WITNESS CREDIBILITY AND REWRITING EVENTS OVER TIME: DEFENDANT DRIVER CAST AROUND FOR AN INTERPRETATION OF THEIR ACTIONS THAT PLACED THEM IN THE BEST LIGHT POSSIBLE

We have looked recently at a number of cases in relation to witness credibility. The judgment of HHJ Martin Picton in  Palmer v Timms [2024] EWHC 2292 (KB) is a case where the primary issue at trial was the credibility of the defendant driver.  It is an interesting case in relation to the judge’s assessment of the driver’s witness evidence.

“It is a matter of common human experience that people tend to rewrite events over time, particularly if they have been traumatic and potentially blameworthy. Someone who has to live with the prospect of moral, and in this case potentially criminal, responsibility for taking the life of another human being will cast around for an interpretation of their actions that places them in the best light possible.”

THE CASE

The claimant was the widow of Simon Palmer who had been killed in a road traffic accident.   The First Defendant was the driver of a lorry being driven along Holloway Road in London.  Mr Palmer was riding a motorcycle and filtering through the traffic, he started to undertake the defendants’ lorry on the nearside.  The lorry driver turned the lorry to the left and the motorcycle came into contact with a camera on the lorry. This led to Mr Palmer losing control of the motorcycle, he fell of the motorcycle and suffered injuries that led to his death.  Damages were agreed and the court was concerned solely with liability.

THE ISSUES AS TO LIABILITY

The defendant argued that the lorry driver was not at fault. Alternative there should be substantial contributory negligence – in the region of 75%. The claimant agreed that there should be some contributory negligence but argued that this should be in the region of 20%.

THE MATTERS AT TRIAL

The claimant had two arguments in relation to liability (i) that the lorry turning to the left was deliberate; (ii) that the failure to consider the possibility that a motorcyclist may be on the inside and to observe the motorcyclist was negligent.

PREVIOUS STATEMENTS BY THE DEFENDANT DRIVER THAT APPEARED TO BE INCONSISTENT

One major factor in the judgment was the judge’s consideration of differing accounts that the defendant driver gave over time.

1. This case is perhaps unusual for the level of agreement as to the events that took place. Neither of the accident reconstruction experts has been required to attend and give evidence. The parties were agreed that the principal factual issue is why Mr Timms chose to move the vehicle to the nearside, which had the effect of closing the gap available to Mr Palmer as he was attempting to pass on the nearside, and whether the action was intentional and/or negligent. In the event of a finding of negligence then, as mentioned above, the issue of whether and if so to what extent Mr Palmer contributed to the accident also falls to be addressed

1. In a handwritten account that Mr Molyneux provided to the police on the 14^th of July 2019 he related, by reference to the headcam footage that he had clearly reviewed to prepare this account, how he observed Mr Palmer undertake first a lorry and then a car (the Nissan Micra). He then saw Mr Palmer begin to undertake the DAF. He stated: “I thought at the time that there was not a great deal of room on the inside of that van. At 0834.33 I was aware that the van had drifted to the left slightly, towards that motorbike. I was behind that van. I saw the brake lights come on. That is clear from my CCTV footage. I was behind that van when the brake lights came on. I was not overtaking that van. When I saw the brake lights come on (0834.33) I said “Fuck me” because I knew there wasn’t much space when the motorbike went inside the van and then when the van drifted to the left and braked suddenly I assumed he had hit the bike.”

1. 1. He was asked about a “formal history of events” that he had given David Ballard, a paramedic who spoke to Mr Timms (Bundle 2 p786) where he is recorded as saying: “The motorcyclist had been accelerating down the inside of the lorry, the lorry driver noticed him when he was level with the lorry’s wing mirror. Motorcyclist clipped the side of the lorry, motorcyclist came off motorbike, the motorbike continued forward ahead of the motorcyclist and lorry”.

1. 1. Mr Timms stated that he recalled speaking to the paramedic. Having had the section from the record referred to above put to him Mr Timms responded that he noticed he was there earlier but then not before he clipped the side of the lorry. He agreed the paramedic had accurately recorded what he said. He agreed that he had not referred to having moved left.

1. 1. He stated that he braked and moved over to give Mr Molyneux space to get through. Mr Timms said braking would have given Mr Molyneux more time to get past. He agreed that there was no mention of the other motorbike and no mention of the oncoming van in the note written by the paramedic. He accepted that he only mentioned seeing him in the wing mirror at the point of impact and did not mention having seen him earlier but claimed that he had done so. He did not agree that the account he gave to the paramedic was “completely wrong” as was suggested by counsel for the Claimant.

1. Mr Timms was asked about what he said in an initial conversation with a police officer and stated that he had no memory of that. He accepted that he should have given a truthful and accurate account.

1. 1. He was asked about the fact he ended up being prosecuted for causing death by careless driving. He said he was aware the police had a report in April 2020 from PC MacAlpine (accident reconstruction expert) and that his solicitors instructed Ms Eyers, also an accident reconstruction expert, to prepare a report on his behalf. He agreed she provided a report in October 2021. He agreed that it was very important that she be given the full information to do so. He said that such information as she was given was provided to her by his solicitors and said that he had not spoken to her himself. He agreed that his solicitors had taken his instructions as to the circumstances of the events.

1. 1. The attention of Mr Timms was drawn to paragraph 8.13 of the October report (bundle 3 p976), the suggestion being made to him that Ms Eyers had not been told anything about the potential significance of a motorcycle travelling on his offside and his case that his actions were prompted by that. Mr Timms asserted that he had given that account to his solicitors by this stage and could proffer no explanation as to why it appeared they had not informed Ms Eyers of this detail.

1. 1. He was taken to the Defence Statement served on his behalf in the criminal proceedings (Bundle 3 p892). He agreed that the document, dated 7^th December 2021, was “important” and that there was no reason why it should not contain “the truth”.

1. 1. Paragraphs 10-13 of the Defence Statement were put to him (although paragraphs 8 and 9 are included for the sake of completeness) where it is stated:

“8. He heard the sound of a motorbike accelerating and looked into his offside mirror.

9. He was aware that a motorbike would most likely attempt to overtake on his offside.

10. He did not see any vehicle passing on his offside and turned his head to check his nearside mirror. He would have to move his head to face the nearside mirror by at least 45 to 60°.

11. He did not see Mr Palmer in either his nearside Class ii or Class iv mirrors, but felt something clip his near side.

12. He did not see Mr Palmer until after his motorbike had gone past his truck, when he became visible through the nearside corner of the windscreen.

13. At that moment Mr Timms put his foot on the brake and stopped his vehicle.”

1. 1. Mr Timms agreed that moving to the left was the single most important factor but his Defence Statement did not say that. He could proffer no explanation as to why that was not mentioned in the document. He said there should also have been a reference to the vehicle coming the other way. He agreed the Defence Statement did not refer to moving left at all.

1. 1. He asserted that he had been aware of Mr Palmer’s motorbike further back but that the Defence Statement stated that he first saw him at the point of collision. He said he first saw him when Mr Palmer was near the Nissan. He could not explain why the document was inaccurate in this regard or why he did not refer to having seen Mr Molyneux’s motorbike. He maintained he had given such an account to his solicitor.

1. 1. He was asked about an exchange of correspondence between the Claimant’s solicitors and those representing himself in the civil proceedings. On the 7^th of October 2019 the Claimant’s solicitors wrote to Zurich Insurance, the defendant’s insurers, putting them on notice as to the allegation. The relevant paragraph (Bundle 3 p1307) states:

“It is alleged the accident was caused by the negligence of Russell Timms who was the servant or agent of your insured and for whom they are vicariously liable. We have not at this stage received full information about the accident circumstances but, without prejudice to any subsequent or more detailed allegations to be set out in the Particulars of Claim, it seems clear that Mr Timms was negligent for crossing into lane one when it was not clear to do so.”

1. 1. The response, that was eventually sent by email on the 16^th of March 2022 from the solicitors acting for Zurich “and their insured”, set out the basis upon which liability would be disputed thus:

“I should mention now that liability will be disputed in relation to your client’s claim in that the deceased motorcyclist tried to squeeze through a gap that was too narrow to the near side of the insured’s vehicle (i.e. by undertaking it). Mr Timms was travelling straight ahead at the time rather than (as alleged in the letter of claim) it being in the process of completing a manoeuvre into its left hand lane. The road layout itself establishes the version of events set out in the letter of claim cannot be correct. Mr Palmer sadly misjudged the very limited available room during what was clearly an unsafe manoeuvre, leading to his untimely death.”

1. Mr Timms stated he had never seen the email but that what it asserted was true. He denied having made a significant manoeuvre suggesting it was 50 cm in a busy road. He agreed what was stated in the email would have come from him and that it did not acknowledge that he had moved left. He asserted that he had gone “straight ahead” and that the lorry only moved 50 cm over the relevant distance; what he maintained was a “minute manoeuvre” and “slight deviation”.

ASSESSMENT OF THE CREDIBILITY OF THE DEFENDANT’S DRIVER

The judge found that one of the primary issues in the case was the credibility of the defendant driver.   Because of the previous statements and the “lateness” of the account being given at trial, the

1. 1. One of the overarching issues relevant to the decision in this case concerns my assessment of the credibility of Mr Timms. This has relevance to both the primary and alternative bases upon which the claim is advanced, as well as my assessment of the defence. Accordingly, I address this topic first.

1. 1. I have concluded that Mr Timms lacks credibility for a variety of reasons and in some significant regards. I am sure to the requisite standard that his narrative of the events has developed over time and that he is not a reliable historian as to what happened or why. Even allowing for the fact that he was in shock in the immediate aftermath of the accident, his account to the paramedic, and then to the first police officer to speak to him, was significantly different from that upon which he has finally settled. I do not find that the differences are explicable by reference simply to shock and normal human frailty. His account to the paramedic evidenced a substantial level of confusion as to what he did and why. The same can be said about the record made by PC Briers. In my judgment, Mr Timms was confused about what had happened because his mind had not been focussed on his driving, and even at that very early stage he was trying to find a way to offload responsibility. That may have been to some degree an instinctive defence mechanism as it became apparent to him, as it must have done very quickly, that Mr Palmer had suffered very serious injuries which were to prove fatal.

1. 1. Thereafter, Mr Timms elected to respond ‘no comment’ to the questions he was asked in the police interview. He was of course entitled to do so. What if any inference arises from that decision is principally relevant to the Claimant’s primary case which I will deal with a little later.

1. 1. Other factors which support the conclusion that Mr Timms did not have a clear and/or reliable recall of the accident and its causes are that (a) the defence expert was not provided with the scenario upon which Mr Timms eventually settled and (b) the defence statement did not specifically identify the case he was to advance at trial. These two matters point firmly toward the case now advanced by Mr Timms as being a developing narrative that is not tethered to a clear recall on his part as to what he did or why.

1. 1. It is a matter of common human experience that people tend to rewrite events over time, particularly if they have been traumatic and potentially blameworthy. Someone who has to live with the prospect of moral, and in this case potentially criminal, responsibility for taking the life of another human being will cast around for an interpretation of their actions that places them in the best light possible. The degree to which this may be a conscious or unconscious reaction is a matter that has potential relevance to the disposition in respect of the claimant’s primary case.

1. 1. I attach rather less significance to the response by the defence solicitors dated the 16^th March 2022 and no particular significance to the criticism levelled at the pleading of the defence. The email smacks of lazy composition but does not seem to me to imply a clear understanding on the part of the defendant’s lawyer in the civil action as to the case Mr Timms would eventually settle upon. The Defence as served in response to the Particular of Claim is perhaps less explicitly at variance with the Mr Timms’s evidence but the precise timing of the development of the ‘final version’ is of substantially less importance than the fact that it took place. If Mr Timms lacked a clear appreciation of what he did or why, either at the time of the accident and/or in its immediate aftermath, the duration for how long it was before his case crystalised into its current form appears to me to be of less potent significance. Whenever that might have been the fact that it did so strongly suggests that a clear and reliable recall did not exist at the time of the events.

1. 1. On the evidence as a whole it is clear that a consistent account did not develop for really quite a long time, and certainly does not appear to have been communicated to others by the stage upon which the defence expert was instructed. Whilst it is perhaps unnecessary to reach a firm conclusion there does appear to be some merit in the point made by the Claimant’s counsel that Mr Timms could have picked up on a reference by Ms Eyers at paragraph 8.13 of the report she prepared in October 2021 where she alluded to the possibility that Mr Timms could have reacted to the approach of Mr Molyneux. The degree to which that was a conscious or unconscious mental process on the part of Mr Timms is a different issue but again not one upon which it is necessary or potentially even possible to reach a concluded view. The capacity for people to persuade themselves that they remember things differently from how they actually were is again a matter of common experience.

1. 1. I accept the points made by counsel for the defence that some of what Mr Timms did can be said to be consistent with facts that are agreed and which are consistent with the evidence that he gave; the motorbike ridden by Mr Molyneux was approaching from behind; it was making a loud noise; the movement to the nearside was potentially consistent with a reaction to that; that Mr Timms applied the brakes either simultaneously or at least very shortly after he moved left. The problem with these points is that this is what would be expected given the physics of what occurred. What they do not establish, when considered in the context of the evidence as a whole and looked at in conjunction with my assessment of Mr Timms as a witness, is that Mr Timms is a reliable historian and/or witness.

1. My assessment of Mr Timms, which also has some overarching significance, is that he was not an impressive witness. He was at times somewhat irritably defensive i.e. irritable on his part. His enthusiasm to defend his position smacked of a sense of guilt or recognition of responsibility. Inevitably perhaps it is arguably a case of ‘damned if you do, damned if you don’t’ in terms of someone in the position of Mr Timms being challenged as to events of this nature with the tragic consequences that resulted. There is force, however, in the comment made by Mr Roy as to the potential significance of Mr Timms describing the actions of Mr Palmer as being “suicidal”; the impression gained is that he was choosing overly dramatic terminology as a form of defence. The refusal of Mr Timms to even entertain the possibility that he might have had some responsibility for what occurred certainly created a strong impression that he had found a narrative with which he could live, and one that was operating as a defence mechanism for him on a variety of fronts. He was, assessed overall, a witness on whose account I would not place much reliance save and in so far as it was supported by other evidence.

REJECTION OF THE CLAIMANT’S PRIMARY CASE

The judge did not accept the claimant’s primary case that the defendant had driven deliberately in a manner so as to block the motorcycle overtaking.

ACCEPTANCE OF THE CLAIMANT’S SECONDARY ARGUMENT AS TO NEGLIGENCE

1. 1. I am satisfied to the requisite standard that Mr Timms was negligent in steering or allowing his vehicle to move to the left when it was unsafe so to do. I reject his evidence that he had made a specific assessment that no one would be undertaking his vehicle and thus it was safe to move left without checking whether anyone was there. Whether he in fact had registered the presence of Mr Palmer as he travelled along the road behind him is not determinative of this issue. It was not suggested to him that he was ignorant of the presence of Mr Palmer on Holloway Road, not least because the Claimant was seeking to make a positive case that Mr Timms carried out a deliberate blocking action. Mr Timms certainly should have been aware of what was going on behind him and, if he registered the presence of Mr Palmer either alongside or close to the Nissan Micra, he should have been alerted to the risk that Mr Palmer might catch up and pass the DAF on its nearside. Mr Timms accepted that such a manoeuvre as Mr Palmer was attempting to execute is normal for city driving generally; that it is commonplace to have two-wheeled vehicles passing on both the nearside and offside. As a matter of common experience, this is a normal feature of how traffic flows on busy streets in cities up and down the land. It is not necessary to be a professional driver in order to be aware of that. It is reasonable to expect, however, that the professional lorry driver should have a significant level of awareness of what may be termed ‘standard’ driving conditions in a busy environment. Mr Timms did not seek to suggest otherwise.

1. 1. For reasons given earlier, I do not accept Mr Timms’s evidence that he had made a careful qualitative assessment of what was going on at the moment he pulled left. Insofar as the approach of Mr Molyneux was the prompt for him to do so I am confident that his reaction was not a reasoned or considered one. His focus in his evidence on the proximity of the pedestrian crossing and the bus lane up ahead (which he suggested he assessed as being the earliest someone might choose to pass on his inside) was, in my judgment, an obvious recreation by way of the developing narrative to which I have referred. The description of the accident that he gave to the paramedic was telling. He was already in defensive mode but clearly did not have a mental picture of what he had done and why he had done it.

1. 1. I am satisfied that the DAF did not need to move left and/or brake in order to facilitate an overtaking manoeuvre on the part of Mr Molyneux. Insofar as Mr Timms may have believed it was necessary for him to do so he was wrong. Studying the footage there was ample space and time for Mr Molyneux to pass Mr Timms on his offside notwithstanding the oncoming traffic. It was an unnecessary action on the part of Mr Timms. As already related, however, I am not satisfied that Mr Timms made any such analysis prior to turning the steering wheel and applying the brakes.

1. 1. Something may have caused him to move left or it may just have been inadvertent on his part. In my judgment, the most likely explanation, and the one of which I am satisfied to the requisite standard, is that the movement left was not prompted by a conscious decision on the part of Mr Timms; it was an action born of inattention and notwithstanding his long experience as a professional driver. The approach of Mr Molyneux may have acted as a subconscious trigger but had he been paying proper attention he would have looked in his mirror to check whether there was anything on his nearside or, if he could not be sure one way or the other, he would have maintained a steady course. If he had noticed Mr Palmer earlier then there was a good reason to consider that a motorcyclist travelling close to the pavement might do exactly what so many other two-wheeled users of the highway choose to do i.e. filter past slower moving traffic both on the offside and nearside. If Mr Timms needed some additional warning as to the potential risk of that happening the fact that he had just negotiated a bend where there was a partial cycle path should have triggered that thought in his consciousness. In my judgment he did not think and he did not check and had he done either of those the accident would have been avoided.

1. 1. Had Mr Timms continued travelling in a straight line then there was room for Mr Palmer to successfully carry out the undertaking manoeuvre he was attempting. If Mr Timms had applied his mind to the potential overtaking manoeuvre that Mr Molyneux had in mind the most he might have thought he needed to do was to apply his brakes. It was not in fact necessary for him to do so (there being room for Mr Molyneux even if Mr Timms maintained his line and speed) but that would at least have been a safe response to such awareness as Mr Timms had in respect of the approaching motorcycle on his offside.

1. I do not accept the submission made on behalf of the defence that this amounts to a counsel of perfection. Further, I do not accept the suggestion that such a criticism of Mr Timms driving on this day should be considered as applying the standard of the “ideal driver” as per paragraph 5 of Stewart v Glaze. The approach of Mr Molyneux did not represent an emergency situation. Mr Timms rather sought to suggest that it did by referring to previously having seen someone ‘crushed’ between two vehicles. That was in my judgment an exercise in overstatement on his part rather akin to his suggestion that Mr Palmer was carrying out a ‘suicidal’ manoeuvre. Before changing course Mr Timms should have carried out the most basic of checks. Had he thought about what he was doing at all I am confident he would not have done it. The potential risk to anyone that may be undertaking is obvious and the level of risk created by closing the available space extreme. Someone driving a large vehicle through a busy city street where there are people overtaking and undertaking on motorcycles and bicycles of necessity has to exercise a high level of care and had Mr Timms done so this accident would not have occurred.

THE RESULT

Liability was established.  Contributory negligence was assessed at one third.