Catastrophic injury litigation – vulnerable witnesses giving evidence

From time to time we are all vulnerable in some way or another. It may be when experiencing grief, going through separation or whilst undergoing a major medical procedure. At these times our resilience is compromised. Our ability to handle life’s challenges is reduced. We might say or do things that we would otherwise avoid. We might react emotionally instead of rationally.

The catastrophically injured person will inevitably experience times of vulnerability. These periods may pass quickly. At times, however, they can endure. Others around the injured person may become vulnerable too. Family members in particular might struggle to adjust to the life changes that a serious injury can bring. That might be due to financial pressures. It might be because of the impact the injury has upon the person’s behaviour or function. It could be due to other upheavals, like the need to move home, or schools.

Catastrophic injuries can also disproportionately impact upon those who are already vulnerable. Studies show that those admitted to major trauma units are often suffering from other problems such as addiction issues or psychiatric problems.

Injury lawyers therefore need to be aware of the steps that the court should take to ensure a vulnerable person can give their best evidence. If this does not happen, there is a risk that the trial itself will not be fair. This means any decision made could be subject to a costly and lengthy appeal process.

As one might expect, the courts take these issues extremely seriously. This is reflected by the publication of the Equal Treatment Bench Book. This is a comprehensive guide. It sets out the steps the court might take to ensure that a witness or a party can fully participate in legal proceedings by giving their best evidence. One chapter examines appropriate measures for those who lack capacity. Others consider those with mental disabilities, physical disabilities and in relation to children. The guidance is updated to ensure that it keeps pace with developing understanding of how best to address the issues in hand.

There are a wide range of different measures that might be appropriate depending on the circumstances. This might include tailoring the approach to cross examination to keep questions simple and easy to understand. It may involve limiting the length of cross examination. It could be ensuring that questioning starts at a particular time of day, to account for the effects of medication.

In 2022 I used knowledge of the guidance to ensure that appropriate measures were put in place for a particularly vulnerable client when giving evidence at trial in the High Court in Liverpool. This included:

• seeking a transfer of the case to the Claimant’s local court;
• simplification of cross examination;
• provision for regular breaks;
• permission for a support worker to be sat nearby when giving evidence.

The case is reported as Ashton v City of Liverpool Young Men’s Christian Association [2023] EWHC 707 (KB).

In conjunction with barristers, Gerard Martin KC and Matthew Stockwell from Exchange Chambers, I subsequently delivered a seminar to other lawyers on the topic. Ellie Atkins from the Manchester Rough Sleeper Social Work Team also contributed.