Witnesses of fact: to call, or not to call? Manzi v King’s College Hospital NHS FT [2018] EWCA Civ 1882

In this post Isaac Hogarth of 12 KBW examines the recent case of Manzi v King’s College Hospital NHS FT [2018] EWCA Civ 1882 in which the Court of Appeal considered whether to interfere with the trial judge’s findings in relation to whether there had been a negligent failure to detect and remove a portion of retained placenta following childbirth. The Court also considered in particular whether the trial judge ought to have drawn an adverse inference from the Defendant’s decision not to call a particular doctor as a witness.

The Background

The Claimant gave birth to her son on 6 April 2011. A midwife queried whether the placenta, which had been delivered by controlled cord traction, was complete. The Claimant was seen by Dr Ali, a specialty registrar, who carried out an examination and an ultrasound scan. The discharge summary stated that the scan identified a 2 cm area of possible placenta left in situ.

The claimant was discharged, and told the retained tissue should pass spontaneously.

Two weeks later, she was readmitted to hospital with pain. An ultrasound was performed by a sonographer (‘the sonographer’) who recorded “? Retained placenta… measuring 7.0 x 2.2 x 4.4 cm”. On 21 April 2011 the Claimant had placental tissue removed under general anaesthetic, following which she suffered a haemorrhage.

The Claimant’s case was that Dr Ali had failed when interpreting the ultrasound to see that a substantial part of the placenta had been retained.

The Defendant accepted that a small piece of placenta may have been retained, but denied it was substantial. They claimed that what was removed on 21 April was a small piece of placental tissue together with blood which had clotted and accreted around it. Negligence was denied.

There was conflicting evidence about the size of piece of tissue. The judge considered the following points to be particularly significant:

i) Dr Ali said that on visual examination, the placenta appeared to be complete. However, he performed the ultrasound for training purposes (it could only be of limited help in any event as it cannot distinguish clot from retained products).
ii) The discharge summary completed by Dr Ali referred to the placenta being “friable”, and “incomplete” with a 2 cm area of “possible placenta”.
iii) The sonographer recorded a mass of 7.0 x 2.2 x 4.4 cm, which she thought was likely to be placenta, but was not 100% sure.
iv) Dr Hooper saw the Claimant after the operation on 21 April. She noted “explained removed products with forceps approx. 8cm”. She was not called as a witness.
v) In her statement, the Claimant said the doctor who spoke to her after the operation said the placenta was a lot larger than expected. In oral evidence, she said she was told 8 cm.
vi) The histopathology report was inconclusive.

Each party relied on a report and oral evidence from an expert in obstetrics and gynaecology. From the judge’s treatment of their evidence, he favoured the reasoning of the Defendant’s expert, and noted also various concessions made by the Claimant’s expert at trial.

In weighing up the evidence, the judge came to the conclusion that there was no negligence. There were various reasons to conclude that the retained portion of placenta was small. Notably, the difference between 2 cm and 7 cm on an ultrasound is significant, and would be a very substantial error, making it unlikely.

Significantly, the Claimant invited the Court to draw an adverse inference from the Defendant’s decision not to call Dr Hooper. The judge refused to do so, noting the following reasons:
(a) The fact that Dr Hooper gave an approximate measurement for the size of the retained placenta suggested she had not herself measured it;
(b) Whilst she referred to what was removed as “products”, which means placenta and not clots, the judge said “one must…guard against being overly legalistic in the interpretation of such a note”;
(c) Contrary to the case of Wisniewski v Central Manchester HA [1998] PIQR P324, Dr Hooper was not the doctor whose negligence was sad to have caused the harm. In this case, Dr Hooper’s role was far more tangential. Further Wisniewski was concerned with the entitlement to draw an inference but did not impose an obligation to do so.

The Appeal

Whilst there were 15 grounds of appeal, of which eight were pursued, the Court of Appeal distilled those remaining grounds down to two issues:
i) Whether the judge was wrong in the way in which he evaluated he evidence of the sonographer and Dr Hooper;
ii) Whether the judge was wrong for failing to draw an adverse inference against the Defendant for not adducing evidence from Dr Hooper.

The judgment was given by Sir Ernest Ryder, with whom Sales LJ agreed.

Issue 1 – error factual evaluation

The Court noted that absent perversity, attacking the trial judge’s evaluative exercise is rarely attractive, as it descends into questions of the weight given to parts of the evidence which are a matter for the court that hears and sees the witnesses in context.

The Claimant was particularly critical of the judge’s rejection of the sonographer’s evidence on measurement. The Claimant argued that there was a lack of recognition of the inherent reliability of the sonographer’s contemporaneous clinical report. The Court of Appeal rejected this argument on the grounds that (a) there is no legal presumption of the inherent reliability of clinical records, and (b) the judge had considered the various pieces of evidence, but had ultimately preferred the evidence of Dr Ali over that of the sonographer. It would be inappropriate for the Court of Appeal to interfere with the evaluation which the trial judge had performed, absent perversity.

Issue 2 – failure to draw an adverse inference

The Claimant submitted that is it a basic tenet of natural justice that it is unjust for a claimant to have to defend herself in the civil courts against calculated silence, particularly in clinical negligence cases where there is an asymmetry between the knowledge of patients and doctors.

The Claimant relied on the case of Wiesniewski v Central Manchester HA [1998] PIQR P324, in which Brooke LJ derived four principles from existing case law:
(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 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.

The Claimant submitted that all four principles were satisfied.

The Court of Appeal dismissed the appeal on this issue for the following four reasons:
a) There is no obligation to draw an adverse inference where the four principles are engaged. The drawing of an adverse inference is a matter of discretion, which means that an appellate court would be hesitant to interfere with the trial judge’s decision;
b) The judge was not persuaded that Dr Hooper was central to the claim, as the witness was in Wisniewski;
c) There was an explanation for Dr Hooper’s absence;
d) The Claimant had not sought any direction requiring evidence from Dr Hooper, and had simply sought a direction for disclosure of information about Dr Hooper.

Commentary

The dismissal of the appeal on the first issue is unsurprising and uncontroversial. Whilst on the basis of the review of the evidence set out in the Court of Appeal’s judgment, one might see that another judge may have come to another view, the Claimant faced a very difficult (and ultimately insurmountable) challenge in attempting to persuade an appellate court to interfere with the evaluation of the evidence performed by a first instance judge. As previous authority has made clear, the evaluation of evidence is multi-factorial, and as the only tribunal with benefit of seeing and hearing the witnesses is the trial judge, absent perversity, an appellate court will not interfere with findings made by a trial judge.

The more interesting part of this appeal was on the second issue of whether the trial judge ought to have drawn an adverse inference from the Defendant’s failure to call Dr Hooper to give evidence. Again, as the drawing of an inference is a matter of discretion, the Claimant faced some difficulty. Her case was, in a nutshell, that since it was open to the Court to draw such an inference, that there was an obligation to do so.

One can certainly see why, in this case, the Claimant felt aggrieved at the judge’s refusal to draw an adverse inference. The notes made by the absent witness were supportive of a large piece of placenta having been retained and then removed. The Claimant was denied the opportunity to ask questions as to the source of Dr Hooper’s information, whether she had measured the retained products herself, and how accurate she was with her language when she recorded the removed tissue as being “products” (i.e. placental tissue rather than clot).

However, for the reasons set out by the Court of Appeal, the judge was not obliged to draw an adverse inference, and considering that he was persuaded by Dr Ali’s evidence, and had considered all the evidence (including such evidence as appeared detrimental to the Defendant’s case), the Court of Appeal was very unlikely to find that the judge was not entitled to refuse to draw the inference.

On a practical level, the lesson to draw from this case is that if there is a witness who the Claimant wishes to cross-examine, is it incumbent on the Claimant to take the point ahead of trial in an attempt to compel them to produce a statement, and potentially to compel their attendance, rather than inviting the Court to draw an adverse inference at trial.
Isaac Hogarth, 6th September 2018.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s