In Johnstone v Fawcett's Garage (Newbury) Ltd, the Court of Appeal considered whether a company's failure to retain historic air-monitoring records could support an argument for preferring one side’s expert evidence. The case concerned a personal injury claim brought by the widower of Mrs Johnstone, who developed mesothelioma after alleged asbestos exposure while working in an office at the respondent’s garage in the 1980s.
Although the respondent admitted unsafe working practices, it denied that any exposure materially increased Mrs Johnstone’s risk of developing mesothelioma. At trial, the claim was dismissed, with the judge preferring the respondent’s expert evidence despite the absence of monitoring records.
On appeal, the claimant argued that the missing records should lead to adverse inferences against the respondent and acceptance of higher exposure estimates.
The Court of Appeal dismissed the appeal. It confirmed that, while the absence of records can, in principle, justify drawing an adverse inference even against expert evidence, that was not appropriate based on the facts of this case.
The Court noted that the adverse inference argument had not been clearly raised at the outset of the trial and had not been developed in detail. It also observed that even if monitoring records had existed, they could properly have been destroyed after five years - long before the litigation - and would only have covered a small proportion of Mrs Johnstone’s employment.
Importantly, it remained possible to assess exposure levels based on other evidence. The Court found that the claimant had not clearly explained what specific inference should have been drawn, and emphasised that applying the adverse inference would have required findings of fact inconsistent with the trial judge’s assessment.
While acknowledging that adverse inferences can, in principle, apply to expert evidence, the Court described the claimant’s argument as involving an unsustainable leap of logic.
In principle, the case highlights that failing to retain records will not automatically prejudice an employer's position many years later, especially where records would have limited value and were not legally required to be kept indefinitely. However, where an employer wishes to defend a claim, it is often preferable to have access to relevant historic records. This is particularly the case where an employer is aware of historic circumstances which have the potential to expose multiple employees to harm.
As a minimum, employers should ensure that their record retention policies align with statutory obligations, particularly for health and safety records where long-term exposures may be relevant. However, it should be noted that this case predated the requirements to hold certain records relating to asbestos for at least 40 years under the Control of Asbestos Regulations 2012. Failure to comply with relevant health and safety duties can result in enforcement action being taken by the HSE against relevant employers.