In Webb -v- Liverpool Women’s NHS Foundation Trust  EWHC 133 (QB) HH Judge Saffman (sitting as a judge of the High Court) considered the implications of an important witness not called by the defendant in a clinical negligence case.
The claimant was alleging negligence during labour which led to Elb’s palsy. One of the issues was what decisions should have been taken at 13.50 on the day of delivery in October 1999. The actions of one particular doctor was criticised by the claimant’s experts. That doctor was not called to give evidence.
THE JUDGMENT ON THIS ISSUE
- Dr Tanden has not been called to give evidence and there is no witness statement from her. Accordingly what was in her mind can only be a matter of speculation. Her evidence on the situation at 13.50 would clearly have been helpful and relevant.
- Wisniewski v Central Manchester Health Authority  Lloyds Reports Med 223 is authority of the proposition that adverse inferences can be drawn from the absence of a witness who might be expected to have material evidence to give on an issue. Of course that is subject to the caveat that no adverse inference should be drawn if the reason for the witness’s absence is a satisfactory one and indeed that the detrimental effect of his/her absence may be reduced or modified if the reasons for absence is merely partially satisfactory.
- Mr Martin argues that there is good reason for Dr Tanden’s absence. First, she no longer works at the trust, secondly she is unlikely to have any material recollection of these events bearing in mind the lapse of time and thirdly, the particular importance of her evidence has only become clear as a result of the amendments to the Particulars of Claim on the first morning of the trial and in respect of which the defendant had only limited notice.
- The fact that a witness no longer works for a party does not in itself strike me as being a particularly good reason for failure to produce evidence from such a witness. It may of course make it more difficult to trace such a witness and/or to secure their cooperation but I have no evidence that either of those issues was a problem.
- The passage of time, while clearly a factor, has not precluded the defendant from relying on the evidence of Dr Adams and two of the midwives involved in the delivery who presumably are in no better position than Dr Tanden to recollect events of 15 years ago.
- As regards the third proposition namely that it has only become clear by the recent change in the pleadings that her evidence has become particularly important, Mr Sheldon makes a point that her evidence would at least have been directly relevant to allegations at 32 (i) 32 (ii) and 32 (v) and 32 (vi) of the unamended Particulars of Claim. And that the unamended Particulars of Claim raise repeated concerns about management up until 15.30 when Dr Tanden was the sole obstetrician involved in Miss Perkins care.
- That is indeed true but it is clear that the amended Particulars of Claim do accord greater importance to the position at 13.50. It is only by the amendments that it is specifically pleaded that it was at that time that a Caesarean section should have been decided upon. Prior to the amendments, the allegation at paragraph 32 (ii) was that the decision to proceed to Caesarean section should have been taken following the vaginal examinations that should have taken place at or about 14.30 and/or 15.30.
- Accordingly I am not prepared to draw a wholly adverse inference from her failure to attend, it would have been useful for her to attend but her absence has at least been partially explained to the extent that, at worst, the detrimental effect has, to use the words in Wisniewski been “reduced or modified”.
In the event the judge found negligence in the failure to proceed to Cesarean section at 15.30 (the absence of the witness being only one factor in this decision).
- As for the absence of Dr Tanden, it may have been that Dr Tanden could have thrown more light on her management at 13.50 but of course I have not had the advantage of hearing from her. Even if it is inappropriate to draw adverse inferences from her absence, it is difficult to draw any positive conclusions about her treatment in the absence of any evidence from her.
OTHER POSTS ON THIS ISSUE
- Durrant case back in the reports: what presumptions should a judge draw when a party is debarred from calling witnesses
- The Local Government Lawyer “Silence is not necessarily golden”.
- Gordon Ramsay and witness evidence: absence of key witnesses does not lead to turning up of the heat
- Inferences to be drawn from silence: the views of the Supreme Court
- Absent witnesses are not necessarily decisive: Western Trading considered