This article discusses the case of Jones -v- Taunton and Somerset NHS Foundation Trust  Med LR 384.
The claimant relying on the case of Wisniewski, submitted that the judge should draw adverse inferences from the lack of evidence from a midwife, who had not provided a witness statement or attended court to give evidence. However, the judge declined to do so in the circumstances.
The claim involved an alleged breach of duty by an obstetric consultant. The claimant alleged that his mother was negligently treated in November 1995, when she was prescribed Nifedipine as a tocolytic (preterm labour suppressant) which tragically caused him brain damage while in utero. The court held that in 1995 there was evidence that a responsible body of medical practitioners would have prescribed either Ritrodine or Nifedipine and concluded that there was no breach of duty. There was no evidence from one of the treating midwives. The claimant asked that an adverse inference be drawn.
One of the treating midwives had not provided a witness statement or given evidence. Witness statements were served by the defendant on 19 August 2018. A year later the claimant solicitors wrote on 17 April 2019 referring to notes and asking for the full name of the midwife. The defendant responded stating that she had left the trust in 1997. She was no longer practising and had not responded to a request to provide a statement.
At trial, the claimant, relying on the case of Wisniewski, submitted that the judge should draw adverse inferences from the absence of evidence from the midwife, whose notes had to be interpreted by others.
In reaching his conclusions, the judge referred to the case of Wisniewski -v- Central Manchester Health Authority  PIQR P324, and the Court of Appeal’s decision in Manzi -v- Kings College Hospitals NHS Foundation Trust  EWCA Civ 1882.
In considering whether to draw an adverse inference he put forward the following relevant factors:
- No allegations were made against the midwife – (distinguished from Wisniewski, where the doctor was alleged to be negligent)
- It was not a case where there had been a tactical decision not to call the midwife, so as to deliberately prevent or avoid the admission of evidence that would undermine the defendant’s case
- A credible explanation was given as to why she had not been called, therefore no adverse inference should be drawn
- No direction had been sought that the midwife should file and serve a witness statement failing which adverse inference might be drawn; the claimant could themselves had made a arrangements to obtain evidence from her (as in Manzi)
- Evidence from her would be preferable to others interpreting her notes, but in his discretion it would be wrong to draw an adverse inference
This case further confirms the importance of identifying key witnesses in the early stages of a claim. If, for reasons such as proportionality, a witness whose evidence is tangential is not going to be called to give evidence, clear justifiable reasons must be provided to the court. Conversely, if a witness played a key role in the alleged negligent events, they face an increased risk of the court drawing an adverse inference. The court will consider the circumstances of each case individually, however where there are no allegations of negligence against a witness, who has good reason for not being able to provide evidence, it is unlikely that the court will draw an adverse inference.