THE WITNESS WHOSE STATEMENT WAS “SOMEWHAT FICTIONAL”: EXCELLENT EXPERTS WHO ROSE ABOVE THE FRAY

There are several aspects of the judgment in JAH v Burne & Ors [2018] EWHC 3461 (QB) that are of interest to civil litigators.  Firstly it is another example of a case where the claimant’s witness statement was not accepted (at all). Secondly it is an example of expert witnesses refusing to bow down to leading questions and giving their joint evidence based on the facts.

 “Unfortunately, in this case, the Claimant’s own recollection is, to all intents and purposes, non-existent. Although she provided a witness statement and attested to its truth, it soon became apparent when she gave evidence that this was somewhat fictional and that she had no recollection of her attendances at the hospital or seeing the individual General Practitioners. Even prior to these events, she had been recognised by Dr Devonshire to be a poor historian whose accounts were unreliable”

THE CASE

The claimant brought a clinical negligence action against a number of defendants. She was partially successful against one of the defendants.

THE CLAIMANT’S WITNESS STATEMENT

Mr Justice Martin Spencer considered the evidence and found the claimant’s witness statement to be “somewhat fictional”

Evidential Hierarchy

1. The most reliable source for the history of the Claimant’s treatment is what is contained in the medical records, written contemporaneously (although it must be remembered that errors can always be made, even in records made contemporaneously). Usually, the next best source will be the Claimant’s own recollection: often healthcare professionals will have no specific memory of a particular consultation and can only reconstruct what occurred by reference to the notes made and their usual practice. Unfortunately, in this case, the Claimant’s own recollection is, to all intents and purposes, non-existent. Although she provided a witness statement and attested to its truth, it soon became apparent when she gave evidence that this was somewhat fictional and that she had no recollection of her attendances at the hospital or seeing the individual General Practitioners. Even prior to these events, she had been recognised by Dr Devonshire to be a poor historian whose accounts were unreliable. As a result of hearing the few questions to be put to the Claimant, I quickly came to the conclusion that it is impossible to place any reliance on her evidence, whether for what she has said or for what she has omitted from her statement. The other person who accompanied the Claimant to some of her appointments, and who might have been expected to have a recollection, is her mother. Unfortunately, she has mixed Alzheimer’s disease and vascular dementia and was unable to give evidence, so her statement was put in under the Civil Evidence Act. Again, that statement is of limited value and given that there are some obvious inaccuracies and there has been no opportunity for the Defendants to challenge it, I find myself unable to put much weight on it.

ROBUST EXPERTS

This blog has reported on a lot of cases where judges have been critical of experts.  There have been several posts on the storms in a teacup caused by drafting agendas for expert meetings.

In this case the judge comments specifically on the way in which the experts have managed to rise above the leading questions they were posed.

1. 1. I should say at the outset that I found both Mr Heather and Professor Beard to be generally impressive witnesses, either of whose evidence I would have been happy to accept had it stood alone. An example of their careful approach is to be found in their joint statement where they considered the presence (or otherwise) of pedal pulses. They were asked at one point:

“Is it agreed that in addition at paragraph 12 of his statement Mr Jorge said that he found pulses to be present on 9 May 2012?”

They answer:

“To be accurate, we both agree that Mr Jorge’s statement describes his usual method of palpating the dorsalis pedis pulse and that he asserts that he would have recorded in his notes if he had been unable to feel the pulse.”

They were then asked:

“Is it agreed that in addition at paragraph 4 of her statement Dr Halcro says that she found pulses to be present on 9 May 2012?”

To this they replied:

“To be accurate, we both agree that Dr Halcro’s statement recalls that she should have checked the Claimant’s pedal pulses and thinks that she would have done so.”

Thus, in relation to both these matters, these experts did not allow themselves to be misled by the form of question which they were asked, but preferred to give their answers on the basis of the evidence as it actually existed. This was very impressive.