WITNESS EVIDENCE, MEMORY AND CLINICAL NEGLIGENCE CASES: A DETAILED CONSIDERATION OF THE PRINCIPLES
We looked yesterday at the judgment of HHJ Tindal in Freeman -v- Pennine Acute Hospitals NHS Trust, a copy of which is available here. Freeman v Pennine NHS Judgment 03.12.21(without password) (1) The major part of that judgment contains a detailed analysis of the principles that the court applies when considering witness evidence in a clinical negligence case, including the significance of absent records and the problems of recollection after a considerable amount of time has passed.
The claimant brought an action for damages following the birth of her son. He was born with severe brain injury and died aged 12. The claimant also suffered serious injury. The court was considering events that occurred in 2002. There was a difference in evidence and the court had to assess the witness evidence.
THE JUDGE’S CONSIDERATION OF THE RELEVANT PRINCIPLES WHEN ASSESSING WITNESS EVIDENCE IN THESE CIRCUMSTANCES
The judge considered, in detail, the guidance given to trial judges when assessing witness evidence in clinical negligence cases in particular.
B) Legal principles concerning factual evidence in clinical negligence cases
Of course, in a clinical negligence trial where liability (but not causation) is disputed, the fundamental question is whether the relevant clinician was in breach of duty under the classic test of McNair J in Bolam v Friern Hospital  2 All ER 118 at 122:
“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion which takes a contrary view.”
The Bolam test applies to midwives as well as doctors, and has been approved and applied many times, including by Lord Browne-Wilkinson for a unanimous House of Lords in Bolitho v City and Hackney Health Authority  AC 232 at 242. However, it is also relevant on causation as Lord Browne-Wilkinson said at pg.240:
“Where, as in the present case, a breach of a duty of care is proved or admitted, the burden still lies on the plaintiff to prove that such breach caused the injury suffered…In all cases the primary question is one of fact: did the wrongful act cause the injury? But in cases where the breach of duty consists of an omission to do an act which ought to be done (e.g. the failure by a doctor to attend) that factual inquiry is, by definition, in the realms of hypothesis. The question is what would have happened if an event which by definition did not occur had occurred…. However…a defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter…. There were, therefore, two questions for the judge to decide on causation. (1) What would Dr. Horn have done, or authorised to be done, if she had attended Patrick? and (2) if she would not have intubated, would that have been negligent? The Bolam test has no relevance to the first of those questions but is central to the second.”
Whilst causation itself is not disputed here, this principle may be of some relevance were I to find that there was a telephone call by Mr Orton reporting pain and the midwife did not ask questions about the intensity of the pain reported.
As Lord Browne-Wilkinson said in Bolitho, the Claimant bears the burden of proving her case – including on factual issues – on the balance of probabilities. But I must first make such findings as I can on the evidence elicited rather than too readily resorting to the burden of proof and I must give sufficient reasons for doing so as Irwin LJ stressed in Barnett v Medway NHS  Med. L. R. 217 (CA). (On the latter point, I also bear in mind Males LJ’s observations in Simetra v Ikon  4 WLR 112 (CA)).
However, whilst Mr De Bono of course accepts the burden of proof is on the Claimant, he argues that I should draw an inference because the Claimant has been deprived of evidence in support of her case by the Defendant’s poor record-keeping practice in 2002 of not recording telephone calls, as admitted by Ms Mannion and Ms Kovacs. As I have noted above, the midwifery experts disagree whether that record-keeping system was substandard in 2002 (although they agree it would be now). I will resolve that dispute below but in purely legal terms, at first this argument seemed to assume what it needed to prove – that there was indeed a telephone call to record. However, Mr De Bono’s point was that if I agreed with Ms Cook that the Defendant’s record-keeping system in 2002 was substandard in not recording telephone calls, then the Defendant should not be able to rely on the absence of the record of such a call.
To make good that submission, Mr De Bono referred me to three authorities:
20.1 In Keefe v Isle of Man Steamship  EWCA Civ 683, the judge had held a shipowner was in breach of duty in failing to make noise assessments in a galley and that a seaman had been exposed to excessive noise on occasions, but he could not say that happened with any regularity so dismissed the claim. In allowing the appeal and upholding the claim, Longmore LJ observed at p.19:
“If it is a defendant’s duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not, in fact, excessive. In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically. If a defendant fails to call witnesses at his disposal who could have evidence relevant to an issue in the case, that defendant runs the risk of relevant adverse findings see British Railways Board v Herrington  A.C. 877 at 930G. Similarly a defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings. To my mind this is just such a case.”
20.2 In Raggett v Kings College Hospital  EWHC 1604 (QB), this was applied in a clinical negligence context by Macduff J (as he had been) having already found breach of duty referred to Keefe briefly at p.134 in rejecting a causation argument that if a leg had been treated properly that it would have been amputated anyway. In reality, this seems to have been the rejection of the Defendant’s expert’s opinion rather than the true application of Keefe, but it was in any event a case (like Keefe) where a breach of duty had been found.
20.3 Similarly, in JAH v Burne  EWHC 3461 (QB), Martin Spencer J having found breach of duty in a GP failing to refer a patient, found it made no difference to amputation of a leg but on balance of probabilities would have avoided amputation of an arm. Martin Spencer J at ps. 63-6 acknowledged there were a number of imponderables but drew on the principle in Keefe and noted its application in a similar context in Raggatt in concluding at p.64:
“In resolving issues of detail such as how long it would have taken for the Claimant to be seen, how long it would have taken for investigations to be carried out and when a competent vascular surgeon would have appreciated that anticoagulation was the appropriate treatment, the court should err in favour of the Claimant where it is the Defendant’s negligence which deprives the court of the best evidence and causes the need to delve into this hypothetical world.”
However, neither Macduff J in Raggatt nor Martin Spencer J in JAH seem to have been referred (no criticism of Mr De Bono for one of the successful Defendants in JAH) to Shawe-Lincoln v Neelakandan  EWHC 1150 (QB). A GP was in breach of duty when speaking to a patient by telephone in failing to take a proper history and attend on him in which case he would have referred him into hospital urgently, a day earlier than the patient did attend. The issue was what would have happened had he been referred in earlier and the Claimant was obviously at a disadvantage because he did not have the hospital records of the period for which he should have been in hospital but was negligently left at home. Lloyd-Jones J (as he then was) held that it was not appropriate to draw an inference that the claimant’s condition had significantly deteriorated in the meantime in part because unlike Keefe the GP would not have been under a duty himself to keep the absent (hospital) records and the other medical evidence pointed against deterioration not towards it. More broadly, he said:
“80. To my mind Keefe is not concerned with a reversal of the burden of proof. It is established on high authority (Bolitho) the burden of proof on causation lies and remains on the claimant. Furthermore, I have difficulty in seeing how the benevolent approach adopted by the Court of Appeal in Keefe could be accommodated within such a reversal; either the burden is reversed or it is not.
Rather, Keefe is concerned with the weight which is to be attached to evidence and the circumstances in which the court may draw inferences…. Longmore L.J….referred to the observations of Lord Diplock in Herrington v British Railways Board that failure to call a witness may result in an adverse finding and then applied the same principle to a situation where a defendant has made it difficult or impossible for a claimant to adduce relevant evidence.
Whether it is appropriate to draw an inference at all and, if so, the precise nature and extent of such an inference will depend on the particular circumstances of each case. Relevant considerations will include the proximity between a breach of duty and the non-available evidence, the effect of the other evidence before the court and what other evidence might have been available but which is not before the court.
Contrary to the submission of Mr. Pittaway QC on behalf of the defendant, I can see no reason why the principle should not apply in a case concerning causation as opposed to negligence (as was the case in Keefe).”
Coming full circle from Keefe a decade on, in McKenzie v Alcoa  PIQR P6 (CA), Dingemans LJ endorsed that analysis of Lord Lloyd-Jones (as he had become) in Shawe-Lincoln and applied it in an industrial deafness case like Keefe. He said at p.50:
“It seems therefore that it is possible to state the following propositions. First whether it is appropriate to draw an inference, and if it is appropriate to draw an inference the nature and extent of the inference, will depend on the facts of the particular case, see Shawe-Lincoln at –. Secondly silence or a failure to adduce relevant documents may convert evidence on the other side into proof, but that may depend on the explanation given for the absence of the witness or document, see Herrington at 970G; Keefe at ….”
That is the approach I will adopt to the ‘missing record’ argument in this case.
However, this case is not simply about the alleged absence of a contemporaneous clinical note, it is also about the weight to be attached to oral evidence as compared to such clinical notes. In that respect, Mr De Bono referred me to observations of another Justice of the Supreme Court from the High Court bench, namely those of Leggatt J (as he then was) in Gestmin v Credit Suisse  EWHC 3560 (Com). Having referred to modern psychological thinking on frailty of memory he said at ps.19-22:
“19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty…to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer inevitably conscious of the significance for the…case of what the witness does nor does not say. The statement is made after the witness’s memory has been ‘refreshed’ by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.
It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard that such processes are largely unconscious and strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.
In the light of these considerations, the best approach for a judge to adopt at the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean oral testimony serves no useful purpose, though its utility is often disproportionate to length. But its value lies largely, as I see it, 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.” (my underline)
The first and most obvious point to make about this analysis is that whilst it talks about the impact of civil litigation process generally on memory, as Lord Leggatt stressed in that last paragraph, it is an approach that he commends in trials of commercial cases. In such cases there will very frequently be (voluminous) contemporary documents: emails, papers, correspondence, reports etc. Yet even in another commercial case (relating to copyright), Martin v Kogan  FSR 3, the Court of Appeal said at p.88:
“We start by recalling the judge read Leggatt J’s statements in Gestmin…as an “admonition” against placing any reliance at all on the recollections of witnesses. We consider that to have been a serious error in the present case. First, as has very recently been noted by HHJ Gore QC in CXB v North West Anglia NHS Foundation Trust  EWHC 2053 (QB), Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. Earlier statements of this kind are discussed by Lord Bingham in his well-known essay “The Judge as Juror: The Judicial Determination of Factual Issues” (from The Business of Judging (Oxford, 2000)). But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party’s sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence.”
These observations in Martin were recently picked up in another legal context: fact-finding in Family cases by Peter Jackson LJ in Re B-M  EWCA Civ 1371 at ps.23-5
“There is, I think, a distinct difficulty in harvesting obiter dicta expressed in one context and seeking to transplant them into another…..Further and as noted by this court in Kogan…Gestmin is not to be taken as laying down any general principle for the assessment of evidence. Rather, as Kogan states, it is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. The discussion in Gestmin is expressly addressed to commercial cases, where documentary evidence will often be the first port of call, ahead of unaided memory….No judge would consider it proper to reach a conclusion about a witness’s credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence….”
In clinical negligence cases, different judges have taken different views of Gestmin. In Ismail v Joyce  EWHC 3453 (QB), HHJ Freedman held that having recorded in a clinical note that his patient was ‘sweaty at night’, a GP was negligent in failing to explore the issue of TB. HHJ Freedman enthusiastically described Gestmin as the ‘Locus Classicus’ on fallibility of memory, but there were echoes of Martin in his sounding a note of slight caution about applying Gestmin to clinical notes at ps.29-31:
“29. In evaluating the lay evidence in this case….I have found the dicta in [Gestmin and other cases] of considerable assistance. They are of particular application in circumstances where medical records do not necessarily bear out of what is recalled by [lay witnesses]….. The inherent unreliability of memory does mean that it is fair and proper to test the accuracy of recollections of medical consultations against what is documented in the records.
On the other hand, it does not necessarily follow that just because the complaint of a particular symptom does not feature in the record of a consultation, it was not, in fact, mentioned by the patient. Sometimes a doctor will obtain an extensive history and make a very detailed record. Sometimes, because of pressure of work or for whatever other reason, a doctor may take a less extensive history and will make a somewhat briefer note.
I must also bear in mind that it is human nature for a patient not always to give precisely the same account of his or her symptoms to every doctor who examines him or her. Much may depend upon the questions which are asked by the doctor. Equally, the patient is likely to emphasise and stress symptoms which are troubling them the most at the particular time of the examination. The medical records need to be scrutinised with these matters in mind.”
On the other hand, another (former) fellow DCJ, HHJ Gore QC, was characteristically trenchant in his doubts about Gestmin in CXB, noted by the Court of Appeal in Martin. He rejected the oral evidence of a woman and family that she had elected a caesarean section for twins, preferring evidence of a clinician, supported by a contemporaneous note. Yet far from relying on Gestmin to support his decision, at p.8, HHJ Gore QC questioned it but also distinguished its very different context of a commercial case where there was no dispute about accuracy of the written contemporary evidence. Recently in HTR v Nottingham University NHS  EWHC 3228 (QB), Cotter J (yet another former DCJ in his first case on the High Court Bench I believe) noted the observations in Gestmin, but also endorsed the observations of HHJ Freedman in Ismail. He added his own observations: both that when a witness recalls events years later, conscious or unconscious bias may creep in and the effect of delay on evidence should be borne in mind; and that just because a judge rejects one part of a witness’ evidence does not mean all of it must be rejected. I respectfully agree with those points, which reflect standard directions to Juries in criminal cases on oral evidence.
Moreover, HHJ Gore QC in CXB and Cotter J in HTR noted the guidance in the context of clinical negligence in Synclair v East Lancs NHS  EWCA Civ 1283, where the Court of Appeal upheld the Judge’s acceptance of a claimant’s account of his condition on examination rejecting contemporary clinical notes. Tomlinson LJ said at ps.10-15:
“10. [Counsel] reminded us of some of the classical learning on the nature of the judicial fact-finding function. We were shown, in chronological order: the well-known remarks of Lord Pearce in his dissenting speech in Onassis & Calogeropoulos v Vergottis  2 Lloyds Rep 403 at p 431; the guidance given by Lord Goff of Chieveley giving the opinion of the Judicial Committee of the Privy Council in Grace Shipping v Sharp & Co  1 Lloyd’s Rep 207 at 215-6, in particular founding upon his own judgment in the earlier decision of the Court of Appeal in Armagas Ltd v Mundogas SA (The Ocean Frost)  1 Lloyd’s Rep 1 when he said, at page 57:- “Speaking from my own experience, 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 facts 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. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.” In Grace Shipping Lord Goff noted that his earlier observation was, in their Lordships’ opinion “equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence.” We were reminded that in “The Business of Judging”, Oxford, 2000, Lord Bingham of Cornhill observed that:- “In many cases, letters or minutes written well before there was any breath of dispute between parties may throw a very clear light on their knowledge and intentions at a particular time.” 11. The essential thrust of this learning is the unsurprising proposition that when assessing the evidence of witnesses about what they said, or what was said to them, or what they saw or heard, it is essential to test their veracity or reliability by reference to the objective facts proved independently of their testimony, in particular by reference to contemporary documentary evidence.
However it is too obvious to need stating that simply because a document is apparently contemporary does not absolve the court of deciding whether it is a reliable record and what weight can be given to it. Some documents are by their nature likely to be reliable, and medical records ordinarily fall into that category. Other documents may be less obviously reliable, as when written by a person with imperfect understanding of the issues under discussion, or with an axe to grind….I would commend the approach of His Honour Judge Collender QC, sitting as a judge of the High Court, in EW v Johnson  EWHC 276 (QB) where he said, at paragraph 71 of his judgment:- “I turn to the evidence of Dr Johnson. He did not purport to have a clear recollection of the consultation but depended heavily upon his clinical note of the consultation, and his standard practice. As a contemporaneous record that Dr Johnson was duty bound to make, that record is obviously worthy of careful consideration. However, that record must be judged alongside the other evidence in the action. The circumstances in which it was created do not of themselves prevent it being established by other evidence that that record is in fact inaccurate.” Dr Johnson, a GP, had made his own note of a consultation at an out of hours walk-in centre at a hospital. After a careful evaluation of all the evidence in the case, the judge found that Dr Johnson’s oral account in evidence, based on his contemporaneous note, was reliable. In Welch v Waterworth  EWCA Civ 11 a surgeon was unsuccessful in persuading the court that his own notes of a surgical procedure which he had performed, one a manuscript note written very shortly after the operation and another a typewritten note made later in the day at home, did not accurately record the order in which he had carried out the constituent parts of the relevant procedure.
…14. With those observations in mind, I turn to Mr Colin’s detailed criticism of the judge’s approach here. His three principal points were:- i) 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. No doctor would have any reason to produce a note which misrepresented clinical observations or the patient’s concerns. Something more than a patient’s assertions to the contrary is required to displace the sanctity, my word, not Mr Colin’s, of the notes.”
Tomlinson LJ in Synclair accepted that point and was noted as doing so by Sir Ernest Ryder SPT in Manzi v King’s College NHS  EWCA 1882 at p.18, who added p.25:
“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…. 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 Manzi, the Court endorsed a Judge’s decision to place limited weight on the contemporaneous clinical note of a witness the Trust failed to call in the context of other evidence (and also his refusal to draw an adverse inference from that failure)
I can perhaps summarise my approach to all these authorities in three short points:
30.1 The burden of proof is on the Claimant, but I should still attempt to make findings on all evidence on the balance of probabilities: Bolitho and Medway.
30.2 When assessing allegedly absent clinical records and any disadvantage to the Claimant, I will apply the approach in Shawe-Lincoln as developed in Mckenzie.
30.3 When assessing the consistency of oral evidence with actual clinical records, I will apply the approach in Synclair and Manzi that I consider consistent with the approach taken on the facts in CXB, HTR and Ismail.
THE ABSENCE OF EVIDENCE
The judge considered the absence of evidence in that there was no record of a telephone call to the hospital taking place.
I do not accept Mr De Bono’s submission that ‘the Keefe principle’ applies even without breach of duty, which would extend it beyond all the authorities considered above. However, even if I am wrong about that, or indeed wrong about breach of duty itself, as stressed in Shawe-Lincoln and McKenzie, that principle comes down to this:
“First whether it is appropriate to draw an inference, and if it is appropriate to draw an inference the nature and extent of the inference, will depend on the facts of the particular case, see Shawe-Lincoln at –. Secondly… a failure to adduce relevant documents may convert evidence on the other side into proof, but that may depend on the explanation given for [its] absence….”
The reason for the ‘failure to adduce relevant documents’ is that they were not kept at the time. That is the unchallenged evidence of Ms Mannion and Ms Kovacs. It is also their unchallenged evidence that they did not personally take any such call and from Ms Mannion that the Claimant did not mention the call when she saw her. What inference could properly be drawn given all the evidence? Surely not that there was not only a telephone call to the Maternity Unit but also that it reported intense pain and yet led to advice to go home and rest – that would be a complete logical leap from all of the evidence and if anything inconsistent with the unchallenged evidence Ms Mannion and Ms Kovacs that they would never have given such advice. In my judgment, it would also be a stretch to infer on the facts here that there was in fact a telephone call that morning from Mr Orton to the Maternity Unit simply from a general breach of duty or poor practice in the Defendant not logging calls at this time. The furthest such an inference could properly go on the facts of this case is that the absence of a log of such a call does not mean that there was no such call.
However, the Claimant does not need to rely upon a ‘Keefe inference’ for that: it is a straightforward application of the old judicial adage that an absence of evidence is not necessarily evidence of absence, especially given it is the Defendant’s unchallenged evidence that they did not keep records of calls. So, it is hardly significant there is no record of such a call. That is entirely neutral as to whether there was such a call. There is no ‘short cut’ in this case: whether there was such a call or not, whether ‘intense pain’ was reported and whether the advice given was to go home not come in all must turn, against the background of all the evidence I have discussed, on the evidence of the Claimant and Mr Orton. I must now turn to their evidence.
The judge, broadly, preferred the evidence of the claimant and liability was established.