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High Court rejects submission that the objective evidence should be taken as the primary source of reliance compared with witnesses' recollection, even in a road traffic accident from over five years ago: Barrow & Ors v Merrett & Anor [2021] EWHC 792 (QB)

22/04/21. This case will provide a helpful guide to how a court assesses the evidence in a trial on liability in a road traffic accident where the events happened some time ago. In particular, it demonstrates that the recollection of witnesses will typically be the evidence of primary importance.

Relevant facts

On 7 October 2015, Felix Barrow, a child, was crossing the road on his way to school when his life was changed by a car hitting him. However, it was disputed whether the Defendant was at fault for this accident. Each party had fundamentally opposing recollections. The time of trial, there was considerable expert evidence to assist the Court in deciding what happened.

The questions for the Court were simple:

“(i) Was Felix running or walking across the road immediately prior to the collision?

(ii) What was Felix's likely body position at the time of impact?”

The Claimant asserted that Felix was walking across the road when he slipped backwards. It then took several seconds for him to start getting to his feet, and while he was doing so he was struck by the Defendant’s car.

The Defendant stated that he was running across the road at the time of the accident. While running, he likely slipped forwards and moments later he was struck by the car: it was too late to take evasive action.

How to analyse the evidence in this case?

As mentioned above, by the point of trial, over five years later, there was significant expert accident reconstruction evidence, and memories had faded. Counsel for the Claimant, Susan Rodway QC, therefore submitted that the witness evidence in the case should be treated as a secondary source because the contemporaneous documentation and expert evidence provided a more objective and reliable source of evidence.

She cited the judgment of Leggatt J in Gestmin SGPS (SA) v Credit Suisse (UK) Ltd & Anr [2013] EWHC 3560 (Comm), in which he observed that in complex commercial claims, the existence of substantial amounts of contemporaneous documentation will often provide a more reliable source of evidence than the recollection of witnesses many years later.

The judge considered that there was no need to extend the principles of Gestmin to this case. He noted that in a commercial case there is a substantial amount of documentation, an 'electronic footprint', detailing contemporaneously what the parties said and thought in meetings about the relevant transactions. A road traffic accident is clearly...

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