Case for Compensation

by Douglas Stewart

  “Yes.”

  The Q.C. looked at the papers sprawled in front of him and selected one from a tabulated bundle. “You were driving from Shaftesbury. Agreed?”

  “Yes, Sir.”

  “You were saying that, judging by the time of the accident, there was no hurry.”

  “That’s correct. I had ample time to cover the last few miles, even allowing for getting lost, breaking down and so on.”

  “What do you mean by ‘and so on’?”

  “Well . . . parking problems, cows, roadworks—that sort of thing.”

  “Yes. A few moments’ delay perhaps here or there.”

  “Yes . . .”

  “Had you stopped on your journey that morning?”

  “I can’t remember.” Hambleton Jack had tried the same trick again.

  “Had you telephoned your Company’s offices?”

  “I don’t know.”

  “Well, would you take it from me that I can call evidence if need be that you hadn’t telephoned your Company.”

  “If you say so, then of course, I must accept it.” Duncan wondered where the stumpy figure of Hambleton Jack was leading his client.

  “You had to telephone your Company every morning by 9.45 a.m.?”

  “Yes. By about 9.45,” the witness answered cautiously.

  “By 9.45!” The questioner snapped in retort.

  “Yes. The rule was to phone by 9.45, but it wasn’t something one had to be obsessive about.”

  “But you always telephoned by 9.45, didn’t you?”

  “Usually.”

  “Always. You never missed, did you?”

  “I cannot recall ever phoning in late, but I expect there were occasions.”

  “Did you know your Company kept a log of all the travellers’ phone calls to the office?”

  “No. As a matter of fact, I didn’t.”

  “Look at these documents, would you? They’re certified copies of your Company’s records of daily calls to the office.” He produced a large bundle of photocopied pages for the witness and a set for the Judge and a set for Giles Holden, who rose to his feet at once.

  “My learned friend is perfectly entitled to produce these documents for cross-examination if he so wishes, but I do make plain that they have never been seen by the plaintiff or his advisors, and, accordingly, I am not in a position to admit the documents without formal proof at this stage.”

  “That is understood,” Mr Jack replied. “If, after studying them, my learned friend wishes them to be proved, I shall be in a position to call someone from the Company’s offices tomorrow to do so.”

  All the while, Goodhart had been studying the pages, amazed at the meticulous notes of the calls, recorded by the Company without his knowledge. At a glance he could see that in the column headed “time of call”, there was without exception a tick for every day, which indicated that he had phoned before 9.45 am.

  In the next column was a short entry confirming either that he had left a message or had been given instructions during the course of the call.

  “Have you had long enough now, Mr Goodhart?” the Judge asked solicitously.

  “Thank you, M’Lud.” The Judge nodded to the Q.C. to continue.

  “Mr Goodhart, do y’see, you’ve never telephoned in late?”

  “So it appears.”

  “You’re a planner?”

  “I’ve always planned to think ahead.”

  “You plan your route?”

  “Yes.”

  “You prepare a timetable?”

  “Yes.”

  “You don’t like being late for appointments?”

  “That’s right.”

  “In fact you’re obsessed with punctuality?”

  “I think that’s too strong.”

  “Come now, Mr Goodhart. Don’t be so modest when I compliment you on your timekeeping! It’s a rare quality! Would you not accept it from me?” The barrister’s voice had a silken sheen.

  “I like to be on time,” Mr Goodhart replied evenly.

  “You hate to be late! Isn’t that the correct way of putting it?” The sheen had gone.

  “Yes. I dislike being late.”

  “Hate to be late!”

  “Yes, I suppose that’s right.”

  “Look at the entry for the day of your accident. Do you see it? No call received from you at Headquarters that day at all.”

  “I see that.”

  “Your accident happened at 10 o’clock?”

  “Yes.”

  “In fact, Mr Goodhart, you were late not for your appointment, but for your telephone call to Headquarters?”

  “It appears so. I can’t remember.”

  “And I suggest that being late phoning must have been a great worry to you.”

  “I doubt it.” Goodhart had given some ground.

  “Not once! I repeat that. Not once, in all your years with the Company, were you ever late in phoning in. Your perfect record had been blemished. Are you really saying that you doubted whether the late telephone call worried you?”

  “I can’t say now whether I was worried or not, can I?” The reply was defensive. Roger Goodhart squirmed to get his handkerchief from his pocket.

  “You’re not claiming you can’t remember your character before the accident?” The snub nose, turned towards the ceiling.

  “No, Sir.”

  “Not alleging any personality change?” Hambleton Jack continued sarcastically.

  “No, Sir.”

  “Let me be blunt. You were late reporting into your Company for the first time ever. You must have been worried sick about not phoning in. Obsessed by it.”

  “I don’t agree.” Duncan felt uncomfortable, but the Judge’s face was inscrutable.

  “I suggest, furthermore,” continued the questioner, “that you would have been looking out for a telephone box.”

  “Yes.”

  “And that although you were normally a careful, blameless driver, you were so worried, distracted, and dismayed at your failure to telephone the Company on time, that in the heat of the moment, you overtook a black van on a blind bend.”

  “I doubt whether the Company regarded the precise time of the call as that important. I certainly didn’t know, then, that the Company regarded it as important.”

  “Mr Goodhart! Forget the Company! Think only of yourself! It was important to you!”

  “Yes.”

  “So important that it would have been at the forefront of your mind.”

  “Yes, I suppose so.”

  “I suggest that being late for your phone call, led you to overtake at a highly dangerous place?”

  “So it appears, but I can’t say so myself.”

  Giles Holden rose to his feet: “M’Lud, this isn’t evidence. The witness is being pushed into wild speculations.”

  “I agree,” said the Judge. “But do go on, Mr Jack, if you wish. But you won’t see me write very much down.”

  “Isn’t this right, Mr Goodhart” continued Mr Jack, unabashed. “You created a crisis and then failed to react, because of lack of concentration?”

  “I doubt it,” said Roger Goodhart positively.

  “Thank you. No further questions.” Despite the protest at the end, Hambleton Jack had done well. Secure in the knowledge that Pierre Bouchin’s evidence was uncontradicted, he had neatly concentrated his efforts on destroying the evidence of Goodhart’s careful driving record.

  It wasn’t his job to prove that Goodhart was to blame, for the burden of proof rested firmly on the plaintiff. Nevertheless, the cross-examination had made it easier for the Judge to understand why an apparently careful driver had driven in a suicidal manner.

  Alistair Duncan wished that he hadn’t looked along the Bench for he was rewarded with a self-satisfied smirk from Jeremy Myers. Duncan smiled back with a shake of the head as if to say that Myers had got it all wrong.

  “Any re-examination, Mr Holden?” asked the Judge.

  “Just one matter, M�
�Lud,” Giles Holden replied.

  “Yes?”

  “You gave evidence that you had a blameless, accident-free driving record?”

  “Yes.”

  “Was that record important to you?”

  “Yes.”

  “Obsessively so?”

  “Probably. I was certainly very proud of it.”

  “Assume for some reason you were late for an appointment—perhaps an unusually long diversion—would that have bothered you?”

  “Yes.”

  “Can you ever recall being late for appointments?”

  “It happened once or twice.”

  “Did you on those occasions ever take chances to make up on time?”

  “No.”

  “Which would be more important to you? Your outstanding safety record or your desire for punctuality?”

  “Safety, of course.”

  “Would you jeopardize, on any occasion, your driving record by literally cutting corners?”

  “No.”

  “Thank you, Mr Goodhart. M’Lud, my next witness is my expert engineer. It may be convenient to your Lordship, if I merely call him now to put in his report and then leave it to my learned friend to cross-examine after lunch.”

  “Yes, I agree with you, Mr Holden.”

  With a nimble step, the tiny engineer with an elf-like face, which seemed smaller behind a formidable gingery-tinted beard, entered the witness box. He took the oath with breezy familiarity. His report was put before the Judge.

  “Some light reading for me over the adjournment,” commented Sir Godrey. “Two o’clock then?” he enquired, as he rose from the high-back chair and disappeared into his robing room.

  Charlie Wilkinson and Mrs Goodhart eased the wheelchair out of the Court Room while the two huddles of lawyers gathered to review the state of the poll. Charlie Wilkinson was there deliberately, so that Bouchin would remember his journey from Plymouth to Basingstoke but would not know who saw what or when.

  “It’s not of the essence,” said Giles Holden as he flung his wig on the table and twisted his thumbs in his waistcoat pocket, “but I rather think that you must see if there’s anything I can use in cross-examination against whoever is called from the Company. I’m blowed if I am going to agree that those Records are accurate. Get something on it for me, can you, Alistair?”

  All Counsel enjoy meting out this type of eleventh-hour instruction. Solicitors are expected to work miracles. Duncan said so before catching up with his client and Alice Goodhart as they headed for lunch.

  “How did it go then?” asked Goodhart.

  “Much according to plan! I doubt the suggestion that you were speeding to get to the telephone will carry much weight, but I want to clear it if I can. It’s possible you hadn’t telephoned in?”

  “Possible, but unlikely. The switchboard was open from nine and I would normally look for a call-box from then on. Normally, I telephoned from a call-box at Sherborne, just after nine.”

  “Who made these documents, do you think?”

  “Sandra Carter. Must be. She takes the calls and gives out the latest instructions for men on the road. Funny, isn’t it? I’d no idea the Company kept such detailed records.”

  “Ring the Company for me and find out who’s coming, can you? I don’t want to telephone. People get so funny about lawyers, but I expect the Company’s embarrassed about helping the other side and you’ll find that they will talk freely to you.”

  They entered a shabby pub with a ‘Food’ sign hanging on the crumbling brickwork.

  The pub lunch was a sullen affair. Mrs Goodhart said nothing. She sat facing the man she had married and the man who had spurned her advances. She could think of nothing to say to either of them. On a pretext, Duncan left them to it, as soon as he had finished his scotch egg.

  Sharp at 2.00 p.m., the Judge entered. Hambleton Jack rose to cross-examine the engineer.

  “As I read your report, you make no suggestion that the car had any mechanical defect. Is that right?”

  “Yes. There was no fault in it which I could find.”

  “And equally, you had no criticism of the maintenance of the French lorry?”

  “That’s right. Nothing relevant to the accident anyway.”

  “There was nothing wrong with the loading of the lorry?”

  “I have no evidence to suggest otherwise.”

  “It wasn’t overloaded, was it?”

  “Not on the records of the load carried.” It was a clever, cautious answer by an experienced witness.

  “There was no sign of the load shifting?”

  “No.”

  “And you accept in your report, on page two, that the plaintiff was overtaking at a blind bend, contrary to white-line markings and two large arrows on the road surface.”

  “Not quite. I pointed out that there is no evidence other than that the plaintiff was on the wrong side of the road when he braked, and that impact occurred on the wrong side of the road. I pointed out that this could be consistent with the defendant’s statement that the plaintiff was overtaking a black van. As to the black van, there is only the evidence of Monsieur Bouchin about that and he has yet to be cross-questioned.”

  “Yes. And I suppose for the purposes of your report, the presence or absence of the black van is irrelevant?”

  “Virtually so.”

  “Because your report is interested not in the driving of the plaintiff, but in that of the defendant?”

  “Yes. Once one accepts, as I think one must, that the Ford was on the wrong side of the road, then the question is what could the lorry driver do to avoid an accident? To put it at its highest; need the accident have occurred, even with the Ford driver in the wrong?”

  “And your answer is that an accident could have been avoided.”

  “Yes.”

  “You rely on page six of your report, do you, where you conclude that if the driver of the French lorry had braked and/or swerved to the left, there might have been no collision at all, or a much lesser one?”

  “Yes. Looking at the vehicles I was satisfied that this was a low-speed collision. That may sound absurd when one looks at the photos of the wrecked vehicles, but a lorry like the Volvo, with a full trailer, would cause significant damage at a very low speed impact—even at, say, five miles an hour.”

  “So what do you say the speed of the two vehicles was at impact?”

  “I would say that the combined speeds were little more than 15 miles an hour.”

  “But, come now, surely not! Look at photograph two in the bundle. There is very little left of the car at all, is there?”

  “I agree, but, of course, it was partially squashed under the front of the lorry and forced down into the road surface. If the lorry had been doing 40 or 50, the car would have been flung out of the path of the lorry. I am satisfied that the car had probably slowed down to walking pace and perhaps virtually stopped. The lorry made up the difference in the combined impact speeds. I would say the lorry must have been doing 10 or 12 miles an hour.”

  “Are you saying that the driver of the lorry was proceeding at only 10 to 12 miles an hour on this road?”

  “No. I think the speed round the bend was rather more, but still not fast. The defendant had told the police that he didn’t know the road. He would err on the side of caution. I believe he saw the crisis, but failed to think quickly enough. Because of this he started to brake too late and so had to brake gently, to avoid losing control in a violent emergency stop. Had he braked at the earliest opportunity, he could have stopped in time. Alternatively, he could have eased his cab to the left, giving sufficient room for the Ford to squeeze past if the Ford were indeed overtaking a van. It is obvious that the lorry driver gave not an inch of room to the plaintiff to get out of his difficulty.”

  “You make no criticism then of the speed of the lorry?”

  “Only when the crisis arose. He left no skid-mark. An alert driver, travelling at a low speed of, say, 25 miles per hour could have
avoided the accident. Look, the vehicles barely moved after impact! With the size of the two vehicles, one must conclude that the lorry wasn’t speeding and if the driver had braked at once, the two vehicles would have simply finished eyeball to eyeball.”

  “I cannot accept a word you say.” Hambleton Jack flourished his right arm dismissively. “I want to consider the feet and inches of your argument. Look at the scale plan, please.”

  Alistair Duncan listening to the exchanges knew that the engineer would stick his ground as well as any. Whilst gazing at the photographs of the wrecked vehicles a thought flashed across his mind. He slipped out of the Court, and went to a telephone. After a brief conversation with McKay, he put the phone down, and then a few minutes later he rang again. “What’s the answer then?”

  “I think you’re on to something,” commented the Articled Clerk.

  “Right. Come down straight away and meet me at the Hotel at 5.00 p.m. If I’m right I might even buy you dinner! See you later.”

  Duncan heard the tail end of the cross-examination. Roger Tulip gave him a look signifying that the engineer had been put through the hoop. He gave Duncan a scribbled note. “He conceded that with three vehicles abreast the possibility of avoiding a collision by Bouchin swerving was slim. Also commented that he couldn’t rule out loss of control of lorry if braking had started while tractor and trailer were angled to each other on the bend.”

  Re-examination by Holden retrieved some lost ground and as Mr Justice Salford asked no questions, the engineer was soon back in his seat.

  P.C. Meakin’s evidence dealt with efforts made to trace the black van. He proved the Plan, and there was no cross-examination.

  With the clock showing 3.35, Holden called Wallace Wood to the box.

  Heads turned as the giant of a man manoeuvred awkwardly between the seats. His new suit was altogether too small for him and a seam somewhere had threatened to burst with every step.

  Hambleton Jack studied him. No one on the defence side knew what he was going to say. The oath was taken in a broad Geordie accent with the Testament hidden in the hairy fist.

  “In the course of your job as a lorry driver have you ever travelled on the Continent?” enquired Holden.