The importance of getting the basics right

The judgment in Ball v The Royal Wolverhampton NHS Trust provides a useful reminder of the importance of factual witness evidence and testing the experts before trial.

Ball involved a Claimant who underwent arthroscopic surgery. The case centred around an alleged failure to obtain informed consent and allegations that the Claimant should have been offered the option of a referral to a specialist peripheral nerve injuries surgeon. The Claimant’s case was that she would have accepted the referral and would have been offered surgery to decompress her femoral nerve, which she would have accepted. Liability was denied by the Defendant. 

By the time of trial, McCulloch had been decided and provided clarity on the issue of consent under Montgomery and what is a reasonable alternative treatment option. Breach of duty in Ball was not established as it was found that there was a reasonable body of orthopaedic surgeons who would not have referred the Claimant to a specialist peripheral nerve surgeon. The Court also took the opportunity to reiterate some relevant procedural points.

• The purpose of witness evidence is not to be a copy of the statements of case. In Ball, there was a “sharp contrast” between the Claimant’s oral evidence and her written statement. The Claimant’s oral evidence suggested she had “limited recollection” of the documents and consultations, whereas her witness statement suggested a “precise recollection of the relevant events and documents”. It was concluded that the Court could not “place any significant reliance” on the witness statements, only on the oral evidence given at trial. It was reiterated that it is important that a witness statement is in the witness’ own words, should be the evidence that they would give if they could only provide oral evidence at trial without a written statement, and a witness should be aware of what is said in their statement. In a case where the Claimant’s evidence on consent was vital, the Judge’s criticisms of the Claimant’s witness evidence were particularly relevant. 
• Failures relating to disclosure can open the door to findings of dishonesty. Although that was not the outcome in this case based on the evidence, the Court could have made a dishonesty finding as the Schedule of Loss did not make reference to the Claimant’s partner receiving carer’s allowance and there was late disclosure of DWP records which revealed that the Claimant was disabled before the incident. The Court held it would procedurally be unfair to make a dishonesty finding based on the Claimant’s presentation of her injuries prior to the incident, but it was still open for a dishonesty finding to be made based on the disclosure failures and the failure to include her partner’s income/benefits in the Schedule of Loss.
• Parties should test and be aware of the limits of expert evidence. It was for the Claimant to prove that no responsible body of orthopaedic surgeons would not have offered the referral to a peripheral nerve surgeon as per Bolam. The Judge commented that the Claimant’s expert did not answer whether there was a reasonable body of medical opinion who would not have referred the Claimant and, instead, gave his own view that making a referral would have been reasonable and commented on what he considered should have happened. As a result, the Court preferred the Defendant’s evidence and the Claimant did not establish breach of duty. 

As well as providing insight into the practical application of both consent following McCulloch and fundamental dishonesty, perhaps the most important takeaway from this judgment is for parties to ensure that the fundamental points in their witness evidence, expert evidence and disclosure are all covered off before trial.