A WITNESS STATEMENT FROM SOMEONE WITHOUT CAPACITY CAN STILL BE ADMITTED AS EVIDENCE : WITNESS EVIDENCE CONSIDERED IN THE HIGH COURT

The case of Milroy -v- British Telecommunications PLC [2015] EWHC 532 (QB) is an important decision in terms of the analysis of the employer’s duty to provide training. However it also contains some interesting observations from Mr Justice William Davis in relation to witness evidence, capacity and credibility.

THE CASE

The claimant was seriously injured when a boom he was operating a mobile platform which touched, or got too close to, a high voltage power line.  He brought an action against his employers.

KEY POINTS

• The fact that a witness lacked mental capacity and required a litigation friend did not render a witness statement inadmissible. Rather it went to weight.
• The absence of a key witness did not lead to an adverse inference against either party. However the fact that the absent witness had clearly told lies when the accident was being investigated was a significant issue.

THE PRELIMINARY ISSUE: SHOULD THE CLAIMANT’S EVIDENCE BE ADMITTED?

Preliminary issue – admissibility

1. Mr Milroy did not give evidence from the witness box. On the 13^th December 2013 he signed a comprehensive witness statement. That statement was the subject of a Civil Evidence Act notice dated 26 January 2015, the basis of the notice being medical evidence as to Mr Milroy’s lack of capacity to give evidence in court. Mr Daniels on behalf of BT submitted at the outset of the trial that I should not admit the evidence at all on the basis that the medical evidence demonstrated that Mr Milroy was not competent to give evidence at the time of his witness statement. I did not accept that submission for the following reasons.
2. On 26 November 2012 Mr Milroy’s capacity to instruct a solicitor and to understand the legal process was considered by a clinical psychologist, Lorna Morris. On testing of Mr Milroy she found the following: moderate to severe impairment of information processing speed; mild reduction in general memory functioning; severe impairment of attention abilities. She noted that he had poor insight into these cognitive impairments. Notwithstanding those matters she concluded that he had full capacity to conduct the proceedings. However, she went on to say that the impairments she had found on testing were likely to mean that he would not properly comprehend questions put to him in court were he to give evidence and that he might become flustered or confused in the witness box. She considered that, in that environment, he was at risk of being falsely led.
3. In December 2014 Dr Bodani, a consultant neuropsychiatrist, reported on the issue of mental capacity. He had examined Mr Milroy in September 2014. He confirmed and agreed with the findings made by Lorna Morris when she tested Mr Milroy. He disagreed with her conclusion that those findings were compatible with capacity to conduct the proceedings. He observed that the cognitive impairments meant that, if he were presented with too much information at the same time, Mr Milroy would “blank out” or would become flustered and anxious. Dr Bodani said that this meant that he would not be able to understand issues as they arose and to give proper instructions. Dr Bodani also referred to the risk of Mr Milroy being suggestible and easily led i.e. in the context of the conduct of the litigation.
4. That evidence clearly was sufficient to justify the appointment of Mr Milroy’s wife as his litigation friend. Mr Daniels’s argument is that it demonstrates that Mr Milroy was not capable when he made his witness statement of understanding the questions which must have been put to him for the statement to be taken and/or of giving a rational account of himself. I disagree. Mr Milroy undoubtedly would have considerable difficulty in dealing with the process of giving evidence in court and unassisted the evidence he gave in that context would be highly problematic. If these were criminal proceedings and he was required to give evidence, he would be the kind of witness for whom an intermediary to assist him would be essential. However, there is nothing in the evidence of Lorna Morris and/or Dr Bodani to indicate that Mr Milroy is or was incompetent to give an account of working practices at BT, of the training he received and insofar as he could recall them of the circumstances in which he came to be injured. He required the right circumstances and time to reflect on what he was saying. I am entitled to infer and I do infer that his solicitors approached the taking of his witness statement with the content of Lorna Morris’s report very much in mind.
5. His mild reduction in memory functioning is a matter to which regard must be had when assessing the reliability of Mr Milroy’s evidence. In his closing submissions Mr Daniels submitted that the evidence of Mr Milroy “must be approached with considerable caution” because of the issues surrounding capacity. That is putting it too high. I shall not ignore the medical evidence when assessing the evidence of Mr Milroy. Equally it does not provide a basis for significant caveats to be placed upon that evidence.
6. The effect on the weight to be given to Mr Milroy’s evidence due to his absence from the witness box is not an issue of admissibility. However, it is convenient to deal with it at this point. The written submissions of Mr Daniels note that important areas of Mr Milroy’s evidence – his training, his decision making on the day, the conversations he had with Mr Bradley, what actually happened – could not be explored in cross-examination. That is true. But there is a limit to what could have been achieved in cross-examination. Mr Milroy’s evidence is that his memory of events on the day of the incident comes to an end at a point prior to any possible discussion or decision making in relation to the use of the MEWP in close proximity to HVPL. There is no reason to doubt that part of his evidence. It is consistent with the medical evidence in respect of the consequences of the accident. It is something which BT accepted as genuine in the course of their investigations. It follows that cross-examination on the central issues in the case would not have been a useful or profitable exercise. I accept that he could have been cross-examined about training he underwent in September 2008 which both parties agree is of significance. Even that cross-examination would have been of limited scope. What Mr Milroy says about his recollection of that training is clear. I have had the advantage of seeing the training materials provided to Mr Milroy in precisely the same form as they were provided to him. Though some difficulties arise as outlined hereafter I am in a reasonable position to assess his evidence on this point. Although the absence of the opportunity to cross-examine is not to be ignored, it is of limited effect vis-à-vis the weight to be attached to Mr Milroy’s evidence.

THE ABSENCE OF A KEY WITNESS

The judge considered the implications of neither party calling a witness to the accident.

The Accident

1. The evidence as to the circumstances of the accident itself is limited. Mr Milroy’s injuries mean that he has no recollection of the events immediately prior to the accident. He does provide an account of the lead up to those events. He went to the country lane near Catsfield at around 4.00 p.m. on 26 August 2009. He met Mr Bradley whom he did not know. Mr Bradley was the engineer on site. He explained that he was trying to locate a fault on the line and that access to the top of a carrier pole (CP 10) was needed. The pole was designated “D” which meant that it was unsuitable to use a ladder. Mr Milroy conducted a risk assessment. This was an informal risk assessment which he did in his head. He noticed HVPL nearby but they were of no relevance to the use of the MWEP at CP 10 because they were some distance away. It is clear that this assessment was correct. Mr Milroy used the MEWP to gain access to the top of CP 10. Mr Bradley acted as GSP. Mr Milroy identified that the cables were not working at CP 10. He lowered the bucket of the MEWP. That is Mr Milroy’s last recollection until the following morning. Nothing up to that point was anything other than wholly routine.
2. In his closing submissions Mr Daniels observed that for subsequent events “Mr Bradley is the only evidence we have”. In fact there is no evidence from Mr Bradley in the ordinary sense of the word. Neither party has served a witness statement from him or called him. I draw no adverse inference against either party from the absence of Mr Bradley from the proceedings. Equally, I am left without any proper evidence from him at all. The effect of this lacuna in the case is accentuated when consideration is given to the hearsay material relating to Mr Bradley.
   • He told a police officer at the scene that a gust of wind had blown the bucket in which Mr Milroy was standing into the mains cable.
   • Prior to the arrival of the police he had said to a lady who had seen at least some of what had occurred that she should say that he was on the ground throughout.
• In his BT disciplinary interview he said that he had gone up in the bucket with Mr Milroy because Mr Milroy did not know how to use the equipment to carry out the relevant line test, the decision to do that being a joint one.
3. In none of that material does Mr Bradley give any proper explanation of how the accident occurred. What he told the police officer was clearly a lie. His remark to the lady at the scene was linked to that lie. The only reported description of the accident from Mr Bradley comes from an investigation report prepared by his trade union. It is impossible to gauge whether what he told the investigator has been accurately reported. Assuming the report to be accurate, assessing the credibility of the account is highly problematic. There is no doubt that Mr Bradley told self-serving lies in the immediate aftermath of the accident. For what it is worth, his account as reported in the union investigation report was that the MEWP was moved from CP 10 to CP 9 in order for the line to be tested at that pole. The MEWP was used to gain access. He went up in the bucket for the reason given in his BT disciplinary interview. He said that he was working on the line at the top of CP 9 when a lady came on the scene with a horse. The lady could not get to where she wanted to go because of the position of the MEWP. She asked if the MEWP could be moved. Mr Bradley said that they would only be a couple of minutes at which point Mr Milroy unexpectedly moved the bucket. This surprised Mr Bradley because he was still working on the line at the top of CP 9. Mr Milroy said “oops sorry” at which point Mr Bradley turned to see Mr Milroy standing rigid. The bucket then moved back to the top of CP 9.

THE RESULT

The judge found that the claimant had not been adequately trained. There was a breach of Regulation 9(1) of the Provision and Use of Work Equipment Regulations 1998 – which impose a duty to train. Contributory negligence was assessed at one-third.