A matter of record

A recent tripping dispute shows that if cases are to be defended as a result of an inconsistent medical record, then the writer of the record needs to be called as a witness for that evidence to have any weight, says Tracey Meredith.

At Swansea County Court our in-house lawyers recently successfully defended the City and County of Swansea in a claim for personal injury following an alleged trip on the highway.

The claimant alleged that he had been over at a friend’s house for dinner with his girlfriend, before being driven home by his friend. As he exited the car he tripped on a broken concrete bollard, with approximately 4-6 inches remaining from its base. The claimant sustained a severe ligamentous sprain to his left wrist, causing six months' worth of symptoms.

A breach of statutory duty had been admitted prior to the claim being issued by the claimant’s solicitors. Proof of the accident circumstances and causation remained live issues however.

The claimant attended Morriston Hospital in Swansea, where the examining doctor recorded a “fall whilst drunk last night…Also bumped head on wall”.

There was no mention of a trip, either over a bollard or otherwise. After obtaining the identity of the examining doctor a full statement was obtained. The examining doctor was unable to recall the claimant and so his evidence was that whatever appeared in the medical record was what the claimant had told him.

The claimant relied upon his own witness statement, the statement of his girlfriend, the statement of his friend, and an independent eye witness.

Due to the examining doctor coming across as a good witness a decision was taken to defend this matter to a final hearing and put the claimant to proof as to the accident circumstances and causation.

The trial was heard at Swansea County Court on 18 and 19 June 2012. The claimant gave evidence along with his girlfriend, and the independent eye witness, who under cross examination admitted that he knew the claimant. The only person who was able to describe the accident circumstances was the claimant himself.

The examining doctor gave evidence on behalf of the local authority. He explained that some matters are written down as a conclusion of his examination in his opinion and some information is written down from what he has been told during his examination. The use of the word drunk was subjective and as such he would only have recorded this if this was the phrase that the claimant himself had used. He also explained that if he was told that the claimant had tripped over a stump, he would have recorded this as a mechanism of the fall. As there is no record of this, this is not what he had been told. This was accepted by the trial judge.

The trial judge considered the case of Denton Hall Legal Services & Ors v Fifield [2006] EWCA Civ 169 and in particular the obiter comments made by Lord Justice Buxton in respect of the admissibility of previously inconsistent statements.

The trial judge concluded that where a previous inconsistent statement is proved it can be used as direct oral evidence by the author, but the author of the statement must be produced in order to present the evidence as fact.

Since the author was produced in this case the trial judge was unable to accept the claimant’s account of the accident circumstances as being correct. He stated that the claimant has come to the conclusion, following his attendance at A&E, that his fall must have been caused because of the bollard stump. It is not what he thought on the A&E attendance and, having heard the examining doctor’s evidence, he would have recorded this in his note if this is what he had been told.

Accordingly the trial judge dismissed the claimant’s claim and awarded judgment to the local authority.

Comment

The case highlighted the fact that in order to prove the content of an inconsistent medical record, the author of the statement must be produced in order to present the evidence as fact. Without the author being present, the record will only amount to hearsay evidence as per the case of Denton Hall. Accordingly, if any weight is placed upon the medical record, it will only establish that the claimant has been inconsistent. It will not prove the content of the medical record.

A properly proven inconsistent statement however can successfully be used to defend a personal injury claim on causation despite a primary admission of breach of duty.

Tracey Meredith is a Directorate Lawyer at the City and County of Swansea. She can be contacted on 01792 636621 or by This email address is being protected from spambots. You need JavaScript enabled to view it..