ASSESSING EVIDENCE 26 YEARS AFTER THE EVENT: THE JUDICIAL APPROACH

In Taylor v Chesterfield Royal Hospital NHS Foundation Trust [2019] EWHC 1043 (Ch) John Kimbell QC (sitting as a High Court Judge) considered the question of assessing evidence of a brief incident, 26 years after the event, in a case where all the witnesses involved were giving honest evidence. (The judgment is also interested because it contains a copy of the handwritten medical note that much of the case revolved around).

“In deciding, as I must, on the balance of probabilities what occurred in that delivery room over 25 years ago in the course of 2 minutes between Rebeccah’s head emerging around 20.30 and the point at which Dr Dobbs entered the delivery room, I have to have regard to all the evidence, including in particular the contemporaneous notes.”

THE CASE

The claimant suffered a brachial plexus injury at her birth in 1992.  The trial took place in February 2019.  Damages were agreed and the claimant did not give live  evidence.  The action depended on what was remembered or what the notes said.

THE WITNESS EVIDENCE

Mrs Taylor
  1.  Mrs Taylor is 56 years old. She is a graduate in Business Studies from Bristol University. Before studying for this degree, she trained as a nurse. She worked for a year and a half at a children’s hospital. She now runs an animal care business.
  1.  Mrs Taylor has very strong memories of what happened during Rebeccah’s birth. It was not suggested to her in cross-examination or in closing submissions to me that she was making up any of her evidence to assist her daughter’s claim. Her witness statement was short and to the point. It contained only what she could actually remember. She gave oral evidence and responded to questions put to her in cross-examination in a composed and measured manner. She did not seek to embellish her evidence or claim to remember further details, such as the emergency bell sounding, which she could easily have done without being effectively challenged. I found her an entirely credible witness.
Mr Taylor
  1.  Mr Taylor was until last year a director of a family retail butchery business based in Rotherham. He began working at the age of 16. He was at his wife’s side throughout the delivery of Rebeccah. He also had firm memories and strong mental images of what occurred at the Hospital. He could remember precisely where he was standing and the layout of the room and its lighting (the accuracy of which was confirmed by Mrs Rawson in her evidence). His witness statement signed in May 2017 also appropriately contained only what he could personally remember.
  1.  As with Mrs Taylor, it was not suggested that he had fabricated any part of his evidence. He was, in my judgement, seeking to assist the court by recounting his own memory of events.
Mrs Rawson
  1.  Mrs Rawson is 57 years old. She qualified as a nurse in 1979 and became a midwife in 1984. By the time of Rebeccah’s birth she had been a midwife for 8 years. She still works for the Trust as a bank midwife, having retired from full-time work in 2018.
  1.  Mrs Rawson had no recollection of Rebeccah’s birth. Her evidence comprised a detailed explanation of the notes that were taken by her and others and a very helpful description of the practices and procedures at the Hospital at the time. She was able to identify precisely who had made which manuscript entries on the original medical records and why they were in the form that they were.
  1.  Mrs Rawson was an impeccable witness. She answered all questions put to her in cross-examination in a straightforward and open fashion. She clearly did not see it as her role to defend the Trust or her colleagues. On a number of occasions, she unhesitatingly provided answers in cross-examination which tended to corroborate points of detail in Mr and Mrs Taylors’ evidence. She had clearly given anxious and conscientious thought to every part of the medical records. Her evidence was measured, thorough and practical. She came across not only as a highly competent and conscientious midwife (and supervisor of trainee midwives) but also as a highly empathic and caring person. She was of great assistance to the court.
THE INFERENCES TO BE DRAWN FROM AN ABSENT WITNESS
On the first day of the trial the defendant made an application to serve a witness summary consisting of a chain of emails that the defendant had with the doctor who had been in attendance at the birth.   The judge did not accept that this should lead to adverse inferences being drawn.
 
  1.  Mr Kemp invites me to draw an adverse inference from the fact that the Defendant did not call Dr Dobbs as a witness. He relies on Wisniewski v Central Manchester Health Authority [1998] 4 WLUK 14, in which the Court of Appeal upheld the drawing of an adverse inference by the trial judge as a result of the failure of the Defendant to arrange for a Dr Renninson to give evidence.
  1.  In that case, Brooke LJ reviewed a line of cases which considered the issue of when it was appropriate to draw an adverse inference from the absence of a witness. He derived the following four principles:
(1)    In certain circumstances a court may be entitled to draw adverse inferences
from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.
(2) If a court is willing to draw such inferences they may go to strengthen the
evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.
(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.
(4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.
  1.  These four principles have recently been considered and applied by the Court of Appeal in Manzi v. King’s College Hospital NHS Foundation Trust [2018] EWCA Civ 1882. Lord Justice Sales emphasised this point:
“ 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”.”
  1.  The fact that a potential witness has no recollection at all of the events in question may be considered a good explanation for not calling him or her – see e.g. Welds v Yorkshire Ambulance Service NHS Trust [2016] EWHC 3325 (QB) at [58], HHJ Freedman sitting as a Deputy Judge of the High Court:
“Similarly, given that Ms Piper has no recollection of the incident and was reluctant to be involved, that again seems to me to be a good reason for the defendants not calling her to give evidence. Whilst it is true that the defendants called Mr Lee to give evidence even though he had no independent recollection of the incident, it does not follow that the defendants should be reasonably required to call evidence from a former employee who can give no independent account of what occurred. In short, I find that there were proper reasons and credible explanations as to why the defendants did not call the midwives and that therefore it would not be right to draw any adverse inference.”
  1.  It is not appropriate to treat the four principles set out by Brooke LJ in Wisniewski as if they were a statute or Welds as establishing a rule that no adverse inference will ever be drawn where the witness who is not called says he or she has no recollection of events. Whether or not it is appropriate in any case to draw an adverse inference from the absence of a witness will be a highly fact sensitive matter which will depend on all the circumstances of the case, both procedural and evidential.
  1.   Among the particular factors in play in Wisniewksi were the following:
  1.  The Defendant had been slow to serve any witness statements at all. An unless order had to be obtained.
  2.  There was a six day break in the proceedings. Just before the break, the trial judge made clear that he was unlikely to give any weight to the statement of Dr Renninson unless he gave evidence either live or via video link. Despite the indication given by the trial judge, no further efforts were made to contact Dr Renninson and he was not called.
  3.  No other member of the medical staff was called. The Court of Appeal noted: “In addition to Dr Renninson’s absence, there was also a deafening silence from the other members of the relevant medical team at the hospital. Neither the registrar who had been on call that night nor the consultant with overall responsibility for the team attended to tell the judge what the practice at that hospital was for handling situations like the one that presented itself at 3.40 a.m.”
  4.  The trial judge concluded that the Defendant had taken a decision not to call evidence from Dr Renninson for tactical reasons.
  5.  The Claimant’s expert evidence had identified a course of action which ought to have been adopted by a doctor and the hearsay statement served by the Defendant (after the expert report in question had been served) was silent on this point.
  1.  In the present case I am not persuaded to draw any adverse inference from the absence of Dr Dobbs for the following reasons:
  1.  This is not a case where the Defendant has chosen not to call a witness for tactical reasons. The Defendant has chased Dr Dobbs and sought on numerous occasions to obtain his co-operation and attendance at trial.
  2.  The Defendant has been open and transparent about the timing and content of its communications with Dr Dobbs. All the email communications were disclosed as part of the application for an extension of time and the witness summary itself accurately reflected the nature of what he had told the Defendant’s solicitors. There is nothing in the substance or tone of those communications to suggest that Dr Dobbs had anything to hide.
  3.  Dr Dobbs has confirmed that he has no independent recollection of Rebeccah’s delivery and had ceased to work in obstetrics 15 years ago, so there is nothing he could usefully add to his own contemporaneous note.
  4.  The Defendant in this case has called live evidence from the midwife who was present throughout the whole delivery and who was able to speak to and explain the hospital’s procedures and records.
  5.  The Claimant could have served a witness summons on Dr Dobbs but did not.
  6.  The consent order, signed by the Claimant’s solicitor immediately prior to the commencement of the trial, was in the following terms: “The Defendant has permission to serve the witness summary as sufficient evidence in the matter of the witness evidence of Dr Stephen Dobbs, consultant obstetrician and gynaecologist.” (emphasis added). The terms of this consent order suggest that the Claimant’s solicitors had satisfied themselves that the reasons given for not calling Dr Dobbs were good ones and that there was no basis on which they could object to the evidence of Dr Dobbs being admitted and evaluated alongside all the other evidence in the case.
  7.  The Claimant has not identified a specific allegation on which the contemporaneous documentary evidence was silent and in relation to which Dr Dobbs might reasonably be expected to be able to provide helpful oral evidence.
  1.  I accept the Defendant’s submission that Dr Dobbs’ witness summary and the materials underlying are admissible under the Civil Evidence Act 1995. However, I have been able to come to firm conclusions about what happened in the delivery room while Dr Dobbs was present without recourse to his witness summary or the underlying e-mails.

CONSIDERING EVIDENCE WHEN THE MATTERS CONCERNED HAPPENED A CONSIDERABLE TIME BEFORE THE TRIAL

The judge set out the principles on which the courts consider evidence that is of events some time in the past.

APPROACH TO THE FACTUAL WITNESS EVIDENCE
  1.  Ms Mauladad drew attention to the fact that Mr and Mrs Taylors’ witness statements were signed over 24 years after the events in question.
  1.  She referred me to a number of recent authorities in which warnings have been given about the need for judges to be cautious about the reliability of witness evidence about events which took place many years ago.
  1.  These authorities have recently been helpfully reviewed and summarised by Stewart J in Kimathi v. Foreign and Commonwealth Service [2018] EWHC 2066 (QB) as follows:
“95. In recent years there have been a number of first instance judgments which have helpfully crystallised and advanced learning in respect of the approach to evidence. Three decisions in particular require citation. These are:
96 Rather than cite the relevant paragraphs from these judgments in full, I shall attempt to summarise the most important points:
  1.         i) Gestmin :
  •          We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate.
  •          Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of “flash bulb” memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event.
  •          Events can come to be recalled as memories which did not happen at all or which happened to somebody else.
  •          The process of civil litigation itself subjects the memories of witnesses to powerful biases.
  •          Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say.
  •          The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. “This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”.
  1.         ii) Lachaux :
  •          Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities. I extract from those citations, and from Mostyn J’s judgment, the following:
  •          “Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…”
  •          “…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…”
  •          Mostyn J said of the latter quotation, “these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty.”
          iii) Carmarthenshire County Council :
  •          The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness.
  •          However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 ofGestmin , Mostyn J said: “…this approach applies equally to all fact-finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context.”
  1. Of course, each case must depend on its facts and (a) this is not a commercial case and (b) a central question is whether the core allegations happened at all, as well as the manner of the happening of an event and all the other material matters. Nevertheless, they are important as a helpful general guide to evaluating oral evidence and the accuracy/reliability of memory.”
  1.  Mr Kemp did not seek to challenge the accuracy of Stewart J’s summary of the cases or the principles enunciated in them. I therefore accept it as a helpful general guide to the correct approach to the witness evidence in this case.

 

THE FINDINGS

The judge set out in detail his reasons for accepting the evidence of the treating midwife.

  1.  In deciding, as I must, on the balance of probabilities what occurred in that delivery room over 25 years ago in the course of 2 minutes between Rebeccah’s head emerging around 20.30 and the point at which Dr Dobbs entered the delivery room, I have to have regard to all the evidence, including in particular the contemporaneous notes.
  1.  I have no hesitation in accepting Mrs Rawson’s evidence. I have no doubt at all that she would not have allowed a student midwife to apply excessive traction to Rebeccah and would not have done so herself. If anything untoward had happened during the delivery, I am satisfied she would have recorded it. I do not believe that Mrs Rawson would have acted contrary to her own training as a midwife or that she would have allowed a student under her supervision to have applied extreme traction. I accept Mrs Rawson’s evidence about the tendency of students to be overcautious. An extreme exception to that general rule would not have been overlooked by her.
  1.  I have no doubt that Mr and Mrs Taylor were doing their best to recall the traumatic birth of their daughter and that they genuinely had strong memories and mental images of what happened. They recalled many details such as the layout of the room, the lighting and who was in the room. I accept Mr Kemp’s submission that the parental evidence was internally consistent. However, I suspect the main explanation for this is that, as Mrs Taylor accepted in cross-examination, they had discussed the events many times.
  1.  I also accept Mr Kemp’s submission that neither Mr or Mrs Taylor attempted to fill in or gild their evidence. They were, as I have already observed, entirely honest and credible witnesses. However, the key question is whether I accept their evidence about extreme pulling by the midwives 25 years after the event in question as reliable. I do not. I prefer the evidence of Mrs Rawson on this key issue. As the case law I cited above emphasises, strength of belief, in particular in relation to flash bulb type memories of traumatic events, is not a reliable guide to the accuracy or reliability of that memory. This is particularly so when the events in question lie many years in the past.
  1.  I find Mrs Rawson’s evidence to be more reliable than that of Mr and Mrs Taylor for three principal reasons: (a) it is consistent with the contemporaneous notes of the delivery; (b) it is consistent with the inherent probabilities of the situation, in particular given Mrs Rawson’s training, experience and practice; and (c) I found Mrs Rawson’s oral evidence during cross-examination so convincing and trustworthy.