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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> CXB v North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) (04 July 2019) URL: https://www.bailii.org/ew/cases/EWHC/QB/2019/2053.html Cite as: [2019] EWHC 2053 (QB) |
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QUEEN'S BENCH DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy Judge of the High Court)
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CXB |
Claimant |
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- and – |
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NORTH WES T ANGLIA NHS FOUNDATION TRUS T |
Defendant |
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MISS C. TOOGOOD (instructed by Kennedys) appeared on behalf of the Defendant.
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Crown Copyright ©
(Transcript prepared without access to documentation)
JUDGE GORE:
and give a fundamentally different account of the discussion that occurred with the senior Registrar. Miss Toogood, both in the written submissions contained in her skeleton argument and in her oral submissions, repeats a modern fashion to invite courts, particularly in clinical negligence cases, to prefer the reliability and veracity of assertions contained in clinical notes and records, to contrary factual accounts contained in written witness statements and oral testimony of witnesses who assert the contrary.
"15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.
16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.
17. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).
18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.
19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been 'refreshed' by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.
21. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.
22. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth."
"Had she said anything about wanting a caesarean section, or if I thought that she was unhappy in any way, I would have documented this. I would also have rung into the antenatal office to arrange for her to see Mr Forbes as soon as possible."
(trial bundle p.196, para. 5). The claimant's mother does not comment on this appointment in her witness statement despite having the notes available to her when she completed her witness statement. In cross-examination, the claimant's mother told me that she accepts she probably did not say anything to Ms Elliott, so that absent any foundation for disagreement with the witness statement of Ms Elliott, her statement was agreed and she was not called to give oral evidence. This important assertion on her part is therefore unchallenged. Moreover, it is entirely consistent with what Mrs Walker told me in cross-examination, namely that if the claimant's mother had expressed any concern on these issues she would have documented them and ensured that she was seen by a Consultant to discuss her concerns, precisely the same as is asserted by Ms Elliott.
"I do not recall, nor have I made any note of any concern raised by her about the appointment with Dr Choudhury 10 days before. If she had said anything, or if I had sensed that she was feeling upset or angry, I would have made a note of this and done something about it. I expect that I would have ensured she got to see Mr Forbes for a second opinion, particularly as he was well-known to be the most willing Consultant at the time to agree to caesarean sections."
That is her witness statement at trial bundle, p.187, para. 15. She maintained this in crossexamination. Mrs Walker also comments generally that:
"If she had said to me at any time during any of our appointments that she really wanted a caesarean section I would've written this down at the very least. If one doctor does not offer this choice, I would have sought a second opinion if the claimant's mother had voiced her concern to me. As midwives, we act as the woman's advocate. With a twin pregnancy it is unlikely that any doctor would not offer an elective caesarean section."
(See her witness statement at trial bundle pp.187 to 188, para.16). She repeated in crossexamination that: "We are advocates for our patients" and that she would have sought by telephone a second opinion, and she would have got the claimant's mother an extra appointment. I found the evidence of Mrs Walker to be compelling and entirely consistent with what I would have expected. That undermines the credibility and reliability of the claimant's mother's assertion that she did report her concerns to Mrs Walker on this occasion.
"If a patient became upset, my response was to go and see Mr Forbes and ask him to see the patient and talk things over with her."
In cross-examination, when pressed about these matters, she said that if the patient was getting upset there was all the more reason for getting the Consultant. If the patient was upset or unhappy with the plan under discussion, she would have got the Consultant and she would have done so even if she had not been asked by the patient to do so. She asserted that she would not be keen to see a patient upset or unhappy, and that if the consultation was not going right (that was her description) or the patient was not happy, there would be no point in carrying on with it when the Consultant was next door. So it is that she denies the reaction or response asserted by the claimant's mother and her husband.
(a) the notes of the meeting state that they accept that they had been counselled about the risks and benefits, but felt that their desire of having a caesarean section was undervalued and that Mr Forbes should have seen them personally as the Registrar may not have conveyed their concerns adequately. That is not the same as what is now complained of by the parents to have occurred on this occasion.
(b) The subsequent letter dated 30 April 2009 from Mr Majmudar states that: "She now retrospectively regrets the fact that she did not insist on having a caesarean section." I emphasise the word "not". Again, this is not consistent with what is now asserted, namely, that their election was not simply overridden but was actively misrepresented.
(c) To the extent that both the note of the meeting and the subsequent letter are open to alternative interpretations, no Civil Evidence Act notice has been served by either party in respect of either of these materials, nor has any attempt apparently been made to consider whether or not the contents of these documents are true, accurate, and complete, and agreed as such, or to obtain a witness statement or procure the attendance of the maker to give oral evidence at trial. Neither document is supported by a signed statement of truth.
(d) One thing that is consistent between the two documents is that Mr Majmudar invited the parents to put their concerns in writing but they did not do so. If they felt as strongly as they do now or allege that they did at the time on the occasion of the meeting with the senior Registrar, this is extremely surprising. It also meant that there was no further investigation of these matters, or any detailed account of their concerns.
(e) Finally, I have to ask myself how probative are complaints made over four months after the relevant events, when I would have expected such serious allegations to have surfaced much sooner. Even at this time they did not surface consistently. So, for example, in May 2009, the claimant's mother attended an appointment with Ruth Dube, a perinatal Community Psychiatric Nurse. Ms Dube recorded that the claimant's mother felt angry and guilty and was asserting that "maybe" - that is her word - she should have been delivered early instead of going near to full term. That is in the section of the medical notes and records numbered GP p.25. That is not consistent with now claiming that an election or desire for a caesarean section was overruled.
". . . acknowledges feeling very angry about the birth when she looks back as her perception is that she wanted a caesarean section all along for both babies. I recognise that this is an incredibly difficult situation now, but her looking back and that is not possible to change a decision that was made at the time."
This use of the word "perception" is different language to the assertion made now, that she specifically requested a caesarean section and her request was refused.