Is it safe to rely on a court to draw an adverse inference from the absence of a witness?

February 1st, 2019
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Manzi v King’s College Hospital NHS Foundation Trust [2016] EWHC 1101 (QB)

By Natasha Naidoo

The judgment handed down in Manzi v King’s College Hospital NHS Foundation Trust [2016] EWHC 1101 (QB) is a clear indication that the absence of a witness does not automatically lead to an adverse inference being drawn by the courts.

This is evident from the Appeal Court’s dismissal of the matter.

The claimant alleged that the defendant, an obstetric registrar, breached his duty by failing to detect that a sizable amount of placental tissue had failed to expel itself after she had given birth. The claimant said that she was informed by the defendant that the placental tissue should pass naturally, but that she was in immense pain following her discharge from the hospital. This resulted in her undergoing surgery to have the placental tissue removed, following which she suffered a haemorrhage.

The parties disagreed about the size of the placental tissue in question. The claimant maintained that the placental tissue was larger than 7cm. The defendant argued that an ultrasound revealed that it was 2cm in size and that there is a noticeable difference between 2cm and 7cm. The defendant argued further that the placental tissue would have been removed together with blood clots, which form by gradual accumulation around it. The claimant based her contentions on the report of a doctor who she consulted following her surgery to have the placental tissue removed. The doctor’s report said that 8cm of ‘products’ had been removed and that it was likely to be a piece of placenta, but that she was not 100% sure. The claimant’s doctor was not called as a witness by the claimant and the histopathology report was unconvincing because it merely confirmed that blood clots and partly necrotic placental tissue was seen.

The issue to be determined by the court was the size of the placental tissue, which had remained in the claimant.

The trial court, in arriving at a decision, relied on the report and on oral evidence of experts in gynaecology and obstetrics. The experts were in agreement that it was not possible to tell from a histological report what proportion of the products removed constituted placental tissue and what percentage blood clots. It was held in court a quo that there was no negligence on the part of the obstetric registrar and that it was competent to conclude that the retained piece of placenta was small. The court accepted that a failure to recognise the vast difference in size between 2cm and 7cm was unlikely. The court refused to draw an adverse inference from the defendant’s refusal to call the claimant’s doctor as a witness for the following reasons:

  • The claimant’s doctor did not measure the placental remains herself and gave a rough estimate of what she believed to be the size of the placental tissue. She referred to what was removed as ‘products’ and that it had amounted to placenta. However, one could not interpret her report in an overly legalistic manner.
  • The defendant doctor’s role was incidental to the issue before the court and the claimant’s doctor had no first-hand knowledge of the size of the placental tissue. Her role in the case was, therefore, tangential.
  • The claimant’s doctor was not alleged to have caused the harm suffered by the claimant.

The claim was dismissed and the claimant appealed on various grounds. The Appeal Court, in analysing the grounds of appeal, considered whether the trial judge was incorrect in his evaluation of the evidence of the claimant’s doctor and the sonographer responsible for the ultrasound. The second issue concerned the trial judge’s refusal to draw an adverse inference against the defendant for not adducing the evidence of the claimant’s doctor.

In dealing with the first ground of appeal, the court held that clinical records, such as the report of the claimant’s doctor, did not create a legal presumption that the report is accurate. The circumstances in which the report was prepared had to be considered together with all evidence led.

The claimant’s doctor was not responsible for performing the operation and she was not present during the procedure. The experts agreed that it would have been very difficult to differentiate between placental tissue and other products by means of mere visual inspection. The claimant’s doctor did not analyse and measure the placental tissue herself.

Regarding the second issue, the claimant relied on the judgment in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 CA where it was held that a court – in certain circumstances – may draw an adverse inference from the absence or silence of a witness who might have material evidence, which may be relevant to a case.

If a court draws such an inference, the evidence may be strengthened or weakened by a party’s failure to adduce such evidence where the party may, reasonably, have been expected to call the witness. There must have been some evidence, irrespective of its strength, before the court can draw the inference. If the reason for the witness’s absence or silence satisfies the court, then an adverse inference cannot be drawn.

The claimant was of the view that these principles had been satisfied. The appeal court dismissed the appeal and upheld the decision of the trial court.

It is trite that evidence is evaluated in a multifactorial manner, taking into account the circumstances surrounding a case. An Appeal Court will rarely intervene with the findings of a trial court, which has had the advantage of directly considering and evaluating the evidence of witnesses.

The claimant relied, to a large extent, on the report of her doctor but was unable to rely on it in court. The trial court was swayed by the evidence of the defendant and considered various other factors in arriving at the decision not to draw an adverse inference from the defendant’s refusal to call the claimant’s doctor as a witness.

It is, therefore, relevant for a party who intends to rely on expert evidence to ensure that the report of the expert is filed in terms of the relevant rules of court. The oral evidence of such expert witness, especially where the claimant has founded her claim based on the findings of expert, is crucial. A failure to do so could prove to be detrimental to a party’s case since a court’s power to draw an adverse inference is not mandatory but rather discretionary.

Natasha Naidoo LLB (Unisa) is an attorney at Norton Rose Fulbright SA Inc in Johannesburg.

 This article was first published in De Rebus in 2019 (JanFeb) DR 50.

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