WITNESS STATEMENTS AND CREDIBILITY: LATE CHANGE OF MIND DOESN’T HELP

There are many aspects of the judgment today of Mrs Justice Lang DBE in Sparrow -v- Andre [2016] EWHC 739 (QB) that are of interest.  Here I concentrate upon one aspect – witness credibility.

“In my view, such a late change in the Defendant’s evidence on a key issue significantly undermined his credibility as a witness.”

THE CASE

The case was an unusual one. The defendant’s car collided with the claimant’s car. The claimant got out of his vehicle and his car rolled backwards. Fearing for the safety of the children in the car the claimant attempted to hold the car back. He was overwhelmed and suffered crush injuries to his leg which were so serious that they led to amputation.

THE ISSUE

The defendant, in a witness statement, denied that his car was moving at the time of the collision.

  1. In his witness statement the Defendant said that his car had been stationary at the point of collision and that the Claimant reversed out of the disabled bay into the path of his vehicle. This was also pleaded in paragraph 1.2.5 of the Defence. However, in his oral evidence at trial, the Defendant said in cross-examination that he accepted it was possible that the Claimant was correct and that he reversed into the Claimant’s car. He could not be “100 percent sure” he had stopped. I considered that the Defendant’s admission of fault sounded genuine. In the light of this evidence, the Defendant’s counsel, in closing submissions, conceded that the Defendant was in breach of his duty of care by failing to keep a proper look out and colliding with the Claimant. In my view, such a late change in the Defendant’s evidence on a key issue significantly undermined his credibility as a witness.”
The judge’s assessment of the evidence went on:
  1. The Defendant’s evidence as set out in his witness statement was as follows:
“I felt a very light contact on my car. It was something that I heard rather than felt because it really was very gentle. My car was not jolted or shaken or moved from its position.”
He was cross-examined on this issue, and said it was no more than a gentle bumper touch. He said he heard a bump or bang, not the sound of a heavy collision. He was not shaken in the car, and he was not particularly worried.
  1. The Defendant would probably not have felt the impact as much as the Claimant because the Defendant’s silver Lexus was a 4 x 4 which was larger and 26% heavier than the Claimant’s black Lexus hatchback. The rear of his car was also protected by a layer of foam behind the bumper area. However, I also considered that the Defendant was not being truthful about the severity of the collision, which I concluded was more accurately described by the Claimant, whose evidence was supported in relation to noise by Mrs Pond-Jones and Mr Sawtell.
  2. In my view, the Defendant’s evidence to the court on the noise and impact was another instance of him seeking to minimise both the seriousness of the collision and his involvement in it. The first occasion was immediately after the collision when he drove away without first getting out of his car to inspect the damage, or exchange particulars with him, or at least speak to the Claimant to explain that he was just parking his car and would be back shortly. I did not find his explanation – that he was merely moving his car out of the way to let others pass – plausible, and I thought it was more likely that he hoped to escape any confrontation with the Claimant by driving to another part of the car park out of sight of the Claimant, and then walking into the Club.
  3. Next the Defendant minimised his involvement when he was interviewed by the police at the scene. The statement of PC Morrice read as follows:
“We were then approached by a French male Mr Arnoud Andre who explained that he had been attempting to park, the car park was busy and as he attempted to reverse into a space he had been stopped from doing so by a black Lexus, he then pulled forward into another space further up and past the bin area, as he was walking to the entrance of the club he saw the black Lexus rolling backwards with a male trying to stop it at the rear but it continued slowly stopping against a black post.”
PC Wall gave a similar account in his statement and added:
“He was asked whether there was any collision with the other vehicle which he denied.”
The Defendant said that he did not tell them that the black Lexus drove into the parking space he had been waiting for; that he did not deny colliding with the Claimant’s car; that he told them there had been a “bumper touch” and that was why they inspected his car for damage. I considered it was likely that the police partially misunderstood the Defendant’s account of events, probably because English was not his first language. I accepted that they must have thought there had been some contact between his car and the Claimant’s otherwise they would not have inspected his car to check for damage. Nonetheless, I also considered that he gave an account of events which was inaccurate, suggesting that the collision was not his fault and that it was less serious than it was.
  1. Subsequently, the Defendant also sought to minimise his involvement in the accident when he told his insurers and their solicitors that the Claimant was responsible for the collision because he was stationary when it occurred and the Claimant had reversed out of a parking bay into his path. He made a witness statement to that effect, and the Defence served on his behalf reflected his account of events. However, at trial he admitted that the Claimant was probably correct in his claim that he was stationary and the Defendant reversed into him.
  2. Overall, my assessment of the Defendant was that he was not a truthful witness.

THE RESULT

The judge then went on to consider whether the initial collision was causative of the accident.. She held that the damage suffered was foreseeable and not too remote. The claimant was 60% contributory negligent.

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