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Fifield v Denton Hall, Court of Appeal, 8 March 2006

14 March 2006
The issues

Case Management – Expert Evidence – Hearsay – Interpreting Medical Records – Procedure For Adducing Evidence In Medical Notes

The facts

This was a claim involving a secretaries’ upper limb disorder claimed as a work related injury. The Judge at first instance found the Defendant firm liable and on appeal the Court of Appeal dismissed the claim.

The decision

In dismissing the claim the Court of Appeal gave guidance in respect of the situation arising when a party wished to challenge a Claimant’s evidence on the basis of a contemporaneous note in medical records. Lord Justice Buxton gave guidance as to what procedure should be adopted in such cases.

What a doctor wrote down as having been told him by the patient (as opposed to an opinion he expressed on the basis of those statements) was not at that stage evidence of the making of the statement that he recorded.

The record was rather where used to contradict a patient’s evidence, a record of a previous inconsistent statement allegedly made by the patient. The record is therefore hearsay.

It may be proved as evidence in a number of ways. Firstly the statement may be put to the witness and the witness may admit to having made it. Secondly the statement may be adduced as hearsay evidence under Sections 1 and 6(5) of the Civil Evidence Act 1995. If the Court concluded that an inconsistent statement had been made that went only to the credibility of the witness. The statement could not itself be treated as evidence of its content.

In this case none of these steps had been taken which had led to some difficulties in the course of the Trial.

In future, a party who sought to contradict a factually pleaded case on the basis of medical records or reports should indicate that intention in advance either by amending the pleadings or by an informal notice.

The opposite party should respond by indicating the extent to which they took objection to the accuracy of the records. When the area of dispute was identified a decision would have to be taken as to whether the records needed to be formally proved by either of the means referred to above.

Two consequences would follow. If these precautions had not been taken the Trial Judge might be reluctant to permit reference to reports of the patient’s statement in the medical records for the purpose of contradicting the patient’s evidence and any such reluctance was unlikely to be criticised by the Court of Appeal. Secondly, if there was an unreasonable failure to admit that such statements were made to the extent that it was necessary to call busy doctors to Court simply to prove the statements, then such failure of cooperation was likely to be penalised and possibly severely, in costs.

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