THE INFERENCES TO BE DRAWN FROM ABSENT WITNESSES: EVIDENCE BEFORE THE COURT OVERRIDES HEARSAY
This blog has looked many times at cases which consider the practical implication of the test in Central Manchester Health Authority v W (A minor)  PIQR P324: the inferences a trial judge should infer when witnesses are noted called at trial. This issue was considered by His Honour Judge Butler in Wignall -v- The Secretary of State for Transport  EW Misc B17 (CC).
- Comments made by a relative to a doctor when the claimant attended for medical examination were accepted as having been made.
- The court could properly infer that the statements had been made in the absence of any evidence from the relative in rebuttal.
- However this evidence could not be accepted in preference to the signed witness statement that the claimant had made and the signed Part 38 replies (the claimant had subsequently died and was not available to give evidence at trial).
The claimant was bringing an action for industrial deafness caused by working with or near steam engines. The claimant had died during the action and it was continued by his personal representative. The judge observed that “All issues that can be in dispute in a claim of this kind were in dispute in this claim.” One of those issues was limitation and the date of knowledge of the (now deceased) claimant.
The judge considered the defendant’s arguments that a comment by the claimant’s son made to an examining doctor showed an earlier date of knowledge.
What, if any, evidence is there of constructive knowledge at any earlier date? The Claimant bears the burden of proving that this claim was brought within three years of the deceased’s date of knowledge, actual or constructive. The Defendant bears no legal burden in this respect and on its pleaded case put the deceased to proof. However, Mr Stewart points to a piece of evidence – and it is in my judgment the only piece of evidence available to the Defendant for this purpose – which is said to be at least suggestive of a date of constructive knowledge several years before 30 th May 2012 and he submits that it should operate to prevent the Claimant discharging the burden of proof upon him that the deceased did not have constructive knowledge before May 2009 (three years before commencing the proceedings). This evidence is that when the deceased went for medical examination by the Defendant’s medical expert Mr Jones (consultant ENT surgeon) he attended with his son. When Mr Jones gave evidence, he was unable to identify Mr Andrew Wignall, who was sitting in court, as the son who had attended with the deceased and it was not confirmed either in evidence or through counsel that it was indeed Mr Andrew Wignall, as opposed to any other possible son of the deceased, who attended with him. It was however not disputed that a son did attend with him and nor was Mr Jones challenged in evidence as to the accuracy of what he had recorded that son as having said. When the deceased was examined by Mr Jones on 18 th February 2014, which I note was only three months before his death, he told Mr Jones that he complained of moderate hearing loss ” for one to two years” (page 214). Taken literally, that would mean only as far back as early 2012, but more importantly Mr Jones recorded that the son who attended with the deceased then stated that ” it was a great deal longer than this” and felt that ” he has had hearing problems for fifteen years“.
Mr Stewart invited me to infer, from the absence of the calling of the son in question to give evidence to contradict what Mr Jones had recorded, that this had been said and, if I understood him correctly, either to make a finding of fact that the deceased did have hearing problems as far back as about 1999, which would of course be about thirteen years before commencement of the proceedings, or at the very least to find that the uncertainty created by this piece of evidence meant that I could not be satisfied that the Claimant had discharged the burden of proving that on the balance of probabilities the deceased’s date of constructive knowledge was no earlier than May 2009. For his part, Mr Rigby submitted firstly that this was at best second-hand hearsay evidence and secondly that if it established anything at all it established no more than that the son in question had a perception that his father had suffered hearing loss rather than that the deceased had done so. It was effectively submitted that without subjective awareness on the part of the deceased, the question of whether he should objectively reasonably have investigated the cause of the problem did not arise on the authorities (to which I will refer shortly). Mr Rigby submitted that it was important that Mr Jones had not recorded in his report that the son’s intervention had caused the deceased to change the history and that there is no record that the deceased reacted to or acquiesced in the comment or even that he had in fact heard it. Although, when he gave evidence, Mr Jones at first seemed to say that the deceased had heard it, he could not say and did not say that the deceased had adopted it or changed his account at that time of having had the problem for only one or two years.
In Central Manchester Health Authority v W (A minor)  PIQR P324, the Court of Appeal held that in certain circumstances a court was entitled to draw adverse inferences from an absent or silent witness who might be expected to have material evidence. In my judgment it is proper for me to draw the inference, from the absence of evidence from whichever son attended with the deceased on that occasion, that what Mr Jones recorded as having been said was recorded accurately. Medical reports were exchanged after the exchange of statements of witnesses of fact, according to the order set out in the district judge’s directions order made on 18 th December 2013 (page 63). It is unlikely that the deceased ever saw Mr Jones’ report because he would have died before it was served. However, I find that it is a reasonable inference that Mr Andrew Wignall, when he became Claimant, would have been made aware of what was said. It is reasonable to infer that the Claimant’s solicitors would have shown that report to their client after it was served. It would have been open to the Claimant to make an application for permission to serve a supplementary witness statement from the son in question (whether it was Mr Andrew Wignall or another son) and insofar as such an application would have been an application for relief from sanctions, it seems to me that there would have been good reason for a district judge to grant the application. Accordingly I draw the inference that the son who attended with the deceased did say what he is recorded as having said and did, subjectively, have the perception and opinion that his father had been suffering hearing problems for many years. However, I cannot and do not draw the inference that the deceased agreed with that assertion, given that there is no express record that he did so and given that he did not change the history that he was presenting to Mr Jones. It is in my view relevant to note or reasonable to infer from his death only three months afterwards that the deceased was obviously not in the best of health. It is a curious feature that the witness statement of the deceased giving the period of three and a half to four years (page 75) was made on 17 th February 2014, just one day before he went to Mr Jones, on which day is recorded as having referred to a period of only one to two years. In my judgment it is important to bear in mind that what was said to Mr Jones was said in the context of a conversation during a medical examination whereas what is said in the witness statement was said to a solicitor and in the context of signing a statement of truth. Further I bear in mind that what is said in the witness statement is consistent with what has been said (again verified by the statement of truth) seven months earlier in the Part 18 replies.
Accordingly I prefer and accept the first-hand hearsay evidence of the deceased, verified by the statement of truth, given in his witness statement, consistent with and supported by the Part 18 replies, and I do not consider that the weight and force of that evidence is undermined or diminished by the second-hand hearsay reported by Mr Jones.
OTHER POSTS ON THIS ISSUE
- More on adverse inferences from absent witnesses: a clinical negligence case.
- Durrant case back in the reports: what presumptions should a judge draw when a party is debarred from calling witnesses
- The Local Government Lawyer “Silence is not necessarily golden”.
- Gordon Ramsay and witness evidence: absence of key witnesses does not lead to turning up of the heat
- Inferences to be drawn from silence: the views of the Supreme Court
- Absent witnesses are not necessarily decisive: Western Trading considered
- Banquo’s ghost not at the feast: when a key witness is not called – the inferences a court will draw.