Manzi v King's College Hospital NHS Foundation Trust

An appellate court will rarely disturb a trial judge’s findings of primary fact or a multi-factorial evaluation of evidence. Intervention requires an unsupported finding, a misunderstanding of the evidence, or a conclusion that no reasonable judge could reach. A challenge merely to the weight given to individual items of evidence will not suffice.

Contemporaneous clinical records are an important evidential factor, but their inherent likely accuracy creates no legal presumption requiring rebuttal. Their contents must be evaluated in their evidential context. Similarly, the absence of a potentially material witness permits, but does not require, an adverse inference. The decision remains discretionary and depends on the evidence, the witness’s role, and any explanation for the absence.

The claimant brought a clinical-negligence claim against the hospital trust following the birth of her child. The central factual issue was whether a substantial, rather than a small, amount of placental tissue had been retained after delivery. That issue determined whether the treating doctor had negligently failed to identify it on an ultrasound scan.

Nicol J dismissed the claim after evaluating witness, expert and clinical-record evidence. The claimant appealed, principally challenging the judge’s treatment of a sonographer’s scan and a post-operative note by Dr Hooper. She also contended that the judge should have drawn an adverse inference because the trust had not called Dr Hooper.

The central questions were whether the factual evaluation was vitiated by error and whether the judge was obliged, or should have been required, to draw an adverse inference.

1. Appeal dismissed unanimously. Sir Ernest Ryder held, with whom Sales LJ agreed, that the trial judge’s conclusion that the retained placental tissue had not been substantial was a permissible multi-factorial evaluation of the evidence.

2. Under Re B (A Child) [2013] UKSC 33, an appellate court may interfere with a finding of primary fact only in a rare case: where it lacked evidential support, rested on a misunderstanding of the evidence, or was one no reasonable judge could reach. Langsam v Beachcroft LLP [2012] EWCA Civ 1230 confirmed that an appellate court should not unsettle such an evaluation merely by disputing the weight attached to particular evidence.

3. The judge had given adequate and coherent reasons for preferring the evidence supporting a small retained fragment. He was entitled to take account of the marked difference between the original and later measurements, the sonographer’s uncertainty, the expert consensus about the difficulty of distinguishing placental tissue from blood clot, and the surrounding contemporaneous material. The civil standard of proof did not require a binary choice between supposedly equal items of evidence.

4. Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283 did not establish a legal presumption that clinical records must be accepted unless displaced. Their inherent likely reliability was an important factor, but the fact-finder had to assess their context. The judge was entitled to find that Dr Hooper had neither performed nor measured the removed material, and that her note could not resolve the composition of the mass.

5. Wisniewski v Central Manchester Health Authority [1998] PIQR P324 gives a court a discretion, not an obligation, to draw an adverse inference from a witness’s absence. Dr Hooper’s role was tangential, the trust had a proportionality-based explanation for not calling her, and the claimant had neither sought a direction requiring her witness statement nor obtained evidence from her. The judge therefore made no error in declining an adverse inference.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal unanimously: [2018] EWCA Civ 1882.

• High Court of Justice, Queen’s Bench Division — Nicol J dismissed the clinical-negligence claim on 12 May 2016 and ordered the claimant to pay the defendant’s standard-basis costs.