Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283

Case No B3/2014/1943[2015] EWCA Civ 1283
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM MANCHESTER COUNTY COURT
Mr Recorder Simon Parrington
2YL63462
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/12/2015
Before
LORD JUSTICE TOMLINSONLORD JUSTICE FLOYDMR JUSTICE COBB
Between
Mr Robert SynclairClaimant/ RespondentEast Lancashire Hospitals NHS TrustDefendant/Appellant
Giles Colin (instructed by Hempsons Solicitors) for AppellantDarryl Allen QC (instructed by Stephensons Solicitors) for RespondentHearing Hearing dates: 19 November 2015
Judgment

Introduction

[1]This appeal in a clinical negligence action raises a short point concerning the trial judge’s evaluation of the evidence before him, and in particular whether it was open to him to regard as incorrect observations recorded in an apparently contemporaneous clinical note of a ward round conducted by a surgical registrar. It was common ground at the trial that if the judge accepted as reliable oral evidence given by the Claimant and his wife concerning his condition on the day of his discharge from hospital after surgery, he would succeed in his claim that the Defendant Trust had acted in breach of duty in discharging him that day. The registrar had no recollection at all of either the Claimant or of what transpired on the ward round. The Trust’s defence on this issue depended entirely upon the notes being accurate and being accepted in preference to the oral evidence of the Claimant and his wife.[2]The judge, Mr Recorder Simon Parrington sitting in the Manchester County Court, after a 5 day trial in April and May 2014 found the notes to be inaccurate and found in favour of the Claimant. On this appeal the Trust contends that that is a conclusion to which no rational judge could have come.

The background and the facts

[3]The claim brought by Mr Synclair against the Defendant Trust was in respect of alleged clinical negligence by a consultant general surgeon Mr Patrick Scott and a surgical registrar Mr Noman Zafar at the Royal Blackburn Hospital (RBH) in August 2009. This appeal is concerned only with the claim in respect of the alleged negligence of Mr Zafar.[4]I gratefully adopt the judge’s recital of the essential facts:- “2. Robert Synclair, the Claimant, is a married man who has worked in the construction trade for most of his working life. In August 2009 he was approaching his 57th birthday. In 1999 he was diagnosed with rectal cancer for which he underwent an abdominal perineal resection at RBH. As a result of the resection, an end colostomy was fashioned with a stoma on the left side of the abdomen to which a colostomy bag was fitted and, subsequently managed by Mr Synclair. 3. On or about 20 June 2009 the Claimant attended RBH suffering from abdominal pain with a history of a non-functioning stoma. He was diagnosed as suffering from a parastomal hernia with sub-acute obstruction and was listed for surgery. In fact, he was not admitted for surgery until 25 August (for reasons unconnected with his claim) when he underwent laparoscopic repair of the parastomal hernia with mesh repair. 4. The repair was performed at RBH by Mr Patrick Scott, assisted by Mr Noman Zafar and another more junior member of staff on the morning of 25 August 2009. Following the operation he was returned to a ward. It is alleged by the Claimant (his primary case) that the operation was performed negligently and that as a result he has been caused loss and damage. 5. On 26 August, whilst remaining at RBH, the Claimant was seen by Mr Scott on his ward round. Mr Scott recorded at that ward round that Mr Synclair would be discharged on the next day. 6. On 27 August, the day of the proposed discharge, Mr Synclair was seen at 8.10am by Mr Zafar. Following that ward round, and later that morning, Mr Synclair was discharged from the hospital. His wife collected him and took him home. Mr Synclair contends that at the ward round that morning he was in some pain, feeling sick and his stoma was dark in colour rather than the bright pink that he was used to. It is Mr Synclair’s secondary case that he told Mr Zafar that he was concerned about the colour of the stoma but that Mr Zafar advised him that it was merely bruised and that he should not worry; Mr Synclair contends that he should not have been discharged and that his concerns should have been heeded and attended to and that he should not have been discharged that morning. 7. Between 28 August and 30 August, the Claimant having returned home, contends that his pain increased until he could bear it no more. At about 1.00am on 30 August Mr Synclair’s wife, Mrs Joanne Synclair, drove him to RBH A&E. On arrival he was seen by a junior doctor who referred the Claimant to a Consultant Surgeon, Mr Robert Watson. 8. On the evening of 30 August Mr Watson performed an operation to remove the stoma, which was by then necrotic and perforated, resect back to the proximal transverse colon and create a new stoma on the right side of the abdomen. 9. Mr Synclair was eventually discharged on 14 September. Since this procedure, the Claimant’s stoma/bag function has been frequent, loose and unstable.”[5]At trial the Claimant pursued both a primary and secondary case. The primary case, which failed, was that the mesh that was fitted by Mr Scott in order to repair the hernia was fitted too tight, either around the whole circumference of the colon around which it was fitted, or in part, such as to deprive the bowel (colon) of an adequate blood supply, with the result that the stoma and a section of bowel were caused ischaemic damage. The judge found that the ischaemic damage was caused by the use of a harmonic scalpel, which involved no negligence and fell within the range of risk to which the Claimant had given his informed consent.[6]The Claimant’s secondary case resolved to an allegation against Mr Zafar alone. He contended that Mr Zafar failed to pay sufficient regard to the appearance of the stoma on 27 August or to heed the Claimant’s concern on that score. The Claimant contended that he should have been kept in hospital and returned to theatre for further surgery, which would have lead to recovery and normal stoma function. The judge accepted this secondary case. First he concluded that the Claimant’s discharge from hospital on 27 August amounted to a breach of duty. The judge also concluded that operative treatment on 27 August, i.e. before or shortly after actual discharge, would have enabled the stoma to have remained at the original site on the left side of the abdomen with similar stoma function as before. The Defendant Trust’s case was that the outcome of an operation carried out that day would have been the same as the outcome of the operation of 30 August, following resection and resiting of the colon and stoma on the right side of the abdomen, with stoma function the same as in fact followed that operation, i.e. unsatisfactory. As the judge observed, “put succinctly, the question for consideration is whether early surgery on or about 27 August would have made a difference to the final outcome.” The judge found that had the Claimant been referred to theatre on 27 August the bowel should not have needed to be resected back such that the only outcome would have been the resiting of the stoma on the other side of the abdomen. The judge concluded that on 27 August it would only have been necessary to resect back a relatively small piece of bowel, probably just proximal to the mesh, to locate a healthy section of bowel sufficient to create a fresh stoma on the same side of the abdomen as before such that the outcome should have been similar to that achieved on 25 August if not the same.[7]The judge assessed damages in the sum of £227,529.15 and also ordered the Trust to pay the Claimant’s costs.[8]The Claimant does not challenge the rejection of his primary case. There is no appeal against the judge’s conclusion on causation nor as to his assessment of damages. The Trust’s appeal is directed solely to the judge’s conclusion that discharge on 27 August amounted to a breach of duty.[9]The judge’s findings on this issue are set out with economy and clarity. As it is said that they are findings to which no rational judge could have come, and that that conclusion is indicated by the absence from the judgment of any reason for the rejection of the contemporaneous clinical record or for the preference of the demonstrably unreliable evidence of the Claimant, I propose to reproduce them in full. “39. I now turn to the Claimant’s secondary case. Following the operation Mr Synclair remained at RBH for 2 days before his discharge. It is common ground that on 26 August Mr Scott visited Mr Synclair on his ward round. By then the Claimant contends that the stoma had changed colour. He says that when he changed his bag he noticed that the stoma didn’t look the same as it usually did; it was a darker colour. On the morning of the ward round on 26 August Mr Synclair states that he was still in some discomfort and that he had some niggling pain but that he put this and the darker colour of the stoma down to the very recent operation. He specifically states that he did not bring the colour of the stoma to Mr Scott’s attention. Indeed, the only record as to the condition of the stoma shows that the stoma was stated to be “functional”, there being no note as to its colour. In his evidence Mr Synclair said that he did not think, although he could not be sure, that Mr Scott examined the stoma. Mr Scott said that he did check the stoma. He told the court that in the absence of any note as to its colour it should be assumed that the stoma was “normal”.40. That night, at 20:30 the records reveal, inter alia, “has passed small amount of flatus via stoma this pm - no bowel movement...” Later at 01:00 on 27 August the record reveals “mobile”.“Peppermint cordial given for windy pain”. “Still nil via stoma…didn't want codeine” “(drug) given for some nausea. Quiet this evening.”41. By the time Mr Zafar visited on his ward round at 08:10 Mr Synclair was, he said in pain and discomfort and feeling nauseous. He said that he had a sickly feeling as though his stomach had been “bloating up”, and he felt very sick. He also said that the stoma was a dark red/brown colour which he repeatedly described as the colour of “raw steak that had been left in the fridge overnight and had developed a darkened appearance”.42. There is a clear disparity as to the events that occurred on that ward round. Mr Synclair contends that Mr Zafar saw him alone and without another junior doctor being present, Mr Zafar told the court that with him was the SHO named Dr Dal-Bianco who wrote the medical records. The medical record for the 27 August at 08:10 states:
“WR Zafar Post parastomal hernia repair PT well Stoma (normal colour) Home” 43. Mr Synclair told the court that he drew the colour of the stoma to the attention of Mr Zafar who he said told him that he was not to worry as it was bruising and that he would be discharged later that day. Mr Synclair was certain that Mr Zafar did not ask if he was “well” and that he did not say that he was — he being nauseous and in pain. He also disputes that Mr Zafar conducted a thorough examination of his stoma. I note that notwithstanding Mr Synclair's evidence the EWS observations scores register scored O for pain and O for nausea at 08:25 that morning although both had reported “I'” at 22:00 on the previous night. 44. Later that morning the Claimant was discharged. Mrs Joanne Synclair collected him and took him home. Having been collected Mr Synclair says that he told his wife that his temperature felt a bit high, that he was in some pain and that he was concerned about the colour of the stoma. 45. I have looked for supporting evidence for assistance in respect of the secondary case. I have heard from Mrs Synclair. In her evidence she stated that on the way home in the car her husband commented that he was concerned about the colour of the stoma because it was darker than normal. He said that he had mentioned it to the doctor that morning but that he had been reassured that it was probably just bruising and not to worry about it. She continued in her evidence by stating that she was shown the stoma that evening and she immediately noted that it did look different to normal. She described it as being darker in colour and that it didn't appear to be bloody when touched. She said that he had seen the stoma often when her husband had been changing the bag or showering and that it was normally a bright pink colour live with blood. I am satisfied that she was a truthful eye witness to the colour and condition of the stoma on 27 August post discharge. 46. Both Mr and Mrs Synclair related how over the next 48 hours or so Mr Synclair's condition deteriorated. He continued to run a temperature, she described how he opened all of the windows at night such that she herself was so cold that she had to sleep in another bedroom and how he continued to complain of pain to the point when at about 01:00 hours on 30 August he could stand it no longer and she took him back to RBH A&E where he was seen by a doctor who referred him to Mr Robert Watson who saw him at 05:30 that morning. Mr Watson's Registrar recorded the facts that the hernia repair had taken place 4 days earlier and that there had been swelling round the stoma since discharge; it was decided that he should be reviewed and that a CT scan should take place. About 14 hours later Mr Watson performed the second operation. 47. I have to consider whether Mr Synclair should have been discharged on 27 August or not. Both Counsel and both experts agree that if the evidence of Mr Synclair is rejected then the discharge from the hospital on 27 August did not amount to a breach of the Trust's duty and that there was no negligence. If however Mr Synclair's evidence as to what was said at the exchange between him and Mr Zafar on Mr Zafar's ward round is accepted then he should not have been discharged 48. Mr Synclair gave clear evidence as to the colour of his stoma at the time of Mr Zafar's ward round on 27 August and that he drew the colour of the stoma to Mr Zafar’s attention. Indeed, he said that although he did not draw it to Mr Scott's attention he was concerned about the colour of the stoma on the day before. Mrs Synclair’s evidence is equally clear to the extent that on the way home from the hospital after discharge Mr Synclair mentioned both the colour of his stoma and what had been said to Mr Zafar earlier that day and that she herself saw the stoma post discharge for herself and noted that it did not have its usual appearance. In my judgment, both Mr and Mrs Synclair were truthful witnesses and, most importantly what they told the court was subsequently borne out by events. Despite the record, and it is clear that a record was kept, I find it a fact that Mr Synclair was not “well”, as described, and I find that the stoma was not “normal colour” as recorded at 8:10 on 27 August. I find that those records were inaccurate in their recording. It is worthy of note that a record from the night prior to the ward round noted both pain and nausea. I find that Mr Synclair should at the very least have been monitored for a while rather than discharged on 27 August. Had he been so monitored his deteriorating condition would surely have led to a return to the operating theatre and further surgery. 49. Accordingly, I find that the Trust did breach its duty of care by discharging the Claimant when it did on the 27 August 2009. (Whatever the position may have been on 26 August, he remained in hospital). I do not accept the correctness of the record for the ward round at 08:10am on the 27 August. I am satisfied that the record was made without heed being paid to Mr Synclair’s observation with regard to the colour of the stoma or the fact that pain and nausea had been recorded only 7 hours before that previous night. 50. For the sake of clarity, I do not find that the stoma was “black” as pleaded. In his evidence, Mr Synclair stated that not only was the stoma not black but that he had not at any time said that it was black. I am satisfied that it was a dark colour as described by Mr Synclair and Mrs Synclair in their evidence.” “WR Zafar Post parastomal hernia repair PT well Stoma (normal colour) Home”

The arguments before us

[10]Both Mr Giles Colin for the Trust and Mr Darryl Allen QC for the Claimant reminded us of some of the classical learning on the nature of the judicial fact-finding function. We were shown, in chronological[11]In the present case it is plain that the judge recognised that the evidence of the Claimant had to be assessed in the light of the apparently contemporaneous clinical note. Indeed that note was doubly important. Not only did the Claimant’s evidence fall to be evaluated in the light of it, the note also represented the full and entire extent of the evidence which Mr Zafar could give as to what was said and observed on his ward round, as he had no recollection as to what had transpired independent of what was written in the note.[12]However it is too obvious to need stating that simply because a document is apparently contemporary does not absolve the court of deciding whether it is a reliable record and what weight can be given to it. Some documents are by their nature likely to be reliable, and medical records ordinarily fall into that category. Other documents may be less obviously reliable, as when written by a person with imperfect understanding of the issues under discussion, or with an axe to grind. I would commend the approach of His Honour Judge Collender QC, sitting as a judge of the High Court, in EW v Johnson [2015] EWHC 276 (QB) where he said, at paragraph 71 of his judgment:- “I turn to the evidence of Dr Johnson. He did not purport to have a clear recollection of the consultation but depended heavily upon his clinical note of the consultation, and his standard practice. As a contemporaneous record that Dr Johnson was duty bound to make, that record is obviously worthy of careful consideration. However, that record must be judged alongside the other evidence in the action. The circumstances in which it was created do not of themselves prevent it being established by other evidence that that record is in fact inaccurate.” Dr Johnson, a GP, had made his own note of a consultation at an out of hours walk-in centre at a hospital. After a careful evaluation of all the evidence in the case, the judge found that Dr Johnson’s oral account in evidence, based on his contemporaneous note, was reliable. In Welch v Waterworth [2015] EWCA Civ 11 a surgeon was unsuccessful in persuading the court that his own notes of a surgical procedure which he had performed, one a manuscript note written very shortly after the operation and another a typewritten note made later in the day at home, did not accurately record the order in which he had carried out the constituent parts of the relevant procedure.[13]The real difficulty which the judge faced in the present case was that he had no evidence of the circumstances in which the relevant clinical note had been made, and no evidence from the maker of the note, who was not Mr Zafar but Dr Dal Bianco. Furthermore, it was unclear whether Dr Dal Bianco had been present when Mr Zafar spoke to and examined the Claimant at 08.10 and unclear when precisely he prepared the note relating to that ward round.[14]With those observations in mind, I turn to Mr Colin’s detailed criticism of the judge’s approach here. His three principal points were:- i) Clinical records are made pursuant to a clear professional duty, serious failure in which could put at risk a practitioner’s registration. Moreover, they are not compiled simply as a historical record, they fulfil an essential and ongoing purpose in informing the care and treatment of a patient. Contemporaneous records are for these reasons alone inherently likely to be accurate. No doctor would have any reason to produce a note which misrepresented clinical observations or the patient’s concerns. Something more than a patient’s assertions to the contrary is required to displace the sanctity, my word, not Mr Colin’s, of the notes. ii) The judge failed to give any or appropriate weight to the entirety of the clinical records which, when properly understood, supported the accuracy of the critical note concerning the 08.10 ward round. iii) The judge failed to give any or appropriate weight to the circumstance that the Claimant had in the very matter at issue, the colour of his stoma, made previous statements inconsistent with his oral evidence at trial which called into question at the very least his reliability in that regard. I deal with these points in turn.[15]In many cases Mr Colin’s points concerning the inherent reliability of the clinical notes will no doubt carry the day. However here they are less persuasive because there is so much uncertainty concerning the circumstances in which the critical note was made. In his first witness statement Mr Zafar treated the note of the 08.10 ward round as his own, distinguishing it from the note made on the Claimant’s readmission on 30 August when he again saw him but did not write the note recording the observations. The provenance of the 08.10 note was then challenged in correspondence, it appearing that the handwriting of the 08.10 note was the same as that of a Dr Dal Bianco who had apparently compiled other notes relating to the Claimant. This led to the assertion by the Trust that the note had indeed been written by Dr Dal Bianco, and the Trust sought and obtained permission to serve a witness statement from him. No such witness statement was served and Dr Dal Bianco was not called to give evidence. No explanation was given of the failure to proffer evidence from Dr Dal Bianco. The note itself contains, after the name “ZAFAR” and an acronym which apparently denotes either Surgical or Specialist Registrar, a second name, which can be identified as Dal Bianco if you know that that is what it is, followed by the acronym FYI denoting Foundation Year One, i.e. a doctor in training. Mr Zafar has no independent recollection whatever of this ward round and his assertion that he was accompanied by Dr Dal Bianco derives solely from the circumstance that the note apparently indicates that Dr Dal Bianco was present. The Claimant for his part was absolutely adamant that Mr Zafar was unaccompanied, and he is likely to have a clear recollection of this significant meeting and event in his life.[16]In the upshot there is no evidence other than the impugned note itself to support the invited inference that Dr Dal Bianco was present during Mr Zafar’s conversation with and examination of the Claimant at 08.10. Later that morning as the judge records the Claimant was discharged, and there is a further untimed note after the 08.10 note recording that the patient had been comfortable throughout the morning and noting other matters immediately concerned with his discharge. It is a fair inference therefore that Dr Dal Bianco wrote the note concerning the 08.10 ward round before the Claimant was discharged, and indeed it may even be a fair inference that the note was written shortly after 08.10. To conclude however that it was written at 08.10 by Dr Dal Bianco at the Claimant’s bedside with Mr Zafar also present would involve rejection of the Claimant’s clear evidence that Mr Zafar was alone. The judge made no such finding.[17]There is no evidence as to Dr Dal Bianco’s gender or his/her mother tongue. For ease of exposition I will hereafter assume that Dr Dal Bianco is male. There is no suggestion that Mr Zafar dictated the note to Dr Dal Bianco or that he told him what to write down. There is also no suggestion that Mr Zafar checked the accuracy of the note at any time. It was therefore a note made by Dr Dal Bianco alone, the content of which it must be assumed was decided upon by him and which reflected his note-keeping practice. There was no evidence as to his usual practice concerning note keeping.[18]Mr Zafar does not and cannot challenge the Claimant’s assertion that he drew to his attention the colour of his stoma. It was however the Trust’s pleaded case that if the Claimant’s stoma was dark in colour, that could be related to bruising. Mr Zafar did say in evidence that if he had observed bruising, that would have been recorded in the note. That evidence however bears little weight. Mr Zafar had no input to the note. On the basis of the evidence it was Dr Dal Bianco’s decision how to reflect in the note any observations made by Mr Zafar.[19]The more I have considered this issue the more likely it has seemed to me that there is in fact no necessary inconsistency between the exchange as the Claimant recalls it and the record in the note. If Mr Zafar had indeed said that the slightly darker appearance of the stoma was due to bruising, rather than to any inherent problem with the blood supply to it, and reassured the Claimant that there was nothing to worry about, it seems to me that Dr Dal Bianco could well have interpreted that, assuming that he was present, as meaning that the appearance including the colour of the stoma was normal, in that it was what was ordinarily to be expected in the immediately post-operative condition. However the judge did not approach it in this way, and so I will leave that speculation on one side, noting only that the lack of evidence concerning the precise circumstances in which the note came to be made or of Dr Dal Bianco’s note-keeping practice serves at the very least to underscore the potential for misunderstanding, or for differences in the nuance of interpretation as between him and Mr Zafar.[20]What one can I think infer is that the fact that the colour of the stoma is mentioned in the note is indicative that it was a topic which was raised for consideration in the discussion between the Claimant and Mr Zafar. I say that because it was the evidence of Mr Scott that in the absence of a remark as to its colour in a note of the ward round conducted by him the previous day, it should be assumed that the colour of the stoma was normal. It can perhaps be assumed that the note taking practice of the medical team was at least in that respect consistent.[21]I turn to the surrounding clinical notes. Here the thrust of Mr Colin’s point was to the effect that the surrounding notes support the record in the critical note that the Claimant was “well” and are not supportive of the notion that at 08.10 the Claimant was both in pain or discomfort and feeling nauseous. The first point to make is that the judge had this argument well in mind, specifically referring at [43] to the EWS Observation Score and Pain Assessment Chart recordings at 08.25. The judge does not mention the notes immediately following the critical note, to which I referred at paragraph 16 above, which records “patient comfortable throughout morning”. I would put little weight on that part of the note. On the Claimant’s case he had been told at 08.10 that he was going home, indeed he had been told that the day before, and he had been reassured concerning the colour of his stoma. The pain and nausea was not such, as he put it in his evidence, that he was “about to die”. His evidence continued:- “Q. You are saying that in answer to Mr Zafar’s note ‘Patient well’ that you were in pain and in discomfort? A. Yes. Q. But we have a nursing note which says that you were comfortable throughout the morning? A. I was obviously about to go home. She might have asked or what have you ‘Are you okay?’ and I probably might have said ‘Yes, I’m not too bad’ and she’s put it down as ‘Patient comfortable.’” That explanation has the ring of truth about it, as did his explanation for his noted refusal “to take home medications”. As the Claimant explained, it was his experience that discharge from hospital could be delayed for several hours awaiting the preparation of the package of medication with which one is to be discharged. Since his brother-in-law worked at the hospital, it was obviously preferable for him to collect the medication when it was ready rather than for the Claimant to await its uncertain arrival. This is a commonplace experience. I do not think that Mr Colin ultimately suggested that the Claimant’s refusal to await the package of medication was indicative of a lack of discomfort.[22]In any event, as Mr Allen pointed out, the evidence concerning the Claimant’s prior need for pain relieving medication is not supportive of the notion that by 08.10 on 27 August he was free from discomfort. At about 22.00 on 26 August the Claimant was given Diclofenac, a strong analgesic. There is no clinical note to this effect, but it emerges from his prescription chart. A crossed out entry on the same chart could indicate that at that time he was offered but refused Codeine, a stronger analgesic, which is what is documented to have occurred at 01.00 on 27 August. He explained why he declined Codeine. He was already feeling sick and certain tablets, including Codeine, made him feel more sick. The significance is not that he declined Codeine but that he was offered it. He was at 01.00 given Cyclizine for nausea and peppermint cordial for windy pain. At about 06.00 on 27 August he was given Paracetamol, an analgesic.[23]Against that background it seems to me unlikely that the Claimant told Mr Zafar at 08.10 that he was well. The Claimant remembered Mr Zafar asking him if he was alright, although I am not sure that he gave evidence that he could recall his response. He was however adamant that he did not respond that he was well, and furthermore said that that was not in any event one of his expressions. He thought he would have said “well I don’t feel so good”. The judge made no finding as to what was his actual response, but did make a finding to the effect that he was not in fact well. It had of course already been decided that he would be going home that day. The note of Mr Scott’s ward round at 08.22 the previous day concludes “home tomorrow”. Obviously the doctors thought that the Claimant was well enough to go home. Obviously the Claimant did not in fact say anything which caused them to alter that opinion. Bearing in mind that the note was written, possibly after 08.10, by Dr Dal Bianco, in the context of a settled and unquestioned decision that the patient should be discharged and sent home, I do not consider that the fact that the note records “patient well” carries the debate very much further. The judge had the Claimant’s own evidence as to how he felt. The judge also had unchallenged evidence from Mrs Synclair that on the way home in the car he told her that he thought his temperature felt a bit high, that he was in some pain, and that he was concerned about the colour of the stoma about which he had had a conversation with Mr Zafar that morning. I will discuss in a moment the impact on the reliability of the Claimant’s evidence that he had allegedly made earlier inconsistent statements. Mr Colin suggested that the judge was overborne by the evidence of the Claimant and his wife. That is a difficult submission to sustain having elected not to challenge Mrs Synclair’s evidence. The enigmatic note “Patient well” is a flimsy basis upon which to challenge the conclusion that a post-operative patient who had received the medication which this Claimant had taken over the previous ten hours was neither “well” nor feeling “well”. He was of course thought well enough to discharge, but that is a different point. Although the judge made no finding, and I think could not reliably have done so on the evidence, my own surmise, for what it is worth, on the basis of the totality of the evidence, is that the Claimant probably gave a stoical response to Mr Zafar’s enquiry which, whatever it was, was not understood by Mr Zafar to indicate that he was not well enough to be discharged. How his response was interpreted by Dr Dal Bianco, or how Mr Zafar’s report of it to Dr Dal Bianco was interpreted by Dr Dal Bianco, and how Dr Dal Bianco chose to record it, is another matter again. Subject to the next point however, the judge’s finding that the Claimant was not in fact “well” at 08.10 hours seems to me not just within the bounds of reasonable decision-making but in fact unassailable.[24]Mr Colin’s last point, although of course they must all be considered together, as fact-finding is a single compendious exercise – see per Lord Pearce in Onassis at p.431 - concerns the alleged previous inconsistent statements of the Claimant. On 20 September 2011 the Claimant had a consultation with Mr Paul Carter, a consultant general and colorectal surgeon, who in due course gave expert evidence on his behalf at trial. Mr Carter prepared a Condition and Prognosis Report dated 7 November 2011 at the request of the Claimant’s solicitors, Messrs Stephensons, who are experienced and respected in the clinical negligence field. In that report he noted that “on 20 August 2009 (an obvious error for 26 August) Mr Synclair noticed that the stoma was black. Despite this he was discharged home the following day”. This description was repeated in the letter of claim of 22 December 2011 prepared by Messrs Stephensons pursuant to the pre-action protocol. Mr Colin makes the point that this description can only have come from the Claimant, as Mr Carter confirmed, and suggests that it is not a matter to be explained by error or misunderstanding. Mr Carter would have realised the importance of the description of the stoma as black as, if it had been, that would have been highly supportive of the Claimant’s primary case that the mesh had been fitted too tight thereby causing a strangulation of the bowel and interruption of the blood supply such as to lead to blackness of the stoma and ultimately necrosis.[25]Mr Colin employed this point forcefully but fairly in his cross-examination of both Mr Carter and the Claimant. The Claimant maintained that he had explained to both Mr Carter and to the solicitors that the stoma looked black by which he meant that it had the appearance of a steak which had been left in the fridge overnight. He had not meant to imply that it was jet black but that it was much darker than normal and lacked a sheen. The judge was plainly alive to the significance of this point and expressly asked for submissions on it. Having seen the witness pressed on the point and having evaluated his evidence as a whole, in the light of all the other evidence at trial, the judge accepted his explanation – see [50].[26]Neither before the judge nor before us did Mr Colin press a submission that this point went to the Claimant’s credibility as opposed to his reliability, although at paragraph 18 (2)(iii)(d) of his skeleton argument for the appeal he does suggest that it called into question his credibility. However it is to be regarded, the apparent inconsistency was a point to be deployed in cross-examination in an effort to challenge the accuracy of the Claimant’s description of the appearance of his stoma on 27 August, but it was not in itself a determinative issue. As Mr Colin realistically put it, the fact that the stoma was not black does not mean that the Defendant defeats the claim.

Conclusion

[27]I have no doubt that the judge’s fact-finding process was properly conducted in accordance with the precepts offered by judges of high authority. The judge made proper use of the advantage afforded to him of seeing the Claimant and his wife give their evidence. It may be that in the light of the wife’s unchallenged evidence and in the absence of any evidence from Dr Dal Bianco the judge could hardly have reached a conclusion other than that which he did. However that may be, in my judgment the judge’s conclusion that the clinical note recording the ward round at 08.10 on 27 August was unreliable – incorrect – in the respects identified by him at [49] was a conclusion which was entirely open to him on the basis of the evidence and well within the ambit of reasonable decision-making. I am satisfied that the judge had in mind and weighed in the balance as part of a single compendious fact-finding exercise the inherent probability of what he was asked to decide. I am satisfied that he took into account the totality of the evidence and that in the light thereof he was entitled to conclude that the clinical record was in the respects identified inaccurate. I have already expressed my own view that the discrepancy between that note and the Claimant’s account is probably not as stark as the judge thought. The form of the note is not necessarily inconsistent with what the Claimant both said and thinks it likely he would have said to Mr Zafar, and with what the Claimant said Mr Zafar said to him. However that may be, and on the premise that the Claimant’s account and the clinical note cannot both be an accurate record, the judge had ample material upon the basis of which he could prefer the former to the latter.[28]I would dismiss the appeal.[29]I agree.[30]I also agree.

order

the well-known remarks of Lord Pearce in his dissenting speech in Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at p 431; the guidance given by Lord Goff of Chieveley giving the opinion of the Judicial Committee of the Privy Council in Grace Shipping v Sharp & Co [1987] 1 Lloyd’s Rep 207 at 215-6, in particular founding upon his own judgment in the earlier decision of the Court of Appeal in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 when he said, at page 57:- “Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.” In Grace Shipping Lord Goff noted that his earlier observation was, in their Lordships’ opinion “equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence.” We were reminded too that in “The Business of Judging”, Oxford, 2000, Lord Bingham of Cornhill observed that:- “In many cases, letters or minutes written well before there was any breath of dispute between parties may throw a very clear light on their knowledge and intentions at a particular time.” The essential thrust of this learning is the unsurprising proposition that when assessing the evidence of witnesses about what they said, or what was said to them, or what they saw or heard, it is essential to test their veracity or reliability by reference to the objective facts proved independently of their testimony, in particular by reference to contemporary documentary evidence.

Cited in 15 later judgments

and 6 more of the most senior