THE GESTMIN PRINCIPLES IN A CLINICAL NEGLIGENCE CASE: JUDGE DOUBTS WHETHER THEY CAN BE DIRECTLY APPLIED IN OTHER CONTEXTS
This blog has looked, many times, at the judicial assessment of evidence, particularly witness evidence. Often this is done by reference to the “Gestmin” criteria. In CXB -v-North West Anglia NHS Foundation Trust,  EWHC 2053 (QB) HH Judge Gore QC (sitting as a High Court judge) stated that over-reliance on the Gestmin judgment is “fraught with danger”.
“The case posed and answered the relevant underlying questions which are whether, when the evidence is viewed as a whole, there is material that justifies the conclusion that the clinical record is unreliable or incorrect or whether, when the evidence is viewed as a whole, there is material that justifies the conclusion that the witness evidence to the contrary is unreliable or incorrect. That is the issue which is for the court to decide viewing the documentary and testamentary evidence forensically and not simply by subjective criteria such as demeanour of live witnesses. All that the decided cases to which I have made reference do is to remind judges that care has to be taken in making these assessments, and full and proper reasons have to be given for the conclusions reached, but beyond that I do not find anything in these judgments to be of assistance as a matter of principle in explaining how this task should be undertaken by judges.”
The claimant brough an action for damages claiming that she was injured at birth. There was an issue as to whether the claimant’s mother had stated that she would have a caesarean section. The claimant’s mother’s evidence was that she had made an election. The defendant’s case was that she had not. The dispute centered on a medical note of a consultation made during the pregnancy.
THE JUDGE’S COMMENTS ON THE GESTMIN CRITERIA
The judge commented on the defendant’s submissions that the “Gestmin” principles should be applied. He had some doubts about this.
Miss Toogood, both in the written submissions contained in her skeleton argument and in her oral submissions, repeats a modern fashion to invite courts, particularly in clinical negligence cases, to prefer the reliability and veracity of assertions contained in clinical notes and records, to contrary factual accounts contained in written witness statements and oral testimony of witnesses who assert the contrary.
6 The twin foundation of these submissions is said to be the unreliability or fallibility of witness recollection of events, as compared to the reliability of contemporaneous records made by practitioners in the course of discharging their clear professional duty to inform the care and treatment of the patient moving forward, and not simply provide a historical record of what occurred.
7 As is, again, becoming the fashion, these submissions rely on and repeat intrusions into this difficult area by various judges, so as to give the appearance of authoritative statements of principle. So it is that the greater the number of cases and the greater the number of judges who rely on one of the originators of these arguments, the decision of Leggatt J (as he then was) in Gestamin SGPS SA v Credit Suisse (UK) Limited  EWHC 3560, the more authoritative it appears to become. This approach, in my judgment, is fraught with danger.
(The judge then set out the judgment in Gestmin in detail)
With respect to an experienced High Court Judge, whose views are entitled to respect, and from which I, as a judge of co-ordinate jurisdiction, should not lightly depart, these statements, in my judgment, should be treated with caution for a number of reasons. First, if and insofar as it is suggested that these remarks are statements of legal principle that either are, or have become, invested with the status of authority, no authority or legal analysis of them is provided or relied upon either in his judgment, or in the arguments before later judges or, indeed, before me. Secondly, if and insofar as these remarks are based upon the nature of memory, no expert evidence and no relevant professional literature, informed or were evaluated in expressing the remarks recorded. I am far from satisfied that medical or other professionals learned in the understanding of memory would accept without qualification, without question or as trite, all of the observations contained in these remarks. Thirdly, it is relevant to consider the context in which these remarks were made. There was an issue of fact in a commercial case about whether a relevant witness should be regarded as bound by his signed statement of investment objectives at the time that the relevant relationship commenced, as opposed to what he stated subsequently to have been his investment objectives and attitude to risk. As is evident , the trial judge preferred and found as fact the former rather than the latter. That is a very different type of case and issue to that which falls to be decided in the present case. The documents said to be more reliable in that case had been signed by the person who then sought to persuade the court that it did not represent his thinking at the time. Fourthly, the argument is based on a presumption that the writing in question is accurate and reliable. There was no dispute about that in that case, the witness signed what he signed. In this case the accuracy and correctness of the writing relied upon is disputed. Although there is no dispute that what was written was written by its signatory, it is disputed that it records accurately the event it purports to be recording.
9 The remarks of Leggatt J were then relied upon twice in separate cases by Mostyn J in Lachaux v Lachaux  EWHC 385, paras. 35 to 37, and then Carmarthenshire County Council v Y  EWFC 36, para. 17. In the former case there were hotly contested and acrimonious matrimonial proceedings in which the judge made adverse findings as to credibility of the oral evidence of both protagonists, both of whom gave accounts that in some respects were not consistent with the extraneous documentary evidence (see para. 38). In the latter case, the judge had to decide whether to accept the factual account of the complainant of rape and historic sex abuse alleged to have taken place of the order of 20 years before the trial in the circumstance that neither was a witness statement from her filed, nor did she give evidence, nor was she cross-examined (see paras. 6, 29 and 30 to 32). Neither of them are good examples, therefore, of the sort of challenge presented by cases such as that before me in this claim, or claims like it. Moreover, any adoption by Mostyn J of the remarks of Leggatt J must carry the same reservations that I have made concerning the latter, and cannot therefore be said to confer any authoritative status.
10 Finally, there are the observations of Stewart J in Kimathi & Ors v The Foreign & Commonwealth Office  EWHC 2066 at paras. 95 to 96 referring to the three cases that I have already considered. The issue in that case concerned whether one of a large number of test claimants, seeking to bring proceedings in respect of allegations of physical abuse by colonial authorities during and after the so-called ‘Kenyan Emergency’ between 1952 and 1962, was barred by the prevailing law of limitation from proceeding with the claim and, if so, whether any discretion under modern or prevailing limitation provisions should be invoked to permit, on grounds of equity, the claim to proceed.
11 Conspicuous in that case, as to which there appears to have been no dispute, was that in the particular case of the particular test claimant there was neither witness evidence from either side nor any documentary evidence relating to the events which had occurred over 50 to 60 years earlier, or addressing the circumstances relevant to whether discretion should be exercised. The observations were therefore deployed not to consider the veracity or reliability of the factual assertions being made, but only to the subordinate and unrelated issues of the explanation and reasons for the delay in making the complaint, and the effect that that would have on prejudice and the balancing exercise required of the court in exercising the disapplication discretion. That is a completely different exercise to the forensic consideration of the reliability of factual assertions in evidence. Moreover, in para. 97 of his judgment, Stewart J, recognising that that case was not a commercial case, said that the observations that he had relied upon were “important as a helpful general guide to evaluating oral evidence and the accuracy and reliability of memory”, so that his endorsement of the statements is, to a degree, qualified.
During closing submissions my attention was also drawn to the adoption with approval of paras. 95 to 97 of the judgment of Stewart J in Kimathi by John Kimbell QC sitting as a Deputy Judge of the High Court in Taylor v Chesterfield Royal Hospital NHS Foundation Trust  EWHC 1048 QB at para. 75, but he did observe that his adoption was without challenge or argument and he accepted simply that it was: “a helpful general guide”, no more than that.
13 I should not let judicial consideration of this issue pass without making reference to the decision of the Court of Appeal in Synclair v East Lancashire Hospital NHS Trust  EWCA (Civ) 1283. Tomlinson LJ, at paras. 10 to 15, addressed the issue concerning the inherent reliability of contemporaneous clinical notes against what was submitted to be the less reliable oral testimony of witnesses. I can deal with the case shortly because it is no more than a decided example of the trial judge being upheld by the Court of Appeal for rejection of reliance on the clinical note in question for forensic reasons fully and properly articulated in his judgment. The case posed and answered the relevant underlying questions which are whether, when the evidence is viewed as a whole, there is material that justifies the conclusion that the clinical record is unreliable or incorrect or whether, when the evidence is viewed as a whole, there is material that justifies the conclusion that the witness evidence to the contrary is unreliable or incorrect. That is the issue which is for the court to decide viewing the documentary and testamentary evidence forensically and not simply by subjective criteria such as demeanour of live witnesses. All that the decided cases to which I have made reference do is to remind judges that care has to be taken in making these assessments, and full and proper reasons have to be given for the conclusions reached, but beyond that I do not find anything in these judgments to be of assistance as a matter of principle in explaining how this task should be undertaken by judges.
THE ASSESSMENT OF THE EVIDENCE IN THE CURRENT CASE
The judge then assessed the credibility of the witnesses in the current case. The primary difficulty the claimant’s witnesses had was that there had been change of minds on key issues.
I turn then to the issue which I have to decide. Miss Toogood, in her skeleton argument, concedes that “the evidence of the claimant’s mother, her husband and her sisters and her
mother is no doubt honestly given and they believe the truth of their recollections.” I agree, there is no evidential basis for suggesting that any of the claimant’s witnesses were untruthful or deliberately misleading the court. That does not mean that their evidence should be accepted, even if they express their recollections to be firm and clear. The difficulty is that their evidence is not internally, or externally, consistent and, in some cases, has changed over time, and is not entirely consistent with the content or tone of the records.
15 The most significant aspect that, in my judgment, undermines the credibility of the parents’ account is that each of them have changed their account of the most important events in what I consider to be two highly material ways. The claimant’s mother stated in her witness statement that every time she saw a midwife or doctor she mentioned that she would really like a caesarean section (trial bundle p.84, para. 20). However, examined-in-chief by Mr Mylonas QC for the claimant, she sought to modify or qualify this by saying that her actual and stated preference was always what was safest for the babies. In cross-examination she said that she wanted a caesarean section if either of the children were in anything other than a head down position. Moreover, whereas in her witness statement she had said that her choice has always been to that effect (trial bundle p.82, para. 13), in cross-examination she accepted that she had not made up her mind on mode of delivery until the 36 week scan, which there is no dispute took place on 10 November 2008.
16 The same material changes in account emerge from her husband. Whereas in his witness statement (trial bundle p.156, para. 9) he said that they were told at the first scan that the claimant was in a transverse position and that “. . . once his wife knew this it confirmed her initial choice for a caesarean section . . .”, in chief, he sought to qualify that by saying that his wife’s choice was only if the baby, by which he meant the claimant, remained in what he called a ‘non-standard’ position. In cross-examination he said that his wife always made it clear that the choice was for a caesarean section if the twins did not lie head down. In his very next answer he somewhat contradicted that by saying that she never stated her preference. That is in marked contra-distinction to what his wife said either in her written witness statement, or in her oral testimony. Although it is only a small point, it is also telling that, in cross-examination, he conceded and accepted that the transverse lie was not communicated and could not have been evident at the time of the first scan, and therefore that his factual assertion to the contrary must be wrong.
17 As regards his evidence, the credibility of his oral modification of account is further undermined by his witness statement assertions that his wife’s choice was: “confirmed” at the first scan (trial bundle p.156, para.9) that she “became more anxious to press for a caesarean section” at the 28 week scan (trial bundle p.157 para. 10) and that she “remained committed to delivery by caesarean section” at the 32 week scan (trial bundle p.157 para.11).
18 There were ample opportunities also for mother’s delivery preference to be recorded, and there is no dispute that it has not been recorded in any of the notes and records before the relevant events. Thus, Miss Toogood relies, as her first ground of submission in this regard, on the fact that there is a page in the personal maternity record entitled: “Your preferences for your baby’s birth.” Under this heading it states that it contains some questions to think about and notes: “It also gives you the chance to write down your preferences. Please tick in any box when you want to talk about a topic with your care provider.” One of the boxes is headed “caesarean section” and notes that this may be planned for, i.e. an elective caesarean section or, decided on during labour, an emergency caesarean section. The claimant’s mother did not make any notes or comments on this page. I do not regard that single or sole opportunity as sinister because she also does not elect on the same page to have her husband present at delivery. I accept that she simply did not consider making entries of her own on that page.
THE REJECTION OF THE EVIDENCE BROUGHT ON BEHALF OF THE CLAIMANT
“The absence of any contemporaneous records supporting the claimant’s mother’s version of events is sinister for several reasons. First, it is not so much the fact that there is a stark contrast between the parents’ account of what transpired between them and the senior Registrar on 10 November 2008, and the senior Registrar’s clinical note of that encounter, but it is the contrast between the parents’ evidential accounts and all of the notes and records in their totality. Secondly, insofar as either or both parents seek to explain that contrast, the explanation is founded in the modification of the original witness statements during examination-in-chief. It is material to note in this regard that no supplementary witness statements were provided by either of them to foreshadow these important changes and, in my judgment, Miss Toogood is correct to characterise this as not simply clarification but significant change. I would have expected that to be foreshadowed in supplementary witness statements.”
THE JUDGE’S TEST APPLIED IN THIS CASE
The judge found that the evidence supported the finding that the medical note was reliable. The claimant’s case failed.