When does a lay witness become ‘most unreliable’ and what does this mean for your case?
Claims by a young leukemia patient and her mother were dismissed by the NSW Supreme Court in circumstances which included that the mother was ‘combative, aggressive, argumentative and agitated’ when giving evidence.
- Mia-Angel Bridges-Cole, a young child, was diagnosed with Acute Lymphoblastic Leukemia (ALL) in 2013. Her mother (Chantelle Bridges), acting as litigation guardian, brought a claim against the defendant, a general practitioner, alleging his management of Mia-Angel was negligent. Chantelle also brought a claim against the defendant in her own name. In issue were: the signs and symptoms with which Mia-Angel presented at consultations with the defendant; the history provided to the defendant by Chantelle; the nature and extent of the examination performed by the defendant; and the nature of the conversations between Chantelle and the defendant.
Mia-Angel was diagnosed with ALL in May 2013. Her mother had brought her to several medical appointments, which included consultations with the defendant on 15 March 2013 and 28 March 2013. Mia-Angel presented in the first instance with nausea and vomiting, and in the second instance with a rash on her mouth, hands and foot which the defendant diagnosed as Hand, Foot and Mouth Disease. Chantelle brought her to a consultation with another general practitioner on 24 April 2013, who reviewed Mia-Angel’s symptoms and ordered blood tests. Upon reviewing the pathology reports dated 5 May 2013 that identified the detection of Leukoerythroblastic film, the defendant formed the view that Mia-Angel likely had leukemia.
The decision at trial
Bellew J ultimately found in favour of the defendant and dismissed both Mia-Angel and Chantelle’s claims. His decision turned on two key issues: the reliability and credit of Chantelle as a witness; and the expert evidence pertaining to the defendant’s liability.
Regarding Chantelle’s reliability, His Honour gave full acknowledgement that her daughter’s leukemia diagnosis must have been extremely traumatic and distressing, but nonetheless found her to be 'a most unreliable witness'. A consideration of the effect of emotion and prejudice on the capacity of a person to remember events after a long period assumed particular significance in an assessment of Chantelle’s credit. Bellew J found that Chantelle often attempted to adopt the role of an advocate instead of a witness, repeatedly giving tangential and vague answers to questions and argued both with Counsel and His Honour. Furthermore, His Honour drew attention to an incident during proceedings where Chantelle offensively and aggressively approached the defendant outside the courtroom, making remarks that included 'remonstrating with the defendant regarding his religious beliefs'. His Honour found that the impropriety of Chantelle’s conduct manifested in both her 'aggressive and combative' demeanour when giving evidence, and in her offensive, hostile behaviour toward the defendant. Consequently, Bellew J did not accept her evidence as to any fact in issue.
Regarding the expert medical evidence pertaining to the defendant’s liability, Bellew J denied an application by the plaintiffs to rely on additional reports obtained during the course of the hearing. His Honour found that the plaintiffs had not established that there were exceptional circumstances which warranted a grant of leave to rely on the new reports, and that granting such leave would have effectively allowed for an ‘ambush’ on the defendant’s representatives. Furthermore, His Honour found that the expert opinions contained in the joint report of A/Prof Clyne, A/Prof Roach and Dr Ratner were sufficient to make out the defence under s 5O of the Civil Liability Act 2002 (NSW).
Implications for you
This decision is a good example of how evidence of a witness may be considered ‘unreliable’ for a number of reasons, including the effect that the passage of time may have on the memory of the witness.