[2025] EWHC 2025 (KB)

Ms Pooley submitted that the claimant recalled the events of March and April 2019 with specificity given that she had reason to remember due to the rare and serious complications that followed her surgery. She submitted that the claimant’s evidence was clear and consistent across her witness statement, pleaded case and oral evidence. Ms Pooley also submitted that the claimant’s evidence is supported by the absence of any mention of prolapsing haemorrhoids in the medical records prior to, and at, her appointments with the defendant.

I find the claimant to be an honest person, doing her best in very difficult circumstances. I do not underestimate the physical and mental effects she has suffered under since her surgery and it is inevitable that this has taken its toll on her, as no doubt, has the stress of this litigation. However, I find her to be an unreliable historian. This is not because she is consciously not telling the truth or embellishing her evidence. I find that she genuinely believes, and has convinced herself, that she was not provided with all the relevant information by the defendant, and had she been, she would not have undergone surgery. However, I find that what she now believes, does not accord with the evidence at the material times. Examples of this are given in my summary of the relevant facts below.

Her lack of reliable recall is understandable given the lengthy passage of time since the events in question, and also the issue of hindsight, particularly due to the extremely rare, painful, debilitating and life changing effects of the anal stenosis she developed as a consequence of the haemorrhoidectomy she underwent on 13 June 2019. It would be difficult for many people in this situation to reliably remember years later what their specific symptoms were at a particular time, what she said about these to doctors and what was said by the doctors to her, and I find that the claimant is similarly affected. In addition, it is inevitable that the claimant now sincerely regrets undergoing the surgery. Her sad outcome has inevitably coloured and informed her view of all these matters.

However, in my judgment there is an additional relevant factor, which is that the claimant now knows the importance of these issues to her claim, and this has affected her recollection such that she has at times recreated her view of what happened, whether consciously or subconsciously. (see Diamond at [21]-[22] and Pomphrey at [31]-[33]).

For these reasons, when assessing the claimant’s evidence, I have had particular regard to the relevant contemporaneous documents, objective facts and overall probabilities and to the evidence of Professor Phillips in order to resolve conflicts of evidence between the claimant and the defendant (see Synclair at [10]-[12]).