Witnesses to an incident need to be interviewed carefully. An accurate record of what they have to say needs to be maintained. This is often best done in the form of a statement. It is usual for the adjuster taking the statement to question the witness and write down the answers in the form of the statement. Typically this statement will then be read back to the witness and all of the facts will be checked. We find that this is one of the main benefits of this form of interaction. It is very easy for misunderstandings to develop otherwise. The witness is also usually asked to sign the statement as a true and accurate record of what they have to say. Most witnesses will be reluctant to sign a document that contained any inaccuracies, supposition or hearsay.
It is important when taking a statement to note that its purpose is to record evidence. There is no intention to trick witnesses into providing evidence to enable the adjuster to pursue a particular line of defence. It is equally important that nothing be left out simply because it does not suit the defence. The adjuster does have to make assessments of what is being said at all times. Hearsay is usually of little value and should be recorded in the adjuster's general notes on the case. Witnesses are often ready to speak at length about what happened after an incident. This is because they can probably remember it much better and they may have helped in an important way. Often it is not very relevant to the assessment of liability.
All of our statements are taken in a standard format and are typically handwritten. They are then read over to the witness or given to the witness to read. Discussion frequently takes place about particular sentences within the statement and we encourage this in so far as it ensures accuracy. When we get back to the office this statement is usually typed for inclusion in the report.
We usually like to begin the statement by introducing the witness and setting out their address, phone number and details of any relevant experience and qualifications. We then describe the scene at the date and time of the incident. This would include details of the weather and other relevant factors. In most employers and public liability claims, it is important to know who employs the witness; in what capacity and for how long the person has been employed.
The next step is to set out the circumstances of the incident. Every effort is made to maintain these in chronological order however from time to time witnesses may deviate from this. It is very important to record the statement in language that can be understood and is at an appropriate level for the witness concerned. Generally speaking it is important to use short sentences of simple construction. It is easier to establish clarity when discussing these with the witness. It is also less likely that argument can be made about the construction of phrases at a later stage.
While there is much information to be taken about events surrounding an incident, the incident itself usually takes place in an instant. In cases where there are disputes about matters of fact, it is very important that witnesses are as far as possible taken back to the scene. Implements and machinery that were in use on the date should also be available. It may be necessary to allow the witness time to carefully recollect matters. It is not at all unusual for a number of witnesses who have seen a traumatic event to have slightly different recollections of how and what occurred in the vital moments. This is a recognised psychological phenomenon. In our experience a court will be more suspicious if all of the statements are exactly similar than if they differ somewhat.
It is often the case that a witness will use technical terms that are native to his or her particular work. It is important that these terms be incorporated with suitable explanations. Access to these terms and their meanings can often be a vital tool in cross-examination.
It is perfectly acceptable to use in drawing a sketch to describe some aspect of the incident and this can be included either within the statement or as an appendix to same. It should be signed or initialled by the witness.
There is a difference between a statement of fact taken immediately after an incident and a statement that might be taken some months later. The first is an attempt to provide a contemporaneous record of the incident and should be confined solely to the actual facts that this witness can assist with. It is vitally important in our experience to get as many names of bystanders as possible at this stage.
A statement taken at a later time may well be also simply be a collection of facts affirmed by the witness. It is also possible however that the adjuster will recognise areas where the particular witness has some expertise, and may be able to offer insight or opinion.
Although it is most unusual, it is not unknown for a witness to make a complete about turn in relation to their evidence. In our experience this may happen because they have become disgruntled at work or fallen out with the defendant. In more unusual circumstances it may be that an approach has been made to them about their evidence. In those instances it is extremely useful to have possession of a written statement setting out their earlier views. The quality of the statement, and impression made on the court by the person who took the statement will become vitally important at that stage. It is usual at that a witness will at least be neutralised in these circumstances.
© John G Higgins 2006