Connolly v Croydon Health Services NHS Trust [2015] EWHC 1339 (QB) and Buswell v Symes [2015] EWHC 1379 (QB)

 By Frances Lawley

Multiple witness statements and credibility of witnesses

The effect of multiple witness statements on the credibility of witnesses has been considered in the two recent decisions of Connolly v Croydon Health Services NHS Trust [2015] EWHC 1339 (QB) and Buswell v Symes [2015] EWHC 1379 (QB).

The first was a clinical negligence action brought by the Claimant against the Defendant trust following an angiogram. The Claimant asserted that she had consented to the procedure on the basis that it was a low risk investigative procedure. In fact complications had arisen resulting in the necessity of an angioplasty, which had arguably saved the Claimant’s life. The Claimant argued that she had withdrawn consent during the course of the procedure and that in the circumstances it was negligent of the Defendant’s employees to continue with it.

The court found that if misleading information given by a physician induced consent to a procedure then it was possible for consent to be vitiated which was capable of giving rise to an action in negligence. In this case however, the Claimant failed to satisfy the court than she had the capacity to withdraw consent during the course of the procedure or that she had in fact done so.

As to the credibility of the Claimant, HHJ Collender QC had the following to say (at paragraph 101 of the judgment):

“I have to say that, in general, I did not find Mrs Connolly a witness upon whose evidence I felt confident to rely. It is clear from the history I have already given that I have not seen all the statements given by Mrs Connolly in this case. From those that I have seen, I have obtained a developing and sometimes confusing or contradictory case. Similar comments may be made of her evidence before me including that given in cross-examination in respect of her medical and smoking history, the events leading up to, and of, the angiogram procedure, the extent of her recovery and the detail of her claim for damages. I consider that over the years, as a result of the undoubted misfortune of this angiogram procedure that went wrong, Mrs Connolly has persuaded herself of the correctness of a case on a number of issues in this case that are not correct and the question under review is one of them.”

Buswell v Symes was the claim of a motorcyclist who had been injured in a collision with the Defendant’s tractor, which had been blocking a road as it exited a field. The Defendant had served two witness statements, the first of which asserted that the exit in question was the only way to exit the field and implying his frequent use of the field in question and knowledge of the boundaries of the same. The second statement conceded that he had not worked in the field for two years prior to the index accident and that in fact there was another possible exit.

The conclusion of Supperstone J was that the evidence of the Defendant was “unsatisfactory in material respects” and he went on at paragraph 47 to outline the various inconsistencies and their effects.

Decisions such as these highlight the fact that witness evidence is of huge importance to the outcome of a case at trial. Trial advocates are tasked with undermining the evidence of witnesses and to hand over inconsistent witness statements is something of an own goal.

Things to remember:

• the credibility of a witness is of paramount importance
• it is vital that the contents of a witness statement accurately reflect the recollections of the witness
• the best way to avoid the need for supplementary witness statements is to provide a full and accurate account in the first statement (a tactic which should also avoid the necessity of applying for permission to rely on a supplementary statement which may not be granted!)
• if a supplementary statement is required to deal with matters that arise during the course of litigation it should not contradict the first statement
• contradictory information is very likely to adversely affect the credibility of a witness