QB-2022-002633 - [2025] EWHC 2576 (KB)

In reaching determinations about the evidence, I introduce my findings with trite but nonetheless important general points. C bears the burden of proving any disputed fact to the civil standard, being on the balance of probabilities. The relevant evidence comes in the form of witness statements, oral evidence and documentary evidence. In respect of the evaluation of witness evidence – written and oral – this can usefully be divided into two aspects. The first is credibility, which is in broad terms an assessment of motive; is the witness giving honest evidence, intending to assist the Court to the best of their ability? The second is reliability, being the extent to which that which the witness is saying can positively be accepted and used to form the basis of judicial findings, whether directly or by reasonable inference. There are many factors that can affect reliability, and the Court is cognisant of the generally accepted principles in the case law about the fallibility of memory in this regard as well as the impact of the passage of time. Reliability is also not an all or nothing commodity; a witness may be reliable on one topic, for example, but not on another. It follows that an entirely credible witness may yet be unreliable in relation to some or all of their evidence.

I begin with C’s evidence. I note that her statement in the proceedings is dated 15 September 24, some five years after the events. Whilst it is likely that C was asked to recall various pieces of evidence much earlier than the date of her statement, the claim itself was issued some three years after the events. In the meantime, C unquestionably suffered the wide-ranging and serious consequences of the sleeve leak that she sets out in her evidence and that are described elsewhere in the papers. Those consequences have persisted since November 19 and it would be surprising if the panoply of difficulties were not to have had some detrimental impact on C’s capacity to recall accurately the sequence of events and the nature, content and timing of every communication with D or a member of his team at what must have been a very distressing time, just as it was challenging in so many other respects. There is documentary evidence on which C can rely, for example FBM messages that she sent to D, which have been disclosed into the proceedings. C says that these are not complete and that the same is true of the records of interactions with the MDT, specifically SR, in the post-operative period.

It is not suggested by D that C is anything other than a credible witness, to use my terminology; that is, a witness who honestly believes that the evidence she has given is true and accurate. I agree; C said nothing during the course of her oral evidence that would give me any cause for concern about her credibility. However, and I emphasise without the slightest criticism of C, I cannot conclude that all her evidence is reliable. By way of example, C gave evidence that she was vomiting at the point of discharge post-procedure on 26 September 19. Leaving aside the inherent unlikelihood of any patient being discharged in that state, and perhaps especially in the case of a bariatric patient, SR’s evidence on the point is clearly to be preferred. This was to the effect that C would certainly not have been discharged in circumstances where she was vomiting. There was documentary evidence in the discharge paperwork that went to support SR’s evidence, rather than C’s.

A further example is that whilst C recalled LJ telling her about the need for a high protein diet, she did not remember other aspects of dietary advice, which would have gone hand in hand with this advice when visualising a ‘bariatric plate’ of food, relating to fruits and vegetables and carbohydrates. I reiterate that I quote these examples not to embarrass or to criticise C in any way, but simply to illustrate that her memory of events is not as reliable as she genuinely believes. In answer to a direct question in cross-examination about the impact of events post-operatively, C accepted that they had affected her memory. That was a very honest and understandable concession.

C’s evidence was that other FBM messages, beyond those disclosed by the parties, were exchanged between herself and D. Those messages that had been disclosed (by both parties) ran to many pages and covered a significant post-operative period. Ms Hughes invited me, during the trial, to take judicial notice of the FBM application-generated message just before the first printed message in time as indicative of there being no earlier messages, despite what C had said in her evidence. Whilst I refused the invitation for the reasons I gave at the time – which included simple technological and/or practical reasons for the appearance of such messages – in the absence of some supportive evidence for C’s assertions, I am unable to find that she has discharged the burden of proving that such messaging took place, still less what it was likely to have said. Additionally, given C’s then continuing difficulties with progressing through food types post-operatively in the staged manner of expected recovery, I find it improbable that a communication of relevance and importance from C would not have been documented by D or SR, whichever of them had been contacted.

It is important to subject the evidence of D and his witnesses to a similar assessment, particularly given the nature of the challenge to D’s and SR’s record-keeping. Whilst this evidence is based to a degree on independent memory, it is rooted in a combination of the medical records and other documentary evidence pertaining to C’s interactions with each member of the MDT. It is then augmented by the established pattern of working of each member of the MDT individually, and of the MDT as a whole. By September 2019, the members of the MDT involved in C’s case had been working closely together for some years. In the case of LJ and SR, they gave evidence about how they spent time additionally in direct observation of each other’s clinics and clinical approach so that the skill set of one might be enhanced by exposure to that of the other. Given the particular specialist focus of the MDT, it seems to be that each member of it, when giving evidence, is able to draw and rely on their usual or standard practice as at the relevant time, alongside the documentary evidence, because they will have developed a process whereby they ensure that each patient receives, orally and in writing and in a consistent manner, all key information pre-operatively. A considerable amount of information was provided to C pre-operatively and, in the main, she accepted receiving it. I am satisfied that she will not only have received all the standard information, but also that she will have been taken through it and the associated advice in accordance with the evidence of D, LJ, SW and SR.

As far as the evidence of D, LJ, SW and SR generally is concerned, I found each of them to be a credible witness and that their evidence, despite the challenges advanced on C’s behalf, was indeed reliable.