WHEN A WITNESS GIVES DIFFERENT ACCOUNTS IN DIFFERENT STATEMENTS IT RARELY HELPS THEIR CASE: JUDGE FINDS IT “UNIMPRESSIVE”

In Parry v Johnson & Anor (Rev1) [2022] EWHC 889 (QB) Mr Justice Ritchie considered the evidence of the defendant driver in a road traffic case.  The defendant’s different accounts on different occasions did not help his cause.  The judge found for the claimant with no contributory negligence.

“In relation to Mr Johnson’s evidence I was struck by how he was prepared, witness statement by witness statement, to try to improve his case by altering his evidence. He exculpated himself further and further from the responsibility he had wisely accepted at the end of his police interview on the day of the accident.”

“In his evidence the 1st Defendant could not explain why he had increased the number of parked cars from one to two. He did explain why he had decreased his speed from 25 to 30 kilometres per hour to 20 to 25 kilometres per hour. He stated it was because he had driven that lane subsequently and thought that his estimate to the police was too high. I find this unimpressive”

THE CASE

The claimant was injured whilst standing on a grassy verge. The first defendant driver was driving a tractor which had a seeding machine which overhung the verge. The machine struck the claimant causing him injury.  The defendants denied liability (the second defendant was the relevant insurer).

THE JUDGE’S CONSIDERATION OF THE DEFENDANT’S EVIDENCE

A feature of this case is the judge’s examination of the various statements given by the defendant and the “development” of the defendant’s evidence over time.

1. 1. The 1st Defendant gave evidence. He was asked by defence counsel, to confirm the truth of the contents of the witness statements he had signed for the civil claim which were dated 17^th December 2021, 13^th January 2022 and 28^th January 2022. He was not asked to confirm the contents of the interview that he gave to the police and the handwritten witness statement which he signed which were the immediate record of the post-accident interview gathered one hour after the accident. Therefore I asked him to confirm the truth of the contents of that first account. He did so.

1. 1. Turning to the first account there are two copies in the bundle, the first is handwritten by the police officer and each page was signed by the 1st Defendant. This statement was provided after the police officer gave the normal warning “you do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence” to which the 1st Defendant replied “yes”. The police officer also recorded in the standard wording at the top of the witness statement “I also have to tell you that you are not under arrest and you are free to leave if you wish to” to which the 1st Defendant replied “yes”. The police officer also offered the 1st Defendant the right to get independent legal advice in which case the interview would be delayed. The 1st Defendant declined that offer.

1. 1. PC Liam then asked the 1st Defendant questions and the responses given were in summary as follows. The 1st Defendant remembered checking his mirrors as he crossed the narrow bridge because the seeding machine overhangs the tractor and is wider than the tractor. He passed a car on the side of the lane after the bridge and then accelerated down the straight lane where a couple were standing in the hedge and he did not see them and the machine, which was wider than the tractor, caught them. As he looked in his mirror something caught his attention and he felt a wobble. He was going home for his tea and he had been working since 7:00 o’clock in the morning. He had had some time off in the afternoon for a haircut. He had good vision and did not require glasses. The farm at the end of the road belonged to his family and he drove that lane daily. It was a tarmacked lane with overgrown hedges and grass verges and he asserted that his tractor touched the sides of the lane as he drove down it. He accepted that any person could be on the lane because of the walk from the towpath on the canal. As to weather and visibility, he asserted that the road was empty except for a single parked car which he had already passed and the conditions were “OK” but it was just starting to rain and visibility was “good it was just around dusk it wasn’t dark but I had all the lights on the tractor.” I note that he did not say which lights – dipped or main.

1. 1. He asserted he was in the centre of the road and going at a speed around 25 to 30 kilometres per hour. After the accident he moved around 30 meters down the lane and then stopped and he looked in his mirror and his back window and he saw Mrs Parry on the ground.

1. 1. I have compared that initial statement with the statements he made subsequently. He was prosecuted and provided a proof of evidence to his criminal solicitors. He estimated that he drove over the bridge taking care for his own equipment at 5 to 7 kilometres per hour. Once he passed the car parked on his left hand side and a pothole on his right hand side he looked down the lane and then he increased the speed of the tractor over the next 40 to 50 meters. In this statement he asserted that he was only going 20 to 25 kilometres per hour. Therefore, by this time, having instructed solicitors, he was seeking to reduce his speed range by 5 kilometres per hour lower than his evidence to the police.

1. 1. The 1st Defendant signed a witness statement for the civil claim on the 17th of December 2021. In this witness statement he asserted that he finished seeding a field at 9:00 pm, called his wife and then set off home towards the bridge. He accepted his tractor lights were on dipped beam and his flashing beacon was on. In paragraph 43 he asserted that there were two parked cars on the left hand side after the bridge. Therefore, he had changed his evidence in his favour, to increase the number of parked cars blocking his vision path down the lane. He also stuck to the lower speed which he had set out in the witness statement provided to his criminal solicitors.

1. In his next witness statement dated 13^th January 2022 the 1st Defendant asserted that there were no phone records from his mobile phone. This was in answer to request from the Claimant’s solicitors for his mobile phone records which arose out of his previous witness statement. The 1st Defendant signed a further witness statement on 28^th January 2022 which disclosed that he had now found his mobile phone records, or they had been provided to him. Those disclosed that he had called his wife at 8:43 PM, a minute before sunset and that she had called him at 8.51 pm. What was unclear to me was whether he took the last of the calls whilst he was driving or whilst stationary, in the filed or on the road. He asserted in his witness statement that he did so when he was stationary in the field. I note that the 1st Defendant has a previous conviction for using a mobile phone whilst driving. This was 18 months before relevant accident.

1. 1. In his evidence the 1st Defendant could not explain why he had increased the number of parked cars from one to two. He did explain why he had decreased his speed from 25 to 30 kilometres per hour to 20 to 25 kilometres per hour. He stated it was because he had driven that lane subsequently and thought that his estimate to the police was too high. I find this unimpressive. Before the accident he had driven that lane many times per week and many times with the seeding machine as well.

1. 1. He accepted in his evidence that he could see red blood coming from the Claimant’s nose and could distinguish it from mud. Thus it was light enough to do so. As to the time which passed between the impact and the call, there were these events; the 1st Defendant noticing the wobble; slowing down and stopping; getting out of his left hand side door because the right hand side door was obstructed; walking around the front of the tractor; going along the grass verge; squeezing around the 30 centimetre overhang over the verge; then seeing the Claimant and his wife on the ground; and then making the call. The 1st Defendant gave no direct evidence about precisely how long that took. (Defence counsel asserted only one minute in submissions.) The 1st Defendant did not see the Claimant move before the paramedics arrived.

1. 1. In cross examination the 1st Defendant accepted he had given different accounts of his speed and of the number of parked cars. He accepted that his immediate post-accident account would have been when events were freshest in his mind. He accepted that he knew full well that pedestrians or cyclists could have been using that lane at that time of night and indeed his own family farm was hosting quite a few caravans with occupants that week. He stated that usually the Council cut the hedges on that lane annually but that that year they had failed to do so. He asserted that the hedges took up all of the verges as a result of their overgrown state (I do not accept that below). He accepted he knew the hedges were overgrown and he knew pedestrians could be on the lane. He asked counsel during cross examination “what precautions could I have taken?” He asserted in cross examination that he accelerated to between 20 and 30 kilometres per hour which he asserted was the normal speed because it was lighter in that part of the lane and that he could see the tarmac.

1. 1. Stopping there. If the lighting was as dark as the 1st Defendant was suggesting through Miss Eyers in his case, then in my judgement his failure to use his full beam was at odds with that. He was asked this question. The 1st Defendant’s response was that he did not know why he did not use the main beam. He accepted that had he used full beam it would have illuminated far more of the verge. So by his answers he was answering his own previous question to counsel.

1. The 1st Defendant also accepted that he was involved in the reconstruction of the accident by the Defendants’ accident reconstruction expert and she asked him to drive “normally” for the purposes of the video. He drove at between 3 and 6 mph from the bridge to the point of impact. It would appear that neither he nor Miss Eyers wanted to reconstruct the accident using the speed of driving he himself had used on the night. I am not surprised because Miss Eyers was standing on the verge. It could have been very dangerous in my judgement.

THE JUDGE’S CONCLUSION ON THE EVIDENCE

The judge noted how the first defendant’s evidence changed, by improving his case.

“51.In relation to Mr Johnson’s evidence I was struck by how he was prepared, witness statement by witness statement, to try to improve his case by altering his evidence. He exculpated himself further and further from the responsibility he had wisely accepted at the end of his police interview on the day of the accident.”

THE RESULT

The judge found the defendant driver to have been negligent. There was no contributory negligence.

1. 1. In my judgement in circumstances where the 1st Defendant was driving a vehicle towing a piece of equipment that was wider than the vehicle and overhung the grass verge by between 20 and 30 centimetres on each side, and where the road was narrow the verges very close to the edge of the road, it was incumbent on the 1st Defendant to drive at a speed which would permit the 1st Defendant a reasonable opportunity to react to the presence of any pedestrians on the grassy verges of the road on either side.

1. 1. It was also incumbent on the 1st Defendant to assess the conditions, in particular the low level of light and the overgrown bushes on either side off the lane, and to put in place whatever measures he had available to him in vehicle to afford him the best visibility.

1. 1. Taking into account the 1st Defendant’s own evidence and the evidence of Mrs Parry, the photographs and the videos, and the experts evidence in my judgement the 1st Defendant should have been driving at a much lower speed than 25 and 30 kilometres per hour as he went down the lane. I consider that he should have been driving at between 5 and 10 kilometres per hour as he left the pothole and should have stayed at that speed as he headed down the lane towards the main road. That would have granted him considerably more time to see who was standing on the grassy verges on both sides of the lane. His failure to drive at that speed and his choice to accelerate to between 25 and 30 kilometres per hour was in my judgement careless.

1. 1. In addition, I consider that because it was dusk and because there were hedges which were approximately head high on both sides of the lane I consider that the 1st Defendant should have flicked on his main beam headlights. I find as a fact that the dipped beam headlights lit the road surface well but did not light the grass verges particularly well. I find as a fact that had he put on his main beam headlights they would have illuminated considerably more of the grass verges and would have assisted him in identifying the presence of the Claimant and his wife.

1. 1. In my judgement even without the main beam headlights the Claimant and his wife were visible, conspicuous and discernible to any reasonably prudent driver. However at the speed at which the 1st Defendant was travelling he gave himself less time than he should have to see them and then to brake and/or steer to the left hand side when he should have seen the Claimant and his wife. Had he been travelling at a reasonable speed for the circumstances he would have been able to pull up without the seeding machine reaching them (as he did in the videos). In addition, had the 1st Defendant been displaying his main beam, he would have had considerably more time to discern the presence of the Claimant and his wife.

1. I also find as a fact that the 1st Defendant failed to keep a proper look out as he drove down the lane eager to get home to have his “tea” and for that reason as well he failed to see them.