The High Court has reinforced the importance of witness evidence during cross-examination, and how this can impact upon decision-making at trial.
Facts
The case involved an injury suffered by the claimant whilst at work. The claimant, Mr Euan Cavell, was working as a subcontractor for the defendant construction company, Centaur Construction Limited, on a housing development in 2021.
The claimant was seriously injured when he was run over by a dumper truck that he had been driving. The accident happened as he attempted to leave the vehicle without having applied the handbrake and whilst the engine was still running. He was able to do this by using an unsafe ‘shortcut’, namely plugging in the seatbelt behind his back to circumvent the truck’s safety features which would have cut the engine once the seatbelt was unplugged. This meant that employees did not have to freshly restart the dumper each time.
The claimant brought his claim in common law negligence, alleging that his employer failed to maintain or provide a safe system of work, as well as take care for his safety. He also cited the Construction Regulations 2015 which provide that “a construction site must be…. made and kept safe for…a person at work there” (Regulation 17(2)).
Analysis
Several witnesses gave oral evidence at trial. Quantum had been agreed prior to the trial and the key issue for the court to consider was whether the defendant company had breached the duty it owed to the claimant to provide him with a safe place and safe systems of work. More specifically, the court was concerned with whether the claimant had been instructed to use the unsafe ‘shortcut’ prior to the incident, or whether he took it upon himself to adopt the shortcut contrary to the guidance received by his employer.
The defendant’s witnesses had worked together for decades and had a well-established relationship. They presented a united front that the claimant had not been instructed to circumvent safety procedures whilst working on the site, and they pointed to a near miss report, alleging that the claimant had almost had an accident on the day before the incident, as evidence of his propensity to disregard health and safety.
The question for the court, as is often the case, was who’s version of events to believe. On the witness evidence in front of the court, it might have drawn the conclusion that the claimant was indeed a reckless individual who had a flagrant disregard for health and safety and for whom a serious incident was an inevitability.
HHJ Alegre, however, considered the guidance in Gestmin SGPA S.A. v Credit Suisse (UK) Ltd [2013] EWCH 3560 and Muyepa v Ministry of Defence [2022] EWHC 2648 (KB) when weighing up the witness evidence based upon reconstruction. It was noted that human memory can be unreliable, particularly in litigation where individuals are asked to recall the details of events upon which they know a huge amount is at stake. That pressure can lead to both conscious and unconscious, but nonetheless powerful biases, which can affect allegations and oral evidence during cross-examination. External information can influence a witness’s memory, causing them to alter their beliefs and cause changes in their recollection of events.
The Judge noted that findings should be based upon inferences drawn from actual documentary evidence and known facts. It is important to avoid situations where a witness is believed simply because they display confidence in their account. Rather than accepting the evidence at face value, a court should utilise the cross-examination of witnesses as an opportunity to subject documentary evidence to critical scrutiny. This includes an assessment of a witness’s motivations, their potential for unconscious bias (e.g., supporting an employer out of loyalty), whether the witness changes their account, and whether their evidence is consistent with the other documentary evidence provided.
Here, the defendant’s witnesses were extremely limited in their responses under cross-examination. In addition, HHJ Alegre wrestled with the issue of the near miss report which he considered to be key. Whilst the report was documentary evidence and was produced shortly after the accident, the witness evidence in relation to its creation was less than compelling leading the Judge to conclude that it was more likely than not, fabricated after the accident forming the basis of the claim. In reaching that conclusion, the lack of a toolbox talk which should have taken place after the near miss to prevent future accidents occurring in similar circumstances, was considered to be telling. Further, the fact that the report completed following the actual accident was brief and described the claimant’s injuries as ‘cuts and bruises’ which the Judge described as disingenuous in circumstances where the claimant has been run over by a 9.5 ton dumper truck, suffering serious fractures. He concluded that the author of the accident report had understood that he was partially responsible for the accident as the claimant’s supervisor and had sought to minimise the damage caused.
Ultimately, the evidence pointed to the fact that the claimant had been instructed to use the shortcut by his employer, in their attempt to speed up production, and that the defendant’s witnesses very quickly realised that they could be seen to be liable for what happened to the claimant, and steps were taken to attempt to shift any suggestion of blame away from them.
Conclusion
The judgment highlights the importance of not merely accepting the accuracy of witness evidence but rather considering its reliability in the context of the documentary evidence available, witness behaviour and motivations and whilst drawing inferences from the lack of certain documentation, in this case the lack of a tool box talk following the alleged near miss. It is important that evidence, both available and unavailable (but expected) is critically analysed by those presenting and defending claims in order to reach conclusions about the likely strength of their case and to provide clients with strategic advice.