WHEN A WITNESS CHANGES A KEY PART OF THEIR EVIDENCE WHILST GIVING EVIDENCE AT TRIAL: THIS DOES NOT END WELL

November 4, 2021 · by · in Civil evidence, Personal Injury, Witness statements

In Murphy v Milton Keynes Parks Trust Ltd & Anor [2021] EWHC 2917 (QB) HHJ Crane considered that (relatively familiar) scenario of a party giving new evidence at the date of the trial.  The claimant, it must be emphasised, was found to be totally honest.  The case shows the importance of clarifying evidence precisely before even beginning the process of litigation.  A failure to have clarity can, and often does, lead to major difficulties.

 

“She conceded that it had been a long time since the accident and it is very hard to know exactly what had happened. She could not explain why this version had not been set out in her witness statement.”

THE CASE

The claimant brought a case alleging negligence and breach of duty on the part of the defendants after she had fallen in the street.  Up to the date of trial her case was that the cause of her fall was a depression in the street. At trial she gave evidence that her fall happened at a (slightly) different place.

THE JUDGMENT ON THE WITNESS EVIDENCE

 

    1. The exact location of the fall is important as it is relevant to which defendant, or both, might be liable. Also as Lloyd LJ said in James v Preseli Pembrokeshire District Council (1992) PIQR 114, Lloyd LJ:

 

“The question in each case is whether the particular spot where the plaintiff tripped or fell was dangerous….But if the particular spot was not dangerous, then it is irrelevant that there were other spots nearby that were dangerous or that the area as a whole was due for resurfacing.”

    1. The claimant’s case, until the day of trial, was that she had tripped/stumbled when placing her foot in a depression in the surface of the forecourt/pavement, which caused her to stumble and fall. This was set out in:

 

a) Particulars of claim [B1-18 – paragraph 3];

b) Reply to the defence [B1-35] and marked on photographs [B1-37&38];

c) Her witness statement, dated 11.07.21 [B1-52/&52 – para 9];

    1. At the trial, the claimant gave evidence and her account of the fall had changed. She said that she had tripped, catching her left foot, on uneven or broken paving just near the letter ‘G’ of the painted word ‘parking’ [See B1-64 photograph], where one can see two darker areas. This caused her to stumble, and as she put her other foot down, that was in the depression, so she continued to stumble and then fell. She ended up lying on the ground facing the wall which runs along the boundary between D1 and D2 land. She conceded that it had been a long time since the accident and it is very hard to know exactly what had happened. She could not explain why this version had not been set out in her witness statement.

 

  1. At B2-32&33 are two photographs with red circles at both the depression and the areas by ‘G’. These photographs are not attached to any statement and undated, but are part of the disclosure. The claimant said that she had put both of the red circles on the photograph.

 

    1. The claimant’s husband only saw the aftermath of the fall and the claimant lying on the ground. His evidence was inconsistent regarding where she was lying and did not assist me.

 

    1. All the measurements taken on behalf of all parties were of the depression. No one took any measurements of the area by the letter ‘G’ as this had never been part of the claimant’s case prior to trial. Andrew Hill, a chartered civil engineer, who carried out measurements of the depression for the claimant, gave evidence that he had been told that the fall was at the area of the depression. He had not been told of any other area or he would have measured that.

 

    1. I found the claimant to be an honest witness seeking to give an accurate account of the fall. However, as she conceded, the accident was a long time ago and was difficult for her to know exactly what happened given the shock of such an unexpected and quick event. It had never been her case prior to the day of trial that the area by ‘G’ was significant. I did not consider it credible that the claimant had marked the photographs at B2-32&33 and even if she had they had not been attached to her statement or formed part of her case about the mechanism and location of the accident prior to the day of trial. I am satisfied on the balance of probabilities that she did not trip/stumble around ‘G’ but stumbled when stepping into the area of the depression, around the white line, which caused her to fall.

 

THE RESULT

The claimant’s action was unsuccessful.

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