More recent cases on witness evidence

Following on from my last blog about witness statements, I thought I’d highlight a few more recent judgments that touch on witness evidence.

First up is Easton v B&Q plc, in which a very difficult claim for psychiatric injury arising from stress at work was dismissed. (Don’t get me started again on how unfair the law is for claimants who have suffered psychiatric injury!). In this case, current employees of B&Q were called to give evidence for the defence. The claimant’s legal team asked Judge William Davis to give less weight to this evidence, on the basis that the witnesses still worked for the defendant and this meant that their evidence would not be impartial, especially given that one of the witnesses had a clear ambition to succeed within the company.

The judge was unimpressed, noting that there was no principle that witnesses called by their employer should be given less regard simply because of their continued employment. Likewise, it was not relevant that all of the claimant’s witnesses were no longer employed by the defendant.

The evidence of every witness should be assessed in the same way. Questions for the judge to consider will include: Is the evidence internally consistent? How does it fit with contemporaneous documentation? How does it fit with other evidence given in the case? Is there anything inherently improbable about the evidence?

Next is Buswell v Symes, a trial on liability relating to serious injury suffered by a motorcyclist when he collided with a tractor that was pulling out from a field on a country road. The tractor driver initially denied liability and served a witness statement stating that the exit he used remained the only access to the field and that he had worked in this field for the last 10 years or so. A farm worker, giving evidence for the driver’s insurers, also gave a statement saying that the field was fenced off and that there was only a single access point.  However, six months later, and a few weeks before trial, the insurers served a second statement from the driver in which he accepted that he had been mistaken and that there was actually a further exit and that he had not worked in that field for at least two years.

Mr Justice Supperstone found the driver’s evidence to be unsatisfactory, noting that he had “changed his tune” about how often he had worked in the field depending on the context of whether he was trying to show the exit was safe or in the context of not knowing about the fencing. There were inconsistencies about his approach to whether he recognised there was any danger in driving his tractor onto the road as he did. His initial evidence was plainly not correct with regard to alternative exits and he had exaggerated the problems that would exist in using another route. The judge found that given that the tractor driver had lived and worked in the area for many years and had over 45 years of experience it was difficult to understand how he could have made so many mistakes.

This case demonstrates the dangers that are faced when serving a second supplementary witness statement correcting what was said in an earlier statement – the witness’ credibility is likely to be damaged. It is crucial to get that first witness statement right.

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