CXB v North West Anglia NHS Foundation Trust  EWHC 2053 (QB)
There is no general principle that the courts should prefer assertions contained in clinical records over factual accounts in witness evidence. That was the view of His Honour Judge Gore QC (sitting as a Deputy High Court Judge), rejecting the Defendant’s submission based on Gestamin SGPS SA v Credit Suisse (UK) Limited (‘Gestamin’  EWHC 3560).
The decision was the product of a liability-only trial in a birth injury case. The hearing centred on a single issue – whether the mother asked for delivery by elective caesarean section. The Defendant accepted that if she had, her choice would have been agreed. Had she had a caesarean section, she would have avoided the damaging event.
In a note of a consultation with a senior Registrar at 36 weeks the Registrar recorded, “Patient keen for IOL” (Induction of Labour), no mention of a request for a caesarean section was recorded. The Claimant’s mother alleged that during that appointment, she said she wanted a caesarean section and it was refused. The Defendant invited the court to prefer the reliability of the clinical records, in particular this entry which contemporaneously reported the Claimant’s mother’s wishes, over her witness evidence.
The Judge found for the Defendant. He did so, however, based on the totality of the evidence, rather than any general principle that the clinical records should be preferred.
His Honour Judge Gore QC considered that there was not sufficient material to find that the clinical record was unreliable or incorrect, but there was ample material to justify the conclusion that the contrary witness evidence was so ().
Clinical records should not necessarily be preferred over witness evidence
In Gestamin, Leggatt J, considered that due to the way that memories are formed and re-formed, and the unreliability of human memory generally (at ):
“the best approach for a judge to adopt in the trial of a commercial case is […] to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.”
His Honour Judge Gore QC described as “fraught with danger” the “fashion” to rely on the ever increasing number of judgments relying on Gestamin which gives the impression that it is authoritative (). He considered that the above statement should be treated with caution. In particular, the context was important.
In Gestamin, the issue of fact was whether the witness should be regarded as bound by a statement of investment objectives he had signed at the time the commercial relationship commenced, as opposed to what he said subsequently his investment objectives were at that time. The document was therefore signed by the same person giving contrary witness evidence later. In this case, the clinical record was made by the Registrar, not the Claimant’s mother herself. The clinical record insofar as it contained a record of these comments, constituted hearsay evidence ().
Further, the argument in Gestamin is based on a presumption that the record is accurate and reliable. That is not an issue where, as in Gestamin, the record was made by the person later giving contrary testimony, however it was an issue in this case ().
The Judge went on to review the later cases which it was suggested had approved the approach in Gestamin. He concluded that “[a]ll the decided cases…remind judges that care has to be taken in making these assessments, and full and proper reasons have to be given for the conclusions reached, but beyond that I do not find anything in these judgments to be of assistance as a matter of principle in explaining how this task should be undertaken ()”.
Defendants may be disappointed that a guiding principle which generally favoured them as the authors of the records, has been rejected. Contemporaneous records of any kind – not just clinical records, but also witness diary entries and timely complaint letters, for example – are still likely to carry significant evidential weight, however.
The fundamental approach adopted by the trial judge remains unchanged. He or she will, as His Honour Judge Gore QC demonstrated, consider whether the witness evidence is internally and externally consistent, and whether it is consistent with the known facts and documentary evidence (see ).
Michael Mylonas QC represented the Claimant.