Inconsistent medical records – a practical guide for defendant insurers

For years, it has felt as though judges have been able to insure themselves against being overturned on appeal by stating that their judgment rested on their decision on the credibility of the claimant (or other witnesses) by virtue of their ‘demeanour’ or ‘manner of giving their evidence’ – which, of course, the judge was in a position to judge whilst the Court of Appeal could not. A decision by a judge that the claimant was entirely credible, based on his/her assessment of the performance in the witness box, was difficult (if not impossible), at times, to appeal.

Michael Goodman v Faber Prest Steel [2013] EWCA 153

In January 2013, the Court of Appeal gave judgment in this case which, in my view, is of enormous assistance to defendants; in the subsequent 2 years, such authority has been repeatedly and successfully used by those acting on behalf of insurers in particular in low-velocity-impact and late-notification claims to their advantage, where the medical records show no complaint of injury in the aftermath of the accident; most significantly, when the medical records do record attendance on a medical professional after the accident with no complaint made of injury (ie the attendance is for an unrelated matter). I view it as such an important case that I make no excuse for spending some time outlining the key points.

It was undisputed that the claimant, Mr Goodman, had been involved in a road traffic accident and liability had already been compromised. The issue before the court was whether Mr Goodman had suffered any injury as a result of that accident or as a result of unrelated constitutional changes. The two orthopaedic surgeons differed in their conclusions as to causation, but it was conceded in cross-examination by the claimant’s medical expert that if the accident had caused the injury, Mr Goodman would have experienced pain in his neck, knees and back immediately or shortly after the accident.

Mr Goodman stated that this was indeed the case, and immediately after the accident he had experienced pain in all three areas. His medical records seemed to tell a wholly different story; he had attended his GP less than 2 months after the accident to complain of heartburn (an ongoing complaint) with no mention of any other complaints; he had complained to his employer’s occupational health team 10 weeks post-accident of pain, but only to his left knee and back pain; he attended his GP again 11 weeks later, and again failed to mention any complaints of injuries relating to the accident, with his first complaint to his GP of left knee and back pain being 3 months after the accident and his first complaint of neck pain being a year after the accident.

In addition to the medical evidence, there was also an e-mail written by Mr Goodman 2 years after the accident, which was largely a recital of the vehicles he had been given since the accident. Of particular significance, however, was his statement that he had not experienced pain in the month following the accident when he had been provided with an automatic car (the claimant was to state under cross-examination that whilst he could not explain this statement, he may have been trying to persuade his employer to give him an alternative automatic vehicle).

The judge found that the claimant was an entirely credible witness, whose account she had no hesitation in accepting; thus, that his pain had come on immediately after the accident, and thus that he was entitled to damages for the full extent of his symptoms (a little short of £70,000 was awarded).

The defendant appealed and the judgment of the Court of Appeal is one which bears close examination. The following passage is so significant that I have produced it in full;

“The only evidence that Mr. Goodman had experienced pain in his knees and his back immediately after the accident came from him. Although much emphasis is quite properly placed on the advantage given to the trial judge of seeing and hearing a witness give evidence, it is generally acknowledged that it is difficult even for experienced judges to decide by reference to the witness’ demeanour whether his evidence is reliable. Memory often plays tricks and even a confident witness who honestly believes in the accuracy of his recollection may be mistaken. That is why in such cases the court looks to other evidence to see to what extent it supports or undermines what the witness says and for that purpose contemporary documents often provide a valuable guide to the truth. In Armagas Ltd v Mundogas S.A. [1985] 1 Lloyd’s Rep.1, at page 57 col. 1. Lord Goff described his own experience as follows:

“ ‘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.’

Although Lord Goff was there referring to cases involving fraud, his remarks hold good for any case in which a witness’s credibility is a central feature”.

The Court of Appeal went on to criticise the judge for accepting the claimant’s assertion that he had experienced pain immediately without testing it against the medical records and other documents, and stated:

“One is left with the clear impression that she was swayed by Mr. Goodman’s performance in the witness box into disregarding the important documentary evidence bearing on what had become the central question in the case. It may have been open to her to prefer what he had said in the witness box, but if she was minded to do so it was incumbent on her to deal with the documentary evidence and explain why Mr. Goodman’s oral testimony was to be preferred”.

The case was remitted back to the lower court for a re-hearing before a different judge.

In that case, there appeared to be no assertion that the medical records did not provide an accurate account of what the claimant had said (it does not appear that the claimant suggested, for instance, that he had told his GP at the first post-accident attendance that he had been injured in a road traffic accident, but he had not recorded it). This brings us on to the judgment of HHJ Gore QC and subsequently the Court of Appeal in Charnock, and then a revisiting of the issue by HHJ Gore QC in Edwards.

Charnock & Others v Rowan & Others [2012] EWCA Civ 2

In 2007 there was a minor road traffic accident between a saloon car and a stationary bus – minor in the sense that it occurred at very low speed and the repairs to the bus necessitated less than £500 being spent. Not so minor for the insurer, who was faced with 14 separate whiplash claims from those on the bus, with 10 coming for trial before HHJ Gore QC at Liverpool County Court. The first string to the defendants’ bow was that the impact was insufficient to cause whiplash injuries (an argument which was dispensed with by HHJ Gore QC, who found that in reality there was no speed under which injury could not be caused), and the second string was that the accounts given by the claimants (chiefly to the 2 medical experts who had reported on each claimant) were so pockmarked with inconsistencies as to be unworthy of belief. Unsurprisingly, cross-examination substantially focused on such inconsistencies as were found within comparison between the medical reports (and one assumes the witness statements and oral evidence). No objection was made to the repeated referring to the factual matters contained in the medical reports and the same were in an unamended form in the trial bundle.

In his judgment, however, HHJ Gore QC set out numerous decisions on the admissibility of documents to prove the factuality of assertions recorded in them, in particular the judgment of Buxton LJ in Denton Hall Legal Services v Fifield [2006] EWCA Civ 169 that:

“To obviate such difficulties in future, and to ensure that factual issues in medical cases are economically and efficiently tried, the following procedure should be adopted. First, a party who seeks to contradict a factually pleaded case on the basis of medical records or reports should indicate that intention in advance, either by amendment of his pleadings or by informal notice. Then, the opposite party must indicate the extent to which they take objection to the accuracy of the records. When the area of dispute is identified, a decision will have to be taken as to whether the records need to be formally proved ….”

In light of this, HHJ Gore QC concluded that, had the defence been properly conducted, formal notice would have been given of the insurers’ intention to rely on hearsay contained in the medical experts’ reports, with the result that the claimants might have required the medical expert attend for cross-examination as to why he had not put to each claimant the discrepancies between what they were telling him and what they had previously told other doctors.

“The claimants,” he concluded, “were denied that opportunity by these issues only being raised in cross-examination at trial”.

He therefore concluded that:

“When I come to weigh weight and veracity I will take into account that the matters relied upon by the Second Defendants have really only been put in cross-examination, not heralded in advance, and are based upon hearsay evidence that though admissible and admitted, has not been put in place with the proper formality demanded by the interests of justice as I have found them to be, which in my judgment significantly undermines the weight to be attached to these points.”

I pause at this point to consider this in the light of 2 matters; first, that the Jackson reforms and subsequent case-law have repeatedly called for less expert evidence and proportionality. The suggestion that medical experts are going to be called to give the evidence that they have written down what they understood the claimant to have been saying, that they did that to the best of their ability but that they have no clear recollection of what was said 2 years later, is unlikely to impress judges either at trial or at CMCs, certainly in low-value, whiplash-type cases (which are largely those in which these issues arise). Second, on a personal note, my recent 80 days’ stay as an in-patient in NHS hospitals has not led me to the conclusion that the NHS is going to welcome (or indeed be able to function) if their doctors are going to be routinely called to spend a day in court arising out of 20 minutes they spent either seeing a patient or writing a private medico-legal report 2 years previously.

It is always difficult, in reading judgments, to ascertain which precise arguments have been placed before the judge. My method of dealing with such medical reports is to establish with the claimant at the outset that he was sent such a report by his solicitor; that he was asked to confirm its accuracy; that he had done so and thereafter had signed (or authorised the signing) of a statement of truth on the particulars of claim which would have had the medical report appended to them and usually refers to such medical report within the body of the pleadings. If that is established (usually without too much difficulty at the commencement of cross-examination) then it becomes difficult for the claimant to distance himself from the matters contained therein as the claimants clearly did at this trial.

It will come as no surprise to anyone that HHJ Gore QC found for each of the 10 claimants, holding that none of them struck him as essentially dishonest witnesses deliberately fabricating or exaggerating their accounts either of the accident or of its effects upon them, and that while there were inconsistencies internally in different accounts they had given and between them also, none were so great as to cause him to regard their evidence with distrust or suspicion – indeed, it would have been suspicious if there were no such inconsistencies. The Court of Appeal were then asked to consider the issues raised.

The Court of Appeal held that, in fact, HHJ Gore QC’s fact-finding suggested that he had indeed considered the inconsistencies as raised and he had treated the matters raised in the medical reports as reliable evidence as to what had been said by them, irrespective of his view of the law which was being complained of, such that even if the Court of Appeal agreed with the defendants, the appeal would not succeed as it made no difference to the result.

However, it did go on to say that (admittedly then obiter in the light of the decision) that Section 2(1) of the Civil Evidence Act 1995 required such prior notice of intention to adduce hearsay evidence “as is reasonable and practicable in the circumstances for the purpose of enabling [the other party or parties] to deal with any matters arising from its being hearsay”. Section 2(3) made provision for the notice requirement to be waived. It was however, unnecessary to explore the wording of the section further because s.2(2) authorised the making of provision by rules of court either to disapply this requirement or to regulate its implemention. This was now done by CPR 33.3, which waived the need for notice where a practice direction so provided.

The Court of Appeal therefore stated that 32 PD 27 had the force, or at least the support, of law when it provided

All documents contained in bundles which have been agreed for use at that hearing shall be admissible at that hearing as evidence of their contents, unless –
(a) the court orders otherwise; or
(b) a party gives written notice of objection to the admissibility of particular documents.

The Court of Appeal also stated that the answer should be that the defence (if necessarily amended) should set out those parts of medical records that were deemed to be contradictory to the claimant’s case such that there was no danger of trial by ambush.

It seemed to be universally accepted that this authority made clear that Civil Evidence Act Notices need not be served in the case of such medical documentation, but that defences may need to be amended in cases where subsequent disclosure revealed inconsistencies upon which the defendant(s) wished to rely.

Again, on a personal note, there was always a conflict between those people who drafted very particularised defences in fraud cases (of which I was unashamedly one), who did not have to particularly amend their pleading style after this authority, and those who preferred a far more concise style, whose pleading style would appear to have to change. From a neutral perspective, the former had the advantage of preventing the claimant arguing that they had been in any way ambushed and also in my experience leads to a much higher incidence of discontinuance after service of fully-pleaded defences. On the other hand, the latter had the advantage that the defendant could keep its powder dry until cross-examination and the claimant could not tailor his evidence, knowing more or less what the defendant would use in cross-examination.

Such universal acceptance that Charnock was authority for the proposition that CEA notices did not have to be served does not appear to have included HHJ Gore QC as the issue came before him, in a slighty different form, in Edwards.

Edwards v Sutton LBC [2014] EWHC 4378

This was another case in which HHJ Gore QC was asked to adjudicate on a factual issue that arose between the facts of the accident as recorded in documentation/medical records and that attested to by the claimant (and, in this case, his wife). It has to be said that it was in some ways a side issue to the main liability issues relating to the Occupiers Liability Act which are interesting in their own right but with which I will not deal here.

The claimant had fallen from a footbridge in a large park and sustained, it appears, significant injuries. The first factual issue (and only one with which this article is concerned) was whether the claimant had cycled across the footbridge or had been walking across it when he undoubtedly fell.

The claimant and his wife gave evidence that he was walking across the bridge (with his wife behind him) at the time of the accident, wheeling his bicycle that he had previously been riding. The defendant relied on a number of contemporaneous documents which would appear to indicate that the claimant had been cycling, including the agreed transcript of the 999 call to the ambulance control, the ambulance crew note and then the Accident & Emergency admission record, and an accident report of some description from the gardener, all probably within less than an hour or so of the event in question. The claimant and his wife disputed that the suggestion that the accident occurred whilst he was cycling in any of the documents came from either of them – and as regards the 999 call (from the gardener) and the accident record, it could have well been that the gardener assumed this as his bike had fallen with the claimant into the river.

There was no obvious explanation as to why the history of the accident given in the paramedics’ notes, and certainly in the A&E entry, would have come from the gardener, unless there had been merely copying of the history provided on the 999 call. No evidence was called from any of the people who made such entries.

HHJ Gore QC commented thus;

“The written records when no makers are called are hearsay. As such, they are admissible by virtue of section 2 of the Civil Evidence Act 1968. That does not itself secure their admission into the evidence. That can be achieved by calling the makers to produce them. The defendants who rely on these materials have not taken that course. Nor have the makers provided any witness statements supported by statements of truth. By not calling the makers, they have not been cross-examined. All of these factors are reasons why, pursuant to section 4 of the Civil Evidence Act 1968, I am entitled to attach less weight to this body of evidence than I would to sworn evidence or evidence supported by statements of truth.”

No doubt having been referred to the Court of Appeal decision in Charnock, he went on to say;

“True it is that the claimant’s representatives permitted these documents into the trial bundle and pursuant to the decision in Charnock v Rowan (2012) EWCA Civ 2 that carries with it an admission as to the authenticity of the documents and their contents. No Civil Evidence Act notices have been served. They should have been.” [My emphasis]. “As a party which wishes to rely on this material as evidence of the factual truth of the contents, this evidence has not been managed appropriately by the defendants. However, nor have the claimant’s representatives managed this evidence appropriately. These documents have long since been disclosed. Yet, insofar as the claimant wishes to rely upon the evidence given by him and his wife in cross-examination about these documents, the defendant has been ambushed, albeit perhaps predictably, by the answers in that no attempt has been made to deal with this material in the original witness statements or by way of supplementary witness statements, despite it being self-evident that the Claimant and his wife might wish to deny the accuracy of the facts asserted in these documents”.

On my reading of Charnock, the Court of Appeal specifically held that the requirement to serve a Civil Evidence Act notice was not necessary in cases where the documents were within the trial bundle in light of the specific practice direction.

Summary

So we are left with this conundrum: inconsistencies in medical records are undoubtedly important (Goodman) and may defeat the claimant’s case even when, as a witness, he appears credible. Such inconsistencies should be pleaded (either in a defence or amended defence if disclosure of such inconsistency comes after the initial Defence) (Charnock) but should a Civil Evidence Act notice be served? It is unnecessary, according to the Court of Appeal in Charnock (admittedly obiter) but necessary according to HHJ Gore QC in Edwards even if the documents are within the trial bundle.

In any event, the Charnock dicta has always worried me in this respect. If, the week before the hearing, the defendant receives the trial bundle without the documents on which he wishes to rely because the claimant does not agree to them (as per the practice direction), in what position is the defendant left? Realistically, he has lost the “Charnock” protection that they are in the agreed trial bundle, and he has not served a Civil Evidence Act notice in time. The answer may be an early letter to the claimants (perhaps on disclosure), stating that unless they are notified otherwise, it is assumed that all documents including the medical records are to be placed in the trial bundle.

Judy Dawson

Judy Dawson is one of few barristers in the UK practising exclusively in civil insurance fraud, and has a national reputation. See Judy’s profile.