Welds -v- Yorkshire Ambulance Service NHS Trust (1) & Sheffield Teaching Hospitals NHS Foundation Trust (2) [2016] 3325 (QB)

In circumstances where there is a ‘prima facie’ case to answer, the court is entitled draw adverse inferences from a party’s failure to adduce evidence in response to the claim.

Although a clinical negligence case, the judge’s comments on the issue of witness attendance in the case of Welds are of, potentially, wider significance to employers’ and public liability claims where lay witness evidence will often play a pivotal role.

Background

The claimant sadly sustained a brain injury at birth as a consequence of a period of acute and profound cerebral hypoxia ischemia. As a result, he suffered from cerebral palsy with a severe degree of cognitive and motor impairment.

On the issue of breach of duty, it was alleged that the first defendant had unnecessarily and culpably delayed in transferring the claimant’s mother to hospital for treatment. In relation to the second defendant, it was alleged that there had been a failure by the midwifery team to appreciate the seriousness of the mother’s condition and a negligent delay in arranging for her to be examined by the obstetric registrar. The claimant ultimately failed to establish breach of duty against either defendant.

Witness evidence

The claimant invited the judge to draw an adverse inference from the second defendant’s failure to adduce any evidence from the two midwives involved in the mother’s care. It was submitted that the effect of such an inference should have been a finding that the delay between the mother’s arrival at hospital and an obstetric examination could not be justified.

The Trust had a written letter from the first midwife confirming that she was not medically fit to give evidence as she was now elderly and suffering from Parkinson’s disease. The second midwife had emailed the defendant to confirm that, in light of the passage of time (some sixteen years), she had no recollection of the case at all and therefore did not feel that she could be of any assistance.

At trial, the claimant argued that even if the witnesses had no independent recollection of the incident, their evidence would have assisted the Court in terms of evidencing their usual practice and procedures. As regards the first midwife, it was suggested that medical evidence should have been served.

The claimant sought to rely upon the following guidance of Lord Justice Longmore in the case of Keefe -v- The Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683:

‘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’

The claimant’s arguments were rejected by the judge who, in declining to draw any adverse inference found that ‘there were proper reasons and credible explanations as to why the defendant did not call the midwives.’

With regard to the first midwife, whilst acknowledging that a more formal notice could have been served, the judge indicated that he had no reason to doubt the contents of the letter from the Trust and there was a ‘manifestly good reason’ for the defendant not to have called her. Further, as there is no property in a witness, it was open for the claimant’s solicitor to seek to obtain evidence (at least in relation to the second midwife) and/or apply to adduce expert midwifery evidence on the issue of the delay.

Given the often central importance of witness evidence in employers’ and public liability claims, it is crucial that all potential witnesses are identified at an early stage in proceedings with due consideration given as to whether the witness should be called at trial - and if not, why not?

Although in each case the court will consider all the relevant circumstances, this decision indicates that where a credible and reasonable explanation is provided as to why a witness cannot attend, it is unlikely that any adverse inference will be drawn.

Similar reasoning was applied recently in the case of K P -v- Stockport NHS Foundation Trust (an employer’s liability claim dealt with by Hill Dickinson LLP) where the defendant successfully maintained a defence at trial.

In that case, statements were served from five lay witnesses on the issue of breach of duty. Unfortunately, shortly prior to trial, one of the witnesses suffered the sudden death of her partner and as such, was unfit to give evidence in person. A civil evidence act notice was filed in respect of her statement, together with correspondence from the Trust outlining the position.

In light of the explanation provided, the trial judge indicated that she would not take issue with the absence of the witness and agreed to have regard to her statement pursuant to the Civil Evidence Act 1995. No adverse inferences were drawn.