PROVING THINGS 241: “WHICH WITNESS’S ACCOUNT IS PREFERRED?”: CONTEMPORARY EVIDENCE IS BEST

In Gadsby v Hayes [2024] EWHC 2142 (KB) Ms Clare Ambrose (sitting as a Deputy High Court Judge) considered the evidence of witnesses in a case where the accident had happened ten years previously.  The accounts given near the time of the event carried more weight. As a result the claimant’s case failed.

“The Defendant’s police statement was given immediately to the police (rather than to her own instructing solicitors) and was consistent with the evidence of Mr Skinner and Mrs Herbert, and I accept it.“

THE CASE

The claimant brought an action for damages for personal injury having been knocked over by the claimant’s car. The accident happened in October 2014 when the claimant was 12 years old. She could not remember anything about the accident. The claimant’s primary witness was her sister Kacie, who as aged 11 at the time.  There were conflicts of evidence as to how the accident happened. The defendant’s case was that she was approaching a pedestrian crossing at low speed, the lights were green in her favour and the claimant stepped out in front of her car. The claimant’s case was that the defendant was driving too fast and the lights were red against the defendant when the accident happened.

THE JUDGE’S ASSESSMENT OF THE EVIDENCE

Although there was expert evidence from both sides liability rested primarily on the judge’s view of the witnesses.  The judge preferred the defendant and her witnesses. One issue was that the defendant’s witnesses had made statements more or less immediately after the accident. The claimant’s primary witness had made statements some time afterwards.

THE JUDGMENT ON THE WITNESS EVIDENCE

The judge gave her reasons for preferring the defendant’s witnesses.

Which witness’s account is preferred?

1. 1. On the central issue of whether the Claimant was only hit after having walked to the middle of the crossing following behind other girls, and then turned around to walk back to the nearside kerb, I prefer the evidence of Mr Skinner, Mrs Herbert, and the Defendant’s police statement given at the time of the accident. They all said she was hit immediately after she emerged from the nearside pavement.

1. 1. Mr Skinner was an independent and consistent witness and was close to the crossing. His police statement was fairly contemporaneous and reflected careful observation and a good recollection. He was 5-10m away (Mr Elliott’s measurements put him at 10m away on the basis that he was at the pharmacy but his evidence was that he was near the pharmacy). His evidence that there had been shouting between the girls on either side of the crossing was consistent with Kacie’s own evidence that the Claimant thought she had heard a girl shouting from the pharmacy side, and Kacie herself had shouted from her side. His evidence that she stepped into the road (as opposed to running into the road) was also consistent with the reconstruction expert’s evidence suggesting that the Claimant was either stationary or moving slowly when she was hit.

1. 1. The Claimant’s counsel suggested that Mr Skinner’s evidence was not credible because he was a peripheral witness who had only taken a fleeting glance whereas Kacie was a participant. His evidence was also criticised because in cross examination he could not recollect whether Jessica had been hit on the left or right side. It was also submitted that he was the only witness who suggested that she had looked at her mobile phone so he must have got the wrong person. These criticisms were unjustified and I accept Mr Skinner’s evidence. The Claimant’s case did not address whether she had a mobile phone in her hand or could have been looking at it, beyond making the submission that she had been alert enough to respond to Kacie’s shout, and this was far from decisive on that question. In all probability the Claimant had a mobile phone with her and may have looked at it before entering the road.

1. 1. Mrs Herbert was also independent and her police statement was given fairly contemporaneously. She was close enough to have a good view. Her evidence was unjustifiably criticised because she accepted she had not seen the collision. Her recollection is consistent with careful observation and I accept it. Even though the experts’ evidence suggested that her distance measurements were unreliable (her estimates of 5m, 2m and 1m were all too small) this did not put her overall reliability into issue.

1. 1. The Defendant’s police statement was given immediately to the police (rather than to her own instructing solicitors) and was consistent with the evidence of Mr Skinner and Mrs Herbert, and I accept it.

1. 1. The Claimant maintained that Kacie Gadsby had the best view and gave the most consistent and credible evidence, whereas Mrs Herbert and Mr Skinner were peripheral and had only taken a fleeting glance.

1. 1. In my view, Kacie was placed in a difficult position in giving evidence by way of statement and answering questions in cross-examination. I accept her evidence that she was in shock after the accident. She was traumatised at the time and the events have had a profound effect on her and her family. She told me that she had nightmares and flashbacks about the incident.

1. 1. No statement was taken at the time and then she was asked to provide a statement to the Claimant’s solicitors almost a year after the event, and another 4 years later when she was 15 years old. It would be challenging for anyone accurately to piece together matters of this sort a year or several years later. For a traumatised 11 or 15 year old that had lived through the accident and its consequences over the previous years it would be more difficult. Her statements and evidence were given honestly and she did her very best to assist the court. She was able to capture parts of what she saw, for example that she stayed behind, there had been shouting between girls near the crossing, the Claimant put her arm out to avoid the car and she had the awful sight of seeing the Claimant being thrown up onto the bonnet but not onto the windscreen. She also rightly acknowledged the shortcoming of the sketch plan provided to her in 2019.

1. 1. While I recognise the difficulty she and her family have faced, I have to weigh up all the available evidence. Having taken account of all the witness evidence and the experts’ analysis, I find her evidence less reliable than that of Mr Skinner and Ms Herbert, and prefer theirs where there is conflict.

a) Kacie’s statement was not contemporaneous since it was not given until almost a year after the incident.

b) The fact that Kacie was a participant in the incident did not give her evidence more reliability. She was not independent.

c) The statement made by Kacie in 2015 and the details added in 2019 formed an ex post facto reconstruction long after the events. For example in 2019 she said that she remembered the Claimant looking left and right while crossing the road and said that she knew this because “she always looks both ways when crossing”. There was also some inconsistency since the statements suggested that she was on her own with the Claimant whereas her oral evidence suggested she was with friends, and a few steps back.

d) Kacie’s evidence could not be reconciled with that of Mr Skinner and Mrs Herbert, whose statements were more contemporaneous, and both gave a consistent account independently.

e) Her account was a less likely explanation. On Kacie’s account the Claimant had been crossing for well over 3 seconds and looking both left and right at all times so she should have seen the Defendant’s car throughout. The Claimant’s counsel suggested that there was nothing the Claimant could have done but 3 seconds would have allowed her to return to the nearside kerb or go to the other side of the road if she was looking out. Likewise, if she was on the crossing for 3 seconds it was less likely that the Defendant would persist in driving into a red traffic light, or if lights were green, into a pedestrian on the crossing.

1. 1. The Claimant’s case was also difficult to reconcile with the account put forward on her behalf in a letter before action sent two months after the accident. At this stage it was said that the Claimant “was walking across a pedestrian crossing with her younger sister and friends away from the shops and had nearly reached the opposite kerb when she was hit”. The Claimant’s counsel attempted to suggest these accounts were consistent but he failed to provide a good explanation for why this account was put forward at the outset if Kacie’s account was the best evidence. The more likely explanation is that there were discrepancies in what Kacie could remember.

1. 1. There was a further issue as to whether the Claimant was running or walking when she moved into the road, and also some debate as to whether she had taken one step into the road.

1. 1. The Defendant was criticised for oral evidence that the Claimant had put one step onto the road before she was hit on grounds, among others, that this was simply not possible. This criticism had limited weight since several of the witnesses (Kacie, Mrs Herbert, and the Defendant) had used the language of “one step” to describe the distance of the Claimant from the kerb when she was hit (which the reconstruction experts concluded was around 1.3m). Mr Skinner also used the language of her being hit as soon as she stepped onto the crossing. Kacie had also used “two steps” to describe the Claimant being behind other girls when describing her turning around half way across the road (which was 3.5m). The witnesses were not using the term “one step” to make a precise statement as to whether a single step or stride had been taken, or as to its precise distance. However, they were probably referring to the Claimant taking a stride and their common use of language for her distance to the place of impact suggested as much.

1. 1. I find that the Claimant stepped into the road and reached around 1.3m into the crossing before being hit so she would have taken more than one step, but probably not more than two strides.

a) The fact that the Defendant said in her police statement that the Claimant ran into the road (and indeed Mrs Herbert also mentioned the Claimant running) does not make those statements unreliable. It reflected their perception (shared also by Mr Skinner) of her entering the crossing suddenly. The Claimant’s counsel suggested that Kacie could only have been moving slowly and was not capable of running or walking quickly based on her movements in court (and Jessica’s evidence that she does not run) but I am assessing her movement before the accident.

b) The reconstruction experts agreed that the Claimant was probably either stationary, or walking slowly when the collision took place which suggested that she was probably not running when she entered the crossing.

Did the Defendant drive into a red light?

1. 1. On the question as to whether the lights were red or green when the collision took place I find that they were green because I prefer the evidence of Mr Skinner and the Defendant’s police statement to that of Kacie Gadsby. Their evidence is also supported by that of Mrs Herbert who saw the WAIT signal. The Defendant gave her police statement covering this question minutes after the accident and she was wholly consistent on this point.

1. 1. Kacie’s evidence was also a less likely explanation. As Mrs Herbert noted, it would have been surprising that the Claimant was the only person crossing if the green man had been in pedestrians’ favour throughout. More significantly, Mr Elliott accepted that if a car at a crossing like this ran through a red light and knocked over a child in plain sight of a large group of teenagers with adults also present, and the police attended immediately (as they did) there would have been police reports of this. However, there were none at the time or subsequently.

What was the car’s speed on impact and on approach.

1. 1. The Claimant relied on hospital and ambulance notes noting the car’s speed at 30mph. She relies on the fact that the Defendant said in her police statement that she was going under 30mph and it would have been curious to say that if she had been going at 15mph. I do not consider that this evidence had weight in suggesting she was driving near 30mph. The Defendant’s statement was referring to the applicable speed limit and it was likely that either she or the police officer interviewing her was addressing whether she was driving over that limit. It is also relevant that these records were made in 2014 when 20mph limits would have been less common and understood.

1. 1. Mr Elliott’s estimate of 20-25mph, and the agreed estimate of 15-25mph was based on a sketch plan which gave an inaccurate assessment of the throw distance and the position of the car on coming to rest. This inaccuracy influenced the experts’ overall conclusions, especially those based on pedestrian throw and stopping distance.

1. 1. Mr Henderson concluded that the pattern of damage was consistent with speeds under 20mph. The pedestrian throw of 6.2m gave an impact speed range of 14 to 23mph, with a midpoint of 18.5m. Both experts’ original figures were based on an inaccurate assessment of where the car and body had turned up. The more accurate figure of 4.5m for pedestrian throw gives a lower midpoint of around 16mph. Both experts accepted that stopping distance calculations giving an estimated impact speed of 13mph.

1. 1. There was not a great deal between the experts by the time they gave evidence. but I preferred Mr Henderson’s approach because he looked more thoroughly at both sides’ versions. His assessment of the available evidence suggested a range between 13 and 20mph. While I take into account that Mr Elliott did not consider that the pattern of damage reflected an impact speed of 12mph, his overall calculations based on the evidence produced an impact speed below 20mph. He did not provide sufficient objective justification for having added around 5mph (an uplift of around 25%) to his estimated range of impact speed on the basis of his subjective experience. This level of uplift was not consistent with the available facts and research he had relied upon.

1. Overall taking account of the facts found and all the experts’ views I find that the Defendant’s impact speed was around 16-17mph with a range of 15-20 mph. Even though the Defendant probably braked momentarily before impact, the car would not have been travelling materially faster immediately prior to impact.