Silence Speaks Volumes: Inferences from a Missing Witness - Michael Brooks Reid, Temple Garden Chambers

20/08/25. The Claimant, who was born with congenital heart issues, was 25 when she underwent elective open-heart surgery requiring a re-do sternotomy [cutting through the sternum which had been cut through previously]. In the course of the re-do sternotomy, the lead surgeon, Mr N, unintentionally cut the wall of the Claimant’s aorta, causing catastrophic haemorrhaging.

It took around 24 minutes to establish full cardiopulmonary bypass, during which time the Claimant sustained a serious hypoxic brain injury.

Arteries in the leg which are used for emergency bypass had not been exposed and prepared in advance in the Claimant’s case, notwithstanding a known significant risk of aortic damage requiring bypass.

Instead, following the aortic injury, time was taken exposing the femoral vessels for cannulation. A second surgeon, Mr D, joined Mr N in theatre and attempted cannulation of the femoral artery, during which it dissected [tore].

The Issue

One of the preliminary issues – “issue 2” – was to establish how much time would have been saved had the femoral arteries been prepared in advance. This required determination of whether the arterial dissection was a random occurrence which would have occurred in any event, or whether it was caused or contributed to by the “panic” of the emergency, as pleaded by the Claimant (“the Dissection Issue”).

The Defendant failed to provide evidence of Mr. D, who was the only doctor able to give direct evidence as to the circumstances and cause of the femoral artery dissection. The Claimant invited the Court to draw an adverse inference.

The law

The Judge set out the relevant principles, including a passage adopted by Lord Sumption in Prest v Petrodel Resources Limited and others [2013] UKSC 34, which reads:

“In our legal system generally, the silence of one party in face of the other party's evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party's failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.”

Given the pleadings made it clear that the Dissection Issue needed to be resolved, the Judge “would have expected” efforts to be made by the Defendant to obtain a witness statement from Mr D. Neither the fact that Mr D was no longer employed by the Defendant nor that he was likely resident in Italy were considered to provide a satisfactory explanation for failing to serve a witness statement on his behalf.

Had the Dissection Issue not already been resolved in the Claimant’s favour, the Judge would have drawn an inference from the Defendant’s failure to produce a witness statement from Mr D; namely that Mr D’s evidence would have supported the Claimant’s case on the Dissection Issue.

Comment

Whilst the Judge’s decision on the adverse inference was strictly obiter, it is nonetheless a reminder of the importance of ensuring that the Court is furnished with all the witness evidence needed to determine the matters in issue.

On the part of Defendant trusts, that is likely to require both a carefully considered legal analysis in the early stages of case preparation, as well as good and timely administrative organisation.

It will be noted that even Mr D having moved abroad was not considered a satisfactory explanation. Therefore, where significant practical difficulties exist in securing a witness’s attendance, a witness statement and a Civil Evidence Act notice should be served.

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DHV v Motor Insurers' Bureau [2025] EWHC 2038 (KB) - Philip Matthews, Temple Garden Chambers

18/08/25. On 1 August 2025, Mr Justice Dias delivered judgment in a dispute between DHV, a protected party, and the Motor Insurers’ Bureau (MIB) over the payment of penalty interest under Spanish law. The issue arose from a serious road traffic accident in Mallorca in July 2017, in which DHV, a British national, sustained catastrophic injuries after being struck by an uninsured vehicle while crossing a road. Under reciprocal arrangements between the UK and Spain, the MIB stood in the position of Spain’s guarantee fund. The substantive trial in February 2025 determined liability and damages, and this follow-on judgment addressed solely whether penalty interest was payable.

Spanish substantive law governed the claim, and Article 20 of the Spanish Insurance Contract Act 50/1980 was central to the dispute. Article 20(9) obliges insurers, including the guarantee fund, to pay compensation within three months of receiving a claim, failing which penalty interest applies. The penalty rate is the legal interest rate plus 50% for the first two years, and 20% thereafter. Article 20(8) provides an exception where delay is justified or not attributable to the insurer. Both sides agreed that the MIB received the claim on 19 September 2017, meaning default would commence on 19 December 2017 unless...

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Tom Clark v Omar Elbana [2025] EWCA Civ 776 - Andrew Ratomski, Temple Garden Chambers

18/07/25. Date of judgment: 24 June 2025.

This sports negligence claim arises from a collision between the Defendant, and now Appellant, and the Claimant during an amateur rugby match. The Claimant suffered a serious spinal injury. Causation was conceded but the issue of breach of duty went to trial.

Permission to appeal was granted concerning the test to be applied to the Appellant’s alleged recklessness, adequacy of reasons, the relevant legal test when determining breach of duty in a sporting context and in regards the judge’s conclusions that the Appellant was reckless in the circumstances of a game of rugby.

The appeal was dismissed in short order on the basis of the Respondent’s Notice dated 9 April 2025 filed by the Claimant (Respondent to the appeal). The Claimant argued that in the sporting context the legal test in negligence was whether the Defendant had failed to exercise such degree of care as was appropriate and by reference to the evidence before the Judge, the Defendant was reckless which was a higher, more stringent legal test. It was further argued that it could not possibly be said that the Defendant was not negligent by reference to the same evidence before the trial judge.

At the hearing, the Defendant’s counsel was invited to address the issues raised in the Respondent’s Notice before the Court of Appeal indicated that it was satisfied that the Judge’s finding that the Defendant was reckless encompassed a finding of negligence. The Court also considered that finding was not erroneous and the Respondent’s Notice was in effect correct. It therefore followed that the appeal would be dismissed.

The case was brought on the basis that the index collision was unnecessary and negligently made by the Defendant with reckless disregard for the Claimant’s safety, all contrary to the laws of rugby. There was available a clear video recording of the collision and the Judge made numerous factual findings based on what the video purported to show.

The Court of Appeal considered the laws of ruby set by World Rugby and the prohibition under law 10.4(f) of playing an opponent without a ball. The Court of Appeal explained that the claim was brought in the tort of negligence. In this context, reckless was used as an adjective but recklessness was not required to establish negligence as the sporting authorities made clear. It followed that describing a play as “reckless” in a sporting context was a higher, more stringent test that encompassed a finding of negligence.

The Court of Appeal also rejected the Appellant’s arguments that the Judge had failed to address the issue of foreseeability and found the risk of injury was a significant one, it was courting at least a fracture which was a serious injury:

“The judge’s findings that the defendant ran directly at the claimant at full speed and in choosing to run so close to the claimant, the defendant was courting the risk that even a slight movement would result in a forcible contact with most of the kinetic energy being transferred to the claimant encapsulated the factual basis of foreseeability.”

The Court of Appeal also held that whilst the Judge did not use the word “negligent”, that was the pleaded basis of the claim and it was upon the pleaded claim that liability was found.

Discussion

This case illustrates the impact a well-crafted Respondent’s Notice can have, especially one that is grounded in the factual findings a trial has made. It is also essential reading for practitioners working on sports injury claims and wrestling with the line between play that is reckless versus negligent or the ingredients of foreseeability in sports injuries.

https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/776

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