PROVING THINGS 77: AN UNATTRACTIVE ARGUMENT: WHEN A PARTY HAS CAUSED AN ABSENCE OF EVIDENCE IT CANNOT BENEFIT FROM IT
When a party has caused a gap in the evidence it is rarely open to that party to rely on the absence it has caused. This was made clear by Mr Justice Foskett in JMX v Norfolk and Norwich Hospitals NHS Foundation Trust  EWHC 3082 (QB).
“It is never attractive for a defendant to assert that a claimant cannot establish a material fact when it is the defendant’s breach of duty that causes the lacuna in the evidence: c.f. Keefe v Isle of Man Steam Packet EWCA Civ 683.”
The claimant was brain damaged. It was his case that this was due to the negligence of the defendant in sending his mother home from hospital when she was in labour. The extent of the labour, and the degree to which the mother was in “pain”, were central issues in the case.
THE MISSING EVIDENCE
One issue in the case was whether the mother should have been examined when she was in hospital on the first occasion. She was not examined. The question arose as to, if she had been examined, what would such examination have revealed?
“It is inevitably speculative to a degree as to what any such examination would have revealed. It is, of course, the case that full dilatation had occurred by about 22.00, but the placental abruption will have hastened the process and so may not make it easy to “job backwards” to try to determine what the position was at an earlier time. The inference, however, is that the cervix was 4 cms dilated at 19.00 since that is when active labour commenced. It is not much better than an informed guess, but Mrs Reading considered that it would have been found to have been 2-3 cms dilated if examined when Midwife Caine saw J’s mother about 90 minutes earlier. Although she was challenged about this, I see no reason to doubt that, based on her experience, that assessment was substantially correct. It is never attractive for a defendant to assert that a claimant cannot establish a material fact when it is the defendant’s breach of duty that causes the lacuna in the evidence: c.f. Keefe v Isle of Man Steam Packet EWCA Civ 683.
OTHER EVIDENTIAL ISSUES IN THE CASE
The judge observed that the defendant had omitted to call what could have been relevant evidenec in the case.
It arises from the question as to why did Midwife Caine discuss the case “several times” with Carmel Sayer (which is what she recorded in her statement for the internal inquiry about four weeks after the material events and repeated in her witness statement) and why Mr Fraser was troubled about the issue at all if it was so obvious that J’s mother could go home? Midwife Caine, when cross-examined, said that she did not engage Carmel Sayer’s attention to the case because she had doubts about what to do, but was merely keeping her informed about what was happening. It may simply be a matter of emphasis, but I do consider that the reality was that she certainly wanted confirmation that she was doing the right thing by allowing her to go home. I think that does mean that there was an element of uncertainty in her mind and that uncertainty possibly arose because of her knowledge of what the hospital guideline said about a VBAC case (even though the guideline was not immediately to hand). At all events, in my view, she plainly wanted her plan to be endorsed by her supervisor and, as it happened, her supervisor decided to ask the Consultant on call, Mr Fraser, for his view. To that extent, the ultimate decision was not hers and hers alone.
In those circumstances, it is most unfortunate that that neither Carmel Sayer nor Mr Fraser were asked to make statements about their recollections of what occurred as Midwife Caine was (see paragraph 133 above). The note made by Midwife Caine (see paragraph 53 above) clearly indicates that she discussed the case with Carmel Sayer and this was emphasised in her own statement. Whilst there was no reference to Mr Fraser in her clinical note, her statement for the internal inquiry records that he was consulted. Since her statement was headed “statement written in anticipation of legal proceedings”, someone within the hospital had plainly identified the circumstances as potentially giving rise to criticism. As it was, Carmel Sayer was not asked to cast her mind back to these events until “the past year” and perfectly understandably could remember nothing about the case. Mr Fraser also was not asked anything about the background until the litigation started, he said. Since neither he nor Carmel Sayer had made any contemporaneous notes or made any statement nearer the time, their ability to recount what occurred or did not occur was substantially disadvantaged.”
NOTE ABOUT DOCUMENTS
“I should conclude by saying that I regret having to decide that Midwife Caine is thus associated with a finding of breach of duty. I thought she was an impressive person, plainly dedicated to her calling as a midwife, and who, I am quite sure, is and always has been a conscientious and caring midwife. Ultimately, the decision about what to do in the situation that confronted her that evening was taken in the rather informal way to which I have made reference and indeed was made by Mr Fraser, not by her. I recognise that conversations of this kind do happen on a daily basis in hospitals up and down the country, but this case does demonstrate the need for proper records to be kept of the substance of those conversations, particularly in “high risk” cases, because re-creating the circumstances many years later can be fraught with difficulty.”