispute; a set of foundations against which the reliability of the testimony can be assessed. Establishing such facts does not rely upon witness recall; rather on what is established by scientific fact and/or the seemingly ever increasing amount of data we produce such as documents, photographs, emails, text messages, video and other footage. […] 20. The next step I take is to consider the evidence of all of the witnesses in turn. Ms Collignon properly placed very great emphasis during her submissions upon the number of witnesses prepared to give evidence on behalf of the Claimant. It was the method used to seek to prove that the Claimant was essentially honest and Mr Lessey was a liar. However the assessment of evidence it is not purely a numbers game. It is necessary to carefully consider the evidence of each witness critically taking into account all relevant matters such as the following (this being a non-exhaustive list): Motivation. What if anything has the witness to gain or lose through their evidence being accepted and is the witness trying to help the court independently of his or her personal interests/allegiance? […] (b) Is there the potential for unconscious bias? Leggatt J (as he then was) in Gestmin v Credit Suisse[2013] EWHC 3560 (Com) referred to modern psychological thinking on frailty of memory and stated: “19. 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…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 at 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.”