Assessing lay evidence: lessons learnt from Owens -v-South West Yorkshire Partnership NHS Foundation Trust

The Claimant – a Consultant Radiologist – jumped from a balcony in an apparent suicide attempt and sustained serious injuries. He is now confined to a wheelchair. He alleged being let down by a number of psychiatric practitioners who, he said, had failed to admit him to hospital when he should have been admitted in light of his psychiatric state. His Honour Judge Mark Gargan dismissed the claim and found for the Defendant.

The decision serves as a reminder of the factors that are likely to sway judges when assessing lay evidence.

The facts

On 15 June 2012, the Claimant, who was suffering from panic attacks and had suicidal thoughts, was referred to the Defendant’s Crisis Team (‘CT’) and an assessment began. On 16 June 2012, another practitioner with the CT attended the Claimant’s house to complete the assessment. On 17 June 2012, the Claimant jumped from the first-floor balcony at his home.

The matter was listed for a liability only trial in September 2018. At this hearing there were four issues:

  1. Did the nurse who assessed the Claimant on 15 June, ask him direct questions about suicidal ideas, intent or planning during the assessment?
  2. Did the nurse try to convince the Claimant that he was not suicidal?
  3. Did the nurse practitioner who attended on 16 June, ask directly about suicidality and self-harm?
  4. Had the nurse practitioner made herself familiar with the Claimant’ history and background?

The parties agreed that resolution of these factual issues determined the issue of breach of duty (paragraph 12).

The Claimant, his mother and brother all gave evidence. All three had been present during the first assessment. The Claimant’s mother and brother were standing outside the door, which was ajar during the assessment on 16 June. Their accounts were that the Claimant was not directly asked about suicide, despite him stating, on 15 June, that he could run under a bus (paragraph 41, 42 and 52).

The Defendant contended that its practitioners had adequately questioned the Claimant about his suicidal ideas. It relied on records which specifically recorded that the Claimant denied feeling suicidal.

Likewise, there were contradictory accounts between the parties as to whether the nurse on 15 June had tried to convince the Claimant he was not suicidal and whether the nurse practitioner had been familiar with the Claimant’s history when she attended.

Liability therefore turned on the lay evidence.

The decision

HHJ Gargan found for the Defendant on all four issues, preferring the evidence of the clinicians, and their contemporaneous records.

In doing so, the Judge found that external stresses (tiredness, hunger, anxiety and distress following the index event), particularly on the part of the Claimant and his mother are likely to have affected their recollection (see paragraphs 131, 146 to 147, 163 and 172). By Friday, 15 June, the Claimant’s mother accepted she was exhausted, having been up all night with her son.

The Claimant’s brother did not mention in his witness statement some key issues such as the alleged failure to ask about suicide/self-harm, which at trial he stated he could now remember. The Judge considered there was a risk that discussions after the event had influenced his recollection (paragraph 145).

Moreover, the contemporaneous notes taken by the Defendant were more consistent than the Claimant’s lay evidence. In particular, with regards the first assessment, the earliest record was made by the crisis resolution practitioner assisting the nurse in the assessment. A note had been inserted into the A&E department records immediately after the first consultation. This note supported the Defendant’s account that the risk of self-harm/suicide was raised on more than one occasion (paragraph 165 to 167).

Thoughts and observations:

  1. Avoiding expert fees – where there is broad agreement between the experts, the cost of oral expert evidence may be avoided if the experts’ views can be summarised in an agreed letter, based on the competing factual scenarios open to the court. Parties can be nervous to dispense with expert evidence, but this is a prime example of a suitable occasion to do so.
  1. Clinicians aren’t the only people who write notes! In this case, the Claimant’s mother had written a record of events. However these notes were not provided to the Claimant’ solicitors and were not available at trial (paragraph 36). Not infrequently lay clients take contemporaneous or near contemporaneous notes, and we (their lawyers) don’t always check whether they have such notes in their possession, perhaps presuming that they will not.
  1. The external stresses here were a significant factor which might be said to affect witnesses’ recollections. This is something to consider when preparing witness statements, and when advising our clients.
  1. If a clinician’s approach in other respects meets or exceeds the standard of care, it will be more difficult to establish that, in the central respect, they fell short of the standard (see paragraph 138 – whilst not determinative, it is a point the judge highlighted).
  1. When records became available (before or after lay evidence is prepared) may be important (see paragraph 165). If corroborative records are only available after a witness has completed his/her statement, this shows he/she has an accurate, independent recollection of events.
  1. Finally, the case serves as a reminder of the potential evidential power of a few words in a contemporaneous note. As observed by numerous judges, including Lady Justice Arden in Wetton (as Liquidator of Mumtaz Properties) v Ahmed and others [2011] EWCA Civ 610 at paragraph 14):

“… contemporaneous written documentation is of the very greatest importance in assessing credibility…”

A copy of the order and the judgment can be found here.


Angus Moon QC successfully defended this psychiatric negligence claim (unreported, County Court at Sheffield, 9 January 2019).