Bronte Brown & Anor v Cosmin Sestras & Ors

In civil proceedings, hearsay evidence may carry weight even where it is uncorroborated and the maker cannot be cross-examined. The court must assess reliability by considering the circumstances identified in section 4 of the Civil Evidence Act 1995, while keeping the legal and evidential burden on the party asserting the case.

Expert accident evidence assists with scientific or technical matters. It does not determine primary factual issues or express conclusions on negligence, which remain matters for the trial judge. Findings on identification and causation may properly be reached by drawing together contemporaneous accounts, documentary evidence and other circumstantial material on the balance of probabilities.

The claim arose from a serious road traffic accident on the A10. The claimants alleged that the first defendant drove a black Mercedes dangerously, undertaking and cutting in front of the vehicle in which they were travelling. The first defendant denied involvement and alleged mistaken identification. The third defendant, the claimant’s mother and driver of the other vehicle, was alleged in the alternative to have contributed by failing to control her vehicle.

The central issues were whether the first defendant’s Mercedes was correctly identified, whether his driving caused the accident, and whether the third defendant was negligent. The court considered lay, expert, documentary and hearsay evidence, including an anonymous telephone call identifying the first defendant’s registration number.

1. Liability. Judgment was entered for the claimants against the first defendant, indemnified by the second defendant. The claims and counterclaim against the third and fourth defendants were dismissed.
2. Hearsay. The anonymous caller’s evidence was admissible. Applying section 4 of the Civil Evidence Act 1995 and the approach in Welsh v Stokes [2008] 1 WLR 1224, the court considered contemporaneity, the absence of multiple hearsay, the absence of an apparent motive to misrepresent, the recording’s reliability and the impossibility of producing the caller. The evidence was not excluded merely because it was untested and anonymous. It was given weight as part of the evidence as a whole.
3. Assessment of recollection. The court applied the guidance derived from Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm), as summarised in Kimathi and others v Foreign and Commonwealth Office (2018) EWHC 2066. Contemporaneous or near-contemporaneous accounts were generally more reliable than recollections formed after many years, although each witness’s evidence required individual assessment.
4. Expert evidence. Following Liddell v Middleton, accident reconstruction experts could assist with scientific analysis of tyre marks, vehicle damage and timing. They could not determine disputed primary facts or express conclusions on whether a party had been negligent.
5. The combined evidence established, on the balance of probabilities, that the first defendant drove the black Mercedes, tailgated the claimant’s vehicle, undertook it at speed and cut in front of it, causing the collision. The third defendant reacted reasonably to an emergency and was not negligent. The pleaded collision-assistance system did not prevent tailgating or exclude the first defendant’s involvement.

First-instance liability judgment. No prior appellate decision is stated in the judgment.