Robert Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283

The claimant (C) underwent abdominal surgery. On the day he was due to be discharged, he was seen by a clinical registrar (Z). A note of that attendance recorded that C was “well”, and that the stoma created during surgery was a “normal colour”. Following his discharge, his pain increased and he returned to hospital. He required further surgery to remove the stoma, which was by then necrotic and perforated, and to create a new one.

C contended that he should not have been discharged but should have been kept in hospital for further surgery. He asserted that prior to discharge he had been in pain and his stoma was darker than its normal colour. He said that Z advised him that it was just bruising and not to worry. The judge at first instance found that that the written record of Z’s attendance on C was inaccurate, while the evidence of C and his wife was persuasive, and held that discharging C was a breach of duty in the circumstances. The trust contended that the finding was one which no rational judge could have made on the basis that he gave no reason for rejecting the contemporaneous record in favour of C’s evidence.

HELD: The judge had recognised the need to test the witness evidence by reference to, in particular, the contemporary documentary evidence. Even if a document was “contemporaneous”, the court still had to decide whether it was reliable and what weight to give it. In this case, the judge had no evidence of the circumstances in which the note had been made. He had the benefit of seeing C and his wife give their evidence. His conclusion that the note was unreliable was open to him on the basis of the evidence and within the ambit of reasonable decision-making.

January 28, 2016 В· Editorial Team В· Comments Closed
Posted in: Cases