Successful claimant: Master Bronte Brown & Miss Lacey Brown v Mr Cosmin Sestras and others
Report on Case of Master Bronte Brown & Miss Lacey Brown v Mr Cosmin Sestras and others
Her Honour Judge Howells sitting a Deputy High Court Judge
Judgment date 22 May 2023
Susan Rodway KC acted on behalf of the successful claimant and also appeared in the case of Welsh v Stokes cited and relied upon in the judgment. She was instructed by Damian Horan and Siobhan Thomas of Moore Barlow.
The claimant was a rear seat passenger aged 9 when the Peugeot motor car driven by his mother was involved in a horrific accident on the A10 southbound on 16 July 2017. He suffered catastrophic injuries including severe cosmetic injuries to his face and a severe brain injury when the car left the road and somersaulted down an embankment and into a field below.
Moments before the accident the claimant had unstrapped himself from his seatbelt to remove his uncomfortable shoe, but at the same time the occupants of the Peugeot noticed a dark car tailgating them in the outside lane before swiftly undertaking the Peugeot behind a lorry in the nearside lane and then cutting in front of their vehicle. As a result, the claimant’s mother lost control of her car, causing it to cross into the inside carriageway, leave the road, and land in a nearby field, while the dark car that caused the hazard drove away.
The claimant accused Mr Sestras, insured by the second defendant, of driving the dark car (a black Mercedes Benz) and causing the accident through his dangerous manoeuvre. Mr Sestras denied any involvement, claiming mistaken identity and stating that his Mercedes was not the dark car. He disputed the driving behaviour described, citing his car's driver assist technology as a deterrent to tailgating. He also blamed the claimant’s mother for losing control of her vehicle.
The case was unusual in that it depended for its central allegation on the hearsay evidence of an anonymous caller to the police who identified the Mercedes of Mr Sestras because he had followed it after the accident and taken down its registration number. This evidence was supported in part by the live witness evidence but the key issue of the registration number and hence the Mercedes being that driven by Mr Sestras was only present in the anonymous call.
The judge referred to the case of Welsh v Stokes  1 WLR 1224 in which Dyson LJ stated that the correct approach was to consider those factors set out in section 4 of the Civil Evidence Act 1995 which provides:
“4 Considerations relevant to weighing of hearsay evidence.
(1)In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2)Regard may be had, in particular, to the following—
(a)whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b)whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c)whether the evidence involves multiple hearsay;
(d)whether any person involved had any motive to conceal or misrepresent matters; (e)whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f)whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”
Dyson LJ continued :
“22 Even if the hearsay evidence were the only evidence on which the claim was based, I would not accept that this was necessarily a reason for giving it no weight. It would depend on all the circumstances. I accept that there will be cases where it is so unfair to hold a defendant liable solely on the basis of hearsay evidence that a court should place little or no weight on the evidence. Consideration of the factors stated in section 4(2) will point the way, but will not necessarily be determinative. In some cases the defendant may be able to adduce evidence to contradict, or at least cast doubt on, the hearsay evidence. But there will also be cases, like the present, where the defendant is not in that position. Apart from the unidentified motorist and the claimant, there were no witnesses to the accident. In such a case there may be said to be unfairness to the defendant in having to face hearsay evidence which he cannot directly challenge. On the other hand, there would be unfairness to the claimant to place no weight on the hearsay evidence, since without it her claim would inevitably fail.
23 The decision what weight (if any) to give to hearsay evidence involves an exercise of judgment. The court has to reach a conclusion as to its reliability as best it can on all the available material. Where a case depends entirely on hearsay evidence, the court will be particularly careful before concluding that it can be given any weight. But there is no rule of law which prohibits a court from giving weight to hearsay evidence merely because it is uncorroborated and cannot be tested or contradicted by the opposing party. I do not consider that the statements in the authorities relied on by Miss Rodway in her skeleton argument support such an extreme proposition.”
The judge adopted the approach in Welsh and went on to weigh all the evidence which included audio and video recordings of interviews and the arrest of Mr Sestras as well as the anonymous caller.
The judge also reminded herself of the advice provided in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor  EWHC 3560 (Comm) regarding the fallability of memory but was impressed with the evidence of the then 12 year old rear passenger who gave evidence to the police at the time and again at trial. He correctly noted a number of features which matched those of Mr Sestras Mercedes car. These included the upright bonnet mascot, the female front seat passenger with brown shoulder length straight hair and a silver iPhone, the tinted rear windows and the small boot lip or spoiler.
The evidence also showed that Mr Sestras Mercedes had passed an ANPR camera on his route home which placed him at the scene of the accident at about the same time as it happened.
The judge rejected the evidence of Mr and Mrs Sestras and their rear seat passengers in favour of that of the occupants of the Peugeot, other independent witnesses and the anonymous caller. She was not impressed by the reliance on the collision avoidance system which could be manually disabled or overridden by acceleration. She found in favour of the claimant against Mr Sestras and his insurance company and exonerated the claimant’s mother who had been presented with an impossible situation.
The case was unusual in that the claimant was an innocent rear seat passenger. There was no allegation of contributory negligence against him or his mother regarding the removal of his seat belt. This was a fleeting incident which did not attract blame. None the less he and his mother had to wait years for the resolution of his claim because of the refusal of Mr Sestras to accept that he was involved.
This is a multi million pound claim which now proceeds to the assessment of damages with the same legal team.