Synclair v East Lancashire Hospitals NHS Trust

When resolving conflicting oral and documentary evidence, a court should test witness reliability against independently proved facts, contemporaneous documents, motives and overall probabilities. A contemporaneous clinical record ordinarily merits careful consideration, but its status does not establish its accuracy. The court must assess its provenance, the circumstances of its creation and all the other evidence.

An appellate court should not overturn the trial judge’s resulting factual evaluation where the judge considered the whole evidential picture and the conclusion was reasonably open on the evidence.

The claimant underwent surgery at the Royal Blackburn Hospital and was discharged two days later. His stoma subsequently became necrotic and perforated. In a clinical negligence claim, the recorder accepted the claimant’s evidence that, before discharge, he had raised its abnormal colour and was experiencing pain and nausea. The recorder found that a clinical note describing him as well and the stoma as of normal colour was inaccurate. He held that the Trust negligently discharged the claimant and awarded £227,529.15 in damages.

The Trust appealed only against the finding of breach of duty. It contended that no rational judge could reject the contemporaneous clinical note in favour of the claimant’s allegedly unreliable oral evidence. Causation and quantum were not challenged.

1. Appeal dismissed. The recorder’s conclusion that the clinical note was inaccurate was entirely open on the evidence and fell well within the bounds of reasonable decision-making. Tomlinson LJ gave the judgment, with which Floyd LJ and Cobb J agreed.
2. When assessing evidence about what witnesses said, saw or heard, the judge should test its veracity and reliability against independently proved objective facts, contemporary documents, the witnesses’ motives and the overall probabilities. Fact-finding remains a single, compendious evaluation of the totality of the evidence.
3. An apparently contemporaneous document does not relieve the court of deciding whether it is reliable and what weight it should receive. Medical records are ordinarily likely to be reliable, but their accuracy may be displaced by other evidence. Their provenance and the circumstances in which they were created remain material.
4. The critical note had not been written by the registrar who examined the claimant. That registrar had no independent recollection of the ward round and no input into the note. The note’s author neither gave evidence nor supplied a witness statement, despite permission having been obtained. There was no evidence about whether he was present during the examination, when precisely he wrote the note, his note-taking practice, or whether the registrar dictated or checked it.
5. The surrounding records did not compel acceptance of the critical note. Medication records supported the claimant’s evidence of recent pain and nausea. His wife’s unchallenged evidence supported his account of his condition and the abnormal colour of the stoma shortly after discharge. The recorder had expressly considered the observation scores and the claimant’s earlier inconsistent description of the stoma as black, and was entitled to accept his explanation.
6. The recorder properly used the advantage of seeing the claimant and his wife give evidence. He considered the inherent probabilities and the whole evidential picture. There was ample material on which he could prefer the oral evidence to the clinical note. The finding that discharge constituted a breach of duty therefore stood.

1. Court of Appeal (Civil Division): By [2015] EWCA Civ 1283, unanimously dismissed the Trust’s appeal and upheld the recorder’s finding that the clinical note was inaccurate and that discharging the claimant constituted a breach of duty.
2. Manchester County Court: Mr Recorder Simon Parrington rejected the claimant’s primary allegation concerning the performance of the operation but upheld his secondary case concerning negligent discharge. He awarded damages of £227,529.15 and costs. No neutral citation is stated.