Peter Harthan

Barrister

Small Claims Hearings

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I know there is an intellectual debate about whether there is such a thing as objective truth or whether everything is just relative, but let’s leave that aside for the moment. It has no place here, it’s not that kind of blog. Rather, let’s take the following as our parameters;
i) There was a collision about which a correct description can be given
ii) Both drivers have different accounts of the same collision
iii) The accounts given by each party cannot both be correct as they are inconsistent with each other

One party’s account may be correct and the other wrong, or neither party’s account may be wholly correct. The Judge hearing the case must make findings based on the evidence they hear as to whose account they prefer and give Judgment according to which version they find the most likely.

Judges do their best. However, as in any endeavour involving human beings, some are better than others and mistakes are sometimes made. What I often find however is an abundance of faith from clients that the court will get it right. It then makes the blow even more crushing when, for whatever reason, the Court prefers the account given by the other driver.

The difficulties that the Court faces are substantial. The Judge wasn’t there to witness the accident. They must therefore go by which driver they find to be more credible. The likely victor in the claim is therefore not the driver whose account is closest to the truth of the matter but rather the driver who can present a credible account to the Court. In criminal cases an inarticulate accused does not suffer the same level of disadvantage as it is the Prosecution who must prove the case beyond all reasonable doubt. In civil cases however, the standard is the balance of probabilities, there is not an initial presumption in either party’s favour.

In this regard people from educated backgrounds have the advantage over those who are not. The middle class professional driving from meeting to meeting is likely to be more articulate in Court than a trucker or bus driver. Judges tend to drive cars and have a limited appreciation of the difficulties of driving heavy goods vehicles. Judges may or may not be good drivers themselves. No specialist knowledge of driving is required for hearing road traffic cases. Prejudices about driving are easily formed. Young male drivers often have an uphill task at hearings, especially if the allegation is speeding.

The nature of a road traffic accident is that it happens quickly, unexpectedly and with immediate feelings of shock. The brain often doesn’t really take it in at the time, and over the weeks and months until witness statements are made for court proceedings drivers can attempt to piece together the accident circumstances in ways that can vary substantially from what actually happened. The alternative view, of course, is that some people lie. Even so, unless there is some objective evidence to expose the lie, can it be easily detected?Indeed perhaps it is easier for a witness who puts forward a lie, so long as they keep it simple and straightforward, to appear more credible than a witness who is doing their best to recall honestly a shocking event from their memory.

The stock answer to all this is that both sides are represented by trained advocates who can test evidence, expose falsehood or error, and present their client’s case using skills that the client may not posses. Certainly cross examination is a skill, not easy to define but you know when its done well and when its done badly. And it often results in a clear direction for the Judge on which she can base her Judgment. However does it really assist in getting to the truth or is it just a glorified Victorian Parlour Game, loved by the educated middle class as they tend to be good at it.

In my opinion, in the usual factual matrix of a road traffic claim, the extent to which a person’s account stands up in cross examination is at best a very indirect and often a misleading factor as to whose account is closer to the truth.

According to evidence given at such hearings, no witness is ever in a hurry. No witness is ever doing exceeding the speed limit. And no witness is ever distracted, tired, stressed or giving anything other than 100% attention to the road. Of course this cannot be true, especially at the time of an accident. But parties, probably correctly, know that any admission of anything less than complete competence will likely result in them losing the case.

Against this background one might theorise that the findings of fact properly found by the Court on the evidence it hears might not accord with objective truth. But it is difficult to see how such a theory could be properly researched and given evidential support.