WITNESS CREDIBILITY: PROBLEM WITH DEFENDANTS' EVIDENCE
The recent posts on witness credibility have given rise to much attention. Matthew Stockwell, junior counsel for the claimant, has pointed out that the case of Pollock -v- Cahill  EWHC 2260 (QB) also involves an assessment of witness evidence. On this occasion the judge took a less than favourable view of the Defendants’ evidence.
The claimant was blind. He was visiting the defendant’s home as a guest. He got out of bed and fell out of a window. There was a dispute as to liability, which included a dispute as to whether the window was open or not.
THE JUDGE’S ASSESSMENT OF THE DEFENDANTS’ EVIDENCE
Who opened the window and to what extent?
I am wholly satisfied on the evidence that Mrs Cahill opened the window in the bedroom used by Mr Pollock. Before considering the basis for that conclusion I must deal with the evidence of Mr Murphy. His evidence does not provide any basis for a finding that he was responsible for opening the window. His witness statement is in clear terms. “I do not know who opened the windows….” That is inconsistent with the proposition that he did so. He did not say, for instance, that he could not remember whether he opened the window. When he went on to say “…I am sure that one of us would have opened the window” I cannot take that to mean that he or Mr Pollock did do so. In context it means simply that, had no-one else opened the window, he would have done had the need arisen. Mr Murphy’s evidence in fact is relied on by Mr Grime Q.C. in a different way. In his closing submission he puts it thus: “…the fact of the window having been open at the time of the handover (of the room)…loses any causative potency because control passed to Mr Pollock and/or Mr Murphy and the windows would have been open anyway”. I reject that proposition. Control of the window can hardly have passed to Mr Pollock since he did not know of its existence. So far as Mr Murphy was concerned Mrs Cahill did not cease to be the occupier (with her husband) of the bedroom occupied by Mr Pollock and Mr Murphy. She did not cede control of the bedroom to him in any relevant sense. The fact that Mr Murphy said that he would have opened the window had it not been open already does not remove the causative potency of what Mrs Cahill in fact did. What Mr Murphy supposedly would have done (but did not) cannot amount to an intervening cause.
Although Mrs Cahill’s evidence generally was that she did not recall opening the bedroom window, she did let slip the comment about opening the windows when she was making up the room. That undermines the argument put by Mr Grime Q.C. that Mrs Cahill’s recollection has been consistent throughout. I note also the absence of any evidence at all in relation to the opening of the window in the initial statement she made when the whole purpose of the statement was to deal with a proposed claim about a fall from an open window. But the significant body of evidence which demonstrates that it was Mrs Cahill who opened the window comes from what she said at the hospital. Mr Grime Q.C. relies on the following as reasons for treating this evidence with caution: the opportunity for misinterpretation given the circumstances of the conversations; the possibility of defective memory; the differences in the accounts given by the witnesses; the likelihood that it was one of the occupants of the room who opened the window. In effect he argues that the effect of those matters is that the evidence of what Mrs Cahill said at the hospital is of little or no probative value. I shall deal with those points in turn.
The conversations clearly took place when all concerned were under great stress. I have to take account of the risk of those under stress misunderstanding or misinterpreting what has been said to them. But the evidence of each of the witnesses who spoke of the comments made by Mrs Cahill was compelling. Simone George did not claim to have a verbatim recollection of what had been said to her. She did have a clear memory of certain words and phrases. I am satisfied that this was and is a true memory. Her evidence of her reaction to what she was told – “it felt like a punch in the stomach” – was quite clearly genuine. It was precisely the reaction one might expect from someone who had not prior to that point realised that the open window was due to a conscious act. Further, Simone George’s decision to say nothing by way of reaction and her reason for that decision was wholly in keeping with the entire tenor of her evidence and of the manner in which it was given.
Nathalie George (whose evidence was largely mirrored by that of Lisa George) gave evidence in the same calm and measured way as Simone George. The detail she gave of what Mrs Cahill said was not what could be the result of misinterpretation. The entire sense of the discussion as described by her was clear and unequivocal. Nathalie George’s reason for not engaging in blame or criticism there and then was convincing as was her description of her overall reaction to what Mrs Cahill had said.
The argument in respect of defective memory is based by way of example on Nathalie and Lisa George having a different recollection of which window was opened by Mrs Cahill when they visited the bedroom. It is notable that their recollection of the extent to which the window was opened is very similar. That fact was of far greater significance than which casement was opened. In any event a failure of memory in relation to a relatively minor detail relating to the opening of the window gives no assistance in assessing the accuracy of recollection of significant remarks made by Mrs Cahill. In reality what the witnesses say about the substance (as opposed to the detail) of those remarks is not a question of recollection or memory. Either Mrs Cahill said the substance as described by the witnesses or she did not. I am quite sure that she did.
There is undoubtedly a difference in the accounts given of what Mrs Cahill said on the one hand to the George sisters and on the other to Mrs Carson. There were separate conversations, the content of which were different. The difference does not undermine the conclusion that Mrs Cahill opened the window. She did not say so in unequivocal terms to Mrs Carter – though that is how Mrs Carter understood her comments. The lack of unequivocality when speaking to Mrs Carter simply means that Mrs Cahill expressed herself differently in that separate conversation.
I consider that the proposition that one of the occupants of the room opened the window has no evidential foundation for the reasons I have given already. Even if it could be said that there were some basis for suggesting that Mr Murphy had opened the window, I then would have to balance that evidence against the evidence indicating that it was Mrs Cahill who did so. I am quite clear where the balance would fall i.e. in favour of Mrs Cahill being responsible.
It is more difficult to reach a clear conclusion as to the extent to which the window was open. It is quite clear that someone closed the right hand casement between the time of Mr Pollock’s fall and 7.00 a.m. the following morning. There also may have been some interference with the left hand casement. The result is that the photographs taken by Mrs Cahill at around 7.00 a.m. on the morning of 3rd July 2010 are not an unassailable record of the position at the time of Mr Pollock’s fall. The following features of the evidence are notable.
- Mr Cahill claims that he was able to note the precise position of the windows on the stays at a time when he was in the bedroom in order to retrieve details of medication needed urgently by the emergency services. According to him he stood by the window for a few seconds despite the urgency of the mission on which he was engaged.
- Alice Whittaker observed the windows shortly afterwards when Mr Pollock was still lying on the ground below and when the purpose of her visit was to get some of his belongings – her observation was of the two casements open but in the opposite manner to that depicted on Mrs Cahill’s photographs. She was very much less precise as to the degree to which the windows were open.
- Mr Cahill said that he made a second visit to the bedroom at about 2.00 a.m. when he further observed the windows. This was a visit of some significance. Yet the first mention in evidence by him of this visit was when he was being cross-examined.
- Mrs Cahill said that she visited the bedroom at about this time but only for a very short while and not in order to look at the state of the windows.
- Mr Smyth was told by his wife of a visit to the bedroom at some point in the early hours after the accident during which one of the Cahills had closed the window. Mrs Whittaker did not recall any such visit and the Cahills denied closing any window at any stage on the night of the accident. There is no reason to doubt Mr Smyth’s recollection on this issue.
- Mrs Cahill carried out her purported reconstruction by reference to what her husband had told her the night before in the aftermath of the accident. It was not clear when the description had been given. Once Mr Pollock had gone to the hospital, Mrs Cahill on her own account was not thinking clearly yet she apparently was able to absorb and later remember the detail of how the window had been open.
- Mrs Cahill made at least one witness statement which was wholly inaccurate on the issue of whether the position of the windows had been changed between the accident and the taking of the photographs. She claimed not to have realised that it was inaccurate even though she had had to re-open the window before taking the photographs when the window concerned was the one from which Mr Pollock had fallen.
- When the George sisters visited the bedroom some days later Mrs Cahill supposedly showed them how the window had been open when Mr Pollock fell. Not only was only one window opened but, more to the point, it was opened rather less than it must have been open at the time of the accident.
There are inferences adverse to the Cahills which flow from these features of the evidence. Mr Cahill’s evidence as to when and with whom he examined the position of the window is unsatisfactory as is Mrs Cahill’s evidence about the so-called reconstructions. Most significantly I am quite satisfied that the window was closed by one of the Cahills at some point in the early hours of the 3rd July 2010. No-one else had the opportunity to do so. The evidence of Mr Smyth is a positive indication that one of them did so. On a balance of probabilities I conclude that whichever of the Cahills did so was aware at the time of closing the window and knows now that he or she closed the window. I am not able on the evidence to reach any clear conclusion as to which of the Cahills has given misleading evidence on this topic but I am satisfied that one of them has. I do not accept that Mrs Cahill could have engaged in a reconstruction on the basis of what her husband had told her the previous evening so as to give any kind of accurate representation of the position of the window at the time of the accident. It is unrealistic to suppose that (a) there was a conversation in which Mr Cahill gave a clear account of which hole of each stay the relevant casement was fixed and (b) Mrs Cahill remembered such detail the following morning.
I should mention – simply to discount it – the possibility that the window closed due to the wind or some other natural phenomenon. There is no evidence that there was any wind on the evening in question. Rather, Mrs Cahill told Lisa George that it was hot and still. Moreover, it is quite clear from the photograph taken by Mrs Cahill on the morning of the 3rd July that the window had been closed so as to lower the catches at both the top and the bottom. That could not have occurred other than by someone closing the window deliberately.
I am forced to consider why it is that one or other of the Cahills (or possibly both) has given misleading evidence. One might conceive of some innocent explanation for the closing of the window. If so, it is difficult to see why it has not been given. It could be argued that the closing of the window served no purpose – certainly no sinister purpose since the window was re-opened and photographs taken. However, the combination of evidential features as set out above has a cumulative effect which leads me to conclude on a balance of probabilities that, to use the term adopted by Mr Grime Q.C. in his closing submissions, there has been “some kind of attempt to distort or to hide evidence.” What are the consequences of this? First, I cannot be confident that the space between the casement and mullion through which Mr Pollock must have fallen was as limited as shown on the photographs taken by Mrs Cahill. On a balance of probabilities I consider that it was greater – though I cannot reach any clear conclusion as to how much greater. Second, it is of relevance to the issue of the breach of duty of care and foreseeability to which I shall turn in due course. Third, it makes the expert evidence relating to the question of how Mr Pollock came to fall from the window even less useful than it already was.”
(The claimant was successful in his action).
- This “problem” with witnesses: It is not a one way street.
- 1. Litigators must know about credibility.2. Witness Statements and Witness Evidence: More about Credibility.