The judgment handed down in Manzi v King’s College Hospital NHS Foundation Trust is a clear indication that the absence of a witness does not automatically lead to an adverse inference being drawn by the courts.

The case involved a patient who suffered a haemorrhage following a surgery to remove placental tissue. One of the issues in dispute was the size of the placental tissue. The trial judge refused to draw an adverse inference against the defendant for not adducing the evidence of the claimant’s doctor. This was because the claimant’s doctor was not responsible for performing the operation and she was not present during the procedure (she was merely consulted after the procedure).

It is therefore relevant for a party who intends to rely on expert evidence to ensure that the report of the expert is filed in terms of the relevant Rules of Court. A failure to do so could prove to be detrimental to a party’s case since a court’s power to draw an adverse inference is not mandatory but rather discretionary. For a more detailed analysis of this case, read my article in De Rebus, Is it safe to rely on a court to draw an adverse inference from the absence of a witness?