Clarity provided as to when adverse inferences can be made from an absentee witness

The Court of Appeal upheld earlier case law that a court was not obliged to draw adverse inferences against a party for failing to produce a witness. This case went further and provided clarity on what factors a court should consider when deciding what inferences should be made. This was an excellent win and will prove invaluable where witnesses cannot be traced and contemporaneous records are sparse.

Background

Mrs Manzi delivered her second child on 6 April 2011. Following delivery, there were concerns as to whether the placenta had been delivered complete. An ultrasound scan identified a small piece of retained placenta, estimated at 2cm. Mrs Manzi was advised that this would pass naturally and she was discharged the following day.

Following discharge, Mrs Manzi continued to experience abdominal pain and was subsequently admitted through the emergency department on 20 April 2011. A further ultrasound scan was performed, which confirmed the presence of a 7cm mass in her uterus, thought to be retained products of conception, consisting of the placenta, amniotic fluid and blood clots. She underwent evacuation of the retained product under general anaesthetic on 21 April 2011. Following the procedure, she was seen by a junior doctor who informed her that an 8cm piece of placenta had been removed.

The claimant alleged that the Trust was negligent as it failed to identify that a ‘substantial’ piece of placenta had been retained. It was her case that the whole of the product removed was placenta. The Trust’s case was that the piece of placenta retained was ‘small’ and the retained products comprised of a mixture of a 2cm piece of placenta and blood clots. The claimant relied on the evidence that she was informed by the junior doctor that the removed product was an 8cm piece of placenta. That doctor had put in the medical records that it was a ’product’. The junior doctor had no prior involvement in her care and was not called as a witness to the trial.

The claimant argued that the court should draw an adverse inference against the defendant for failing to present the junior doctor as a witness. Mr Justice Nicol declined as he considered they were peripheral. At first instance, the Judge found in favour of the Trust. The claimants appealed on the grounds that Nicol J was wrong in failing to draw an adverse inference.

Court of Appeal decision

The judgment, in line with Wisniewski v Central Manchester Health Authority [1998], confirmed that a judge is entitled to draw an adverse inference from the absence of a witness but not obliged to do so.

Manzi also provided clarity on what factors the court should consider when determining whether to draw an adverse inference, including whether:

• The witness’ role was peripheral to the allegations.
• An explanation is provided for the absence.
• The steps taken to locate a witness are proportionate.
• The opposition has taken pre-trial steps to compel an adverse inference being drawn, i.e. applying for an ‘unless order’ should the witness not attend.

The judgment concluded that there should be no presumption in law that a contemporaneous medical record is more accurate than witness evidence heard at trial. Medical records are one factor that should be taken into consideration when evaluating evidence, within the context of all other evidence heard and all the circumstances of the case.

The appeal was dismissed.

Comment

The judgment highlights that strong witness evidence is key to successfully defending clinical negligence claims. The Court of Appeal’s focus on a ‘multi-factorial evaluation’ stresses the importance of obtaining statements from a number of sources but not all.