APPEALING FINDINGS OF FACT: THE WEIGHT OF EVIDENCE IS A CONTEXTUAL EVALUATION FOR THE JUDGE: MEDICAL RECORDS ARE NOT DEFINITIVE

We are looking, for the second time, at the Court of Appeal decision yesterday in Manzi -v- King’s College NHS Foundation Trust [2018] EWCA Civ 1882. That part of the judgment that deals with findings of fact  at trial and appeals against such findings.  In particular there is no rule of law that states that contemporary records are bound to be accepted as accurate.

“The application of a standard of proof is rarely a binary choice between items of evidence that are of equal weight. Weight is a contextual evaluation for the judge who reads, hears and sees the evidence of the witnesses. It is inappropriate for this court to interfere with that evaluation unless it is perverse.”

THE CASE

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.  The appeal was, primarily, about the trial judge’s fact finding. We looked, yesterday, at that part of the judgment that dealt with issues relating to adverse inferences when witnesses were not called.

THE COURT OF APPEAL JUDGMENT ON FACT FINDING

    1. The essence of the appeal can be distilled into two issues on the claimant’s own submissions:
i) The judge was wrong in the way in which he evaluated the evidence of Ms Robinson and Dr Hooper.

ii) The judge failed to draw an adverse inference against the defendant for not adducing evidence from Dr Hooper.

Issue 1 – error of factual evaluation:
    1. Although the parties describe in their submissions a common understanding of the principles that an appellate court should apply in considering conclusions of fact, the claimant seeks to focus on discrete parts of what is an holistic exercise to illustrate whether the judge did or did not get the evaluative exercise wrong. Unless the judge’s evaluation can be demonstrated to be perverse, this is rarely an attractive submission because it usually descends into questions about the weight to be given to parts of the evidence which are a matter for the court that hears and sees the witnesses in context, an advantage the appellate court does not have.
    2. It is helpful to focus on the test this court must apply. That was most recently described in Re B (A Child) [2013] UKSC 33 per Lord Neuberger PSC at [53]:
“…where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where the conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it.”
    1. Having regard to the focus that the claimant wishes to give to the appeal in this case, the words of Arden LJ in Langsam v Beachcroft LLP [2012] EWCA Civ 1230 at [72] are apposite and helpful:
“…where any finding involves an evaluation of facts, an appellate court must take into account that the judge has reached a multi-factorial judgment, which takes into account his assessment of many factors. The correctness of the evaluation is not undermined, for instance, by challenging the weight the judge has given to elements in the evaluation unless it is shown that the judge was clearly wrong and reached a conclusion which on the evidence he was not entitled to reach.”
    1. Although it might be thought that this is a sufficient answer to the first issue raised in this appeal, in deference to the careful submissions this court has heard, I shall set out the principal examples given. The claimant focusses on case law that demonstrates unsatisfactory reasoning or a demonstrable failure to consider and evaluate relevant evidence and cites as an example Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377at 381G-382 for the proposition that the judge must explain why he has reached his decision.
    2. The claimant also seeks to emphasise the evidential importance of contemporaneous documents when assessing facts that are in issue. In particular the claimant relies on the judgment of the Court of Appeal in Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283, [2016] Med LR 1 where at [14], Tomlinson LJ held that:
“Clinical records are made pursuant to a clear professional duty, serious failure in which could put at risk a practitioner’s registration. Moreover, they are not compiled simply as a historical record, they fulfil an essential and ongoing purpose in informing the care and treatment of a patient. Contemporaneous records are for these reasons alone inherently likely to be accurate.”
    1. Neither of these propositions is in dispute, the question is whether the claimant can identify an error of factual evaluation of a nature and extent that vitiates the judge’s conclusion.
    2. First, the claimant alleges that the judge’s treatment of the ultrasound scan performed by Ms Robinson is erroneous. Ms Robinson had stated that she had identified an echogenic mass measuring 7 x 4.4 x 2.2 cms of which she wrote in her report ‘? Placenta’. The claimant submits that the judge’s conclusion is wrong because:
i) In his judgment, the judge does not come to a clear conclusion whether Ms Robinson’s measurement was rejected.

ii) No satisfactory reason is given for not accepting Ms Robinson’s oral evidence that she could distinguish between the placental mass and the fluid / blood surrounding it and reliance is wrongly placed on Ms Robinson’s evidence that she was not ‘sure’ of the measurement of the placental piece.

iii) There is no recognition of the inherent reliability of the contemporaneous clinical report made by Ms Robinson, who is a skilled and experienced Senior Sonographer.

iv) Too much reliance was placed on the agreed evidence of the parties’ experts that distinguishing between placental tissue and blood will become more difficult over time as the blood takes on solid form. This is only general evidence and does not prove that Ms Robinson must have been wrong.

    1. The key to the first example of alleged error is that the claimant acknowledges but fails to take into account the reasons that the judge gave for the conclusion of fact to which he came. It is clear from the findings of fact that I have summarised above, that the judge preferred the evidence of Dr Ali on measurement. He reasoned why and those reasons are directly relevant to the weight that the judge gave to the evidence before him.
    2. The reasons included a) the difference between 2 cm and 7 cm would have been a very substantial error for Dr Ali to have made (and hence inherently less likely), b) the evidence of Ms Robinson that she was not sure about measurement, c) the consensus of the experts which was agreed by Ms Robinson about the difficulty in identifying placental tissue from blood and other accretions over time, and d) other contemporary materials such as the discharge summary. In addition, the evidence arose at different times and in different contexts which the judge described. It would be difficult, if not impossible in that circumstance, to dislodge a conclusion based upon a multi-factorial evaluation. It is likewise difficult, if not impossible, on the evidence to say that the judge was wrong in concluding that there are limitations on what an ultrasound scan can show shortly after birth and/or that it would be difficult to tell the difference between a blood clot and placental tissue.
    3. There is nothing sufficient in the claimant’s submissions for this court to interfere with the judge’s conclusion. The judge did not need to go further and reject Ms Robinson’s evidence. He did not need to do so having reasoned what he made of it. Furthermore, this is not, as alleged, an example of a failure to apply the civil standard of proof to the evidence. The application of a standard of proof is rarely a binary choice between items of evidence that are of equal weight. Weight is a contextual evaluation for the judge who reads, hears and sees the evidence of the witnesses. It is inappropriate for this court to interfere with that evaluation unless it is perverse.
    4. Second, the claimant alleges that the judge was in error in his treatment of the evidence relating to Dr Hooper’s contemporaneous medical note which records that she explained to the claimant that the products removed were approximately 8 cm. The claimant submits that the judge’s reasoning is inadequate because:
i) The judge failed to recognise that Dr Hooper’s clinical record was inherently likely to be accurate.

ii) The judge failed to draw the obvious conclusion that Dr Hooper must have known the dimensions as she would not have made them up.

iii) The judge advances no reliable hypotheses as to why the measurement explicitly recorded by Dr Hooper in the records was not correct with the consequence that the judge’s conclusion was speculative given that he accepted that Dr Hooper may have been present during the operation and there was no witness evidence as to why her note was inaccurate.

iv) The judge recognised that the word ‘products’ described placental tissue, but then held that such an interpretation would be overly legalistic. That was wrong as the law requires the judge to recognise the likelihood that the contemporaneous notes are accurate unless shown otherwise.

  1. The proposition that a contemporaneous clinical record is inherently likely to be accurate does not create a presumption in law that has to be rebutted in the manner submitted by the claimant. It is an important factor in evaluating materials of that kind so that reasoning is necessary to explain how records (or their absence) are being treated on the facts of a particular case. To raise the bar so high that an analysis of what might be sufficient to displace inherent reliability is needed in every case is to make the process of fact finding too onerous and mechanistic. In any event, the judge analysed the circumstances in which the records were made alongside the other evidence in the case. It cannot be said that his evaluation departed from the principles and practice identified in Synclair, quite the contrary.
  2. The limitations on the use that can be put on the contents of the clinical note of Dr Hooper were clear: a) she did not perform the evacuation procedure, b) there is no evidence that she was present during the operation, c) the unchallenged evidence of all other clinicians is that it would have been very difficult to differentiate between placental tissue and other products on a visual inspection, d) it was not Dr Hooper’s task to analyse the mass removed, and e) she did not measure the mass removed. On that basis, the judge cannot be criticised for describing Dr Hooper’s role as ‘tangential’ to the issue in the case.
  3. On the discrete issue of whether the judge was entitled to contextualise what Dr Hooper’s note recorded when he inferred that ‘products’ could refer to both placenta and blood clots: that was the evidence of the expert, Dr Maresh, on whom the judge was entitled to rely. It is, therefore, incorrect to describe the judge’s treatment of Dr Hooper’s note as being unreasoned or speculative. It was based in the evidence that he accepted and was appropriately reasoned.