“VARIOUS WITNESSES CAN ALL GIVE HONEST BUT NEVERTHELESS CONFLICTING ACCOUNTS OF A GIVEN EVENT”: GESTMIN PRINCIPLES CONSIDERED IN THE CONTEXT OF A ROAD TRAFFIC ACCIDENT

In  Barrow & Ors v Merret & Anor [2021] EWHC 792 (QB) Richard Hermer QC (sitting as a Deputy High Court Judge) considered the guidance given in Gestmin in the context of a road traffic accident. It is a reminder that honest witnesses can (and frequently are) mistaken. Also that contemporary accounts given by witnesses are usually preferred to later versions.

THE CASE

The claimant, then aged 11, was seriously injured in a road traffic accident on the 7th October 2015.  The main factual issue was whether the claimant ran out into the path of the defendant’s car or was walking across the road immediately prior to the collision.  The witness called by the claimant was a friend (who was aged 11 at the time of the accident).

THE WAY IN WHICH THE COURT ASSESSES EVIDENCE

The judge set out the way in which the courts approach these issues of disputed fact.

1. 1. Before turning to the substance of the judgment I set a general observation about the evidential difficulties faced by Courts and litigants in civil proceedings which revolve around the reconstruction of fast moving and traumatic events such as this road traffic accident.

1. 1. There are many claims arising out of accidents, be they on the road, in the home or in the workplace, in which it is simply not possible to conclude with absolute precision what occurred. The law does not require the Court to do so. The task for the Court is not to reach a conclusion based on ‘certainty’ as to what occurred but rather to come to a reasoned view as to the most probable explanation. In many accidents there will be a range of confounding factors which render the task of precise reconstruction of events impossible. This case exemplifies many of these factors. The trial concerns an event that from beginning to end lasted no more than a few seconds. It was not recorded on CCTV or a ‘dashcam’ and the few eye-witnesses to the collision all viewed events from different positions in the road and pavement. There was little ‘hard evidence’ such as extensive damage to the car that would enable ready reconstruction. Felix’s physical injuries in themselves do not provide clear answers to the core questions, nor (as explained later) does the evidence from the accident reconstruction experts.

1. 1. A Court attempts to reconstruct the most probable answers to the core questions by applying established forensic tools to such evidence as is available. It looks at the evidence in its totality, it seeks to understand the relevant layout of the scene, identify any objective facts that might act as lodestars by which more subjective opinion and recollection can be tested, scrutinises carefully the accounts of witnesses of fact and experts, both in the witness box and in earlier written statements – and it applies to all of this a fair dose of common sense.

1. All of this will strike those well used to litigation as a statement of the obvious. It is nevertheless important to spell out the evidential task, and the legal standard applied, so that others, not least the parties themselves, can well understand the basis on which I have proceeded to analyse this case.

GESTMIN CONSIDERED

The judge considered the Gestmin principles and their application to a case such as this.

1. 1. In opening written submissions and in her closing address Ms Rodway took the Court to the celebrated judgment of Mr Justice Leggatt in Gestmin SGPS (SA) v Credit Suisse (UK) Ltd & Anr [2013] EWHC 3560 (Comm). In Gestmin the Court observed that in complex commercial claims, the existence of substantial amounts of contemporaneous documentation will often provide a more reliable source of evidence than the recollection of witnesses proffered in a courtroom many years later.

1. 1. Ms Rodway suggested in opening submissions, that Gestmin could be taken as applying by analogy in this case. It was submitted that the fragility of human memory was such that the witness evidence in this case should be treated a secondary source because a far more objective source, what she described in opening as the ‘harder’ evidence, was provided by the evidence of the expert witnesses. I took Ms Rodway to be suggesting that the Court should adopt the same approach as recommended in Gestmin and ‘place little if any reliance at all on witnesses’ recollection…” (at §20) in seeking to decide the case primarily by regard to the experts, in particular the experts in accident reconstruction.

1. 1. In so far as Ms Rodway’s submission was addressed to the observation that the objective evidence is always an extremely helpful source both in itself, and as a guide to calibrating the recollection of witnesses, she is plainly right. I do not consider however that any wider submission that seeks to extend the principles of Gestmin to a case such as this, has much traction. This is for at least two reasons.

1. 1. Firstly, Gestmin was not setting down a fixed rule of interpretation applicable to all commercial cases, let alone all cases in which there is a dispute of fact. Each case remains to be determined in its particular context on its particular facts. One can well imagine how the observations serve as an essential guide to the approach to be adopted in a commercial case in which there is a substantial amount of documentation, an ‘electronic footprint’, detailing contemporaneously what the parties said and thought in meetings about the relevant transactions. This is plainly not such a case. Neither the small amount of documentation generated in the immediate aftermath of the accident, nor the ‘objective’ evidence such as damage to the car, debris, injury etc provide any form of forensic heuristic entitling the Court to overlook the importance of eyewitness evidence. The evidence of eyewitnesses to a single event such as a collision is almost always likely to be highly relevant to the assessment of what occurred, and certainly is here.

1. 1. Secondly, and critically, in this particular case the evidence of the experts in so far as it is intended to express opinions as to the likely cause of the collision, is itself almost entirely dependent on the veracity of the recollection of witnesses. I deal with this in a little more detail in Part 7 but the key point is that the expert analysis in this case does not provide a truly autonomous or objective source for what is likely to have occurred that is capable of being neatly divorced from the witness evidence. The unlocking of this particular dispute turns very much on the evidence of the witnesses rather than the experts.

1. 1. Whilst I do not consider that Gestmin is of direct application to the approach I should adopt to the evidence, Leggatt J’s insightful reflections on the fragility of human memory do serve as a beacon to any court seeking to navigate through a trial in which conflicting accounts are given of the same event by witnesses. Leggatt J’s observations are set out between §§15 and 22 of his judgment and their wisdom is reflected by the frequency in which they are cited and the range of cases in which they are invoked. Of particular relevance to this claim are the following observations:

i. People generally lack insight into just how unreliable memory can be. Two common errors giving rise to this lack of insight are that people wrongly believe that the more vivid a sense of recollection is, or the more strongly expressed, the more likely it is to be right (§16);

ii. Memories are fluid and malleable. Memory does not operate like a camera but rather can be dramatically influenced by external information (§17);

iii. The process of civil litigation itself subjects memory to powerful biases. A desire to assist a party, or not to prejudice them as well as a desire to give a good impression can be powerful but subtle factors impacting on the reliability of memory (§19);

iv. The effect of giving evidence can also materially impact on memory. Witnesses are asked to recount events on numerous occasions and to be exposed to the competing contentions of the parties. As noted at §20 the “effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than the original experience of the events.“

1. 1. These observations reflect what courts have long known including that accounts given at the time of an event, tend to be more accurate than those provided later – it is a truism that memory will rarely improve over time. Leggatt J’s insights also reflect that even honest witnesses are able to give wholly inaccurate evidence because their memory may have been subconsciously degraded not just by time but a range of biases – see for example the observations of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyds Rep 403 relied upon by both parties.

1. These valuable insights serve to underline the caution that should be attached to evidence given in the witness box, or in statements generated for the purpose of litigation, as to events which occurred a number of years beforehand – all the more so, when the events were highly traumatic and last only a few seconds. Gestmin serves to remind the Court that often (but not always) accounts given at the scene will be more reliable than versions given some time later as part of litigation. This has some particular relevance to the approach I have adopted to the assessment of the evidence, including the evidence of Nicholas Stannard, the only witness to the accident itself called by the Claimant.

1. 1. As stated, Nicholas was the only witness called by the Claimant who saw the accident. It is accepted by the Claimant that if critical elements of Nicholas’ evidence are found to be unreliable then the claim must inevitably fail. Equally, if core aspects of his evidence about Felix’s fall and attempts to recover are held to be probable, then the Defendant accepts the claim succeeds. The centrality of Nicholas’ account is accordingly obvious.

1. 1. Nicholas is recorded as giving at least five accounts of what occurred.

1. 1. The first account in time is that recorded by PC Giles in his Incident Log on the morning of the accident. PC Giles explained to the Court that he made the entries in the log contemporaneously to his conversation with Nicholas and his mother. The relevant excerpts of what he said Nicholas told him at 9.06 on the morning of the accident are as follows:

W Nicholas STANNARD

Jane STANNARD

Left Denver Maru [Felix’s home] with Felix. Crossed road. He forgot something so came to back to H/A. Came back to road. Nicholas said “WAIT THERE’S A CAR”. Then ran across road. Slipped and hit car.

1. 1. The accuracy of this record was a significant issue at trial. The suggestion that Felix ran across the road notwithstanding a warning, that he slipped and then hit the car is difficult to fully reconcile with the Claimant’s pleaded case.

1. 1. Nicholas’ second account, albeit in second-hand hearsay form, is recorded in computer records disclosed during the course of the trial but which reflect evidence already given by PC Giles in his witness statement. These record that on 30 November 2015, Felix’s grandfather, Hugh Barrow, contacted PC Giles and stated that he had spoken to Jane Stannard and that Nicholas now wished to say that Felix was walking across the road and that he was getting up before he was hit by the vehicle. PC Giles recorded in the notes that he considered this was a ‘stark contrast’ to the version that Nicholas had previously provided him. He also noted that Mr Hugh Barrow informed him that the family were considering a civil claim which if successful would help pay for Felix’s care.

1. 1. Nicholas’ third account is contained in the first statement that he provided in these civil proceedings. It is dated 26 November 2018, i.e. just over three years after the accident. In this statement Nicholas described how Felix came to the edge of the road having returned home to collect his rugby boots. Nicholas stated how Felix stopped at the edge of the road, checked both ways and after letting two cars pass from his right, began walking across the road at normal pace. As Felix approached a shiny patch of the road around the centre line he slipped falling back onto his bottom. As he attempted to get up, he was struck by the car.

1. 1. Nicholas gave a supplemental statement dated 24 February 2020 (his fourth account) in which he addressed a suggestion made by the Defendant’s accident reconstruction expert, that Felix was falling forward at the time of impact with the car. Nicholas stated he was certain that Felix did not fall forward but was getting up when hit. In order to illustrate Felix’s movements, Nicholas demonstrated them on film.

1. 1. Nicholas attended the trial and was cross-examined, thereby providing his fifth account. He was asked about what, if anything, he said to PC Giles shortly after the accident. Nicholas strongly disputed that he had told PC Giles anything other than his name and address, certainly not any details of the accident. He accepted that some of the information contained in PC Giles logbook attributed to him were correct, namely that Felix had gone back home, returned to the road and that he had warned him about cars. He denied that he had told PC Giles that Felix ran, slipped and hit the car.

1. The remainder of Nicholas’ evidence was broadly consistent with the version provided in his November 2018 statement.

THE JUDGE’S ASSESSMENT OF THE EVIDENCE

The judge found that the first statement made by the claimant’s friend was likely to be the most accurate. These were honest witnesses, however their evidence had been influenced by precisely the type of factors identified in Gestmin.  He concluded that the claimant had run out into the road.

1. 1. I consider that support for this conclusion can also be derived from the account that PC Giles recorded Nicholas gave to him immediately after the accident. Whether that account was given direct by Nicholas, or by his mother recounting in his presence what he had just told her, is ultimately immaterial. The source of the information could only have been Nicholas. I conclude that Nicholas (either directly or through his mother in his presence) told PC Giles that he warned Felix about the cars, that Felix ran into the road and slipped before being hit. This account did not include any description about falling to his bottom and being hit whilst trying to get back to his feet. I accept of course that some caution has to be exercised over an initial account provided by an eleven year old child who has just witnessed a horrifying incident but the clear evidence of PC Giles satisfied me that the record he made was accurate and was not tainted by any of the criticisms of it levelled by the Claimant.

1. 1. I am of course aware not only that Nicholas and his mother disputed the accuracy of part of PC Giles note but that Nicholas subsequently provided a significantly different account of what he recalled. This included, by the end of November 2015, Mrs Stannard indicating to Felix’s family that her son’s recollection was that rather than running, Felix was walking across the road and was hit whilst trying to get up. This was the message conveyed to PC Giles by Felix’s grandfather. That evidence is also broadly consistent with the contents of his statement in these proceedings and his evidence at trial. I am satisfied however that the evidence is mistaken in so far as it relates to Felix walking rather than running, and also in so far as it depicts Felix slipping as described (be it on a wet/oily patch or otherwise) and falling onto (or towards) his bottom and then attempting to get up over a number of seconds. The evidence is inconsistent with that of Mr Gent, Mrs Merrett and with his initial account, which I find to be more reliable sources.

1. 1. This conclusion does not, as Ms Rodway suggested, require me to find that Nicholas was deliberately intending to give a false history of what occurred. Nicholas struck me as an articulate and intelligent young man seeking to do his best to recall what would have been a truly harrowing experience. His evidence to the Court would have been one of very many occasions in which he was asked to recount what occurred and he would have been under no doubt of the significance of it to Felix’s case. I consider that the disparity between what occurred and what he later recalled is best explained by many of the factors identified in Gestmin as capable of degrading the quality of recall. Similarly, whilst I found his mother, Mrs Stannard to be an entirely honest witness, I consider that her recollection of the key events in particular what Nicholas is likely to have told her immediately afterwards is less likely to be correct that the record made by PC Giles at the time. This is a case, like very many, in which various witnesses can all give honest but nevertheless conflicting accounts of a given event.

1. 1. There are a number of additional factors that in my judgment make Nicholas’ recollection less reliable than that advanced on behalf of the Defendant. One is that the mechanism of the fall described by Nicholas, namely of one of Felix’s legs violently slipping forward causing him to fall towards (or onto) his bottom, does not ring true, or is at least less likely than slipping forward whilst running. Although in his statement Nicholas referred to a slippery patch in the middle of the road, none was identified by the police who attended and examined the scene, nor are any visible in the photographs. The unchallenged evidence of PC Wheeler was that the road surface was damp but drying. In these circumstances it seems difficult to understand why a person walking across the road would slip in the manner described by Nicholas. A person to my mind is much more likely to slip, or fall, or stumble when running and/or when appreciating in a split second that they are in danger of colliding with an oncoming car.

1. I also do not consider it likely that if Felix was in the road for more than a few seconds that Nicholas would have failed to warn him, or the approaching traffic, as to the risk of an impending collision. I am of course mindful that Nicholas was only aged 11 at the time and that the events lasted no more than a small number of seconds. Nevertheless, Nicholas evidence was that at the point at which Felix fell he was already aware of Mrs Merrett’s car approaching him. If Felix was in the road and struggling to regain his stance in the following seconds, I consider it likely that Nicholas would have taken steps to either warn Felix or to have taken some steps to warn the approaching cars of his presence in the road.