He Said, She Said: Witness Credibility in Deakin-Stephenson v Behar & Chelsea and Westminster Hospital NHS Foundation Trust [2024] EWHC 2338 (KB)

Background:

The Claimant attended hospital in November 2016 following pains in her abdomen and was diagnosed with diverticulitis. Treatment of the abdominal condition was attempted but on the 5^th day of her time in hospital, the disease progressed. A surgical procedure was carried out on the 6^th day, which settled her condition. On the 7^th day, the Claimant collapsed and emergency Hartmann’s surgery was performed, resulting in the Claimant being left with a stoma. The prognosis was for chronic abdominal pain and PTSD, amongst other conditions.

There were a significant number of unknown facts in the case. For example, the parties disagreed about the chronology, consent process and requests for referrals to a specialist colorectal surgeon.

Claimant’s evidence:

The Claimant appears to have given in a generally unfavourable way. However, the judge noted that “the court places limited weight on demeanour as a reliable guide to where the truth lies”. Instead, the content of the evidence was more important. The Claimant’s answers were thought to contain notable inconsistencies when compared to the First Defendant’s contemporaneous evidence.

A central dispute between the parties was whether the Claimant did indeed, as she submitted, ask Mr Behar for a repeated referral to a specialist colorectal surgeon. When cross-examined, she became “abrasive” and did not answer questions directly. She answered by providing “speeches”, often with medical material she has since learned of upon being diagnosed with her condition. On the referral issue, she undermined her point on several occasions. Emails and letters from the Claimant herself undermined the reliability of her account.

The Claimant’s occasional sarcasm was also considered to be “unhelpful” and “unnecessary”. Overall, her evidence was thought to be “confused and contradictory”. The medical evidence contradicted what was said at trial, presenting her as unconvincing.

The Judge concluded that, while she has faced significant trauma from the events of November 2016, her account raised “serious concerns” regarding the accuracy and probability of what happened. It was found to be “inaccurate, unreliable and improbable”.

First Defendant’s evidence:

Mr Behar was able to explain his medical notes and identify his entries. He accepted that some of his entries were unclear. The evidence was complicated by inconsistent contemporaneous records. Mr Behar’s record-keeping was poor with gaps about meetings with the Claimant. Despite this, he was found to be honest and the fact that the records existed, albeit incomplete, were key to assessing what was the most likely version of events.

The near-contemporaneous evidence supported his account. His honest demeanour was considered alongside the records. The fact that he acknowledged his shortcomings of making errors was in his favour. He was deemed to be telling the truth while the records contradicted C’s account.

Mr Justice Dias KC assessed both witnesses by considering the full context of each account. This approach looks records, expert evidence and common sense.

Decision:

The Judge, Mr Justice Dias KC, sitting in the High Court, considered both accounts of the Claimant and the First Defendant.

 The Judge decided that the Claimant’s evidence lacked credibility on several issues. Her statements were misleading and the court deemed her evidence as “weak” overall.

Ultimately, it was held that there was no breach of duty and no causative breach by the First Defendant.

In contrast, the First Defendant was assessed by the court as honest, fluent and fair. His professionalism and credibility were commended.

Analysis:

This case is a useful example of how to approach the issue of witness credibility. It was specifically and repeated stated that demeanour is not especially significant but that it will be considered when assessing witnesses. This is particularly important when the factual matrix of the case is unclear. In order for the court to make a finding of fact, the evidence from witnesses must also fit together with the contemporaneous records, expert evidence, common sense and probability.

In addition, practitioners should remember the importance of detailed record keeping and how it may detriment a case. Those making the record should be prepared for every word, down to adverbs, to be scrutinised. The record-keeping process, and the content of the records themselves, may be crucial on a case with key factual disputes.  

Finally, the judgment is also useful as it helpfully outlines 13 principles of fact-finding (see  paragraph 53 of the Judgment). In summary:

1.  The burden of proof rests exclusively on the person making the claim who must prove the claim to the conventional civil standard of a balance of probabilities.
2. Findings of fact must be based on evidence, including inferences that can properly (fairly and safely) be drawn from the evidence, but not mere speculation.
3.  The court must survey the “wide canvas” of the evidence.
4. Evidence must not be evaluated “in separate compartments” but must “consider each piece of evidence in the context of all the other evidence”.
5. The process must be iterative, considering all the evidence recursively before reaching any final conclusion.
6. The court must decide whether the fact to be proved happened or not. Fence-sitting is not permitted.
7. The law invokes a binary system of truth values – a judge must decide whether or not it happened.
8. There are important and recognised limits on the reliability of human memory as set out in Gestmin SCPS S.A. v Credit Suisse (UK) Ltd EWHC 3560 (Comm) at paras 15-22, per Leggatt J.
9. The court “takes account of any inherent probability or improbability of an event having occurred as part of the natural process of reasoning”.
10. Contemporary documents are “always of the utmost importance” (Onassis) but in their absence, greater weight will be placed on inherent probability or improbability of witness’s accounts.
11. The judge can use findings affecting the credibility of a witness on one issue in respect of another.
12. However, the court must be vigilant to avoid the fallacy that adverse credibility conclusions/findings on one issue are determinative of another and/or render the witness’s evidence worthless.
13. Decisions should not be based “solely” on demeanour, but when fairly assessed in context, it retains a place in the overall evaluation of credibility.

Conclusion:

The case provides a useful lesson in not only the content of witness statements but also how witnesses present. Ultimately, contemporaneous records will be favoured, provided the records are clear and logical. If there is a dispute about witness credibility, the account that aligns with the contemporaneous evidence is likely to be the most probable, as in this case.

The full judgment can be found here.