THAT “DIFFICULT SECOND STATEMENT”: IT IS HARDLY EVER GOING TO BE A HIT

The judgment in Buswell -v- Symes [2015] EWHC 1379 (QB) illustrates the dangers of “supplementary “witness statements. Real problems can occur for the party putting in the new evidence.

THE CASE

The claimant was seriously injured when his motorcycle was in collision with a tractor driven by the Defendant. The claimant’s case was that the defendant had used an inappropriate exit point from the field.

KEY POINTS

These are not key points about the case itself but in relation to the problems they demonstrate.

  • There is a common failure to take adequate witness statements in the first place.
  • Later “supplementary” witness statements are often subject to “litigation false memory syndrome”.
  • Witness evidence is often the last thing to be considered when it should be the first.
  • A “second” witness statement which “supplements” and contradicts what was said in an earlier statement is unlikely to lead to a witness being accepted as credible.

THE DEFENDANT’S WITNESS EVIDENCE

  1. In response to an allegation of negligence made against him that he should have used an alternative access point to and from the field, Mr Symes said in his witness statement made on 7 October 2014 as follows:

“31. … This was not an option. There was, and still remains, no alternative access to or from the field.

32. Specifically, it is alleged that I should have used an access point at the rear of the field onto Broad Lane, rather than the Newport Road access. There is no access point.

33. At the time of the accident the perimeter of the field was fenced off by barbed wire and the entrance/exit from the Newport Road was the only access. This remains the case.

34. If I was to exit onto Broad Lane as alleged, not only would I have to remove several sections of barb wire fencing owned by the farm, but once done so it would involve driving the large tractor and heavily loaded trailer over a grass bank which is raised from the road.

35. I have seen and agree with the statement of James Knight which exhibits several recent photographs showing the field adjacent to Broad Lane, the fence and the bank. Broad Lane, the fence and the bank have changed little since the accident.

36. Even if I could have removed the fence, which I couldn’t, the narrow width of Broad Lane coupled with the width of the tractor and loaded trailer would mean that I would need to approach at a very acute angle. Any attempt to drive off the field and down the grass bank at such an angle would put the tractor and, more likely the trailer, at risk of damage or may well cause the trailer to topple over, especially when loaded.

37. In addition, at places along Broad Lane there is a trench on the opposite side of the road which would also have presented a further risk.

38. Even if it was safe, practical and possible to have driven the tractor and trailer onto Broad Lane, which I deny, the tractor and trailer would have taken up almost the entire width of the two-way road.

39. Finally, even if I could have practically and safely reached the junction of Broad Lane with Newport Road, which I deny, the junction has very poor visibility to the right and presents a greater hazard for slower moving agricultural vehicles. Visibility to the right is severely restricted by a fence, with the road bending uphill and slightly to the right. Newport Road has a 60mph limit and vehicles approaching from the right of Broad Lane travel downhill with no sight of the junction.

40. The fence remains in place and the entrance/exit used remains the only access to this day.

41. I had no alternative other than to use the entrance/exit that I did.

46. I have used this exit without incident on many occasions and I am therefore very familiar with it. In fact I have worked in this field for the last 10 years or so.”

COMPARE AND CONTRAST: THE DEFENDANT’S SECOND STATEMENT

  1. In a second statement dated 23 April 2015 Mr Symes states:

“2. I refer to paragraphs 33, 34, 35, 36 and 40 of my statement dated 7 October 2014 and specifically to the comments made regarding a fence separating the northern edge of the field in which I was working with Broad Lane, referred to as Field A.

3. Prior to the accident, I had not worked in that field for at least two years. I’m not always invited to be part of the foraging team but I have worked in that field about half a dozen times before.

7. As I have previously stated, I exited the field at the same point that I had entered, where it meets the B3399. Having used it before and not considered it dangerous, there was no reason for me to have thought differently and no reason for me to have considered circumnavigating the field for an alternative access when I believed no other access existed.

8. Field A and the fields around it are typically bordered by wire fencing and I had assumed that the Northern Edge was also. Since speaking with the farm manager, Daren Moore, I have learned that this was not the case. There was in any event a raised grass bank making any potential exit with a tractor and loaded trailer dangerous.

9. I therefore accept that I was mistaken that there was a fence at the Northern Edge of Field A.

10. I must also accept that I have previously incorrectly identified the field referenced at paragraph 35 of my first statement. Having now seen an aerial photograph of the fields, I am able to correctly identify Field A.

11. I maintain that I did not consider the exit used by me at the time of the accident dangerous.”

QUESTIONING ABOUT THE INCONSISTENCIES IN THE STATEMENTS

  1. Mr Symes was asked about the inconsistency between paragraph 46 in his first statement and paragraph 3 in his second statement. He said that he had visited that field (Field A) about half a dozen times in more than ten years.
  2. He said the tractor he was driving on the day of the accident was powerful. He agreed that when moving right onto the road it would block the whole road very briefly. He said it took about 3-4 seconds from the edge of the field to where the tractor stopped. He accepted there was still some way to go before he could complete the turn. However he said it did not occur to him that there was a hazard with cars coming over the brow of the hill. He estimated that his view to the right to the brow of the hill was approximately 75m from the field exit. He remembered talking to Mr Godfrey but he had not said anything about thinking about bikes coming down the road. He did not think there was any danger at all in doing what he did. He did not see the need for a banksman as he did not deem the exit he used to be dangerous.
  3. Asked about how he could have been confused about the fencing, he said that when he last went to Field A a few weeks back, which was the first time for some time, it was clear there was no barbed wire fence. It was a surprise to him. It was a Dairy Farm and you would expect fencing.
  4. He now agreed that there were other exits from Field B, but he did not accept that the other options put to him were safer; if any were, it was only marginally so.

MISTAKES BY ANOTHER WITNESS

  1. At paragraphs 51-56 of his first witness statement dated 1 October 2014 Mr Hayward gives very similar evidence to the evidence of Mr Symes at paragraphs 31-41 of his first witness statement. Mr Hayward says that at the time of the accident Field A was fenced off by barbed wire and the entrance/exit from the Newport Road was the only access. He also says (at para 54) that the fence remains in place and the entrance/exit used remains the only access. In his second witness statement made on 23 April 2015 Mr Hayward says, as does Mr Symes in his second witness statement, that he was mistaken about this. He states (at para 5) that the fields in the area are bordered by wire fencing and he had incorrectly assumed that the northern edge of Field A where it meets Broad Lane was also bordered by a wire fence.

THE IMPACT THAT THIS HAD UPON THE CREDIBILITY OF THE WITNESS

Findings of Fact

  1. I find the evidence of Mr Symes to be unsatisfactory in material respects:

i) In his first witness statement (at para 46) he said that he had used this exit without incident on many occasions and that he had worked in this field (Field A) for the last ten years or so. In his second statement (at para 3) he said that prior to the accident he had not worked in that field for at least two years, but that he had worked in it about half a dozen times before. I agree with the observation of Mr John Foy QC, for the Claimant, that Mr Symes appears to change his tune depending on the context. The first statement was made in the context of showing that the exit was safe; the second statement was made in the context of showing that he did not know about the fencing.

ii) Mr Symes said that he did not think there was any danger at all in driving his tractor and trailer onto the road (see para 31 above). However in his first witness statement (at para 49) he said that he approached the exit very slowly, at a speed slow enough to stop if traffic appeared over the brow of the hill. This suggests that he was being very careful because he appreciated the potential risk.

iii) This appreciation is consistent with the statement that Mr Godfrey said he made to him that he thought to himself that he hoped no bikes were coming along the road whilst he was turning (see para 14 above). I reject Mr Symes denial that he said this.

iv) Mr Symes stated repeatedly at paragraphs 31-41 in his first witness statement that there was no alternative access to or from the field in which he was working. That is plainly not correct, as he now accepts.

v) In his first witness statement he stated, again repeatedly, that Field A was fenced off by barbed wire at the time and that this remained the case when he made his statement on 7 October 2014. This was not so at the time of the accident. The Google map shows that there was no fencing in 2009. Mr Symes now accepts there was no fencing at the time of the accident or when he made his first statement, nor has there been since that time.

vi) His excuses for not using the alternative exits, if he had wished to do so, are not supported by the evidence:…

  1. I consider that that Mr Symes exaggerated the problems that he said existed in driving the tractor and trailer out of other exits (if he had thought it necessary to do so). I am not satisfied that there was any real difficulty in driving the tractor and trailer over the various grass verges.
  1. Paragraph 35 of his first witness statement referring to the statement of Mr Knight and the photographs exhibited thereto suggests that the photographs are of the field in which he was working. However that is not so. In the foreground is Field B (albeit that Field A can be seen in some photographs in the background).
  2. I am driven to the conclusion that Mr Symes appreciated the risks that he was taking when he drove his tractor and trailer out onto the B3399 from the exit he used. When he was just about in the middle of the road he saw a motorcycle come over the brow of the hill at speed, he jammed on his brakes and “in a split second” the motorcycle hit his tractor (see his first witness statement at paras 52-54; and see the evidence of PC Gunby at para 36 above as to the time it would take to cover the distance of available view afforded to the Claimant). He knew motorcyclists used that road, in particular on Sundays in summer. I accept Mr Foy’s submission that either he foresaw the danger and took the risk or he did not foresee it when he should have done. Whichever it was he was negligent.

The judge found the defendant was negligent and the claimant two-thirds contributory negligent.

WE HAVE LOOKED AT THIS CASE BEFORE

This case is mentioned in an earlier post: Another late witness statement:relief from sanctions refused. Four weeks before the trial the defendant had attempted to file yet another witness statement which dealt with alternative exits. Relief from sanctions was refused.  It appears as if the defendant, belatedly, recognised that there were alternative exits to the field and wanted to adduce evidence in relation to their suitability.   They were refused permission to adduce the new evidence.

OTHER EXAMPLES

For understandable reasons judges are suspicious of later witness statements which attempt to “correct” or superimpose new evidence over previous statements.

This can be seen in the case of Woodland -v- Maxwell [2015] EWHC 273 (QB). The trial related to precisely what had happened in a swimming lesson 15 years earlier. The case had already been to the Court of Appeal and Supreme Court on interlocutory issues. Yet the defendant adduced new evidence on the morning of the trial.

  1. ….In the May 2011 defence filed on her behalf, it was contended:-

i. No lifeguard was required at all as this was a programmed teaching session and not a general public session.

ii. Sufficient supervision could be afforded by the swimming teacher.

iii. At 10.45am the sun was high in the sky making it difficult to see in to the water. The temperature on the chair was oppressively hot. For both reasons it was reasonable for the lifeguard to mitigate the effect of the sun by patrolling on the poolside.

iv. At the time of the accident Ms Maxwell was on the (right hand) side of the pool scanning when a teaching assistant alerted her to the area where Paula Burlinson was and inquired if there was a problem.

  1. At the start of the trial Ms Maxwell’s team tendered a further witness statement from her that gave rather a different picture. She now stated that she was not in the main pool when Ms Burlinson’s class started. She had been the teacher at the learner pool at the 10.15 am session and she had waited for Julie Martin to relieve her before entering the main pool through the corridor. As she came into the main pool area, she was aware that pupils from Ms Burlinson’s class were already in the water. She started scanning the pool from the shallow end, which was not the best observation place, and she walked to the lifeguard’s chair on the right hand side of the pool intending to mount it. She had not had time to do so before her attention was drawn to the incident on the other side of the pool.

HOW DID THE COURT VIEW THE “NEW” EVIDENCE?

  1. I conclude that there has been a remarkable departure from the second defendant’s pleaded case as set out at [34] above. Of the four points, the first two have been abandoned as flagrantly contrary to the operating procedure at this pool as described by Frank Palmer. The third point was abandoned in the account given by Ms Maxwell in her evidence. She told me that she was walking to the lifeguard chair intending to sit on it as the best point to observe the children in the pool. It was not, therefore, contended that either glare from the summer sun or oppressive heat made the chair unsuitable as the vantage point for scanning on that day. The consensus between the defence experts and Mr Palmer, that the lifeguard did not need to be remain in the chair the whole time, has thus been overtaken by this new account of events. In substance, Ms Maxwell now says that she was not deciding to scan from the poolside because she thought that was the best place on the day, but because she had not had time to get to the chair.
  2. I cannot accept that Ms Maxwell was prevented from adequately performing her duties as lifeguard because the class had started early when she was not present. If that had been her case, she should and would have spelt this out to others, not least her legal team, many years before hand. I am satisfied that the shift in her account is not explained by some recent jog of her memory, but the recognition that the timing evidence made her previous account untenable.

50. As the trial progressed my confidence in the reliability of the basic narrative of the children’s accounts strengthened. Each of their accounts seemed to me to have been a conscientious attempt to recollect what was, undoubtedly, a traumatic event. By contrast, the reliability of the evidence of three DSS teachers diminished. All three added details that were not previously mentioned. In my view, each gave some implausible explanations for omissions in previous statements. Ms Burlinson made assertions of fact that, when explored, transpired were based on debatable assumptions.”

WHEN SUPPLEMENTARY WITNESS STATEMENTS ARE NOT ALLOWED AT ALL

It is surprising that the  defendant was given permission to use the late witness statement in Woodlands (perhaps the claimant did not object given that it was going to do the defendant more harm than good). It is often forgotten that the Denton case itself was about late service of witness statements.

  • A 10 day trial was due to start on the 13th January 2014.
  • In late November/early December 2013 the claimants served six witness statements.
  • The Court of Appeal overturned the judge’s decision to grant the claimant permission to rely upon this new evidence.

“In our view the judge’s order was plainly wrong and was an impermissible exercise of his case management powers.”

“… the judge’s idea that allowing the trial to go ahead would mean conducting it on an “artificial basis” was, in our view, incorrect. It was the claimants’ own fault that they had not chosen to serve such evidence earlier, and to admit such evidence at that late stage necessitated the adjournment of the 10 day trial. Six experts and numerous factual witnesses were due to attend the trial. An adjournment would result in the protraction of proceedings which had already dragged on for far too long. It would cause a waste of court resources and generate substantial extra costs for the parties. It would cause inconvenience to a large number of busy people, who had carved out space in their diaries for the anticipated trial.”

RELATED POSTS ON WITNESS CREDIBILITY

1. Litigators must know about credibility.

2. Witness Statements and Witness Evidence: More about Credibility.

3. Which Witness will be believed?Is it all a lottery?

4. The witnesses say the other side is lying: What does the judge do?

5. Assessing the reliability of witnesses: How does the judge decide?

6.  Which witness is going to be believed? A High Court case.

7. The Mitchell case and witness evidence: credibility, strong views and reliability.

8. Witness statements and witness credibility: getting back to basics

9. Witness credibility: what factors does the Court look at?

RELATED POSTS ON LATE SERVICE OF WITNESS STATEMENTS

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