PROVING THINGS 255: HEARSAY NOTICE FROM AN ANONYMOUS CALLER HELPED DETERMINE KEY FINDINGS IN A CIVIL CASE: JUDGMENT IN FAVOUR OF THE CLAIMANT

The judgment of Her Honour Judge Howells (sitting as a Deputy High Court Judge) in Brown & Anor v Sestras & Ors [2023] EWHC 1220 (KB) is an interesting example of the use of hearsay, indeed anonymous evidence.  An unknown caller telephoned the police shortly after a serious car accident to give the car registration number of a car the caller said had caused an accident.  The driver of that car denied being involved, as did his passengers.  The judge found in favour of the claimant on the issue of the car being involved and  also found that the accident was solely caused by this driver’s negligence.

“I weigh up all the evidence in the round and turn to the evidence of the anonymous caller. For the reasons set out above, I consider that evidence, although hearsay, as highly persuasive.”

THE CASE

The child claimant was seriously injured whilst a passenger in a car driven by his mother.  It was his mother’s case that the accident had been caused by a Mercedes Benz cutting up in front of her causing her to lose control. The Mercedes then drove off. The claimant brought an action for damages against the owner of a Mercedes Benz vehicle that had been identified by an anonymous caller, he also sued his mother. One of the key issues in the case was whether the Mercedes Benz driver who had been sued was involved in the incident. It was admitted that the car had been driven in the location at about the same time of the accident. However it was said that this was a case of misidentification.

THE ANONYMOUS CALLER

The Mercedes had been identified by someone who had made an anonymous call to the police.

1. 1. A critical part of the hearsay evidence is that of an anonymous caller to the police. I have heard the recording of that telephone call and considered the transcript. On the evening of the accident, at 22.37 (less than 4 hours post-accident), the police force received an anonymous call which they traced to a phone box in Cheshunt. That caller described being a witness to the accident in question, seeing the dark car, which he identified as a Mercedes which was “jet black” with blacked out windows, undertaking the claimant’s vehicle and driving in a dangerous manner. He saw the “small vehicle” (the claimant’s, although the caller thought it might have been a Corsa or other small hatchback) lose control and leave the road. He saw the Mercedes speed off. He followed that Mercedes vehicle for about 4 to5 miles, he said, to a roundabout in Harlow, and managed to take down the vehicle’s registration number. The registration number provided by the anonymous witness was of the 1^st Defendant’s black Mercedes Benz (which had blacked-out rear windows). The caller made it clear that he would not be willing to provide his personal details or be a witness in any court proceedings.

1. 1. As the caller was not traced, no witness statement was obtained from him and, of course, he was not called to give evidence. As such the claimant served a Civil Evidence Act hearsay notice seeking to rely upon the recording and transcript of that phone call.

THE WEIGHT TO BE GIVEN TO HEARSAY EVIDENCE

The judge considered the weight to be given to hearsay evidence.

1. 1. It is accepted by the parties that the hearsay evidence is admissible in evidence, but the weight which can be given to it must be weighed with care. As stated in Welsh v Stokes [2008] 1 WLR 1224 by Dyson LJ the correct approach was to consider those factors set out in section 4 of the Civil Evidence Act 1995 which provides:

“4 Considerations relevant to weighing of hearsay evidence.

(1)In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2)Regard may be had, in particular, to the following—

(a)whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b)whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c)whether the evidence involves multiple hearsay;

(d)whether any person involved had any motive to conceal or misrepresent matters;

(e)whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f)whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”

1. 1. Further Dyson LJ stated:

“22 Even if the hearsay evidence were the only evidence on which the

claim was based, I would not accept that this was necessarily a reason for

giving it no weight. It would depend on all the circumstances. I accept that

there will be cases where it is so unfair to hold a defendant liable solely on

the basis of hearsay evidence that a court should place little or no weight

on the evidence. Consideration of the factors stated in section 4(2) will

point the way, but will not necessarily be determinative. In some cases the

defendant may be able to adduce evidence to contradict, or at least cast

doubt on, the hearsay evidence. But there will also be cases, like the present,

where the defendant is not in that position. Apart from the unidentified

motorist and the claimant, there were no witnesses to the accident. In such a

case there may be said to be unfairness to the defendant in having to face

hearsay evidence which he cannot directly challenge. On the other hand,

there would be unfairness to the claimant to place no weight on the hearsay

evidence, since without it her claim would inevitably fail.

23 The decision what weight (if any) to give to hearsay evidence

involves an exercise of judgment. The court has to reach a conclusion as to

its reliability as best it can on all the available material. Where a case

depends entirely on hearsay evidence, the court will be particularly careful

before concluding that it can be given any weight. But there is no rule of

law which prohibits a court from giving weight to hearsay evidence merely

because it is uncorroborated and cannot be tested or contradicted by the

opposing party. I do not consider that the statements in the authorities relied

on by Miss Rodway in her skeleton argument support such an extreme

proposition.”

1. 1. I accept that considerable care must be exercised in consideration of hearsay evidence. Such evidence has not been tested in cross -examination. The motivation behind the provision of such evidence and the reasoning behind the unwillingness to be involved in police or other proceedings has not been clarified. There are certainly arguments as to how much weight can properly be given to such evidence. In assessing the hearsay evidence in this case, I adopt the approach endorsed in Welsh and will address the relevant parts of s4 CEA 1995 later in this judgment. I recognise in doing so that the legal and evidential burden remains throughout on the claimant in this matter. As Dame Janet Smith in Lambert v Clayton EWCA Civ 737 at Paragraph 39 stated:-

“If there are inherent uncertainties about the facts, as there were here, it is dangerous to make precise findings. This may well mean that the party who bears the burden of proof is in difficulties. But that is one of the purposes behind a burden of proof; that if the case cannot be demonstrated on the balance of probabilities, it will fail.”

THE JUDGE’S ASSESSMENT OF THE EVIDENCE

There was much more evidence before the court from lay and expert witnesses.  However the judge found that the defendant was the driver of the Mercedes that caused the accident.  The evidence of the anonymous caller was not the only factor, but an important factor in relation to the overall determination of this issue.

1. As set out above, I found the witnesses in the Peugeot, namely Adrian Graham , Bobby Leigh Graham and Danielle Sellers to be honest and truthful witnesses doing their best to assist the court. It is inevitable in describing a fast-moving event that witnesses overall have slightly different perspectives and recollections. Further, this event was a very traumatic incident, not only for the occupants of the car but for others such as Ms Hope who came upon the scene to assist. Whilst there may be modest inconsistencies, I take a step back any look at the evidence overall.

1. 1. I find that the dark car drove in a dangerous manner. There can be no real dispute as to that. All witnesses identify it as carrying out a sudden undertaking manoeuvre, and then cutting in ahead of Ms Sellers’ Peugeot. I also accept the evidence of Mr Graham, Mr Leigh Graham, Ms Sellers, the anonymous caller, and Mr Bevan that the dark vehicle was dangerously close behind the Peugeot and was tailgating it.

1. 1. There can be no dispute that it was the driving of the dark car which caused the collision. On the evidence set out above, there is no serious contention that Ms Sellers could have done anything to have avoided this accident, Mr Vincent in his submissions conceded the same. His argument as to her blameworthiness assumed (from the anonymous caller) that she “saw red” and accelerated post-accident. This simply does not tie in with any of the surrounding evidence. It may be that an observer from some distance back saw Ms Sellers’ car making sudden movements, reacting to what had just happened, and assumed that this was an acceleration and an angry reaction to it. However, I find that Ms Sellers reacted instinctively and properly in the agony of the moment to a powerful car undercutting her and pulling immediately in front. She was not to blame for this accident.

1. 1. The essential question is: was that dark car the Mercedes driven by Mr Sestras on that day? Has the Claimant established, on the balance of probabilities that Mr Sestras was the driver?

1. 1. I find that the dark car responsible for this accident was the Mercedes driven by Mr Sestras and, when he and his witnesses say it was not him, they are not being honest. I reach that conclusion by piecing together the timeline and assessing the evidence overall

1. 1. It is accepted that on a back calculation from the ANPR cameras, it was possible for Mr Sestras car to be in that location at the material time. Of course, much would depend on his speed. However, it is accepted that he did drive along that road, in that vicinity at about that time .

1. 1. Within a very short time of the accident the police had information that the dark vehicle was a 15 plate Mercedes. That is confirmed from the Storm record and Mr Adrian Graham’s evidence. The account to police officers in the Storm log can only have come from Mr Graham and Bobby Leigh Graham who were spoken to at the scene. Their evidence was highly persuasive. As direct witnesses to the accident they had a good and largely unhindered viewpoint of the Mercedes.

1. 1. Bobby Leigh Graham described very specific details. The tinted windows, the colour and style of the car, the mascot, the little rear rim, all matched the 1^st Defendant’s car which was also a 15 plate Mercedes.

1. 1. Bobby Leigh Graham had a good view of the passenger. His description of her and her actions was again clear and detailed. She was a white woman, with shoulder length brown hair, holding a silver iPhone. Mrs Sestras, who was sitting in the passenger seat, is a white woman, with shoulder length straight brown hair and it is known had a silver iPhone at the time. I do not find the evidence as to the plaid lumberjack shirt to in any way undermine this evidence. It is correct that in photographs taken earlier in the day, Mrs Sestras was wearing a different colour t-shirt. That does not exclude her wearing a plaid shirt later, particularly when it is accepted the weather at Santa Pod had taken a turn for the worse and rain or drizzle had set in . The friends of the Sestras are I find, shown in the photo with a puffa jacket and in all probability a fleece. Mrs Sestras says that she chose to go out for the day without any warmer garment than a t-shirt. I do not accept her evidence on this point. Even if I am wrong on this point, I do not consider that the plaid shirt point significantly undermines the overall evidence of Bobby Leigh Graham. His evidence on video just after the accident was impressive in terms of its clarity. That clarity was mirrored in his oral evidence before the court. Even if he were mistaken about the plaid shirt, the other parts of his evidence are strikingly credible .

1. 1. I have no doubt that the dark vehicle which caused the accident was a black Mercedes 15 plate, with tinted black windows , a small rear spoiler and an upstanding bonnet mascot. That car had a male driver and a female passenger as described by Bobby Leigh Graham.

1. 1. I have weighed into account the other evidence, of perhaps a dark blue or black BMW. This evidence came in the hearsay evidence of Mr Bevan. I find that Mr Bevan must have been some distance back and as such, his view would be less reliable than those in the Peugeot. In any event it is accepted by the expert evidence (and I find as a fact) that the appearance of a BMW and Mercedes from a distance from the rear could easily be mistaken. I find that Mr Bevan’s hearsay evidence was mistaken as to the make of the car, because of their similarities when seen form a distance.

1. 1. I have also considered the evidence in the Storm report that an off-duty officer reported the dark car as a BMW. I can place little if any weight on that entry. I simply do not know where it has come from . It is untested, it is vague, and I do not place any reliance upon it.

1. 1. Having concluded that the car was a black Mercedes as described by the occupants of the Claimant’s car, has the Claimant proved, on balance that this was the same black Mercedes as driven by Mr Sestras or is the 1^st defendant the unhappy victim of a series of unlucky coincidences, which would put his and another strikingly similar Mercedes with a passenger whose description is consistent with that of this wife in the same area at about the same time?

1. 1. I weigh up all the evidence in the round and turn to the evidence of the anonymous caller. For the reasons set out above, I consider that evidence, although hearsay, as highly persuasive. I have listened with care to the transcript of the call. I have considered whether this could be an elaborate ploy by the caller to detract attention from himself. I reject that as implausible. The detail of that account, when tied in with the other evidence as a whole, leads me to conclude that the account by the anonymous caller of following the car, from the accident scene and noting down its registration, is evidence upon which I can place weight. The proposition that he may simply be mistaken and got the wrong car does not tie in with his evidence of immediately giving chase. In addition, although this is a relatively modest point in support, the vehicle he followed went in the direction of the 1^st Defendant’s home. The vehicle he followed must, on balance have been that of Mr Sestras.

1. 1. Against all of that evidence I have weighed in the balance the evidence of Mr and Mrs Sestras and their witnesses. They simply deny that anything happened. There are internal inconsistencies between those witnesses. In his police interview the day after the accident, when presumably these things were fresh in his mind, Mr Sestras said that this wife and the witnesses were talking, laughing and listening to music. Mrs Catinca’s witness statement had her awake but drowsy. It is only as the case developed that Mr and Mrs Catinca were asleep, thereby explaining that they could not have seen anything. In my judgment this has the clear marker of witnesses who are seeking to distance themselves from the case : I did not find their evidence reliable.

1. 1. Mrs Sestras’ evidence contained no blatant inconsistencies, save that I found her explanation as to not wearing a shirt or jacket improbable. Although I make no findings as to this, she accepted that she was a fan of fast cars. This would be consistent with her filming on her iPhone fast driving by her husband. She was clearly aware of the potential consequences to her husband if he were to lose his driving licence.

1. 1. Mr Sestras’ evidence was problematic. I find that he chose to make no comments in his second interview when matters were put to him that he found difficult i.e., his car appearing on the ANPR footage and the appearance of the female passenger being consistent with that of his wife. I accept PC Duke’s evidence in respect of this (and Mr Sestras did not challenge the “no comment” issue in his witness statements). As such, the overall impression I have is that Mr Sestras’ bare denial breaks down when faced with compelling contradictory evidence. He knew on the night in question and the next day when interviewed, that if he were to be found guilty of an offence of dangerous driving he would risk losing not only his licence but his livelihood. As such, when he did not know that anyone had identified his vehicle, he denied his involvement. He has chosen to continue in his denial. Further, he alleged that his car could not have driven in the manner described, because of its collision assist system. He allowed his case to be amended to plead this point. That point has no merit, as agreed by the experts. His denial that he ever exceeded the speed limit did not assist. On balance I find that the evidence of Mr Sestras was unconvincing and unpersuasive.

1. 1. I have balanced all of the evidence. The evidence presented on behalf of the claimant (and 3^rd defendant) when taken as a whole presented a compelling and persuasive picture. The evidence presented by the 1^st defendant and his witnesses did not.

1. 1. I find that, in fact, the 1^st defendant, Mr Sestras, was the driver of the black Mercedes which caused this accident. The driving and its aftermath were such that he must have known of its consequences and yet he drove away. Mr Sestras is not the unfortunate victim of a series of unhappy coincidences. He was the driver whose dangerous driving caused this accident and the serious injuries to the claimant.

Conclusion

1. 1. In answer to the questions to be determined in this matter I find as follows:

a) Has the Mercedes driven by the first defendant been correctly identified as involved in the accident? Yes. I am satisfied, on a combination of the evidence overall, that the black Mercedes 15 plate involved in this accident was driven by the 1^st Defendant.

b) If ‘yes’ to a., was the accident caused by the negligent driving of the first defendant: D1? Yes: the driving was dangerous. The 1^st Defendant tailgated the Claimant’s vehicle, undertook it at speed and cut in front of it in a reckless manner when he knew or ought to have known that this would cause the 3^rd defendant to take emergency action.

c) Was the accident caused by the negligent driving of D3? No. Ms Sellers was not to blame for this accident. She reacted reasonably logically to the emergency situation and took steps to try to control her car. In the agony of the moment, those steps were not successful. However, she was not negligent.

In all the circumstances I find in favour of the Claimant in this matter against the first defendant, who is being indemnified by the 2^nd Defendant. The claim (and counter claim) against the 3^rd and 4^th defendants are dismissed.