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Testing witness evidence against other documents

The Court of Appeal in this case concluded that a trial judge was not entitled to accept the claimant’s evidence without testing it against medical…

Summary

The Court of Appeal in this case concluded that a trial judge was not entitled to accept the claimant’s evidence that he had suffered knee and back pain immediately after a road traffic accident without testing it against medical records and other documents which contradicted his evidence.

Background

The claimant Mr Goodman was involved in a road traffic accident on 26 February 2004 when the defendant company's lorry collided with the offside of the claimant’s car, forcing it off the road and onto the pavement. The offside of the car was damaged so the claimant was provided with a replacement vehicle and he continued working for about three weeks and then went on honeymoon.

There was a dispute between the medical experts. The claimant’s medical expert considered that the claimant’s symptoms to his cervical spine, thoracic-lumbar spine and both knees resulted from the accident whereas the defendant’s medical expert considered the symptoms were constitutional. However both medical experts agreed that for the symptoms to be accident related, the claimant would have had to have suffered from symptoms in the days immediately following the accident. The trial judge found that the claimant had received a severe lateral jolt in the accident and that all the injuries complained of had been sustained in the accident.

Judgment

It was significant that the only evidence that the claimant had experienced symptoms immediately after the accident came from the claimant himself. The medical records and documents revealed:

  • The first time the claimant sought medical advice after the accident was over six weeks after the accident when he visited his GP complaining of heartburn and it was not until three months after the accident that he consulted his GP complaining of pain to his left knee.
  • In November 2004 he consulted his GP and it was noted that he had been all right for six weeks after the accident but when he returned to driving a manual car he had started to experience pain in his left leg when driving.
  • Neck symptoms were first recorded in February 2005 referring to a two month history of neck pain.
  • In August 2006 notes relating to an ergonomic assessment for driving his car recorded that he did not suffer immediate problems after the accident.
  • The claimant had sent an email to his line manager on 8 May 2006 in which he said he had not noticed any pain whilst driving the replacement automatic car for over a month after the accident.

In the circumstances the Court of Appeal found that the trial judge had failed to deal sufficiently with the documentary evidence and to explain why she was preferred the claimant’s evidence. The appeal was allowed and the case was remitted for a re-hearing.

Comment

Whilst acknowledging that the trial judge had had the advantage of seeing and hearing the claimant give evidence Moore-Bick LJ said "it is difficult even for experienced judges to decide by reference to the witness' demeanour whether his evidence is reliable. Memory often plays tricks and even a confident witness who honestly believes in the accuracy of his recollection may be mistaken. That is why in such cases the court looks to other evidence to see to what extent it supports or undermines what the witness says and for that purpose contemporary documents often provide a valuable guide to the truth."

This judgment reinforces the need for trial judges to test witness evidence against other available evidence including contemporary documentary evidence in cases where a witness' credibility is in issue.