Expert evidence comes under the spotlight in the High Court

Following on from his judgment in Muyepa v Ministry of Defence [2022], Mr Justice Cotter delivered his judgment in June 2023 in the case of Scarcliffe v Brampton Valley Group Ltd in which the experts again came in for some considerable criticism.

Background

The claimant was injured during the course of his employment as a tree surgeon. He suffered two transverse process spinal fractures at L2 and L3. Whilst liability was admitted, the parties didn’t agree on quantum. The pleaded case exceeded £6 million, whereas the defendant’s counter schedule was just under £137,000. The claimant had a difficult family situation. At the time of the accident he had three young children, two of whom had significant (but different) disabilities. By the time of trial, he had two further children, one of whom was undergoing investigations due to concerns about his behaviour and development. 

The claimant’s case was that as a result of the incident he suffered with chronic pain in the lumbar region which was disabling and lifechanging. He was unable to work and unable to assist with childcare or household tasks. He also needed significant care himself. 

The defendant’s case was that the fractures were stable and the claimant would have developed chronic pain in any event due to a combination of his psychological vulnerability and the progression of his degenerative spine. 

High Court decision

Mr Justice Cotter found that the claimant’s factual and expert evidence failed to adequately address the strong likelihood that the situation that existed at the time of the accident, with both the claimant and his wife in full time employment, was not going to continue in the face of the claimant’s deteriorating degenerative condition and the increasing demands of the family. The judge was also critical that a child and family assessment report, which had been prepared 12 months prior to the trial, was only disclosed during the course of the trial, after the judge had questioned it’s absence. 

The judge undertook a detailed analysis of the medical records, DWP records and a medico-legal report in relation to another claim arising out of a road traffic accident which pre-dated the index accident (although the examination by the GP expert was after the index accident).

He concluded that the claimant and his wife were not credible with regard to their evidence about the pre and post-accident scenarios at home which meant that the claims in the schedule of loss for earnings and care were “unsustainable”. 

The orthopaedic experts in the case were largely in agreement about the nature and extent of the injury sustained in the accident and its sequalae in isolation. The main area of disagreement between them was what would have happened “but for” the accident. The claimant’s orthopaedic expert suggested that the pre-existing problems would have continued to “wax and wane” but would not necessarily have become any worse. The defendant’s expert concluded that the pre-existing problems, as evidenced by the imaging, would have continued to worsen and the claimant would have been in largely the same position by five to 10 years post-accident in any event. In accepting the seven and a half year midpoint, the judge noted that the claimant’s orthopaedic expert had changed his opinion on more than one occasion and his evidence was therefore rejected.

There was a significant difference of opinion between the pain consultants. In keeping with the orthopaedic evidence, the defendant’s expert concluded the claimant was vulnerable and would have developed chronic pain in any event. In contrast, the claimant’s expert concluded that the pain syndrome was accident related. He attached little weight to the pre-accident issues reported in the records or to the post-accident problems which were not accident related. 

In an unusual move, the judge emailed the parties prior to the trial to remind the experts that they ought to notify their instructing solicitors of any change to their opinion. In particular he pointed out that there had been a significant change in the opinion of the orthopaedic experts shortly before the trial (as they had noted an error within the joint statement). This, the judge noted, would have a significant impact on the views expressed by the claimant’s pain expert. Mr Justice Cotter noted at paragraph 147 of his judgment that:

As Dr Rayen’s evidence changed significantly under cross-examination, the gap between the experts was very significantly narrowed. 

As with Muyepa, the expert that came in for the most criticism was the claimant’s care expert. Building on his comments in Muyepa the judge stated: “Worryingly, it is not the first time that I have had very real concerns about the approach to care evidence in a high value claim”. He went on to say: “The analysis of the complex issues in this case was not sufficiently thorough and matters which obviously required further investigation had not been followed up”. Finally, he stated:

In the conclusion section of the judgment, Mr Justice Cotter identified six significant flaws in the evidence of the claimant’s care expert. The major points were:

• The failure to reflect the true “but for” picture.
• The failure to recognise that it is not necessary to pay professional carer rates for relatively menial tasks. It was pointed out that a job in Northampton requiring 24 hours of work per week paying over £30,000 was likely to be very popular.
• The failure to correct “obvious and significant errors”, such as costing for dealing with transport to and from school following the claimant’s anticipated date of retirement without spotting that the children in question would in fact have been in their mid-20s by that stage.

Comment

This is another example of Mr Justice Cotter stating in very clear terms his dissatisfaction with the approach taken by experts, particularly care experts, in high value cases. Here, in our view, there was a lack of attention to detail by the experts compounded by a lack of forensic analysis on the part of the claimant’s legal team when assessing the expert evidence. 

There was also arguably a lack of willing on the part of the claimant’s pain and care experts to alter their views despite being provided with new evidence, or at least evidence that they had not seen (or previously taken into account). That is perhaps not entirely the fault of the experts when apparently the claimant’s legal team also failed to see the significance of some of that evidence. The judge was clearly unhappy with the care expert for failing to take proper account of the reality of the “but for” situation and the situation that existed following the accident (with regards to the care provided to the disabled children and to the family as a whole).

It could be argued that the claimant’s approach was to build the claim to the maximum possible level in anticipation of it settling, but being found wanting (significantly) when it then came to supporting or sustaining the position at trial. This is a welcome judgment reminding experts and practitioners of the need to ensure that the evidence has a sound factual basis and is appropriately sense-checked/tested.

One final point of interest to note is that despite recent case law emphasising the need to use a multiplier/multiplicand approach to future loss of earnings save for in exceptional circumstances, here there was a lump sum Blamire award made. However, Mr Justice Cotter did make it clear that he felt that this was appropriate because of the number of significant “imponderables”. It will not come as any surprise to practitioners that the award was very close to the equivalent of two years net earnings.