Wisniewski (A Minor) v Central Manchester Health Authority

A court may draw adverse inferences from the absence or silence of a witness expected to give material evidence. Such inferences may strengthen the opposing party’s evidence or weaken the evidence of the party expected to call the witness. There must first be some evidence on the issue, however weak. A satisfactory explanation prevents an adverse inference; a credible but incomplete explanation may reduce or nullify its effect.

Where a doctor negligently fails to attend, causation may be established by proving that the doctor would probably have taken action which would have prevented the injury. That action need not have been the only acceptable medical response. Courts may reject supporting medical opinion only where it cannot withstand logical analysis. Foreseeability of the kind of injury may suffice although its precise mechanism was unforeseeable.

Philip Wisniewski, a minor, sued the health authority responsible for the hospital where he was born. He suffered cerebral palsy following hypoxic brain damage immediately before birth. Thomas J found that the midwife and the resident senior house officer, Dr Renninson, had negligently failed to secure a medical examination when the foetal heart trace showed suspicious signs.

The judge found that, had Dr Renninson attended, he would have ruptured the membranes, discovered meconium and arranged a caesarean section which would have avoided the injury. That finding relied partly on an adverse inference from the doctor’s failure to give oral evidence. Alternatively, the judge found that continued observation would have fallen outside responsible medical practice.

The health authority appealed against the findings concerning the appropriate medical response, the use of adverse inferences and causation. The central questions were whether responsible medical opinion supported continued observation, whether the evidence justified finding what the absent doctor would probably have done, and whether the injury fell within the risk created by the negligence.

The appeal was dismissed unanimously. Brooke LJ delivered the substantive judgment, with which Aldous and Roch LJJ agreed.

1. The judge’s conclusion that no responsible doctor could have chosen continued observation was wrong. Under Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151, supporting professional opinion could be rejected where it could not withstand logical analysis. This would be rare. The defence experts had weighed the suspicious trace against the risks of intervention, including cord prolapse. Their opinions were logically supportable. The court could not substitute a preference for the claimant’s experts.

2. That conclusion did not dispose of the claim. The claimant could establish causation by proving that Dr Renninson would probably have taken the preventive action if he had attended. On that route, the claimant did not also have to prove that choosing continued observation would have been negligent.

3. A court could draw adverse inferences from the absence or silence of a witness expected to possess material evidence. An inference could strengthen the opposing party’s evidence or weaken that of the party expected to call the witness. There must first be some evidence on the issue, however weak. A satisfactory explanation for the absence prevented an inference; a credible explanation could reduce or nullify its effect even if it was incomplete.

4. The claimant’s expert and textbook evidence established a weak prima facie case that an attending doctor would have ruptured the membranes. Dr Renninson’s statement did not address what he would have done. Despite an express warning and a substantial break in the trial, the authority supplied no adequate explanation for failing to obtain his oral evidence. Other members of the hospital’s medical team also gave no evidence about local practice. The judge was entitled to treat the doctor’s absence as strengthening the claimant’s case. Residence abroad might be insufficient where evidence could be obtained by videolink.

5. The injury was of the foreseeable kind: damage caused by hypoxia. Its precise mechanism, involving a knotted cord around the child’s neck, did not have to be foreseeable. Applying common sense, the negligence was an effective cause of the damage. There was no intervening act breaking the causal chain.

Brooke LJ also recommended expressly pleading what the relevant clinician would have done if the negligent omission had not occurred. The judgment for the claimant stood. The respondent was awarded the costs of the appeal, and leave to appeal was refused.

• Court of Appeal (Civil Division): In [1998] EWCA Civ 596 , the court unanimously dismissed the health authority’s appeal. It upheld liability on the finding of what the absent doctor would probably have done, while rejecting the alternative finding that continued observation fell outside responsible medical practice. Leave to appeal was refused.
• High Court, Queen’s Bench Division: Thomas J, sitting at Manchester, directed judgment for the claimant on 2 April 1996. Liability was determined at trial; damages had been agreed.