Whether certain evidence was similar fact evidence and should be admissible


This is a clinical negligence case. The claimant sought to adduce evidence of (amongst other  things) the doctor’s  alleged incompetence in other cases. The Court of Appeal noted that  traditionally only “similar fact” evidence which is relevant is admissible. In criminal  proceedings, the law now provides that (broadly) evidence of a defendant’s propensity to commit  offences of the kind with which he is charged will be admissible if that makes it more likely that  he is guilty of an offence. The claimant sought to argue that a similar principle should apply in  civil proceedings too and formulated the proposition that “evidence of systemic failure of various  types of incompetence is admissible in professional negligence  cases as enabling a judge to make  inferences of negligence in  a particular case.”

The Court of Appeal rejected that proposition and also held that the criminal law position did not  apply in civil proceedings. Longmore LJ opined that evidence of extraneous matters should be confined to cases of  similar fact (because other matters will not prove the issue to be determined) and, in any event,  the trial judge has a discretion to decide whether it should actually be adduced at trial. He did,  however, acknowledge that it can be difficult to ascertain whether evidence is similar fact  evidence. In any event, on the facts of the case, other complaints by patients were not similar  fact evidence: 6 other complaints involved operations on other parts of the body and the remaining  complaint related to alleged insufficient discussion with a patient, which was a very different type of complaint.