PROVING THINGS 133: FALLING OFF A BED AND THE PIECES OF THE JIGSAW
The case of Busby v Berkshire Bed Company Ltd  EWHC 2976 (QB) was one of those cases that centred on credible evidence. It is an example of where witnesses can be totally honest but mistaken in their recollection. The judge also set out, in some detail, the approach the courts take when assessing disputed evidence of fact.
“To approach the exercise of fact finding when faced with stark conflicts in witness evidence as necessarily requiring all the pieces of the jigsaw to be fitted together is often both flawed and an exercise in the impossible. This is because pieces of the jigsaw may be wrong, distorted to a greater or lesser degree or absent. Indeed, it is not possible to make findings if the state of the evidence or other matters mean that it is not proper to do … However, often a sufficient number of pieces may be fitted together to allow the full picture to be seen. This the case here.”
The claimant was seriously injured falling from her bed. Her case was that the bed was defective. She brought an action for damages for personal injuries. That action was unsuccessful. A key issue in the case was precisely how the accident had happened.
THE JUDGE’S ASSESSMENT OF THE WITNESSES
HHJ Cotter Q.C. considered the evidence of the witnesses:
Generally speaking it is necessary, when considering the oral evidence of the witnesses whose evidence as to fact is challenged, to bear in mind, amongst other matters, the circumstances in which they came to give their statements, internal consistency, external consistency with documentation of the evidence of other witnesses and inherent plausibility. There are many reasons why testimony may not be correct and reliable; even when honestly given.
Ms Busby’s recollection of events, as set out within her pleaded case, witness statement and oral evidence were not consistent as to what happened on the day of delivery or the day the accident. Given the severity of her injury, and that she did not even begin to consider the bed as implicated in her accident until December 2013 (four months post accident), that she cannot accurately recall certain events is entirely understandable. However, a lack of internal consistency of her accounts once she has tried to remember matters is obviously significant.
“the delivery men confirmed they would be back the following week. They did not mention any problem with the claimant’s double bed or the fact that there were two castors missing on the right-hand side divan at the foot of the bed.”
However Samuel Nash’s witness statement as confirmed in his oral evidence was that he was told by the delivery men that-
“..there was a problem with my mum’s bed in that two feet were missing at the bottom of the bed”
Such a significant contrast between how the case was initially put and subsequently advanced is always of concern. Given the inability to fully explore what was stated/known by the legal advisors before the letter was written, analysis is often unsatisfactory. It meant that Mr Nash’s evidence had to be all the more carefully considered.
Mr Ford had some recollection of the delivery; for example, he remembered the road Ms Busby’s house was on as it used to be the site of a public house where his father drank. However the rest of his recollection must again be taken in the context of the fact that he was first asked to remember the events years down the line and that save for the fact that there were problems with the children’s beds (such problems being a matter of record) there was nothing else exceptional about this delivery as opposed to the many hundreds of other deliveries he had undertaken in the area over years of employment.
“the left side of the bed was sitting on the floor and lower where mums head was. Her head was resting on the floor against the bed and she was in shock trying to talk but unable to move. I clearly remember this image, her face the room and feet missing on the bed.”
In his oral evidence he stated
“I remember as clear as the day, the divan was sitting on the floor”
This would have been a terribly distressing incident for this 14 year-old boy and no doubt one he has thought about over and over in the years that have passed. It is concerning that he states that he could see the left-hand side of the bed was lower when Ms Busby and Mr Marshall who had been sleeping on the bed had not noticed it and also, as the photograph taken by Mr Hazier shows, any bedding would probably have obscured the foot of the bed. Indeed nobody else present at the accident scene remembers the left-hand bed being lower or that castors/gliders were missing. I also note the comments in his witness statement that-
“It’s only after the accident that we discovered the feet on one side were missing…..”,
yet on his recollection elsewhere he stated that it was immediately apparent when entering the room. In his oral evidence he said that Natalie found out that the gliders were missing. Mr Nash left the property that night and has not been back for two to three years until 2015 when he spoke to solicitors. I find that his recollection of noting the absence of gliders is not reliable. That brings me to a central issue of fact.
THE COURT’S APPROACH
- In a case such as this the civil “balance of probability” test meant that the court has to be satisfied on rational and objective grounds that the case advanced as to the cause of the accident is stronger than the case for not so believing. This requires careful analysis of the arguments for and against the suggested explanations having regard to the totality of evidence including any gaps. At the end of any such systematic analysis, the court has to stand back and consider whether it is satisfied that the suggested explanation was more likely than not to be true.
- I have taken the time to set out the respective submissions as it can be seen that each has force and the court’s task is not an easy one.
- When approaching the evidence from a witness whose testimony has been challenged it should be broken down into its component parts. If one element is incorrect it may, but does not necessarily mean, that the rest of the evidence is unreliable. There are a number of reasons why an incorrect element has crept in. Apart from the obvious loss of recollection due to the passage of time, there may be a process of conscious or subconscious reconstruction or exposure to the recollection of another which has corrupted or created the recollection of an event or part of an event.
- The court must also have regard to the fact that there can be bias, conscious or subconscious within the recollection process. When asked to recall an event that took place some time ago within the context of criticism people often take an initial stance that they cannot have been at fault; all the more so if the act in question was in terms of their ordinary lives; unmemorable. There is a tendency to fall back on usual practice with the tell-tale statement being “I would have” rather than “I remember that I did”.
- To approach the exercise of fact finding when faced with stark conflicts in witness evidence as necessarily requiring all the pieces of the jigsaw to be fitted together is often both flawed and an exercise in the impossible. This is because pieces of the jigsaw may be wrong, distorted to a greater or lesser degree or absent. Indeed, it is not possible to make findings if the state of the evidence or other matters mean that it is not proper to do so (see generally Rhesa Shipping Co SA v Edmunds (The Popi (M)  1 WLR 948). However, often a sufficient number of pieces may be fitted together to allow the full picture to be seen. This the case here.
THE EVIDENCE IN RELATION TO THE CAUSE OF THE ACCIDENT
- Understandably, as soon as her head had hit the floor, Ms Busby’s only concern was that she could not move. She appreciated she was very seriously injured. Thereafter whilst she remained in the bedroom for approaching an hour and a half her focus remained upon her terrible situation. Neither she or Mr Marshall gave a brief account of what had happened to Mr Holzer and/or Ms Edwards the first paramedics to attend. The Claimant did not start thinking about her accident until many weeks later and after she had survived a very turbulent period within which she could have died.
- The Claimant’s sister Natalie Busby was shocked and devastated by what had befallen her sister. As she set out in her statement it did not make sense to her that she could have fallen off a bed and done so much damage to herself.
- In December 2013 Natalie Busby went to her sister’s house to prepare it for rental. It had not been occupied since the night of the accident save for Mr Hazier who lived in an annexe. She stated
“it was on this particular date that I went into her bedroom and noticed that there were no feet on the corner of the bed. The bed is two large divans pushed together and each divan has feet on each corner. As you are looking at the bed from the doorway, it was the left-hand divan where the two front feet were missing. The quilt was still on the bed and it had all been pushed back together. Left-hand divan and bed look lower than the right-hand side. I sat on the bed and when I stood up it was like the mattress pushed me off. It felt very weird and did not look or feel right in the whole corner of that side of the bed. I believe I took some video footage of it because it was very strange.”
- Ms Natalie Busby told me that she sat on the corner where the feet were missing. She then checked the other bed and noticed problems such as the fact that the headboards were not fixed. I find as a fact that she then considered that a potential cause for her sister’s accident was the missing feet; being just one of the problems with the beds supplied. She then spoke to her sister. This was the first time that Ms Busby became aware of any issue with the bed.
- Ms Busby at that stage had not really considered the precise cause of her fall from the bed; rather (and again wholly understandably) solely the devastating effects. She had played over in her mind the feeling of being catapulted off the bed and the moment of impact, but not associated her fall with any movement in the bed or other specific factor. Now her sister presented her with a theory; an explanation for how this terrible accident had happened. I have little doubt that that this then became the focus of consideration and discussion.
- However, Natalie Busby had sat on the bed at the corner where the feet were missing (and knowing that they were missing) to see if their absence could have any effect. She did not consider or test the other side of the bed from which her sister had fallen. She was probably unaware of the part of the bed upon which the Ms Busby was keeling as this was and remains an embarrassing issue for her to recount in detail. Regrettably I find that in essence Ms Natalie Busby took two and two and made five; she took the absence of the missing feet and the fall from the bed and made a causative link. Why else would her sister have fallen from the bed? She assumed what needs to be proved; that there was a causative link.
- In my judgment , after all the evidence is carefully considered, a much more likely cause for the fall can be seen. The Claimant was in an unusual position towards the foot of the bed and kneeling back on her feet. She had no means of support other than placing her arm down which she did as she attempted to swing her legs around from underneath her. It was not an easy manoeuvre. The mattress was new to her and was as she described it “very springy” (this is also I believe why Natalie Busby felt it “pushed her off”).
THE EARLY DOCUMENTATION AND LETTER BEFORE ACTION
The judge reviewed the medical records immediately following the accident and the letter of claim.
I bear very well in mind that Ms Busby was immediately aware of the terrible nature of her accident and also that to third parties she presented as a medical emergency; so detail was not a priority. However nowhere in Ms Bubsy’s witness statement or the contemporaneous records is there any suggestion that the bed played a part in the accident through moving or somehow giving way underneath her or her arm.
” she was kneeling in the middle of the bed and went to sit down on her left buttock and move her legs from underneath her by swinging them around the right as she lay back the end of the bed appeared to give way causing her roll backwards off the bed”.
Reference is then made to the missing “castors”, but significantly in my view letter continues-
“The claimant also purchased the mattress which is recommended to her by the store and the springiness of the mattress may have contributed towards the accident”
This ties in with the statement made by Ms Bubsy that the mattress was very springy.
” On 15 August 2013 the claimant was kneeling on the bed. Claimant intended to manoeuvre her legs from beneath her. In the process of undertaking this manoeuvre the claimant sat back and the bed moved causing her legs to go over her head” ( emphasis added).
As the case has evolved Ms Busby’s case has become that her left arm/hand was put down on the mattress at the point of the difference in divan levels below and this caused her arm to slip off the bed or otherwise for her to lose her balance. However, there was no mention of her left arm slipping or moving in the letter before action or the particulars of claim or, very significantly, her statement. The fact that it was wholly absent from her statement, indeed from her evidence in chief and initial answers in cross-examination was Mr Block Q.C. submitted a “beacon that shines out”. In my judgment the evolution is indeed telling; it was from an initial case that became unsustainable to one that was arguable. That process reveals the absence of adequate recollection of the cause of the fall.
Mr Busby’s oral evidence was itself telling. Mr Block Q.C. was careful in cross examination to give Ms Busby the opportunity to explain in her own words her current recollection of what had happened such that she came to fall off the bed. She did not mention that her arm, which she stated was not a way behind her, had moved unexpectedly.
Indeed, it was only when cross-examined upon the letter of claim that Ms Busby stated that as she put a hand down something happened and that was what caused her to move (at one stage she said it was “jolted”) and that whilst mattresses all do go down this was more than a sinking down. She stated that something moved, the bed or mattress, and “it didn’t feel right” it was just not a normal feeling and it was not a normal fall; something moved. She stated she felt it was not normal to be catapulted of the back of the bed and legs thrown behind her with force. When asked about the springy nature of the mattress she repeated that she felt catapulted and this was not a normal fall. Again the springiness of the mattress seemed to underlie her analysis of the fall. The oral evidence given (and how it was given) has to be measured against a clear and consistent recollection of her left arm moving unexpectedly.
By the time Ms Busby came to give evidence in cross-examination she had the benefit of her sisters analysis and subsequently that of Mr Glenn. I believe that she has linked her feeling that this was not a “normal” fall to something unusual happening. However, Ms Busby will not regularly have fallen off a bed; so the comparison is of limited assistance.
THE CASE GREW WITH MOMENTUM
The judge considered that the case had grown as a result of a number of mistaken assumptions, made after the event.
I find that the case against the Defendant grew with momentum after Ms Natalie Busby found the bed with the gliders absent. She was looking for an explanation for her sister’s terrible accident and thought she had found it. There was absolutely nothing wrong in her approach in general; she was simply not correct.