The judgment of His Honour Judge Lopez in Bartlett -v- The English Cricket Board Association of Cricket Officials 2015 WL 5037730 has some interesting lessons in relation to the treatment of witness evidence. In particular what happens when the claimant’s evidence differs from the account given in the letter of claim and witness statement.
“It is a matter of common sense and experience that, in general, the recollection of a witness is likely to be better closer to the index incident than further from the event in question. Put bluntly, memories are likely to fade and the more time that passes the greater that risk. Further, it also the case that, in general, a witness’ recollection of an event is likely to be better if it involves an unusual incident or an unfolding series of events rather than an occurrence which is of no real interest at the time and only later becomes relevant or important.”
“There is a real danger that with the significant passage of time a witness may replay the events in their mind resulting in a greater chance that their “recollection” becomes influenced by hindsight, sympathy or extraneous materials. In such a case there is a real risk that the witness may recount what they consider to be a genuine recollection of the events although the same has been affected by the passage of time and tainted by hindsight”.
The claimant was injured when fielding in a cricket match and performing a sliding stop. His case was that he was injured due to the unsafe condition of the cricket ground and that the match officials had negligently allowed cricket to be played on a ground that was too wet.
- The statements made nearer to the date of the incident were likely to be more reliable.
- The claimant’s account of the accident in his oral evidence differed to that in the letter before action and his witness statement.
- The witnesses for the claimant were honest but their views had been affected by “hindsight”.
THE JUDGE’S ASSESSMENT OF THE WITNESSES
200. It is only in a minority of cases where there is a factual dispute between the parties and their respective witnesses that one party will be found to be untruthful. In my judgment this not such a case. In the vast majority of cases where such a dispute arises one party is giving an accurate account of the events and the other an incorrect but nevertheless genuinely held version of the incident as they perceived it. I find this is explanation for the conflict of evidence in this case.
201. It is a matter of common sense and experience that, in general, the recollection of a witness is likely to be better closer to the index incident than further from the event in question. Put bluntly, memories are likely to fade and the more time that passes the greater that risk. Further, it also the case that, in general, a witness’ recollection of an event is likely to be better if it involves an unusual incident or an unfolding series of events rather than an occurrence which is of no real interest at the time and only later becomes relevant or important.
202. There is a real danger that with the significant passage of time a witness may replay the events in their mind resulting in a greater chance that their “recollection” becomes influenced by hindsight, sympathy or extraneous materials. In such a case there is a real risk that the witness may recount what they consider to be a genuine recollection of the events although the same has been affected by the passage of time and tainted by hindsight.
203. Although the Claimant’s witness statement was made in June 2014 – almost two years after the incident, the statements of Mr Thomas and Mr Brown were made just over two months and that of Mr Homer just over three months after the event. In the case of Mr Homer he had expressed his concerns in writing about the decision to play on Facebook within hours of the accident. The statements of Mr Jennings and Mr Waters were made in early June 2014 – just short of two years after the Claimant’s accident. Therefore, at a similar time to that of the Claimant. Mr Waters did, however, set out his account of events in his own detailed match report written and submitted on the day after the accident.
204. The statements of Mr Thomas, Mr Brown and Mr Homer and the match report by Mr Waters were, therefore, made much closer to the time of the index events than the statements of the Claimant and the umpires. That is a factor to be taken into consideration when determining the witnesses’ accounts of the events in question.
205. However, whilst the statements of the umpires were made at a much later stage, it is clear that they inspected the ground as part of their duties and responsibilities as presiding officials. Therefore, their observations and evaluation of the conditions were made with a view to reaching a quasi-judicial decision as to the suitability or otherwise of the ground for play. It is of note that Mr Waters’ comments in the match report he prepared within 24 hours of the incident are wholly consistent with his written and oral evidence and served as a detailed aid memoire to the conditions he had observed.
206. The umpires were, in short, much more than casual observers. In order to reach their decision they made a detailed assessment of the conditions and, therefore, I find it is likely on the balance of probabilities that they were in the best position – as compared to those who carried out a more cursory appraisal, to accurately determine whether it was dangerous or unreasonable to play. Further, the umpires had no hidden agenda or extraneous factors which they took into account in their decision making process.
207. I have already set out in detail earlier in this judgment the evidence of the witnesses as to their opinion of the state of the ground on the day in question. However, in summary, the Claimants indicated the original square had puddles and surface water, Mr Thomas that it was “flooded”, Mr Brown that it had puddles and Mr Homer that it was “wet and slippery”. Ms Stevens described the “pitch” as “soggy” but it is unclear whether that relates to the square or the whole of the ground. However, the former seems more likely than the latter. Mr Jennings and Mr Water both agreed that the square originally prepared to play upon was dangerous due to the presence of water and that is why they asked to move play to a drier part of the pitch and delay the start of play.
208. As to the condition of the outfield. The Claimant and Mr Thomas described it as “boggy” whilst Mr Brown and Mr Homer portrayed it portrayed it as “soggy”. In contrast, whilst Mr Jennings and Mr Waters accepted that the grass in the outfield was long and the ground a “little soft” they were both adamant that the ground in that area was neither “soggy” nor “boggy”. Further, they rejected any suggestion that the outfield was “squelchy” or had puddles or area of standing water.
209. Since the Claimant brings the action it is, therefore, for the Claimant to prove, on the balance of probabilities, that his description and that of his witnesses of the ground and not that of the umpires is correct.
210. The team captains did not agree whether the game should be played and so it fell upon the umpires to make the decision whether to proceed or not. To do so required the umpires to determine if it was dangerous or unreasonable to play. The final decision rested with the umpires but they were entitled to, and I find they did, take into account the representations made on behalf of the teams – Moseley Ashfield against playing and Solihull Municipal in favour of proceeding.
211. The umpires were under a duty to inspect the ground – the square, the infield and the outfield, so as to evaluate the conditions thereof and reach a decision as to the suitability of the ground for play. The evidence of both Mr Jennings and Mr Water, which I accept, is that they carried out a thorough and careful inspection of the ground before reaching a view of the suitability of the ground for play.
212. Further, whilst both umpires accept that Mr Bissett was vociferous in making his views known that he wanted the game to proceed they were adamant that he did not place them under the undue pressure that was suggested and, in any event, they were not adversely influenced by his views. I find that the decision that it was safe to play – albeit on a different square and with a delayed start, was their own and reached after a careful and considered evaluation of all the relevant factors. I accept the umpires’ evidence on the point.
213. The diligence with which the umpires approached the inspection and subsequent evaluation of conditions is evidenced by their decision that it was too dangerous to play on the originally selected square and at the arranged start time as a result of which they had a drier square prepared and delayed the start. Those decisions confirm that they were not prepared to sanction a game proceeding before ensuring that, in their opinion, it was neither dangerous nor unreasonable to play. I find it displays that safety of the players was a primary consideration in their decision making process.
214. Mr Jennings and Mr Waters were clear that they both thoroughly inspected the ground in order to ascertain if the conditions were safe to allow play to proceed. They were both equally clear that had it been dangerous or unreasonable to play cricket that day they would not have sanctioned the game proceeding. I accept their evidence on the point. I find that the umpires would not have allowed the desire to play whenever possible to override the requirement that play should not occur if it would be dangerous or unreasonable to do so.
215. Mr Jennings described how he carefully and systematic inspected all areas in a “zigzag” pattern – including the square, wickets, the infield, the outfield and the bowlers’ run ups. He was adamant that he did so in a methodical and logical manner so as to ensure that he inspected all relevant areas. Mr Waters was equally clear that he carefully inspected all of those areas but not alongside Mr Jennings – who used his systematic approach, as his own technique was to “potter about”. Both umpires were adamant that at no time during the day were they concerned for the condition of the outfield, save the grass was a little longer than was ideal, and certainly not such as to cause them to believe it was unsuitable for play as it was dangerous or unreasonable to proceed.
216. The judgment of the umpires that the condition of the outfield was suitable for play is made more credible by their joint decision that the square originally prepared for the match was too dangerous and play not only needed to be moved to a drier square but the start time delayed. The umpires’ assessment of the conditions and decision in that respect is clear and cogent evidence that they were carrying out a detailed and proper inspection and had they felt that conditions in the outfield were unsuitable for play they would not have sanctioned the game proceeding.
217. Mr Jennings and Mr Waters were both clear that the decision to proceed with play, subject to revisionary measures, was unanimous. Each had carried out a careful inspection in their own distinctive manner and yet both had reached the same conclusion. It was not the case that one had had to influence or persuade the other.
218. Both Mr Jennings and Mr Waters were impressive witnesses. They gave evidence in a calm and confident manner. They both related their recollection clearly and precisely, readily accepting when unsure and made appropriate concessions in questioning.
219. Mr Waters was particularly impressive. It was he that drew attention, whilst being cross examined, to the fact that the trial bundle contained the pre 2010 Law 3.9 of the Laws of Cricket. He was at pains to point out in the short fallings of the originally selected square and that unless the square had been moved and time allowed before the match commenced the game would have been dangerous, not merely unreasonable, to play. Further, it was Mr Waters who had pointed out that after the game resumed following the accident one or two batsmen had found it slippy when turning for runs such that sawdust was applied and batsmen were warned albeit that thereafter there were no further incidents. However, Mr Waters was adamant that whilst conditions were far from ideal they were not dangerous.
220. The Claimant and his witnesses were less impressive about the prevailing conditions. I make it clear that I do not find that anyone in this case was being untruthful to the Court. I am sure the Claimant and his witnesses believe the state of the ground was such that it was unsuitable for play. However, I find, on the balance of probabilities, that the conditions were as stated by Mr Jennings and Mr Waters.
221. I find that Mr Jennings and Mr Waters were both truthful and persuasive in their account of the inspection and the condition of the square and outfield. I find that the conditions on the square at the time the game commenced at 3.45 p.m. were not ideal but they were neither dangerous nor unreasonable in which to require the teams to play. The measures taken by the umpires in moving the square to one higher up the incline and so to a drier area and the delay in the start of the game had been sufficient to make play safe.
222. Further, I find that the condition of the outfield was not as described by the Claimant and his witnesses, namely “boggy or “soggy”. On the contrary, I find that it was as the umpires’ recall – a “little soft” with grass slightly longer than they would have wished but perfectly safe to play. In short, it was neither dangerous nor unreasonable to sanction play because of the state of the outfield.
223. In reaching my findings as to the conditions of the ground I have, of course, taken into account the evidence – both oral and written, of the Claimant and his witnesses. I accept that the Claimant and his witnesses genuinely believe that the condition of the ground was such that it was both dangerous and unreasonable to play. However, I find, on the totality of the evidence, that their view, whilst genuinely and firmly held, was incorrect. For the reasons set out earlier in the judgment I prefer and accept the evidence of Mr Jennings and Mr Waters.
224. Therefore, I find that the Defendant was not in breach of the duty of care owed to the Claimant and the other players.
225. The Claimant was unable either in his written or oral evidence to indicate the mechanism of his accident. It is clear, from his own account and those who witnessed the incident, that he did not trip, slip or stumble on the wet grass. It is equally clear that he made a deliberate and conscious choice to field the ball by using the well known fielding technique of the sliding stop.
226. Mr Johnston submits on behalf of the Claimant that the Court should be compelled to the view, on the balance of probabilities, that the condition of the ground was a material contributory factor to the accident. He suggests that any submission to the contrary amounts to an affront to common sense. His submission is that the Claimant had performed the sliding stop manoeuvre innumerable occasions in the past without incident and the only difference on the day in question, when he sustained injury, was the poor state of the ground. Therefore, he submits the condition of the ground either caused or materially contributed to the Claimant’s accident. Mr Johnston draws attention to the recollection of the Claimant and Mr Thomas that there was a mark in the mud near the point of the accident as being evidence to support Mr Thomas’ theory that the Claimant’s boot got stuck in the mud.
227. There is, however, a fundamental, and I find fatal, flaw in the submission made on behalf of the Claimant. Although the Claimant may have carried out the sliding stop on many previous occasions in the correct manner – as he is a right handed fielder that would involve leading with his right outstretched leg, it seems that he may have carried out the procedure incorrectly – leading with his left leg, when the accident occurred.
228. Whilst Claimant gave oral evidence that he led with his right leg and had his left leg under his body he had indicated otherwise in the letter before action of August 2012 and in his own statement of June 2014. In both he indicated that the left leg was the outstretched limb. The use of the wrong leg when carrying out the procedure is of crucial importance. As Mr Patel indicated in his evidence, which was unchallenged on the point, it is essential that the technique is performed correctly as failure to do so may result in injury. Importantly, Mr Patel stressed the necessity of ensuring that when the upper or leading leg makes contact with the ground it is parallel to it, so as to ensure the upper leg absorbs the impact rather than the knee. Further, Mr Patel warned that if the upper leg is at an angle to the ground, rather than parallel to it, there is a risk of the knee “digging into the ground resulting in injury”.
229. The fact that the Claimant had indicated in his statement that he carried out the sliding stop with his left leg leading – which is contrary to the correct technique for a right handed fielder, was first raised in the paragraphs 13, 14 and 15 of Defendant’s Skeleton Argument, dated the 17th December 2014. Therefore, by the time the Claimant gave his oral evidence to the Court at this hearing, if not before, he was, or should have been, well aware that the issue of which leg was outstretched in the sliding manoeuvre was likely to be a significant factor in the case.
230. The Claimant’s evidence before the Court that (i) the letter before action and his statement were both incorrect as to which was the leading leg; and (ii) he had failed to notice the mistake before, was unconvincingly and implausible. He is an intelligent and articulate man. The Claimant had even indicated at the start of his oral evidence that he had read his statement and the contents were true and correct. I find, on the balance of probabilities, that on the day in question the Claimant carried out the sliding stop (i) leading, contrary to safe practice, with his left leg; (ii) failed to keep the upper leg parallel to the ground and, as it was at an angle thereto, (iii) it dug into the ground causing not only injury but a mark in the mud later seen by the witnesses.
231. I find the account given by the Claimant in the letter before action and his detailed statement in these proceedings as to the way in which he executed the sliding stop technique was accurate and that which he gave in his oral evidence was incorrect. Further, I find, on the balance of probabilities, that the use of the incorrect technique caused the injury to the Claimant’s knee in a manner that is a well known risk if the technique is carried out incorrectly. The Claimant was not, therefore, an accurate historian of fact. I did not find him to be an impressive witness.
232. In any event, I find that the condition of the ground in the outfield was not the cause or a material contributing factor of the Claimant’s injury.
233. The extent of the Claimant’s complete inability to give any explanation as to the mechanism of his accident is borne out by a careful examination of his medical records completed on the day of the accident – at page 163 of the bundle, and the explanation given to his own medical expert for these proceedings – at page 139, both of which, contrary to his case and that of any witness to the incident, suggest he was injured when “running” and in the former that he “slipped” when doing so.
234. I dismiss the Claimant’s claim.
235. There will be judgment for the Defendant.”
evidence before the court.”
- This “problem” with witnesses: It is not a one way street.
- 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?