There are several posts on the blog which deal with the approach the trial judge takes when certain witnesses are not present. In some cases it leads the judge to draw adverse inferences, in others it does not. In Welds -v- Yorkshire Ambulance Service NHS Trust & Sheffield Teaching Hospitals NHS Foundation Trust  3325 (QB) His Honour Judge Freedman did not draw adverse inferences when there was a reasonable and credible explanation for the witnesses not attending.
- The defendant did not call certain witnesses who had stated they were ill or could not remember anything.
- The judge declined to draw adverse inferences when there was a credible explanation for their failure to attend.
The claimant was bringing an action against the defendants for clinical negligence in relation to his birth. The midwives were not called as witnesses and the claimant invited the court to draw adverse inferences.
“Actions of Midwives
Before attempting to reconstruct what the midwives did or did not do once mother arrived at hospital, it is necessary to deal with a discrete issue, namely the absence of any evidence from any of the midwives who were involved. In short, Mr Maskrey QC invites me to draw an adverse inference from the second defendant’s failure to adduce any evidence from the midwives; and he says that the effect of such inference should be a finding that the delay between mother’s arrival at the hospital and being seen by Dr Beardsworth cannot be justified.
It is clear from the Clinical Incident Report forms (which, unfortunately, were not disclosed, due to oversight, until February of this year) that the two midwives who were involved in mother’s care at the relevant time were Sarah Piper and Kath Bailey. The claimant’s solicitors were able to locate Ms Bailey and they duly wrote to her on 27th June 2016 requesting her assistance. It is apparent that in response Ms Bailey contacted the hospital. This prompted a letter dated 30th June from the Trust to the claimant’s solicitors in which it was stated:
“Ms Bailey is now elderly, frail and suffering from Parkinson’s disease. She has expressed her wish that she does not want to be approached concerning this case and has been deemed unfit to assist further.”
As I understand it, no further approach was made to Ms Bailey.
As to Ms Piper, the defendant’s solicitors did contact her by email but there was no response until 25th October 2016. The response from Ms Piper was copied into an email sent by the defendant’s solicitors to the claimant’s solicitors on the same date. This email, with some opposition from Mr Maskrey QC, was shown to the court during the course of the trial. The relevant parts read as follows:
“As I feel I have nothing of note to say, as I do not remember this case at all, I would be happier not having my details shared with the claimant’s solicitors and do not feel I can be of any help to yourselves too. I am very sorry not to be more helpful.”
It appears to be Mr Maskrey’s contention that once the midwives had been identified, it was incumbent upon the defendants to obtain statements and call them to give evidence. He argues that even if they had no independent recollection of the incident, their evidence would have been of assistance to the court in describing what would be usual practice and procedure where there was an obstetric emergency involving an APH. Further, and in so far as the second defendant seeks to say that midwife Bailey was not medically fit to give evidence, Mr Maskrey QC submits that merely to make such an assertion in an email is wholly unsatisfactory and that, at the very least, medical evidence should have been served together with a Civil Evidence Act notice.
Mr Maskrey QC invites the court’s attention to the guidance of the Court of Appeal in Keefe v The Isle of Man Steam Packet Company Limited  EWCA Civ 683 (per Longmore L.J. at paragraph 19) that:
“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  AC 877, 930G.”
“From this line of authority I derive the following principles in the context of the present case:
(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 on an issue 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.”
As it seems to me, in relation to Ms Bailey, there is no reason to doubt the contents of the letter dated 30th June 2016, albeit that a more formal notice could have been served. At all events, given that Ms Bailey, on the face of it, was not fit to give evidence it seems to me that that was manifestly a good reason for the defendants not to call her and, accordingly, I decline to draw any adverse inference. Similarly, given that Ms Piper has no recollection of the incident and was reluctant to be involved, that again seems to me to be a good reason for the defendants not calling her to give evidence. Whilst it is true that the defendants called Mr Lee to give evidence even though he had no independent recollection of the incident, it does not follow that the defendants should be reasonably required to call evidence from a former employee who can give no independent account of what occurred. In short, I find that there were proper reasons and credible explanations as to why the defendants did not call the midwives and that therefore it would not be right to draw any adverse inference. Furthermore, as Miss Jones points out, there is no property in a witness; and it would have been open to the claimant’s solicitors to follow the matter up, at least in relation to Ms Bailey. In addition, the claimant could have applied to the court for permission to adduce expert midwifery evidence for the purposes of providing the court with an opinion as to what should occur in the circumstances which presented themselves and, in particular, how quickly the patient should be seen by an Obstetrician.”
(The claimant’s action was not successful).
RELATED POSTS: INFERENCES DRAWN FROM ABSENT WITNESSES
- Civil evidence: absent doctor does not lead to an adverse inference.
- Adverse inferences from missing documents and witnesses: another case to point.
- More on adverse inferences from absent witnesses: a clinical negligence case.
- Durrant case back in the reports: what presumptions should a judge draw when a party is debarred from calling witnesses
- My article in 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
- A failure to disclose can be just as telling as disclosure itself.