In personal injury litigation, the battle between memory-based evidence and contemporaneous records is familiar. The recent High Court decision in MW & Anor v Wilkinson & Anor [2025] EWHC 2300 (KB) highlights just how delicate that balance remains. 

The Case at a Glance

In MW and EW v Wilkinson the court considered a road traffic accident where a child (M) suffered life-changing injuries after being struck by a pick-up truck near a school. The key issue was liability and whether the driver was negligent. 

Evidence before the court included:

• The witness accounts given many years after the accident, including that of the driver. 
• The police statements taken shortly after the collision. 
• The expert evidence from accident-reconstruction specialists and neurosurgeons, based on the scenario advanced by each side. 

Judge Howells placed emphasis on the written records and expert reconstruction. He concluded that the child had emerged from behind a parked vehicle, obstructing the driver’s view, and that even travelling at the advisory speed (20 mph) the collision was unavoidable. 

Memory Is Fallible — Even When Honest

His judgment reaffirms that the human memory does not recall a perfect account of what happened and within it, referred to Kimathi and others v Foreign and Commonwealth Office (2018) EWHC 2066 (para 96) where that judgment mentioned several instances of witness reliability. 

Within that judgement, Judge Stewart, discussed how ‘events can come to be recalled as memories which did not happen at all or which happened to somebody else”. 

Judge Mostyn, also cited within the judgment of Kimathi and others v Foreign and Commonwealth Office (2018) EWHC 2066 (para 96) states “Winesses, especially those who are emotional, who think they are morally in the right, tend very easily and uncousciously to conjure up a legal right that did not exist….For that reason, a witness, however honest, rarel persuades a judge to that his present recollection is preferable to that which was taken down in writing immediately after the incidient occurred”.

Notably, in similar types of litigation, courts have emphasised that “even an unreservedly honest witness can be recounting events inaccurately.” 

The Role of Contemporaneous Notes

Those records made close in time to the event, contemporaneous notes,  enjoy distinct advantages. They are less susceptible to distortion from memory decay, hindsight bias or external influences. As such, they provide a more objective baseline. 

In MW and EW v Wilkinson, the court relied heavily on police statements recorded immediately after the accident. That contemporaneous information helped anchor the fact-finding exercise and was treated as more reliable than recollections given many years later. 

Furthermore, when expert reconstruction rests on inputs drawn from contemporaneous records rather than memories, the resulting analysis is more robust. In this case, both reconstruction experts agreed that if the child emerged from behind a parked vehicle, the driver would not have had the opportunity to avoid impact — regardless of slight reductions in speed. 

But Contemporaneous Records Are Not Infallible

That said, courts do not treat contemporaneous documents as sacrosanct. A note made close in time may itself reflect errors in perception, selective attention, or misunderstanding. Indeed, an accepted judicial approach insists that contemporaneous records must be tested alongside all other evidence. 

In a non-injury context, for example, a judge found that a near-contemporaneous note was “in the critical respect (entirely innocently) inaccurate,” despite being written shortly after the event. 

Thus, contemporaneous documents — while often preferred — are not immune from challenge. Their weight depends on context: how they were created, by whom, and for what purpose.

Implications for Medico-Legal Practice

For medico-legal practitioners advising on or preparing personal injury cases, this case underlines a few key practical points:

1. Where possible, contemporaneous records (police statements, accident reports, medical notes) should be secured and preserved early.
2. Relying solely on late recollections (e.g., witness statements years after the event) is risky. Memory degradation, bias and distortion are real concerns — even with honest witnesses.
3. Expert reconstruction should depend on the most reliable factual inputs available; contemporaneous records often provide the most dependable foundations.
4. Contemporaneous documents, however, must still be critically evaluated. Their provenance, completeness, and likely accuracy should be carefully considered.

Conclusion

The case of MW and EW v Wilkinson confirms an important aspect of civil and personal injury litigation: memory may lie. Contemporaneous notes are far less likely to be distorted but still could be. For judges and medico-legal experts, the fairest approach is to give those records primary weight, while treating memory-based evidence as requiring careful scrutiny. The task remains a holistic one: assessing all evidence in its full context, with an awareness of human fallibility.