PROVING THINGS 78: AN ABSENT WITNESS IS NEVER GOING TO HELP: DEFENDANT’S FAILURE TO TAKE CONTEMPORARY STATEMENTS LEADS TO ADVERSE INFERENCES
In a talk today to a group of clinical negligence lawyers I discussed the issue of evidence, and “missing” documents and witnesses. In particular the relevance of Keefe v Isle of Man Steam Packet Co Ltd  EWCA Civ 683 on the adverse inferences a court will draw when documents are not available. Right on cue comes the decision in TW (A Child) v Royal Bolton Hospital NHS Foundation Trust  EWHC 3139 (QB). An almost textbook examination of the problems caused by “missing” witnesses and a failure to take contemporaneous statements.
The claimant was injured at birth. His case was that his parents had telephoned the hospital whilst his mother was in labour and been told by a midwife not to attend.
THE “MISSING” MIDWIFE
Initially the defendant asserted that there was no call. It was then clear that calls had been made. The defendant had no record of the call and who spoke to the parents. The defendant protested that the issue of the telephone call had not been raised until many years after the event. It transpired that there was a relatively contemporaneous complaint about the midwife discouraging the parents from attending.
Mrs Justice King considered the issue of the missing witness.
The identity of this midwife has never been ascertained. The Defendant says there is no midwifery or other record of the contents of any such call but it was not their practice at the time to log such communications or record the advice given, if any. The Defendant prays in aid as an explanation for the inability to track down the midwife, that the existence of this call was only first brought to their attention in 2012 by a letter from the Claimant’s solicitors dated 14 February 2012 and with its significance only being identified for the first time in the draft particulars of claim served on the 28th of September 2012. The Claimant says, to the contrary, the hospital was put on notice of such a call and its effect upon the parents, by the matters raised by Allan Makin (the mother’s partner and the Claimant’s father) at a meeting on 7th of April 2008 between the parents and the consultant Dr Williams. These are set out in the Dr Williams’ recorded notes of this meeting although not referred to in any of the letters subsequently sent to the parents by Dr Williams. Among other things this is recorded in the notes:
…the midwives tried to discourage them from coming in when he initially called at 0400 HR‘. Would this have changed anything?’
The significance, if any, of the failure of the Defendant to identify the midwife concerned, and hence to be able to call any evidence from her as to the nature and purpose of the first call and any advice given, is a matter to which I shall return but for present purposes of this overview of the case as it developed before me, it is sufficient to record that the Defendant (having discovered and disclosed its telephone call records) does not now challenge that the two telephone calls spoken of by the parents did occur (the first at about 04.00am, the second at just before 04.40am), or challenge the account given in evidence by the parents and grandparent of the two calls – although still making the general point that all witnesses were having to recall in evidence events of many years ago.
THE CONCLUSIONS THAT THE COURT DREW FROM THIS: CRITICAL APPROACH TO THE DEFENDANT’S CASE
Moreover whether or not the evidence before me established the Defendant was in breach of practice in 2008 in not keeping records of telephone calls and noting their contents (Miss Francois was silent on this issue and Miss Brydon conceded it would be breach of practice now in 2016 but common practice in 2008 not to do so,) the fact is no records were kept and the lack of evidence as to what was said (other than that of the family), and the lack of evidence from the material midwives who took the calls, has to be laid at the door of the Defendant. The issue of the first call and the family being positively discouraged by the midwives was raised at the 2008 meeting with the consultant but no investigation was undertaken at that time by the Defendant as to that call or the midwives concerned. The issue raised by Mr Makin (‘would this have changed anything?’) was not addressed by the Defendant at the time. I do not consider that the Defendant can escape responsibility by the cri de coeur that this was not obviously a ‘complaint’ but a query made in the context of a wide range of questions being asked. It was an issue clearly raised and it fell to be addressed.
I accept in these circumstances that the court should judge the Claimant’s case benevolently and the Defendants’ case critically on what was said in the telephone call concerned and the line of reasoning of the midwives in not inviting the Claimant’s mother into hospital. In this context the Claimant is entitled to rely on the approach of Longmore LJ in Keefe v Isle of Man Steam Packet Co Ltd  EWCA Civ 683 at para 19 and that of MacDuff J in the case of The Executors of the Estate of John Raggatt (deceased) v Kings College Hospital NHS Foundation trust and Others EWHC 1604 (QB), at para 131 to which I was referred.
The claimant succeeded on the issue of the basic facts, liability and causation