“The specific recollection of Dr [Khan] underlining certain words added credence to her account. The Tribunal was of the view that, despite being worried and upset, Patient A was in a position where she would have known whether she had been examined or not. The Tribunal did not find it to be credible that Patient A would have missed a physical examination on the account provided and the evidence before it as a whole.”
“12. . . First, the degree of deference shown to the court below will differ depending on the nature of the issue below; namely whether the issue is one of primary fact, of secondary fact, or rather an evaluative judgment of many factors: Assicurazioni Generali at §§16 to 20. … 13. Secondly, the governing principle remains that set out in Gupta §10 referring to Thomas v Thomas. The starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below. The reasons for this are that the court below has had the advantage of having seen and heard the witnesses, and more generally has total familiarity with the evidence in the case. A further reason for this approach is the trial judge’s more general expertise in making determinations of fact: see Gupta, and McGraddie v McGraddie at §§3 to … 14. Thirdly, in exceptional circumstances, the appeal court will interfere with findings of primary fact below. (However the reference to “virtually unassailable” in Southall at §47 is not to be read as meaning “practically impossible”, for the reasons given in Dutta at §22.) 15. Fourthly, the circumstances in which the appeal court will interfere with primary findings of fact have been formulated in a number of different ways, as follows: - where “any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusions”: per Lord Thankerton in Thomas v Thomas approved in Gupta; - findings “sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence had been misread” per Lord Hailsham in Libman; - findings “plainly wrong or so out of tune with the evidence properly read as to be unreasonable”: per in Casey at §6 and Warby J (as he then was) in Dutta at §21(7); - where there is “no evidence to support a … finding of fact or the trial judge’s finding was one which no reasonable judge could have reached”: per Lord Briggs in Perry after analysis of McGraddie and Henderson. … 16. Fifthly, I consider that, whilst noting the observations of Warby J in Dutta at §21(1), on the balance of authority there is little or no relevant distinction to be drawn between “review” and “rehearing”, when considering the degree of deference to be shown to findings of primary fact: Assicurazioni §§13, 15 and 23. Du Pont at §§94 and 98 is not clear authority to the contrary. Rather it supports the proposition that there may be a relevant difference when the court is considering findings of evaluative judgment or secondary or inferential findings of fact, where the court will show less deference on a rehearing that on a review. … (2) The credibility of witnesses and corroborating evidence 17. First, the credibility of witnesses must take account of the unreliability of memory and should be considered and tested by reference to objective facts, and in particular as shown in contemporaneous documents. Where possible, factual findings should be based on objective facts as shown by contemporaneous documents: Dutta §§39 to 42 citing, in particular, Gestmin and Lachaux. 18. Secondly, nevertheless, in assessing the reliability and credibility of witnesses, whilst there are different schools of thought, I consider that, if relevant, demeanour might in an appropriate case be a significant factor and the lower court is best placed to assess demeanour: Despite the doubts expressed in Dutta §42 and Khan §110, the balance of authority supports this view: Gupta §18 and Southall at §59. 19. Thirdly, corroborating documentary evidence is not always required or indeed available. There may not be much or any such documentary evidence. In a case where the evidence consists of conflicting oral accounts, the court may properly place substantial reliance upon the oral evidence of the complainant (in preference to that of the defendant/appellant): Chyc at §23. There is no rule that corroboration of a patient complainant’s evidence is required: see Muscat §83 and Mubarak §20. 20. Fourthly, in a case where the complainant provides an oral account, and there is a flat denial from the other person concerned, and little or no independent evidence, it is commonplace for there to be inconsistency and confusion in some of the detail. Nevertheless the task of the court below is to consider whether the core allegations are true: Mubarak at §20.”
“First, the Tribunal approached the resolution of the central factual dispute by starting with an assessment of the credibility of a witness’s uncorroborated evidence about events ten years earlier, only then going on to consider the significance of unchallenged contemporary documents. Secondly, the Tribunal’s assessment of the witness’s credibility was based largely if not exclusively on her demeanour when giving evidence. Thirdly, the way the Tribunal tested the witness evidence against the documents involved a mistaken approach to the burden of proof and the standard of proof.”