Wisniewski (A Minor) v Central Manchester Health Authority

A court may draw an adverse inference from a party's failure to call an expected material witness. The inference may strengthen the other party's evidence or weaken the silent party's evidence, but it cannot fill a gap where there is no case to answer. Its effect depends on whether the absence has a satisfactory explanation.

In clinical-negligence cases, a responsible body of medical opinion will ordinarily set the standard of care. A court may reject such opinion only in the rare case where it cannot withstand logical analysis. A defendant remains liable where the breach exposed the claimant to a foreseeable kind of harm, even though the precise mechanism producing that harm was unforeseeable.

The claimant suffered cerebral palsy following his birth at St Mary's Hospital, Manchester. The High Court, Thomas J, held the defendant health authority liable in negligence. Damages were agreed, leaving liability for determination.

The judge found that the duty doctor should have attended shortly after a suspicious cardiotachograph trace at 3.40 am. He further found that, if the doctor had attended, he would probably have ruptured the membranes, discovered meconium and arranged a caesarean section before the injury occurred.

The health authority appealed. It contended that the judge had wrongly rejected responsible medical opinion favouring continued observation, wrongly drew an adverse inference from the doctor's absence, and erred on causation because the precise cord accident was unforeseeable.

1. Appeal dismissed unanimously. Lord Justice Brooke held, with whom Lord Justice Aldous and Lord Justice Roch agreed, that the trial judge was entitled to find that the duty doctor would probably have performed an artificial rupture of the membranes if he had attended at 3.40 am.

2. The claimant had produced a prima facie, though weak, case on that hypothetical issue through expert and other evidence. The doctor's unjustified absence could strengthen that evidence. An adverse inference does not itself supply missing proof, but it may strengthen existing proof or weaken the evidence of the party who might reasonably have called the witness. A credible explanation for absence may reduce or eliminate that effect.

3. The court accepted that the trial judge had been wrong to reject the views of the defendant's experts as incapable of support. Under Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151, a court will only rarely reject genuinely held professional opinion in diagnosis or treatment. It must be shown incapable of logical support. The experts' concerns about cord prolapse and their preference for continued observation were capable of logical support. That conclusion did not assist the authority because the factual finding as to what the doctor would have done was upheld.

4. The causation challenge also failed. The breach exposed the child to a foreseeable risk of injury by hypoxia. The injury was caused by hypoxia of that foreseeable kind. It was immaterial that the precise mechanism, a looped and knotted cord tightening during delivery, was unforeseeable. It was not a novus actus interveniens, and the breach was an effective cause of the injury.

• Court of Appeal (Civil Division) — unanimously dismissed the defendant health authority's appeal and upheld judgment for the claimant.
• High Court of Justice, Queen's Bench Division — Thomas J entered judgment for the claimant on 2 April 1996 after finding negligence and causation. Damages had been agreed.