The fallibility of witness evidence

At Anthony Gold, the vast majority of our personal injury claims arise from road traffic accidents (RTA’s). In such cases, we are often faced with claims involving very little evidence and only one person’s word against the other – the claimant v the defendant. Police reports will shed some light on the accident circumstances but will usually be basic and will provide only the investigating officer’s best determination of what happened without any real certainty. Accident reconstruction reports, whilst looking at the mechanics of an accident in much more forensic detail, are still predicated largely on speculation as to the mechanics of the accident. In the absence of CCTV or dashcam footage, great weight will therefore be placed on independent witness evidence.

However, personal injury claims, particularly those involving serious and often life-changing injuries, run for many years and the human brain is fallible as time passes. Our recollection of events on any given day can change drastically with time and our minds can play tricks on us, convincing us that we recall a certain set of circumstances one way when they in fact occurred in an entirely different way.

As a case in point, in some 20 years of doing personal injury work and taking many witness statements over that time, it is par for the course on a contested claim to get to exchange of witness statements and be presented with 2 entirely different accounts of the exact same accident. How can this be possible? These 2 people claim to have seen the exact same event in which my client was seriously injured, yet one witness places the blame at the defendant’s feet and the other at the feet of my client. Surely one must be lying? Not necessarily.

Solicitors will generally speak to witnesses multiple times throughout the life of a claim and will take and update multiple versions of their witness statement. One would expect the very first statement that a witness provides, this being the most contemporaneous version given in its closest proximity to the witness actually seeing what happened, to be and remain the most accurate account. It is here that we look closely at the statement given by that witness to the police, should the police have taken a formal statement from that witness.

The reality, however, is that our memory fades with time and whilst what appear to be minor details can have a huge impact on a claim, it is these minutiae that most witnesses simply cannot recall with any confidence so long after the event.

There are two significant cases which provide us with some guidance on this issue of the reliability of witness memory. The first is the case of Gestmin SGPS S.A. v (1) Credit Suisse (UK) Limited and (2) Credit Suisse Securities (Europe) Limited (2013). Whilst this was a complex commercial litigation case, there were multiple witnesses of fact and when delivering his Judgment in the High Court, Mr. Justice Leggatt went into great detail about the “unreliability of human memory”, noting that contemporaneous documentation, of which there was a great deal in this particular case, should be deemed more reliable evidence than statements provided by witnesses many years after the fact.

As this was, however, a commercial claim, there was always going to be considerably more contemporaneous documentary evidence then one would ever find in an RTA claim. As such, of more relevance to personal injury law was the very recent case of Master Felix Barrow (By his Litigation Friend and Grandfather Mr Hugh Barrow) and others v (1) Rosemary Merrett and (2) Liverpool Victoria Insurance Company Limited (2021). This case was heard at the High Court in only March of this year and was a liability only trial. The reason for this was that there was a major dispute between the parties as to how the accident occurred.

It was the claimant’s case that Felix, aged only 11 years old at the time of the accident, was crossing the road when he slipped and fell. It was the claimant’s case that Felix took several seconds to get back up to his feet and was then struck by the defendant’s car. It was the defendant’s case, however, that the claimant ran out into the road and directly into her path, giving her no chance to avoid a collision.

Each party had one witness in support – Nicholas Stannard for the claimant and Alexander Gent for the defendant. Mr. Stannard had in fact provided a total of 5 statements throughout the life of the claim, starting with the most contemporaneous statement provided to the police in the immediate aftermath of the accident, then moving on to a formal statement provided for the purpose of the claim and ultimately culminating in cross-examination at the trial. His evidence was noted to contain many inconsistencies with each occasion that a statement was given, albeit that he remained adamant that Felix slipped whilst crossing the road and was not running across the road. Mr. Gent on the other hand, fully corroborated the defendant’s account of the accident throughout.

When handing down Judgment, Richard Hermer QC stated of Mr. Stannard’s witness evidence:-

“Nicholas struck me as an articulate and intelligent young man seeking to do his best to recall what would have been a truly harrowing experience. His evidence to the Court would have been one of very many occasions in which he was asked to recount what occurred and he would have been under no doubt of the significance of it to Felix’s case.”

The inference here is therefore that, despite the significant difference between each witness’s recollection of events, it was not felt that Mr. Stannard was misleading the Court. It was instead felt that his attempts to recall events that had occurred some years earlier over several different occasions had simply been hampered by the passage of time and the general fallibility of the human brain. As such, it must be considered good practice to take a witness statement from any witnesses to an accident as early on as possible in the claims process, in order to not only obtain as contemporaneous a record of what that witness saw as possible, but also to ensure that their witness statement carries more weight and can withstand vigorous cross-examination at trial.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*