piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Vicarious Liability for a non-employee - again

XVW & YZA v X School for Girls & Adventure Lifesigns Ltd [2012] EWHC 575 (QB) This action was brought by two Claimants and arose out of a school trip/expedition to Belize in July/August 2005. The Claimants were pupils at the D1 school; they were aged 16 years and 15 years respectively. D2, a UK company, assisted with the planning of the expedition, as well as providing two ex-military adult staff to accompany the same. The expedition was a developmental training experience for the participants; it was not a holiday. The young women who participated were actively involved in the choice, selection, planning and budgeting for the index expedition. A teacher from D1 also accompanied the expedition. During the course of the expedition it was necessary for the planned itinerary to be altered as a result of a hurricane which affected the area (Mexico) to which the group intended to travel. The young women participating in the expedition were actively involved in the change of plan and the arrangements for alternative accommodation. A local Belizean company provided accommodation to members of the expedition party in return for work undertaken by the participants and an agreement to undertake trips with the Belizean company to be paid for by the participants from funds held by them. A local man (A) was the son of the owner of the Belizean accommodation and might have been co-owner of the resort where the group stayed. During the early hours of the morning of 1 August 2005 A raped the Claimants and another of the young women on the expedition who was staying in the same cabana accommodation at the resort. The Claimants alleged that they had sustained psychiatric injury as a result of the sexual assaults. They brought proceedings against the Defendants in respect of the alleged intentional wrongdoing of A. The Claimants’ case was that D1 and/or D2 were vicariously liable for the conduct of A. Alternatively, it was submitted on their behalf that the scope of D1 and/or D2’s duty of care extended to the intervening criminal conduct of A (which was, the Claimants alleged, foreseeable) and that there had been a number of causally relevant breaches of duty by D1 and D2 with respect to the planning of the expedition, the supervision of the expedition, the vetting of A and the security of the Claimants. The Claimants relied on a number of alleged incidents of inappropriate behaviour by A prior to the assaults (although it was denied that these incidents had come to the notice of D1 or D2’s staff). The trial took place before Mackay J on 27 – 29 February and 1 March 2012. The Claimants’ claims were dismissed and it was held: (1) A was not an employee of D1 or D2 and his involvement, such as it was, in the expedition was sufficiently limited that it was not just and fair to describe him as a person for whose actions D1 or D2 were vicariously liable (Lister v Hesley Hall Limited [2002] 1 AC 215 (HL(E), JGE v The English Province of Our Lady of Charity & Anor. [2011] EWHC 2871 (QB) and EL v The Children’s Society [2012] EWHC 365 (QB) considered, among other cases; (2) The scope of the duty of care was to be determined by application of the Caparo test: was it fair, just and reasonable for the duty to extend as far as the Claimants contended; (3) There was no causative breach of duty in this case. It was not alleged that A had a criminal record which went undiscovered or that Belize had a UK-style system of CRB checks. The local police would, if they had been consulted in advance, probably have given A a good character reference. The school party was continuously supervised by 3 experienced adults and, short of placing a guard outside each cabana occupied by the school party at the resort, there was no means by which to defeat A’s assault (he had been careful to keep his conduct towards the young women, prior to the assaults, hidden from the adult staff).  This case is the latest in a number of recent decisions in which vicarious liability is discussed in respect of persons who are not employees (or even deemed or temporary employees) of the Defendant. These cases are discussed in the most recent (March 2012) edition of the Chambers Personal Injury Briefing  and in Lisa Dobie's post  below.

The Animals Act rears its head again…

‘Oracular and opaque’ are the words Jackson L.J. uses of the Animals Act in a judgment (Goldsmith v Patchcott [2012] EWCA Civ 183) which is impeccably logical and clear. The facts are the easy bit: ‘Red’ was a horse who reared and then bucked violently, throwing the claimant to the ground and then striking her in the face with its hoof and causing her nasty injuries. Hold tight for a moment whilst we canter through the law: If you are dealing with an animal which is not of a dangerous species then you need to establish that (a) the damage the animal caused by the animal is likely to be severe unless the animal is restrained (b) the likelihood of damage is caused by characteristics of the animal not normally found in animals of the same species or not normally so found except at particular times or in particular circumstances and (c) those characteristics were known to the keeper at the time. It is a defence for a defendant if the claimant voluntarily accepted the risk (s.5(2)). The judge found that horses’ characteristics included bucking in particular circumstances when they were startled or alarmed and thus (b) above was made out. The claimant took issue: horses do not only buck when they are startled or alarmed. Jackson L.J. said that was a conclusion the judge was entitled to come to on the evidence. Strikingly however there was no expert evidence in this case. Longmore L.J. said that the appeal on (b) would have succeeded if there had been expert evidence that bucking was a normal characteristic of any horse in any circumstance. The lesson for defendants is to go to court armed with such expert evidence. However the claim failed because the judge found that the claimant had voluntarily accepted the risk of Red rearing and bucking. The claimant’s argument was that she had not voluntarily accepted the risk of the horse rearing and bucking as violently as it did. The Court of Appeal found that the claimant did not need to foresee the precise degree of energy with which the animal would engage in its characteristic behaviour. This case includes a useful review of the authorities on sections 2 and 5 of the Animals Act for anyone who practices in this field…   (Photograph courtesy of Freefoto.com)

Whiplash: Again ...

A short article in yesterday’s Guardian caught my eye (Let’s not add insult to personal injury: 20.2.12). It wasn’t the author’s commentary on David Cameron’s recent “Insurance Summit” that attracted my attention (see, Laura Johnson’s PIBLAWG piece a week ago). It wasn’t the reporting of the statistics, although it has to be admitted that these are eye-popping (the CRU apparently reports a 52% increase in reporting of motor personal injury claims – up to 790,999 claims in 2010/11. The reported statistics are not consistent, but everyone seems to agree that there has been an increase in claims and, er/um, the increase has been massive: can we believe that all of these claims are entirely genuine?) Instead, my eye was drawn to the following, “The practice of insurers making a compensation offer to injured people before they have even had a proper medical examination has become more widespread, and they are trying hard to get to third parties quickly and settle their claims before they have gone to a solicitor for independent advice. This all encourages people to have a go. Why, instead, have insurers not challenged in court claims they believe to be bogus? Interestingly, one outcome of the Downing Street summit was a commitment that they will. [emphasis added by me]” It remains to be seen whether the insurers’ “commitment” proves to be real, but we probably all know why such claims are not contested to trial. First, by the time that a modest whiplash claim comes to Court, the costs will usually have outstripped by a considerable margin the amount that is at stake in the claim itself: an obvious reason why insurers will instead seek to settle claims early – even those that are believed to be bogus (indeed, contesting a bogus or fraudulent claim will generate greater costs than taking issue with discrete aspects of a claim believed to be genuine). The problem, of course, with paying Danegeld of this kind is that it simply encourages more claims – as the statistics referred to above make clear. It also removes work from solicitors, although insurers probably won’t lose any sleep over this. Second, it is not easy to satisfy a Court that a claim is bogus; most Judges will apply – whether or not this is acknowledged – a Hornal v Neuberger Products [1957] 1 QB 247 approach to any allegation that a claim is bogus/fraudulent and will require a quantity of cogent evidence in order to find such allegation proved. Some medical expert witnesses are adept at finding a whiplash injury in factual circumstances where it would be surprising (at least to the lay person) that a Claimant had sustained any injury at all. Where such medical evidence is available, it is not easy for the Defendant to challenge this without incurring speculative costs. The result is that, by a default process, the claim will succeed/be settled. Third, it has to be said (on the finest anecdotal evidence) that on occasions the Courts have encouraged questionable claims. One is reminded of the increasing volume of highway tripping claims (some decades ago); the advancing tide was only retarded when the higher Courts started to dismiss these claims and provided guidance on what needed to be proved in order for the Claimant to succeed. If the Judiciary had been less credulous as to whiplash then we might all – genuine Claimants and insurers alike – have been in a happier position. If the Guardian piece is to be believed, we seem now to be reaching a position where only the bravest insurer would challenge a whiplash injury claim at trial; it will be interesting to see whether recent Government action will make any difference.  

The English Claimant in Spain

  Gallagher v Wright (Manchester CC, Recorder Gregory, 25 November 2011 and 2 February 2012)   The Claimant (G) was a rear seat passenger   in a car travelling to Alicante airport, Spain when the Defendant driver (W) entered a slip road on the wrong side of the road and collided head on with a vehicle approaching in the opposite direction. The Claimant sustained multiple injuries and sued W who promptly admitted liability.   Both G and W were British nationals, domiciled in England. The car had been hired in Spain and was insured under a Spanish insurance policy. The question for the court – at preliminary issue trial – was whether the nature, extent and assessment of the damages to which the Claimant was entitled would be dealt with in accordance with English or Spanish law.   Previous entries on this blog have discussed the temporal scope of the Rome II Regulation. The recent decision of Homawoo v GMF Assurances SA – (ECJ, Case C-412-10) conclusively determines that Rome II does not apply to accidents giving rise to damage which occurred before 11 January 2009. Accordingly, the Private International Law (Miscellaneous Provisions) Act 1995 was the correct instrument for determining applicable law in G’s case.   Section 11 of the 1995 Act establishes the general rule that a claim in tort will be determined according to the law of the country in which the tort occurred (in this case, Spain). Section 12 provides that the party seeking to displace the general rule must demonstrate that it is “substantially more appropriate” to apply the law of a different country. According to Waller LJ in Roerig v Valiant Trawlers [2002] 1 WLR 2304 (CA) “the word ‘substantially’ is the key word. The general rule is not to be dislodged easily”.   In Roerig, Waller LJ went on to provide guidance as to the correct approach to determining the applicable law, using a three stage exercise:   Stage Application to the facts (1) Identify the issue to which the general rule may not be applicable The assessment and quantification of damages (2) Identify the factors connecting the tort with the other country (England) - The nationality and domicile of G - The nationality and domicile of W - W had admitted 100% liability - G and W had been in a relationship in England and had come to Spain for the purposes of a short holiday - The location of G’s treatment and losses, including most of her pain, suffering and loss of amenity (3) Identify the factors connecting the tort with the country (Spain)* - The nationality and domicile of W’s insurer     In the light of the numerous factors connecting the accident with England, it was argued by counsel for W that the nationality of W’s insurer was a “crucial consideration”. The insurer stood behind W and would manage the litigation and satisfy the judgment and so was, in effect, the “real Defendant”. Furthermore, it was entirely fortuitous that G had elected not to proceed against the insurer directly in accordance with the jurisdictional route provided by section 3 of the Judgments Regulation (EU (Council) Regulation 44/2001, as interpreted by the ECJ in Odenbreit (2007)).   HELD:   The mere fact that G could have pursued W’s insurer directly did not require the Court to treat the insurer’s nationality with the same weight as if it was in fact a party to proceedings. Following Garland J in Edmunds v Simmonds [2000] [2001] 1 WLR 1003 (QB), the domicile of the Defendant’s insurer was not a factor of overwhelming weight or importance.   Further, insurers of hire cars in tourist areas had to contemplate that the majority of hirers would be foreign and that accidents involving them might result in damages being quantified according to different systems of law. The weight to be given to the factors connecting the accident with England were sufficient to displace the general rule; it was substantially more appropriate for the applicable law to be the law of England and Wales.   This case raises an interesting strategic dilemma in overseas RTA litigation: pursuing foreign insurers directly, rather than the tortfeasor, has the advantage of simplicity and certainty of recovery, but in doing so the domicile of the insurer may carry greater weight for the purpose of determining applicable law (although HHJ Armitage QC – also sitting in the Manchester County Court – thought otherwise in Kershaw v Carey & Anor. 6 September 2011).   [Case note prepared with the assistance of Thomas Collins, Pupil Barrister.]

“Safe sex?”

The New Year will hopefully bring with it important news from Australia for employees everywhere - particularly those having sex in hotels!   It has long been the law that an employee who is negligently injured in the course of employment is generally entitled to look to his or her employer for compensation.   However, in a case which is currently awaiting the delivery of a reserved judgment in the Federal Court of Australia, the time, place and conditions under which an “on-the-job” accident occurs has been the subject of anxious judicial scrutiny.   The Claimant, a female public servant, sued the Australian federal government after being injured while having sex on a work trip in a hotel bedroom. A glass light fitting came away from the wall above the bed as she was having sex striking her in the face and causing injuries to her nose, mouth and a tooth as well as “a consequent psychiatric injury” described as an adjustment disorder.   The Claimant’s partner’s evidence was that they were “going hard” and that he did not know “if we bumped the light or it just fell off”.  He added, not unreasonably, that he was “not paying attention because we were rolling around”.   The Claimant claimed compensation because her injuries were caused “during the course of her employment” as she had been instructed to travel to and spend the night in the hotel in a small town in New South Wales ahead of a departmental meeting early the next day.     ComCare, the Australian government's workplace safety body, rejected the claim on the grounds that sexual activity “was not an ordinary incident of an overnight stay like showering, sleeping or eating”. That decision was upheld by the Administrative Appeals Tribunal.   However, on appeal to the Federal Court, the Claimant’s counsel submitted that the accident was in truth “no different than slipping over in the shower”. In addition, “lawful sexual activity” should now be considered reasonable behaviour in a hotel room by an employee as “it's not the 1920s”.   Counsel for ComCare responded that people need to eat, sleep and attend to their personal hygiene but “you don't need to have sex”   The judge, Justice Nicholas, has reserved his judgment describing the case as “by no means easy”.   The judge is right to be cautious. Claims by employees have succeeded in the past when injuries have occurred in the course of employment related recreational activities involving drinking and socialising where negligence has been made out. It can be argued that being injured whilst having sex is no different provided that the injury occurred within an overall period or episode of work and negligence can be shown. Would the position be any different if, for example, the hotel had a gym and the Claimant had been negligently injured whilst working out on one of the hotel’s exercise bicycles or cross trainers?   The judgment may also provide useful guidance as to whether, at least in Australia, sexual activity should now be regarded by the prudent employer as a reasonably foreseeable part of an overnight stay in a hotel by an employee. If so, this will give a whole new meaning to the expression safe sex.  

Camel Accident Gives Holiday Consumers the Hump!

  A cantankerous, even-toed ungulate was the unlikely subject of the latest in a line of cases examining the tortious duty of care owed by tour operators for accidents during holiday excursions.       Hendry and another v Kuoni Travel Ltd (Guildford County Court, HHJ Reid QC, 10 – 11 November and 16 December 2011) concerned the provision of a “Camel Safari” excursion during a package holiday to Rajasthan, India. The plan was simple: the Claimants were to ride on the back of a Bactrian (two-humped) camel, setting off from their hotel. The camel had other ideas. Before the claimants were out of the hotel gates, it began “making sidesteps in a very jaunty manner” causing the Claimants to lose their balance and fall off, each sustaining serious injury. The Claimants were accompanied on the safari by the Defendant tour operator’s local representative who provided instructions in English (the camel handlers or raikas spoke no English). The representative had no particular knowledge of camel riding and, indeed, this was his first (and only) time assisting with the excursion.   The excursion was described in the Defendant tour operator’s brochure as an “optional experience” “available locally at extra cost”. The Defendant’s Booking Conditions provided that “the experience will be supervised and all reasonable precautions will be taken to ensure that you and your party are safe. We will only accept responsibility for personal injury where it is caused by our negligence or the negligence of our suppliers”. The Claimants maintained in evidence that they made no separate booking for the excursion and were not asked at any stage for payment and so the excursion must have formed part of the package of services provide pursuant to the holiday contract, to which the Package Travel, Package Holidays and Package Tours Regulations 1992 applied. The court held that the excursion had been booked separately and so was outside the scope of the 1992 Regulations. The Claimant’s alternative case was that they had made a separate contract for the excursion which was governed by the terms of the Defendant’s Booking Conditions; this argument was also rejected by the Judge.   This was not, however, the end of the road for the Claimants. Following Parker v TUI [2009] EWCA Civ 1261, they argued – in the further alternative – that the Defendant, in providing a local representative to accompany the excursion and to give instructions beforehand, had assumed responsibility to the Claimants for the reasonable safety of the excursion and, accordingly, owed them a tortious duty of care. It was held that the content of this common law, tortious duty was defined by local standards in accordance with the Court of Appeal’s guidance in Gouldbourn v Balkan Holidays Ltd [2010] EWCA Civ 372 (and other case law subsequent to Wilson v Best Travel Ltd [1993] 1 All ER 353 (QBD). Unsurprisingly, there were no specific statutes, rules or regulations to govern the provision of camel rides and safaris in India. Instead, there was local customary practice and both parties relied on expert evidence of what such practice required. The saddle on the camel’s back consisted of a seat with a hook-shaped “pommel” at the front and was attached by a rope running around the camel’s belly with a carpet and quilt placed loosely over the top. There were no stirrups or rope loops along the side of the camel that either rider could hold for stability. The reins were held at the front by the camel handler. It was held that the failure to provide stirrups constituted a breach of local customary practices. The court went on “so far as the second alleged breach of duty is concerned, in my judgment it is made out. There is simply no evidence that the defendant took any steps whatsoever to establish that the excursion provider was competent”. Judgment for the Claimants.   This case underlines the significance attached to the attendance on the excursion by a local representative in the context of the tortious route to liability for excursions that go wrong.   [Case note prepared with the assistance of Thomas Collins, Pupil Barrister.]

A Good Winter for the Amateur Pothole Hunter?

The Sunday Times’ motoring supplement yesterday contained a cheery article entitled “Brace yourself for a winter of holey hell”. It was of course referring to what appear to be fast becoming a national obsession among many – potholes!   The article referred to the findings of an “army of amateur pothole hunters” recruited by the AA. (Perhaps this is seen as a less sedentary alternative to train/bus spotters?). Well, in what the Sunday Times has called "the most comprehensive audit yet of the state of the roads", some 1,100 people recorded some 24,000 defects bigger than 6” in diameter and 2” deep on Britain’s roads, in addition to defective manhole and utility covers.   The AA has helpfully suggested the findings of the survey suggest some form of infectious disease has infested the UK's tarmac. The President of the AA is quoted as saying “It shows that the UK has a pothole plague”. Mr King also proffered an equally helpful legal prediction by suggesting “compensation claims will soar when cold weather strikes and roads start breaking up again”.   Well, will they?        To add to the general doom and gloom, the paper references the Asphalt Industry Alliance as suggesting there is already a backlog of pothole work worth some £10.5 Billion!   So how will highways authorities cope with the unholy trinity of another harsh winter; depleted budgets; and road users increasingly informed and willing to bring claims against them when they damage their vehicles or themselves after hitting road defects?   One highways authority suspended regular inspections during the winter of 2009-10 so that they could focus on what I have described to many a district judge as “an unprecedented deluge of complaints”. My private personal view is that this is wholly reasonable in times of extremely poor weather and one which allows the highways authority to retain its special defence under section 58 of the Highways Act 1980. This seems to be the most reasonable, pragmatic and effective means of inspection, maintaining and repairing roads in such circumstances. The most significant defects on the busiest roads can be prioritised over undertaking annual or bi-annual inspections of lightly used local access roads. This seems to me to be the most practical way of minimising accidents, injuries and even loss of life in this situation.   However, the Court of Appeal almost a year ago in Wilkinson v City of York Council [2011] EWCA Civ 207, held that this approach was likely to land the highways authority as being unable to rely upon section 58. It was held that financial considerations are not a factor when looking at whether the authority had done what was "reasonably required". Under section 58 this required "an objective judgment based on risk." The section 58 defence was not designed for an authority which decided that it was preferable to allocate its resources in other directions because other needs were more pressing than doing what was reasonably required to make the roads safe.   So perhaps a highways authority will be better able to resist claims brought concerning accidents which occurred in periods of very poor weather by sticking to their regular inspection regimes rather than attempting to limit the damage? This may mean they face more claims brought against them, as the AA predicts, however they are more likely to have good section 58 defences to them.  

HADLOW, CONFUSION AND REASONABLE FORESEEABILITY

When does the consequence of a breach of duty become so difficult to foresee that the chain of causation is broken? The answer to this question following the Court of Appeal’s judgment in the case of Hadlow v Peterborough City Council (20th October 2011, unreported*), is very rarely indeed.   The claimant was a teacher at a secure facility for potentially dangerous women operated by the council. The council’s policy was that teachers should not be alone in a locked room with more than two of the women. The teaching assistant due to attend a class with the claimant was running late. The claimant requested a member of staff attend in the classroom until the assistant arrived. However escorts brought the women to the classroom, locked the door and left. When the claimant realised, she tried to leave the classroom quickly to request an escort to stay. In the process she tripped on her chair and injured herself. The judge found the council in breach of duty for failing to provide the extra member of staff and that there was a causal connection between the breach of duty and the accident. No criticism was made of the condition of the chair or where it was positioned. It was argued on behalf of the Council that whilst injury might have been foreseeable if one of the women had been violent it was not foreseeable that the claimant would injure herself on an innocent chair in the absence of such violence. The Court of Appeal conceded that the accident had not occurred in the ‘most likely manner’. But it did occur as a result of the claimant acting reasonably to remove the risk and to remedy the council’s breach of duty. The court found that the risk of injury was foreseeable and, although it did not happen in a ‘likely manner’, the claimant being injured could be ‘sufficiently envisaged’ and therefore causation was established. All this rather begs a series of questions. Is it the case that once it is reasonably foreseeable that the claimant might be injured by the potentially violent women then causation is established for any injury she suffers even if they are not in fact violent? If that is correct, would causation be established if the circumstances were the same but she had simply tripped clumsily on her own feet or her hand bag? Doesn’t that introduce a quasi strict liability once breach of duty has been established? What if the claimant had walked into a sniper’s bullet: would that have completely broken the chain of causation and, if so, why? Another question is whether or not the question of reasonable foreseeability goes to the scope of the duty owed by the employer. It could be said that the scope of the employer’s duty was in fact limited to protecting the teacher from the violence of the women she was due to be teaching; it was not to protect her from her own misfortune of tripping over a chair. The questions go on. The Court of Appeal have apparently introduced a new test of whether or not  something can be ‘sufficiently envisaged’ and it is difficult to see what role that has to play. It is also difficult to see how an employer could say an hour prior to the accident when reviewing his risk assessment that it was reasonably foreseeable that injury could occur in an ‘unlikely manner’. Whilst this is perhaps all very confusing and fertile ground for academic musing, for practical purposes, all that can be said is that, in employer’s liability cases, the courts are very reluctant to allow causation to get in the way where breach of duty is established. Perhaps this case may go further…   *No transcript is yet available and so this is based on the Lawtel summary.

Referral Fees to be Banned

  The Government has today announced that it will ban referral fees in personal injury claims. Just a week ago I published an article on the Butterworths Public Injury Law Forum (http://www.personalinjurylawgroup.co.uk/index.php?/Opinion/the-insurance-industrys-dirty-secret.html) setting out the criticisms made of referral fees and the proposals for reform.  Lord Justice Jackson recommended a ban in his "Review of Civil Litigation Costs". However the Government initially seemed ambivalent about such a measure, stating in June that referral fees were only "only a small part" of the no win, no fee system for personal injury claims. However in July the Prime Minister indicated that he was ‘sympathetic’ to the idea of a ban. It is now clear that the Government wishes to pursue this measure.  There is currently no timescale for implanting a ban. However the Government is hoping to have such a measure included in the legal aid bill, possibly by Easter next year.  

"Of course I'm sure: I remember it like it was yesterday" - Vagaries of Recollection and the Problem with Witness Evidence

The scenario is common during any trial: two witnesses give evidence who were both present at a particular event but whose recollection about what was said or what they saw is so completely at odds one wonders whether they witnessed the same thing.  Whether it is a dispute between a claimant and a doctor about what was said during a consultation, the drivers of two cars that have collided about who was positioned where on the road or two parties to an oral contract who disagree about its terms, the difference in evidence is usually equally stark.   Often the judge will accept one of their versions of events completely and reject the other.  The oral evidence of the preferred witness may be repeated verbatim in the judgment, treated as though it is as accurate as CCTV footage or a secret recording of the event.   Ask yourself this question: on an ordinary day when nothing particularly good or bad has happened to make it remarkable, what do you remember of the details of the many small incidents that occurred?  What do you honestly remember of what you saw as you walked down the high street, who served you in the supermarket, whether anyone was mopping the floor in the veg aisle, where precisely you crossed the road, what was said by you or the salesman when you discussed your new kitchen, which gear you were in as you drove towards a particular set of traffic lights, or precisely what the doctor told you or you said to him during a GP visit that seemed routine at the time.  The honest answer is almost always somewhere between "nothing" and "not much".  We remember the general gist and some of the main points of any day or particular conversation, but often little of the detail.    The adversarial system is such that witnesses are encouraged to put forward a positive recollection about all the surrounding facts of the day in question and, if they are honest and say that they don't remember everything clearly, they are at risk of being found unreliable.  It is not good enough for a driver to say that if something untoward had occurred before a child ran out into her path she would have noticed it because she was paying attention.  It is not good enough for a doctor to say that of course the advice was given because it is what she always says when dealing with that particular problem.  Unless the witness professes to have an actual recollection of what they in fact saw or said, they are at risk of being found to be "an unreliable historian".  "Not remembering" whether any life guards were present around the swimming pool gradually becomes a positive recollection that no life guards were there at the time.  The favourite refrain of many a judge in road traffic cases is "well she was there to be seen: if you were paying attention you would have seen her".  Maybe, maybe not.  The brain might well process a child on the pavement, but unless she was doing something odd, why would that have stuck in the memory?  As I drive along my road I might register vaguely that there are people about on the pavement.  But unless they are doing something unusual, my attention will note nothing more than that.  Are not these witnesses in fact the truthful and reliable ones?     Take, for example, a case in which a claimant professes to have a clear recollection about whether any cleaning crews were present in a huge supermarket superstore.  Of course the clear recollection is that not a single cleaner was there to be seen.  Really?  Who can honestly say that they notice the workers, officials and cleaners present in any shop, transport hub or leisure premises when they are going about their business and focussing on their day.  Uniforms blend into the background.  But this evidence is often accepted as accurate.  I do not place the blame on the witness who clearly believe their recollection iss true.  My concern is about the judges who accept it as so.      In a different but related context the New Jersey Supreme Court in the US has recently raised concerns about the reliability of eye witness identifications and handed down new guidelines for testing them.  It is notable that the Court places at the centre of its analysis scientific research into the reliability of eye witness evidence.  In a unanimous opinion, the court said (http://www.judiciary.state.nj.us/opinions/supreme/A808StatevLarryHenderson.pdf): "We find that the scientific evidence considered at the remand hearing is reliable.  That evidence offers convincing proof that the current test for evaluating the trustworthiness of eyewitness identifications should be revised. Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country. "We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control."   If scientific studies show that basic eye witness recognition of the perpetrator of a crime has a high incidence of unreliability it is difficult to see why recollection of other small facts and details in less dramatic cases should be any better.  One cannot help but think that justice would be well served if more judges were prepared to recognise the reality of the vagaries of memory, rather than simply picking the witness they like best and accepting absolutely all they say as being completely accurate.  That said, as much of my job involves catching witnesses out on small slips so that I can call the totality of their evidence unreliable, I'm at risk of putting myself out of a job...