Master Bronte Brown v Mr Cosmin Sestras
| Jurisdiction | England & Wales |
| Judge | Howells |
| Judgment Date | 22 May 2023 |
| Neutral Citation | [2023] EWHC 1220 (KB) |
| Court | King's Bench Division |
| Docket Number | CASE REF: QB-2020-002235 |
[2023] EWHC 1220 (KB)
HER HONOUR JUDGE Howells
(SITTING AS A DEPUTY HIGH COURT JUDGE)
CASE REF: QB-2020-002235
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Approved Judgment
Introduction
On the 16 th of July 2017, at about 6.50pm a serious road traffic accident occurred on the southbound carriageway of the A10 between Hertford and Hoddesdon. This is a dual carriageway, providing two lanes of travel in each direction. The first Claimant, Bronte Brown (who I will refer to as the claimant for the balance of this judgment), suffered life-changing injuries in that accident. At the time he was a rear seat passenger travelling in a Peugeot car driven by his mother Ms Danielle Sellers (the 3 rd Defendant). Also in the car, sitting in the front passenger seat was Adrian Graham, his mother's then partner. Bronte sat behind Mr Graham. His sister Lacey sat in the rear middle seat. In the rear offside passenger seat was Bobby Leigh Graham, the son of Adrian Graham. Bobby was then almost 13. The undisputed evidence is that the group had a enjoyed a family day together, of going swimming and then watching a film. They were travelling to take Adrian Graham and Bobby Leigh Graham home. Bronte, then aged 9, was annoyed by his shoes being uncomfortable; he therefore unstrapped himself momentarily from his seatbelt, to remove his shoe. He was told off by his mother, the driver. At about the same time the occupants in the Peugeot, which was travelling in the outside of the two lanes, became aware of a dark car which was right up behind them, effectively tail-gating them. Ms Sellers, Mr Graham and Mr Leigh Graham all identified this as a black Mercedes Benz vehicle (and provided other information as to its identity). That dark vehicle then moved quickly into the inside lane, behind a lorry that was positioned there, and cut up in front of the Peugeot in a sudden undertaking manoeuvre. Unfortunately, Ms Sellers lost control of her vehicle, which crossed into the inside carriageway, left the road, and was thrown down the embankment into a nearby field. Young Bronte sustained the most serious of injuries. The dark car which had created the hazard, drove off.
It is the claimant's case that Mr Sestras, the first defendant, insured by the 2 nd defendant, was the driver of the dark car in question, which was his own Mercedes Benz vehicle. It is alleged that it was his driving, and this dangerous undertaking manoeuvre, which was the cause of the accident. Further, or in the alternative, it is alleged in the pleaded case, that Ms Sellers, the 3 rd defendant insured by the 4 th defendant, is in part to blame for failing to control her vehicle.
However, Mr Sestras denies that he was in any way involved with this accident. Although he accepts that he was driving his black Mercedes Benz on the A10 in or around that location at about the time of the collision, he knows nothing about this incident and was not involved in any way. It is a case, he says, of wrongful identification. The dark car was not his Mercedes, he was not involved with any accident, nor did he drive in the manner alleged. He does not dispute that the manner of driving alleged against the driver of the dark car would have been dangerous; but it was, he says, the driving of an unidentified other. His car is fitted with driver assist technology which he alleged in his pleaded case, meant it could not tailgate in the way described. Further, or alternatively he blames the 3 rd Defendant for losing control of her vehicle.
Having heard and considered all of the relevant evidence on the trial of liability in this matter the following issues now require my determination:
a) Has the Mercedes driven by the first defendant been correctly identified as involved in the accident?
b) If ‘yes’ to a., was the accident caused by the negligent driving of the first defendant: D1?
c) Was the accident caused by the negligent driving of D3?
The law
I remind myself that the Claimant has the burden of proving his case on the balance of probabilities. He has to establish that the dark car was driven by the 1 st defendant, that the driving of the 1 st defendant fell below that of a reasonably competent driver, and that such caused the accident. Further, or in the alternative, he has to prove, again on balance, that the driving of his mother in failing to control her vehicle or otherwise avoiding this accident, fell below the appropriate standard.
The evidence that I have considered in this case is a combination of lay and expert evidence. It is also a mix of oral evidence, written agreed evidence and hearsay evidence both written and recorded.
A critical part of the hearsay evidence is that of an anonymous caller to the police. I have heard the recording of that telephone call and considered the transcript. On the evening of the accident, at 22.37 (less than 4 hours post-accident), the police force received an anonymous call which they traced to a phone box in Cheshunt. That caller described being a witness to the accident in question, seeing the dark car, which he identified as a Mercedes which was “jet black” with blacked out windows, undertaking the claimant's vehicle and driving in a dangerous manner. He saw the “small vehicle” (the claimant's, although the caller thought it might have been a Corsa or other small hatchback) lose control and leave the road. He saw the Mercedes speed off. He followed that Mercedes vehicle for about 4 to 5 miles, he said, to a roundabout in Harlow, and managed to take down the vehicle's registration number. The registration number provided by the anonymous witness was of the 1 st Defendant's black Mercedes Benz (which had blacked-out rear windows). The caller made it clear that he would not be willing to provide his personal details or be a witness in any court proceedings.
As the caller was not traced, no witness statement was obtained from him and, of course, he was not called to give evidence. As such the claimant served a Civil Evidence Act hearsay notice seeking to rely upon the recording and transcript of that phone call.
It is accepted by the parties that the hearsay evidence is admissible in evidence, but the weight which can be given to it must be weighed with care. As stated in Welsh v Stokes [2008] 1 WLR 1224 by Dyson LJ the correct approach was to consider those factors set out in section 4 of the Civil Evidence Act 1995 which provides:
“4 Considerations relevant to weighing of hearsay evidence.
(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following—
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”
Further Dyson LJ stated:
“22 Even if the hearsay evidence were the only evidence on which the claim was based, I would not accept that this was necessarily a reason for giving it no weight. It would depend on all the circumstances. I accept that there will be cases where it is so unfair to hold a defendant liable solely on the basis of hearsay evidence that a court should place little or no weight on the evidence. Consideration of the factors stated in section 4(2) will point the way, but will not necessarily be determinative. In some cases the defendant may be able to adduce evidence to contradict, or at least cast doubt on, the hearsay evidence. But there will also be cases, like the present, where the defendant is not in that position. Apart from the unidentified motorist and the claimant, there were no witnesses to the accident. In such a case there may be said to be unfairness to the defendant in having to face hearsay evidence which he cannot directly challenge. On the other hand, there would be unfairness to the claimant to place no weight on the hearsay evidence, since without it her claim would inevitably fail.
23 The decision what weight (if any) to give to hearsay evidence involves an exercise of judgment. The court has to reach a conclusion as to its reliability as best it can on all the available material. Where a case depends entirely on hearsay evidence, the court will be particularly careful before concluding that it can be given any weight. But there is no rule of law which prohibits a court from giving weight to hearsay evidence merely because it is uncorroborated and cannot be tested or contradicted by the opposing party. I do not consider that the statements in the authorities relied on by Miss Rodway in her skeleton argument support such an extreme proposition.”
I accept that considerable care must be exercised in consideration of hearsay evidence. Such evidence has not been tested in cross-examination. The motivation behind the provision of such evidence and the reasoning behind the unwillingness to be involved in police or other proceedings has not been clarified. There...
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