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Reconstructing the Past – Memory, belief or a bit of both?

Articles | Fri 24th Jan, 2020

In 1973, reflecting on “scattered pictures” and “misty water-coloured memories”, Barbra Streisand asked “Can it be that it was all so simple then”? The answer from Mrs. Justice Lambert in 2020 is no.

Issues relating to memory and witness evidence continue to trouble the courts. The problems are particularly acute when witnesses are giving evidence many years after the events took place. The judgment in Sanderson (by her litigation friend) v Guy’s and Thomas’ NHS Foundation [2020] EWHC 20 (QB) provides a good example of the difficulties that can arise. Although the key factual witness, an on-call consultant obstetrician, had some recollection of the events under scrutiny, her evidence was necessarily an exercise in reconstruction from what memory remained, the contemporaneous records and what the witness believed she would have done and thought from her knowledge of her practice at the time.

The timing of various events was central to the issue of liability in the case. However, the court emphasised the importance of looking at the factual evidence realistically. The events in question all took place over 17 years ago. Because of this a forensic scrutiny of the timing of events was bound to involve an element of imprecision.

There were other difficulties with regard to the contemporaneous records. Firstly, these were all written in a block after the events had taken place. Secondly, the times ascribed to key events were taken from various different clocks, none of which was synchronised. In addition, the practice that was then adopted with regard to note keeping was very different to what it is now. Proper allowance also had to be made for what were initially “high pressure” and subsequently emergency circumstances. There was an “element of unreality” to some of the questions put to the witness in an attempt to refine the timeline down still further from that which she recalled. The court held that it was now impossible to “drill down” to the exact fraction of a minute when a particular event had occurred.

The court therefore rejected all the criticisms made of the consultant obstetrician’s management. This was not a case, in Barbra Streisand’s words, in which time had “rewritten every line”.

Case details
Court: High Court, Queen’s Bench Division.
Judge: Lambert J.
Date of judgment: 10.01.2020

Simon Readhead Q.C. represented the Defendant NHS Trust.

Read the full case analysis here.

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