WITNESS STATEMENT TOO SHORT; SKELETON ARGUMENT TOO LONG AND THE JUDGE WAS NOT NOT PERVERSE

In Royal Wolverhampton Hospitals NHS Trust -v- Evans [2015] EWCA Civ 1059 the Court of Appeal rejected an appeal by the defendant against a finding of liability.   There are important observations in relation to procedure which merit examination.  In particular the inferences the court can draw if a witness statement fails to deal with a key piece of evidence.

“To my mind, it is most surprising that a consultant surgeon, in receipt of legal advice, would not realise that he was supposed to give a detailed account of the operation in his witness statement which was prepared at a time when the issues in the case were clear.”

THE CASE

The claimant brought an action against the defendant NHS Trust alleging negligence in failing to remove see and remove cement after a hip replacement operation. The claimant was successful before the judge and the defendant appealed.

KEY POINTS

  • It was surprising that the witness statement served by the defendant did not deal in any detail with the matters carried out in the crucial part of the operation.
  • It is not necessary to ask a lay witness about the issue whether a party has breached the relevant standard of care.
  • The judge’s findings were not perverse, if anything they were soundly grounded on the evidence.

THE WITNESS STATEMENT OF THE SURGEON

The surgeon who carried out the operation was the only witness of fact in the case.  Dame Janet Smith noted that there were some surprising omissions in the witness statement prepared by the defendant. These omissions were, justifiably, grounds for the trial judge not being impressed with the evidence given.
  1. Mr Mughal’s witness statement described the conduct of the operation as a whole in some detail but, in relation to the extrusion of cement and its removal, he said only that, when he had pressed the acetabular component into the reamed area of the acetabulum, he “then removed any cement which extruded from around the flanged edge”. He said nothing about looking for or removing any extrusion at a later stage, for example when he was using a pusher or after he had finished doing so.
  2. This paucity of detail meant that the experts instructed to advise had little factual information on which to base their opinions on the adequacy of what Mr Mughal had done. Each party had instructed an orthopaedic surgeon with long experience of hip replacement operations. Mr Simon Bridle was the claimant’s expert and Mr Terence Cain was instructed for the defendant. Despite their limited information, the experts gave their opinions, relying mainly on their own experience of conducting the operation and what usually happened. It was not until the trial, when Mr Mughal had given evidence and had provided some further information about his conduct of the operation that the experts were able to refine their opinions….
  1. Mr Mughal was the only witness of fact and went first. He adopted his written statement as his evidence in chief. Thus it was not until cross-examination that Mr Mughal first gave a detailed description of how the relevant stage of the operation had gone and exactly what he had done. Unsurprisingly, it was apparent that he could not remember the operation in detail and was having to reconstruct what had probably happened from his usual practice in conducting this type of operation and his recollection of where he had found the blob of cement at the second operation.
  1. In my view, the judge was entitled to form an unfavourable view of Mr Mughal’s failure to deal with the issues surrounding the retention of extruded cement in his witness statement (saying only that he had ‘removed any extruded cement’) and claiming by way of explanation for this failure that he had not realised that he was expected to give a detailed account of what had happened. To my mind, it is most surprising that a consultant surgeon, in receipt of legal advice, would not realise that he was supposed to give a detailed account of the operation in his witness statement which was prepared at a time when the issues in the case were clear. The result was that Mr Mughal could not provide any detail about what he had done at the time. Indeed, he seemed never to have thought about the detail of what had happened until he was in the witness box. In my view, it is unfortunate that he did not write an addendum to his first operation note after he had performed the second operation and knew that a large (and damaging) piece of cement had been retained. But he did not and it is not surprising that the judge was unimpressed by his evidence.

THE SKELETON ARGUMENT

There was a, now familiar, complaint about the length of the defendant’s skeleton argument.
  1. The written argument in this appeal (I cannot call it a skeleton argument) is 27 pages long. I regret to say that it complicates what should be a fairly simple set of grounds of appeal. In it Mr Thomas advances four reasons (Grounds A-D) why the judge’s decision was wrong and a further argument (Ground E) that the decision had been unjust on account of a serious procedural irregularity. Possibly due to interventions by the court at an early stage, in oral submissions, Mr Thomas did not follow the structure of his grounds or written argument; rather he tackled what he accepted was the nub of the appeal, namely whether the judge’s central findings of fact, inferences and conclusion were properly supported by the evidence

PUTTING THE CASE TO ON CLINICAL NEGLIGENCE TO THE FACTUAL WITNESS

One issue of complaint by the defendant was that the claimant had not “put its case” to the defendant’s witness in that he had not been asked directly whether he accepted that he accepted that he had acted negligently. The Court of Appeal pointed to the important distinction between a witness of fact and an expert witness.
  1. That leaves only the argument that the trial was unfair due to a serious procedural irregularity. Mr Thomas submitted that Mr Mughal had not had the opportunity to deal with the allegation that he had negligently cut the cement extrusion at a time when he did not have a complete view of the rim because of the presence of the pusher. This, submitted Mr Thomas, was a different allegation from saying that he had failed to look carefully enough for cement which was there to be seen.
  2. I would reject this ground of appeal. First, Mr Mughal’s function was that of witness of fact. He was there to describe what he had seen and done. He was not there in the capacity of an expert whose function it was to give an opinion on breach of duty. So, strictly speaking, it would not have been proper to ask Mr Mughal whether or not it would be negligent if he had cut the cement while using the pusher. I would accept that, in clinical negligence cases, where the person criticised often has a high degree of expertise, this distinction can become blurred. But it cannot be a serious procedural irregularity not to put to a witness of fact that a particular action amounted to substandard practice.”

THE PRACTICE OF HEARING THE FACTUAL EXPERTS BEFORE THE EXPERTS

  1. As I understand it, the argument was that the judge should not have based his conclusions on Mr Mughal’s evidence; without it, the respondent would have had no prima facie case. The reliance the judge placed on this evidence shows that he had, in effect, shifted the burden of proof onto Mr Mughal.
  2. In my view, this argument is without merit. In the first place, even if Mr Mughal had chosen not to give evidence, the respondent would have had a prima facie case. Mr Bridle would have given evidence in accordance with his report and this would have amounted to a prima facie case.
  3. Of course, Mr Mughal chose to give evidence and, by agreement between counsel, was the first witness. This is in accordance with modern practice in cases of this kind. It enables the experts to give their opinions after the factual evidence has been heard. Once Mr Mughal had given evidence, it was before the court for all purposes. The judge is not expected to exclude his evidence from consideration while deciding whether there is a prima facie case.

DEALING WITH THE ARGUMENT THAT THE JUDGE’S FINDINGS WERE PERVERSE

  1. Perversity is always a difficult furrow for an appellant to plough. Appellate courts are reluctant to interfere with factual findings where they depend to any significant extent on the impression a witness has made on the judge. The appellate court can of course analyse the transcript to see whether the words uttered by the witnesses support the judge’s conclusions. But it cannot assess a witness’s demeanour or know the extent to which that demeanour has influenced the judge. Before one begins any analysis of the evidential basis of the judge’s findings and holdings in this case, it must be noted that he formed a favourable view of Mr Bridle and an unfavourable view of Mr Cain. The judge gave his reasons for those views and they can be analysed but we cannot factor in the effect which their demeanour had on him.

RELATED POSTS

WITNESS CREDIBILITY

SKELETON ARGUMENTS

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