The rule in Browne v Dunn does not preclude a judge from making findings against a party based on inconsistencies between their oral evidence and documentary evidence (such as clinical notes) that the party themselves tendered, even where the opposing party did not cross-examine on those inconsistencies. Where a party adduces inconsistent evidence, the responsibility lies with that party to explain the divergence; the party cannot refrain from explaining the divergence with the comfort that it will have no forensic utility unless cross-examined upon. Clinical notes of a long-term treating practitioner, while requiring careful evaluation, may constitute highly probative evidence because they are independent and contemporaneous.
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