Large loss claims: lessons in the importance of expert evidence
Ruffell v Lovat [April 2018], Pinkus v Direct Line [July 2018] & Hibberd-Little v Carlton [July 2018]
It is not easy to win as a defendant, especially in the large loss arena. There is often the understandable sympathy for the claimant who, it is claimed, has suffered a life changing injury. We should therefore pause to take proper stock of three strong judgments in favour of defendants. We should also give credit to the insurers who had the courage to run these cases despite the significant cost risks.
Each claim flowed from a road traffic accident (RTA), each claimant claimed significant damages and were supported by well-known medical experts.
Miss Ruffell claimed to have suffered complex regional pain syndrome (CRPS) in her leg following a single vehicle accident. The defendant proved that CRPS was medically controversial and untestable. The claimant’s expert’s diagnosis was based solely on the claimant’s unreliable evidence and could not be relied upon. In addition, Miss Ruffell failed to prove that any continuing post-accident conditions were caused by the accident.
Mrs Hibberd-Little claimed to have suffered a diffuse axonal injury (DAI) following a rear end shunt. The court found that she did not suffer any such brain injury and although not dishonest, was unreliable. The judge also questioned the ability of the claimant’s expert to determine such a diagnosis.
Mr Pinkus claimed to have suffered a minor traumatic brain injury after a relatively minor RTA on a motorway. The claim was dismissed in its entirety for Mr Pinkus’ deliberate exaggeration and dishonesty, notwithstanding that his experts were able to diagnose him as suffering from post-traumatic stress disorder and dissociative disorder.
Whilst each case is individual in nature, there are universal lessons to be learned.
Burden of proof and causation
It doesn’t always feel like it at times, but the burden of proof in relation to both causation and loss is with the claimant. This was a particularly important factor in both the Ruffell and Hibberd-Little claims where the respective judges concluded that causation was not established. It is not enough to simply say that a claimant did not have the particular problems before the accident and therefore they must be accident related. It has long been a frustration for defendants that this overly simplistic approach has often been accepted.
Credibility of the claimant
Credibility has always been a crucial factor but the overriding importance of the claimant’s credibility was highlighted and reiterated in all three cases. In particular, lack of credibility undermined any reliance the experts placed on the subjective reporting of symptoms, to the extent that no conclusions of any substance could be reached.
Forensic analysis of records
It is imperative to obtain, and forensically review, all objective contemporaneous records. This is not just a job to be left to the experts – they can overlook details that they might not immediately consider important. The gathering of information from all sources and a rigorous review of the same was certainly an important factor in the success of these cases.
Minor brain injury
These claims have presented a challenge for some time, with the same team of ‘claimant’ experts reaching largely the same conclusions – working backwards from the assumption of a head injury and finding evidence to fit.
Hibberd-Little provided a clear and measured judgment on the issue of DAI and thoroughly analysed the theory put forward by Dr Allder and his colleagues for the claimant. In essence, the main points to take from it are:
- DAI is not easily proved and there must be a clear contemporaneous link between the accident and the onset of symptoms;
- Post-traumatic amnesia, relied on heavily by the experts, is very subjective and largely unreliable, particularly when carrying out assessments a considerable time post-accident (as most experts are).
This leads nicely on to what is probably the most important lesson to take from these cases – experts are fundamental to the outcome of large loss claims. The best experts often have the longest waiting lists but are worth the wait. You need an expert that is experienced, preferably still practicing and with a good grasp of current academic discussions on the issues at hand.
These are three fantastic wins for defendants but we need to ensure that the positive lessons are learned so that the tide does not turn back in favour of claimants due to cases not being properly prepared or by failing to select the right experts. Do not fear or reject the expert who has an open mind to a range of possibilities, as ultimately they are more likely to be considered to be objective.
In all three cases the claimant’s experts came in for criticism, largely on the same basis. They had approached the case forming an early view, highlighting evidence which supported their conclusions and ignoring any that was inconsistent with their view.
What we should demand from our experts is an objective view. They should thoroughly review, consider and comment upon all of the documents, records and other evidence. They should set out the range of opinions before settling on the one they consider to be most likely with clear reasons as to why they have chosen that option and excluded the others.
Related item: Striking out for want of prosecution: no scope for delay