PROVING THINGS 36: CREDIBILITY & CONTEMPORANEOUS DOCUMENTS: WORKING WITH CHILDREN AND ANIMALS
One of my colleagues tweeted that the judgment in Harris -v-Miller  EWHC 2438 (QB) was “short on the law and long on the facts”. This is a correct assessment. The case shows just how important the facts are in most (if not all) litigation. Most litigation involves a dispute on the facts and not the legal principles involved. Further it highlights the critical importance of asking witnesses to make a contemporaneous note of the facts.
“In a case with such stark conflicts of evidence, the starting point must be my assessment of witness credibility. There is very little common ground on the crucial aspects relevant to liability and one or other side must be wrong in the evidence given. I agree that in such an assessment it is unnecessary to accept or reject an account in its entirety, or to find that a witness who is wrong in one or more respects is untruthful. As counsel point out there is a broad range of reasons why a witness might be incorrect in reporting an incident or describing a situation, from deliberately lying, through poor recollection and subsequently gained perception after speaking to others, to a conviction based upon a favourable interpretation to suit one’s own purpose, including exaggeration or embellishment. In recalling, particularly after the passage of time, a witness may deliberately exclude or subconsciously forget certain features which are unhelpful. These are all factors which I bear in mind”
The claimant was seriously injured in a horse riding accident when she was 14 years old. She brought an action against the defendant.
THE FACTUAL DISPUTE
With a wry observation about the complexities of the Animals Act HH Judge Wood QC noted that this was primarily a question of which account he preferred.
“Apart from the Claimant and the Defendant, other lay witnesses have given evidence as to the accident circumstances, and the period leading up to the accident. The court has also heard from two equestrian experts, Mr James Mackie and Charlie Lane. Mr Mackie, the Claimant’s current expert, succeeds the late Mr Richard Meade OBE who sadly passed away in 2015. However, his report has been made available to the court and I shall refer to its potential relevance later in this judgment.
The extent of the dispute between the experts is relatively limited. However, the same could not be said for the factual dispute. The accounts of the Claimant, and the Defendant and her witnesses are diametrically opposed, not only in relation to the circumstances in which the Claimant came to fall, but also the characteristics of the horse, Polly Perks (or Polly as she is generally known), the Claimant’s riding experience, including both her actual experience and that communicated to the Defendant and her family, and the events a week before the accident when the Claimant was present with the Defendant at the purchase of the horse.
Both experts, and counsel, in their respective submissions, subject to a qualification which I shall refer to below, agree that the liability question will turn substantially if not completely upon which factual account I prefer. After further discussion with counsel and to the relief of all concerned, including the court, it was accepted that the Animals Act claim added nothing to the liability question in so far as its consideration was dependent upon a finding of negligence. Accordingly, it has not been pursued, and is not the subject of any consideration in this judgment.”
THE JUDGE’S ASSESSMENT OF THE WITNESSES
It is important to note that the claimant had made a contemporaneous note of the facts of the accident whilst in hospital and shortly after the accident itself. That note, recorded in a diary, played a large part in the assessment of credibility
In a case with such stark conflicts of evidence, the starting point must be my assessment of witness credibility. There is very little common ground on the crucial aspects relevant to liability and one or other side must be wrong in the evidence given. I agree that in such an assessment it is unnecessary to accept or reject an account in its entirety, or to find that a witness who is wrong in one or more respects is untruthful. As counsel point out there is a broad range of reasons why a witness might be incorrect in reporting an incident or describing a situation, from deliberately lying, through poor recollection and subsequently gained perception after speaking to others, to a conviction based upon a favourable interpretation to suit one’s own purpose, including exaggeration or embellishment. In recalling, particularly after the passage of time, a witness may deliberately exclude or subconsciously forget certain features which are unhelpful. These are all factors which I bear in mind. It is also necessary not to place too much emphasis on demeanour, although it is a matter to be taken into account. Experience tells a fact-finding tribunal that there are a host of reasons why a witness may come across poorly in a witness box, and extreme confidence and articulation should not be considered to be a trump card.
I deal first with the Claimant, and bear in mind that at the time of this accident she was 14 years of age. On her part, there would be a motivation to present a favourable account which underplays her own experience, and exaggerates features of the horse’s behaviour. She possesses sufficient intelligence to understand that if her account is accepted she is likely to succeed in the claim, but that without her testimony she has no support on the primary argument advanced, in the light of the evidence that is arrayed against her.
Against this backcloth, I found Ashleigh Harris to be an impressive witness, who maintained for the most part a consistent account with sufficient attention to detail on the more important aspects, whilst understandably vaguer on less significant matters. In particular, she made appropriate concessions against interest when pushed on some aspects. Whilst in her statement she says that she only had a general conversation with Rachel Miller about horses, even on the occasion that the Defendant rode her pony, she accepted that it was possible that she might have discussed her riding experience with her although not recalling it. There were other examples. When questioned about the professional lesson and a discussion with Mr Richard Meade about it, she could not recall telling him that she had been cantering in the arena, but accepted that her recollection in 2013 was more likely to be accurate. Although she did not agree that she had been involved in the Abergavenny visit to provide an opinion as to whether a horse should be bought, she accepted that she had much more knowledge and experience than Rachel Miller. She also conceded that on that occasion she had been excited at the prospect of riding the horse and was keen to do so.
Although on one occasion a conflicting account was set out in a draft statement, which appears to adopt the Defendant’s understanding as to the route taken by the Claimant before she fell in the field, in view of the fact that this has always been disavowed by the Claimant, and was corrected in a discussion with Mr Richard Meade in 2013, and further in the light of the account which she provided within a short period of the accident when recuperating in hospital (the diary notes) I conclude that it is insufficient to undermine previous and subsequent consistency. The diary notes are particularly important. It has not been suggested to the Claimant that they were fabricated, although the implied suggestion is that they are self-serving because the Claimant knew that her parents were blaming Mrs Miller at the time. Nevertheless there is a substantial amount of detail in the diary which in my judgment is unlikely to have been fabricated. This would attribute to the Claimant a sophistication or cunning which simply does not exist. It is a record of an incident created very closely to the time of the accident, when the circumstances are likely to have been uppermost in the Claimant’s recollection.
In the circumstances, in my judgment her evidence generally is imbued with credibility. However, there are some aspects which lack plausibility and it is impossible to accept her account in its entirety. It is significant that the events of Abergavenny were not included in the diary entry. Therefore, she would have been recalling this earlier occasion at a much later point in time. The point is rightly made that a description of nipping and biting by Polly Perks at Abergavenny could not be accurate, because if this had happened it would have been picked up by one of a number of other witnesses who were also there. Whilst those witnesses might have had an interest in denying this aspect of her behaviour on 15th September 2012, it seems unlikely that the inexperienced Defendant who was plainly lacking in broad knowledge as to what to be looking for in a horse, would have gone ahead with the purchase. It is likely, therefore, that the Claimant has recalled features of the horse’s behaviour on a later occasion and transposed them. The dominant recollection of the Abergavenny visit on the part of the Claimant is that when trotting the horse, she found it necessary to exercise a significant degree of restraint to prevent her from breaking into a canter on the return to the stable. Further (and this does not appear to be challenged) she recalls discussion about the unusual riding saddle and martingale.
In the immediate aftermath of the accident, the Claimant’s account is also significantly at odds with that of the Defendant and her witnesses. It does not seem to me necessary to make any definitive factual findings in relation to the events in the field, and in particular the behaviour of the horse, or the timing of arrival of other people, including Mrs Harris and Mr Miller, I am less convinced that reliance can be placed upon the Claimant’s account either as to the horse’s behaviour, how she was removed from the field, or what others were doing. There is no doubt that she was deteriorating in lucidity and ability to communicate, and she appears to have been aware that she was seriously injured. I believe that her preoccupation would have been with her own state, and not with what was going on around her.
The evidence of Mrs Harris the Claimant’s mother was inevitably of a more general nature. It is significant that she had recollection of the manner in which the telephone call had been made to the ambulance, notwithstanding the suggestion that she had in fact used the telephone of Mr Miller, and it was established that she had been correct when the number was verified. Where she could not recall detail, Mrs Harris made this clear in her evidence. However, she remained emphatic in two important respects, first that she had received no visit from Mrs Miller prior to the Saturday in which permission had been requested for the ride, and second that the accident occurred some distance into the field, because that is where she found her daughter. It seems to me less reliance can be placed upon the order in which either she or Mr Miller arrived in the field. Her undoubted preoccupation would have been for the welfare of her daughter.
Whilst a report as to the accident mechanism made initially in the ambulance call, and subsequently in the history given to the paramedics must be viewed cautiously, because it is a second-hand account and to an extent may be self-serving in that it may have been borne out of a perception by the Claimant that she could not have simply fallen from the horse, nevertheless it cannot be ignored altogether as a contemporaneous account. Mrs Harris’ evidence, perhaps unsurprisingly, is vague as to the source of her information, but it seems to me that she would not have said that her daughter had been bucked from the horse, unless this had been said to her. Whether it was actually said by Ashleigh, or by the others is probably immaterial, because any reference to “bucking” would have been heard by all.
I must now address the reliability of the Defendant as a witness. I bear in mind the uncomfortable position in which she found herself as the responsible adult present when a girl riding her newly acquired horse was grievously injured, and having to revisit matters going back several years both before and after the accident. I have also considered the backcloth to her testimony, and that of her family members, namely that the insurance indemnity is on her own admission insufficient to meet the full value of any claim and there would be dire financial consequences if she was found to have been in breach of duty.
Nevertheless, I was significantly less impressed by the evidence of Rachel Miller. Whilst allowance must be made for the fact that lay witnesses are usually poor estimators of both time and distance, in her various accounts the Defendant has been widely inaccurate in several respects. She estimated a 20 minute journey when trying out Polly for the first time in Abergavenny which included both a walk and a trot. This seems highly unlikely, even though subsequently reassessed as 10 minutes out and 10 minutes back. In her statement she made reference to Ashleigh walking the horse for between 5 and 10 minutes once the group was in the field on 22 September 2012, from which it was necessary for her to resile subsequently. At some point she must have told her expert that the fall occurred only a short distance into the field, which of course is wholly inconsistent with the amount of time, even modified, during which the Claimant would have been on the horse. When asked to estimate the distance between her and Sammy, and Kieran, Polly and Ashleigh, she suggested twice the width of the court room which was clearly significantly less than even the closer location which was parallel to the trees, agreed to be about 90 m from the gate. Although this cannot be challenged, it is possible that at some stage she told Mr Meade that the fall occurred over 200m into the field.
In one of the most crucial aspects of her evidence, namely whether the Claimant was trotting Polly before and in the field, I found the Defendant to be inconsistent in a number of respects, which is surprising, because it might have been expected that she would accurately and consistently recall the moments leading up to the Claimant’s fall from the horse. It is plain that at different times she has said different things, most significantly affirming by her statement of truth the defence, and giving an impression to the expert which was not transferred to her statement, and her oral evidence before cross-examination. She demonstrated significant discomfort when being questioned by Mr Westcott QC about the recollection in relation to the walk/trot and in particular whether she had described it as a fast walk, wishing to be referred to her statement. I formed the impression that it was only when faced with the inevitable, that the Defendant accepted that there was trotting in the field.
The Defendant’s recollection of Mr Meade’s visit also falls to be considered. Her description of the ride, and Polly’s behaviour appears to be entirely at odds with that provided by Mr Meade on the same occasion. However, the fact that both she (and her daughter) are unwilling to attribute any difficult behaviour to Polly on that occasion suggests to me a self-serving recollection.
In all the circumstances I do not regard the Defendant as a reliable witness. In my judgment she has not deliberately misled the court, but has demonstrated an inclination to interpret events, and the behaviour of the horse which she purchased, favourably and has allowed herself to develop misinformed recollections based upon perception rather than actual fact.
Her daughter Sammy did not demonstrate particular inconsistency in her evidence, but at times appeared to express a degree of emphatic confidence about certain aspects which conflicted with the concessions which had been made by her mother. The impression which she conveys of a horse which was lovely and calm, never gave any trouble, and which at no time manifested any traits to cause concern, is obviously at odds with that of Mr Meade and Mr Mackie, and to a lesser extent that of Mr Lane. She is not in my judgment a witness who provides independent and objective support for the Defendant’s account, and in relation to her evidence as to the ground covered in the field, and the manner in which the Claimant came to fall there is a lack of plausibility. I shall refer to this below.
Like his sister, Kieran expressed himself confidently and consistently. However, he was also unwilling to make concessions about trotting in the field, notwithstanding his mother’s evidence and the material which was put to her. He had remained in court throughout and would have been aware of the issue. There is a similar concern as in the case of Sammy that he was reluctant to shift his position and to make any concession which seemingly damaged the family case. When dealing with the manner in which the Claimant mounted the horse in the yard, his evidence is at odds with that of the other witnesses, and plainly wrong, and in my judgment a significant embellishment probably intended to convey an impression that the Claimant was extremely accomplished, and this must also call into question his description of the Claimant’s experience, especially the bareback riding incident.
Mr Miller senior did not add much to the account, because he had not been present when the accident occurred. In two respects his recollection was called into question, which makes his evidence generally unsatisfactory. First, in relation to his assertion in court that he accompanied the group when the horse was being trialled in Abergavenny which conflicted with his statement, and second in relation to the use of a mobile phone to call the ambulance. It is unnecessary to determine precisely where he left his vehicle in the field, but insofar as is evidence is used to derive support for a closer proximity to the gate, in my judgment it is unreliable.
The evidence of Mr Watkins should be approached cautiously. He did not give the impression of a witness who was trying to mislead the court, and was consistent in his oral evidence, recalling the events of four years earlier. It seems to me that he would have a motive for describing the horse which he had sold and which had caused a serious injury to a young rider within a week through rose tinted spectacles. Nevertheless, his account of the trial on 15 September 2012, including the manner in which he accompanied the horse and rider is largely consistent with those of other witnesses.
I turn now to the experts. As indicated above, the scope of the dispute between them is relatively small, and they are agreed that liability will depend entirely upon the court’s determination of the factual issues. However, because they give differing impressions of the horse’s behaviour at the time of their inspections, and this is a matter which the court will have to resolve, it is necessary to make a limited appraisal of them as expert witnesses.
It was suggested in the course of submission that Mr Lane had become “a little too close to the case”. I took this to mean that he had begun to lose objectivity and had allied himself to the cause of the family. There was one particular feature in his lengthy report which I found to be a little unusual and which lends force to this submission. Having undertaken a very detailed analysis of the respective witness accounts, at times he seeks to interpret the evidence in terms of “probability” which has the potential to trespass on the province of the court. It seems to me that he was aware of the narrow dividing line, appreciating that it is always difficult for an expert, which is why he qualifies paragraph 7.7.21, as an opinion provided from an “expert’s perspective”, but the question which he proceeds to answer, having carried out that evidential analysis, purports to usurp the function of the court.
Further, whilst differing impressions are entirely understandable on a single inspection, it is difficult to reconcile those differences (in early 2013 and August 2015) with the inspection by the late Richard Meade which is entirely at odds and not easily explicable by horse unpredictability or difficult testing conditions. Mr Lane appeared to me to be unwilling to make concessions. The most obvious example of this was his qualified definition of “not well-schooled” which seemed to me to be illogical. A horse which may become responsive with further training would suggest that the horse was not sufficiently responsive and could provide a potential problem of control. I preferred Mr Mackie’s definition in this regard. The provision by Mr Lane of a photograph with an arrow indicating an accident location so close to the gate (which in any event turned out to be wrong) leaves a concern that he has preferred one account over another, which has not sufficiently acknowledged the alternative explanation.
On the other hand, Mr Mackie was more willing to make concessions. He acknowledged the poor conditions on testing which could excite some horses, and other factors such as the stable companion attachment. He accepted that age was not determinative of riding experience that every aspect required to be considered. He accepted that Ashleigh had demonstrated sufficient skill to be able to sense the horse wanting to canter at Abergavenny. Generally, aside from the unresponsive and unschooled aspects of the horse’s behaviour which would have made her difficult to control, he accepted that there were no particular unusual behavioural propensities such as biting or bucking, maintaining his standpoint that Polly was normal for a thoroughbred racehorse, but was unsuitable to be ridden and used in the way in which she was on the day of the accident. I found his approach to be measured and objective.
The result was that the claimant succeeded.
It is important to note that the presence of contemporaneous evidence (the diary note and the ambulance records) played a significant part in the judge’s overall assessment. There are shades here of the decision in Woodland -v- Maxwell  EWHC 273 (QB) where the contemporaneous note of a 10 year old child was preferred to the prevaricating evidence given by the defendant’s witnesses. See the matters considered in Who says that you’ll win nothing with kids?
- Witness evidence, reliability and credibility: Why everyone should read Gestmin (or failing that my summary).
- The Arroyo Judgment 3: witnesses and credibility
- Witness evidence, reliability and credibility: why everyone should read Gestmin
- Litigators must know about credibility.Witness Statements and Witness Evidence: More about Credibility.
- Which Witness will be believed?Is it all a lottery?
- The witnesses say the other side is lying: What does the judge do?
- Assessing the reliability of witnesses: How does the judge decide?
- Which witness is going to be believed? A High Court case.
- The Mitchell case and witness evidence: credibility, strong views and reliability.
- Witness statements and witness credibility: getting back to basics
- Appealing on the judge’s findings of facts: a trial is not a dress rehearsal but “the first and last night of the show”.
- Assessing the credibility of a witness: it is a matter of communications.
- Reconstruction and recollection: honest witnesses get things wrong: which witness will be believed.
- The Central Bank of Ecuador case revisited: the Ocean Frost approach.
- When a witness says different things in different witness statements: don’t bank on winning.
- Reliability of witness evidence: honesty is not the same as reliability
THE PROVING THINGS SERIES
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).
- Proving things 23: serving important evidence late
- Proving things 24: Damages & the “But for test”: when it gets really complexProving things 24: Damages & the “But for test”: when it gets really complex
- Proving things 25: Attempts to smuggle in witness statements do not help (and carry no weight).
- Proving things 26: distinguishing between what you can remember and what you now think you did.
- Proving things 27: Burdens of proof, hearsay evidence and… attempted murder.
- Proving things 28: make unwarranted personal attacks and use a “mud-slinging” expert: that always ends well.
- Proving things 29: Make sure the witness evidence deals with the relevant issues
- Proving things 30: Office Gossip Proves Nothing: The importance of the source of information and belief.
- Proving things 31: witnesses tend to remember what they want to remember.
- Proving things 32: Damages claim struck out as unsustainable: application to amend refused.
- Proving things 33: causation and the burden of proof in claims against solicitors.
- Proving things 34: There is no primer for scuttlers: when your ship doesn’t come in.
- Proving things 35: Reconstruction, documents & memory.