Denton Hall Legal Services & Ors v Fifield - Inconsistent Statements in Medical Records; False Alarm or Timely Reminder.
Denton Hall Legal Services & Ors v Fifield - Inconsistent Statements in Medical Records; False Alarm or Timely Reminder.
The Decision in Fifield ([2006] EWCA Civ 169 (The Times, 22 March 2006))
Mrs Fifield made a claim for damages suffered in consequence of disabling diffuse bilateral arm pain, which she attributed to her work as a legal secretary at Denton Hall. HH Judge Reid QC held that Mrs Fifield suffered from a work-related upper limb disorder which had been caused by breaches of the Display Screen Regulations 1992 and negligence on the part of Denton Hall. He awarded her £157,341.
Denton Hall appealed submitting that the judge had been wrong to find (1) that the claimant’s injury had been caused by her work and (2) that Denton Hall had been either negligent or in breach of the Display Screen Equipment Regulations. Delivering the lead judgment, Lord Justice Wall dismissed Denton Hall’s appeal as being without merit.
During the course of the appeal it was argued that the judge ought not to have accepted Mrs Fifield’s case as to the date of the onset of her symptoms because it was contradicted by histories she was recorded to have given to various treating medical practitioners and to one of the medico-legal experts. During the course of oral submissions, Buxton LJ questioned the extent to which these histories had ever formally been put to the claimant during cross-examination.
Buxton LJ returned to this issue in his judgment. His remarks are strictly obiter dicta, as they do not form a necessary part of the Court’s decision to dismiss the appeal. In fact the Court heard no argument either upon the evidential status of previous inconsistent statements or upon the suggested procedure by which they should be proved.
In paragraph 77 of the judgment Buxton LJ set out his summary of the law:-
• The record that a doctor makes of a statement told to him by the claimant is hearsay.
• If the record is said to contradict the evidence as to fact given by the claimant, the record is of a previous inconsistent statement allegedly made by the claimant.
• The record of the previous inconsistent statement can be adduced in evidence if it is put to the witness and he admits to having made it or, if he does not distinctly admit that he made the statement, it can be proved under section 4 of the Criminal Procedure Act 1865 (CPA 1865).
• By virtue of section 6(5) of the Civil Evidence Act 1995 (CEA 1995), the CPA 1865 does not prevent the statement being proved as hearsay evidence under section 1 of the CEA 1995.
• But if the court concludes that an inconsistent statement has been made, “that goes only to the credibility of the witness; the statement itself cannot be treated as evidence of its contents. Authority is scarcely needed for so protean a proposition, but I would venture to mention the observations of Lord Esher MR in North Australian v Goldsborough [1893] 2 Ch 381 at p 386.”
Buxton LJ then went on to criticise the manner in which Denton Hall sought to make use of Mrs Fifield’s alleged previous inconsistent statements. In her pleadings and in her evidence Mrs Fifield alleged that the onset of serious symptoms in her arms had occurred in early 1999, shortly following a substantial increase in her workload. At trial Denton Hall challenged that history and alleged an earlier date of onset. Buxton LJ remarked that in its Defence Denton Hall had made a non-admission of Mrs Fifield’s case on this issue and had never sought to plead a positive case which set out the allegedly contradictory histories given by Mrs Fifield; neither had the history allegedly given to Denton Hall’s medico-legal expert ever been clearly put to Mrs Fifield during the course of cross-examination.
In paragraphs 80 and 81 of the judgment Buxton LJ elaborated a pre-trial procedure designed to “ensure that factual issues in medical cases are economically and efficiently tried”:-
• 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.
• The opposite party must indicate the extent to which they take objection to the accuracy of the records;
• Once the area of dispute is identified, a decision will then be taken as to whether the records need to be formally proved under the CPA 1865.
According to his Lordship, failure to carry out this procedure might result in the following sanctions:-
• “The trial judge may be reluctant to permit reference to reports of the patient’s statements in the medical records for the purpose of contradicting the evidence.”
• “If there is unreasonable failure to admit that such statements were made to the extent that it is necessary to call a doctor in order formally to prove them, then such failure of co-operation is likely to be penalised, possibly severely, in costs.”
The Hearsay Rule and Previous Inconsistent Statements
Section 1 of the CEA 1995 abolishes the hearsay rule in civil proceedings. It provides:-
Admissibility of hearsay evidence
(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay.
(2) In this Act--
(a) “hearsay” means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and
(b) references to hearsay include hearsay of whatever degree.
(3) Nothing in this Act affects the admissibility of evidence admissible apart from this section.
(4) The provisions of sections 2 to 6 (safeguards and supplementary provisions relating to hearsay evidence) do not apply in relation to hearsay evidence admissible apart from this section, notwithstanding that it may also be admissible by virtue of this section.
The abolition of the hearsay rule is subject to a number of safeguards:-
• The party seeking to adduce hearsay evidence must give his opponent advance notice of his intention to adduce it (section 2 CEA 1995 and CPR33.2);
• The other party can apply to call the maker of the statement to be cross-examined on the contents of the statement (section 3 CEA 1995 and CPR33.4);
• The judge is provided with guidelines for weighing hearsay evidence (section 4 CEA 1995).
By section 2(4) of the CEA 1995, the failure of a party to give advance notice of an intention to rely on hearsay evidence does not render the evidence inadmissible but may, at the judge’s discretion, affect the weight to be placed on it and may lead to the imposition of costs sanctions.
Sections 4 and 5 of the CPA 1865 regulate the method by which previous inconsistent statements can be introduced into evidence at trial. These sections, which govern both civil and criminal proceedings, have been expressly preserved by section 6 of the CEA 1995.
Section 6(3) CEA 1995 provides:-
Previous statements of witnesses
(3) Where in the case of civil proceedings section 3, 4 or 5 of the Criminal Procedure Act 1865 applies, which make provision as to--
(a) how far a witness may be discredited by the party producing him.
(b) the proof of contradictory statements made by a witness, and
(c) cross-examination as to previous statements made in writing,
this Act does not authorise the adducing of evidence of a previous inconsistent or contradictory statement otherwise than in accordance with those sections.
Section 4 of the CPA 1865 sets out the circumstances in which a party is permitted to prove that a witness has made a previous inconsistent statement:
As to proof of contradictory statements of adverse witness
If a Witness, upon Cross-examination as to a former Statement made by him relative to the Subject Matter of the Indictment or Proceeding, and inconsistent with his present Testimony, does not distinctly admit that he has made such Statement, Proof may be given that he did in fact make it; but before such Proof can be given the Circumstances of the supposed Statement, sufficient to designate the particular Occasion, must be mentioned to the Witness, and he must be asked whether or not he has made such Statement.
The fact that a witness has made a previous inconsistent statement can be adduced in evidence if the witness admits to having made it. However, if the witness does not admit to having made the statement, evidence can only be adduced to prove that he did, once the full circumstances surrounding the making of the statement have been specifically put to the witness and he has been asked again whether he made it.
If the witness admits that he made the statement or it is subsequently proved that he made it, that statement is admissible, not merely as evidence of inconsistency, but as evidence of the truth of its contents. This is made absolutely clear by 6(5) CEA 1995:-
(5) Nothing in this section shall be construed as preventing a statement of any description referred to above from being admissible by virtue of section 1 as evidence of the matters stated.
Indeed since 4 April 2005 this has also been the position in the criminal courts. Section 119 (1) of the Criminal Justice Act 2003 provides:-
Inconsistent statements
If in criminal proceedings a person gives oral evidence and--
(a) he admits making a previous inconsistent statement, or
(b) a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865 (c. 18),
the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.
Is a previous inconsistent statement admissible as evidence of its contents?
It is not entirely clear what Buxton LJ intended to say in paragraph 77 of the judgment in Fifield about the evidential status of a previous inconsistent statement. Whilst he specifically referred to section 6(5) of the CEA 1995, which is the sub-section that provides that a previous inconsistent statement is admissible as evidence of its contents, he then went on to assert the opposite, relying upon North Australian v Goldsborough.
The common law as reflected in North Australian v Goldsborough was reversed by the CEA 1968 and the CEA 1995.
The CEA 1995 was enacted upon the recommendation of the Law Commission . Paragraph 4.31 of the Commission’s Report deals with inconsistent statements and provides:
“…We also make clear that nothing in the new provisions (taken together with the repeal of Part I of the 1968 Act) is intended to revive the pre-1968 position. The pre-1968 position was that evidence of previous statements of witnesses are admissible in certain cases only to support credibility and was not admissible as evidence of the facts stated
We therefore recommend that:
8. Previous consistent or inconsistent statements of a person called as a witness should continue to be admissible as evidence of the matters stated.”
This recommendation then appeared on the statute book in the form of section 6(5) CEA 1995.
Thus, to the extent that Buxton LJ’s dictum suggests that a previous inconsistent statement goes only to credit and cannot be treated as evidence of its contents, it would not seem to be correct. The statement, once it has been properly introduced into evidence, is admitted for any relevant purpose in both civil and criminal proceedings.
How should a previous inconsistent statement be proved?
As has been explained a previous inconsistent statement may only be introduced into evidence under the procedure set out in section 4 of the CPA 1865. That is:
• The party seeking to introduce the statement must first put it to the witness. If the witness admits to having made the statement it is admitted in evidence.
• If the witness fails “distinctly” to admit to having made the statement, he must be given sufficient information about the circumstances in which the statement is alleged to have been made to allow him to identify the particular occasion and then asked again whether he made it.
• Only after this procedure has been gone through can evidence be introduced to prove that the statement was made.
The previous inconsistent statement can then be proved in the same way as any other statement: either the witness to the claimant’s previous statement can be called to give oral evidence or the document in which that statement is recorded can be introduced under the section 2 of the CEA 1995.
Section 2(1) of the CEA 1995 requires a party who proposes to adduce hearsay evidence to give notice to the other party. The CPR sets out a procedure:
• CPR33.2(3) provides that the notice should identify the hearsay, state that it is intended to rely on that hearsay evidence at trial and give the reason why the witness will not be called.
• CPR33.4 permits a party upon whom such a notice has been served to apply to the court for permission to call the maker of the statement to be cross-examined.
By section 2(4) of the CEA 1995, a failure to serve a notice does not affect the admissibility of the evidence, but may be taken into account as a matter affecting the weight to be given to it in accordance with section 4. The court may also take into account the failure to serve a notice when considering its case management powers and in costs.
Under CPR32.1 the court’s powers to control the evidence at trial are very wide. Rule 32.1(2) provides that the court may use its power to control evidence to exclude evidence that would otherwise be admissible.
The pre-trial procedure suggested by Buxton LJ mirrors that laid down in the CPR. There is no doubt that a party who seeks to contradict the claimant’s case by reliance on a previous inconsistent statement, whether that statement is contained within medical records or a medico-legal report or elsewhere, should give notice of that intention. Notice may be given either in a formal Civil Evidence Act Notice or alternatively could be specifically set out either in the Defence or Counter Schedule.
A claimant who disputes the accuracy of the document relied upon by the defendant can then apply to have the witness who compiled the document called for cross-examination. Alternatively the claimant might simply indicate that he disputed the accuracy of the record, but did not intend to call the witness for cross-examination. In the latter circumstance the defendant could apply for permission to call the witness.
However, neither the failure of a defendant to give proper notice of his intention to rely on the statement nor the failure by the claimant to apply to call the witness for cross-examination will render the statement inadmissible. By sections 2(4) and 4 of the CEA 1995, the trial judge may take all those matters into account when estimating the weight to be given to the hearsay evidence.
In many cases, when estimating the weight to be placed upon a particular record, a trial judge is likely to conclude that he would not have been assisted by hearing evidence from the busy medical practitioner who would be highly unlikely to have any specific recollection of the occasion upon he recorded the witness’s history. In other cases, particularly where there is room for doubt over the proper interpretation to be placed upon a record, it may be prudent to seek to proof the doctor concerned.
The Impact of Fifield
Upon reflection it may be that the Court of Appeal’s judgment in Fifield raises a false alarm over the use of medical records. Previous inconsistent statements contained in medical records can be relied upon as evidence of their contents and busy doctors will still only rarely need to be called to prove the accuracy of their records.
However, if the confusion raised over the evidential status of previous inconsistent statements is put to one side, Buxton LJ’s judgment serves as a timely reminder of the procedural steps which should be taken during preparations for trial and during the course of the trial itself.
• The defendant must carefully examine the documents and records.
• A positive case must then be pleaded in the Defence or Counter Schedule on the basis of those records.
• At the foot of the pleading the defendant should include a notice to the effect that it is intended to rely on the records referred to, but that it is not intended to call the authors of those records as they cannot be expected to have a recollection beyond what has been recorded.
• For records which come to light at a later stage a similar approach can be adopted either in correspondence or in a revised Counter Schedule.
• The onus will then shift to the claimant to indicate the extent to which he disputes the accuracy or completeness of the record.
• Decisions can then be made as to whether either party wishes to proof and/or seek to call the author of the record.
• At trial the inconsistent record must be put to the claimant during cross-examination, if the claimant does not admit to having made it, the cross-examiner must then ensure that he puts particulars of the occasion upon which the statement is alleged to have been made.
• If the claimant does not then admit to having made the statement, it can be admitted under section 2 of the CEA 1995 or a witness can be called to give oral evidence of the previous inconsistent statement.