The problem of ‘missing’ witnesses and the need for contemporaneous statements
Clinical negligence claim in the matter of TW (A Child) v Royal Bolton Hospital NHS Foundation trust . Patient Safety of a minor injured at birth and…
TW (A Child) v Royal Bolton Hospital NHS Foundation trust  EWHC 3139
This was, on the face of it, an unremarkable clinical negligence claim involving a minor claimant injured at birth. What is of particular interest however is the practical reminder which it provides of the court’s power to draw, in certain circumstances, inferences from a party’s failure to adduce witness evidence: in this case, from a midwife whose involvement was central to the case, both factually and on the key issue of breach of duty.
The minor claimant, known as TW, was severely injured at birth on 26 March 2008. The essence of his case and the only allegation of breach of duty was that that when the claimant’s paternal grandmother had telephoned the defendant hospital whilst his mother was in labour, she had been told by a midwife that they should not come in to the hospital.
The identity of this midwife was never ascertained. The hospital said that there was no midwifery or other record of the contents of any such call but that it was not their practice at the time to log such communications or record the advice given, if any. They also argued, as an explanation for the inability to track down the midwife, that the existence of this call was only first brought to their attention in 2012 by a letter from the Claimant's solicitors dated 14 February 2012 and with its significance only being identified for the first time in the draft particulars of claim served on 28 September 2012. The claimant argued, however, that the hospital was on notice of the call and its effect on the parents as a result of matters raised by the claimant's father at a meeting on 7 April 2008 between the parents and the consultant, which were set out in the recorded notes of this meeting, albeit not referred to in any of the letters subsequently sent to the parents. The notes recorded: “…the midwives tried to discourage them from coming in when he initially called at 04:00. Would this have changed anything?”
The claimant sought to rely on the guidance of Lord Justice Longmore in the Court of Appeal case of Keefe -v- The Isle of Man Steam Packet Company Limited  EWCA Civ 683:
‘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 court’s decision
The trial judge noted that, whether or not the evidence established that the hospital was in breach of practice in 2008 in not keeping records of telephone calls and their contents (it would be breach of practice in October 2016, the time of the hearing) the fact remained that no records had been kept and the lack of evidence as to what had been said (other than that provided by the claimant’s family) together with the lack of evidence from the midwives who took both the first and a subsequent telephone call sat with the hospital.
He also noted that the hospital could not seek to argue that the April 2008 meeting, at which concerns were raised by the claimant’s parents, did not obviously amount to a ‘complaint’: it was, the judge said, an issue which was clearly raised and it fell to be addressed. He therefore concluded that, in the circumstances, the court should judge the claimant’s case benevolently and the defendant’s critically on the key issue of what was said in the first telephone call and the line of reasoning of the midwives concerned in not inviting the claimant’s mother to come in to hospital.
The key learning point which this sad case highlights for hospitals and indeed any medical providers seeking to rely on expert advice given is that those involved must be capable of being identified and detailed witness evidence taken from them as early as possible.
In this case, the midwives who took the two telephone calls from the claimant’s family in the early hours of the morning of his birth should have been located following the meeting of the parents with the consultant several weeks later when concerns were expressed and statements taken as to the exact nature of the advice which they gave, and, crucially, their reasons for doing so, even though, at that time, there was no intimation of a formal claim. The potential value and significance of their evidence, when the letter of claim was finally sent some four years later, will remain, in this case, entirely a matter of speculation but it may be the case that establishing why they gave the advice that they did would have been time well spent if it could have shown, in the circumstances, to have been reasonably given.