DRAWING ADVERSE INFERENCES WHEN WITNESSES ARE ABSENT: COURT OF APPEAL DECISION TODAY: COURT HAS A DISCRETION AS TO THE INFERENCES TO BE DRAWN
I am grateful to barrister Luka Krsljanin for sending me a copy of hte Court of Appeal decision today in Manzi -v- King’s College NHS Foundation Trust  EWCA Civ 1882. The Court rejected an argument that the trial judge erred in failing to draw adverse inferences when a witness was not called to give evidence. Here I look at the judgment in relation to adverse inferences. A later post will look at the judgment in relation to the evaluation of contemporaneous notes.
“Wisniewski is not authority for the proposition that there is an obligation to draw an adverse inference where the four principles are engaged. As the first principle adequately makes plain, there is a discretion i.e. “the court is entitled [emphasis added] to draw adverse inferences”.
The claimant brought an action in clinical negligence alleging negligence in failing to remove part of the placenta after childbirth. The crucial issue was the size of the placenta which was retained. A doctor had made a note recording what was said to the claimant after the operation. That doctor , Dr Hooper, was not called to give evidence, the claimant argued that this should lead to the court drawing adverse inferences. The trial judge rejected that argument, the decision was considered in a previous post on this blog. The claimant appealed to the Court of Appeal.
THE JUDGMENT ON APPEAL
The appeal involved, primarily, arguments relating to the trial judge’s assessment of the evidence.