Legal update - failure to attend trial

10/06/2010

By Graham Bell, Partner in Clinical Negligence.

Court entitled to draw adverse inferences if doctor unreasonably fails to attend trial.

So held the Court of Appeal in the important but surprisingly seldom cited case of Wisniewski -v- Central Manchester Health Authority [1997] PIQR 324. The claimant suffered cerebral palsy as a result of asphyxia shortly before his birth. It was alleged that the defendant negligently failed to respond to foetal tachycardia by carrying out an artificial rupture of the membranes (ARM) to check for cord prolapse.

At trial the defendant called the attending midwife but not the doctor who did not attend at the crucial time of 03:40. The doctor had moved to Australia and his statement gave no evidence as to whether he would have carried out ARM had he attended at 03:40. The court found for the claimant and the defendant appealed.

Each party had produced evidence from two expert obstetricians who disagreed as to whether it was mandatory to carry out ARM at 03:40. The Court of Appeal rejected the finding of the trial judge and ruled that even if a doctor had attended at 03:40 it would not have been negligent to have failed to undertake ARM.

However the court went on to consider whether the trial judge had been correct in considering himself entitled to draw adverse inferences from the failure of the defendant's doctor to attend trial on the basis that he had moved to Australia.

On this issue the court was extremely critical of the defendant's conduct in the litigation. It adopted the approach of the courts in a line of earlier cases to the effect that where a party fails to call a witness at trial a court was entitled to draw adverse inferences (i.e. make a finding of fact) provided the claimant had raised a prima facie case that such inferences could be drawn.

In one of the earlier cases cited by the courts the trial judge had gone so far as to say "If there had been only a scintilla of evidence called on her behalf… then in the absence of any contrary evidence, because no witness was called for the defendant, the judge would have been entitled to find even that scintilla sufficient to make out the plaintiff's claim".

In Wisniewski the Court of Appeal was very critical of the defendant for failing to call the doctor to attend trial from Australia or even to explore the possibility of him giving evidence by video link. Its error was aggravated by the fact that the Court of Appeal had recently given judgment in the well known Bolitho case so the defendant had no reasonable excuse for failing to understand the law.

In the circumstances the trial judge had been perfectly entitled to make a finding that had Dr Renninson attended at 03:40 he would have ruptured the membranes.

The Court of Appeal went on to hold that the defendant could not escape liability because the eventual damage was occasioned by the unforeseeable complication of a true knot. The purpose of ARM would be to discover and exclude the possibility of asphyxia caused by cord prolapse so the fact that the asphyxia was actually caused by another mechanism was irrelevant.

Therefore the defendant lost the case even though the court held that it would not have been negligent to have failed to undertake ARM.

Comment

It is surprising that this case is so seldom relied on by claimant lawyers as we find that it is not unusual for the NHS to fail to produce evidence from key medical staff. The NHS is not necessarily prejudiced by the fact that temporary overseas staff cannot be traced as this rule benefits a claimant only where the other party has unreasonably failed to produce a witness. There was a six day break during the trial. Before the break the judge made it clear to the defendant that he would be likely to draw an adverse inference if Dr Renninson did not give evidence. Despite that clear warning, no evidence was produced.

The Court also adopted its own recent judgment in Joyce -v- Merton, Sutton and Wandsworth Health Authority (1995) where it was made clear that the claimant "could now win a case like this if he satisfied the court that the doctor who failed to attend would probably have taken a requisite action if he had attended (although he would not have been at fault if he did not)".