HJ v Burton Hospitals NHS Foundation Trust

“The opinion of a single joint expert who is not called to give evidence does not automatically trump the evidence of other witnesses either lay or expert.”

The Judgment of Mr Justice Turner from 21 May 2018 in HJ (A Child) v Burton Hospitals NHS Foundation Trust [2018] EWHC 1227 (QB) was a reminder that the opinion of a single joint expert (SJE) is not binding on the Court. The case highlighted the need to consider your expert evidence carefully, and that the Court does need to look at the practical situation on the ground when assessing quantum.

Overview of the Appeal

  1. The Claimant sustained an injury during her birth in 2004 which caused a serious disability to her right shoulder, arm and hand. Her claim in clinical negligence against the Defendant was compromised on the basis she would receive 65% of the full value of her claim. Quantum remained in dispute with the trial taking place before Mr Recorder Murphy who went on to award the Claimant net damages of £578,276.30.
  2. At trial the Recorder had considered written and oral evidence from the Claimant’s mother, psychologists and care experts for each party and written (not oral) evidence from Professor Giddins, the jointly instructed Orthopaedic and Hand Surgeon.
  3. The Recorder mostly preferred the evidence of the Claimant’s care expert, Rachel Jenkins, over that called by the Defendant, Colin Beacock, but also at times preferred the evidence of Ms Jenkins over the evidence of Professor Giddins.
  4. The Defendant appealed on the basis it was impermissible for the Recorder in his assessment of damages to have relied upon the evidence of the Claimant’s Occupational Therapy expert where it was in conflict with that of the jointly instructed Orthopaedic expert.
  5. The Defendant argued that the Recorder’s Judgment should be set aside with respect to those heads of loss the calculation of which was contaminated by the Recorder’s mistake. The Appeal was unsuccessful, with a more detailed account of the Judgment set out below.

Practical considerations

  1. When assessing quantum, do not assume a SJE’s figures will be preferred over the other figures set down by experts. Also, theoretical knowledge of medical issues will not automatically trump a practical understanding and application of that medical condition.
  2. If a SJE does not agree with the other experts, it might be in your interests to call the SJE at trial. Conversely, you may not want the SJE to give oral evidence at trial if they disagree with your other experts, but you need to remember that their opinion will not automatically be preferred.
  3. Before seeking permission to call oral evidence from a SJE ensure that all other experts have considered and commented upon the SJE’s evidence, and vice versa. If applying to call oral evidence when filing a Pre-Trial Checklist, those comments considering the SJE views will need to be available at that time.
  4. If there are factual lay witness evidence issues in dispute, it is perhaps more likely you will want to cross-examine the SJE at trial, after cross-examination of the lay witnesses.

The Appeal in Greater Detail

  1. The Appeal was based on arguments that:
    • The Recorder’s preference for the evidence of Ms Jenkins was inconsistent with his findings as to the weight to be given to the evidence of Professor Giddins; and/or
    • Professor Giddins’ role as a joint expert and his discipline as an Orthopaedic and Hand Surgeon enjoyed such primacy as to preclude Ms Jenkins from venturing an assessment of care and occupational therapy needs which departed from the views which he had expressed in writing.
  2. In her oral submissions on behalf of the Defendant, Ms Perry QC conceded that her challenge was limited to four heads of future loss: care for the claimant, child care, “DIY, gardening etc.” and aids and equipment.
  3. Mr Justice Turner noted that in his trial Judgment the Recorder had observed:

I start this judgment with the agreed evidence of Professor Giddins. My assessment of damages in this case will use his evidence as the corner-stone for the award of damages to which I will add other evidence in order to complete that task.

  1. Mr Justice Turner noted the Recorder clearly had well to the forefront of his mind the evidence of Professor Giddins because he referred to it repeatedly and at length throughout the course of his judgment. Mr Justice Turner cited the Recorder’s summary that:

She accepted and acknowledged that her view of [HJ]’s needs were greater perhaps than it was suggested that Professor Giddins might be read to mean, but that did not divert her from her opinion and that rather reinforced in my mind’s eye that she was confident by reason of her actual experience and implementation of therapies, care regimes and treatments, even in the face of a very eminent expert such as Professor Giddins – and that had encouraged me in my overall decision that she is the correct expert certainly, in particular, in comparison to Mr Beacock.

  1. Mr Justice Turner was satisfied that the Recorder, when referring to Professor Giddins’ evidence as a corner-stone, did not intend to indicate he regarded himself to be bound rigorously to apply such evidence as a straitjacket upon the views of the other experts.

The Role of the Joint Expert

  1. The Defendant contended the Recorder was not entitled to rely upon evidence which contradicted that of Professor Giddins as a single joint expert and relied on the observation of Lord Woolf in Peet v Mid-Kent Healthcare Trust 1 WLR 210 at paragraph 17:

If there is no reason which justifies more evidence than that from a single expert on any particular topic, then again in the normal way the report prepared by the single expert should be the evidence in the case on the issues covered by that expert’s report.

  1. Mr Justice Turner stated that was only half the story, citing Clarke LJ in Coopers Payen Limited v Southampton Container Terminal Limited [2004] 1 Lloyd’ rep. 331:

All depends upon the circumstances of the particular case. For example, the joint expert may be the only witness on a particular topic, as for instance where the facts on which he expresses an opinion are agreed. In such circumstances it is difficult to envisage a case in which it would be appropriate to decide this case on the basis that the expert’s opinion was wrong. More often, however, the expert’s opinion will be only part of the evidence in the case. For example, the assumptions upon which the expert gave his opinion may prove to be incorrect by the time the judge has heard all the evidence of fact. In that event the opinion of the expert may no longer be relevant, although it is to be hoped that all relevant assumptions of fact will be put to the expert because the court will or may otherwise be left without expert evidence on what may be a significant question in the case.

However, at the end of the trial the duty of the court is to apply the burden of proof and to find the facts having regard to all the evidence in the case, which will or may include both evidence of fact and evidence of opinion which may interrelate.

In the instant case the judge did not disregard the evidence of the joint expert. On the contrary in some respects she accepted it. A judge should vary rarely disregard such evidence. He or she must evaluate it and reach appropriate conclusions with regard to it. Appropriate reasons for any conclusions reached should of course be given.“.

  1. The Defendant’s skeleton argument had sought to persuade the Court that Professor Giddins was “the only witness on a particular topic”, stating in it’s skeleton argument that “it is the function of any care or OT expert…to provide costings to give effect to that medical opinion and not to provide costings which give effect to her own opinion and to substitute her own opinion as to what the injured party can or will be able to do.”

Mr Justice Turner disagreed, stating:

  1. In the context of modern serious and catastrophic personal injury litigation, there is likely to be a panoply of expert witnesses which may include, by way of example only: orthopaedic surgeons, neurologists, neuropsychologists, psychiatrists, educational psychologists, care experts, occupational therapists, speech therapists, accommodation experts, physiotherapists, information technology experts or accountants.
  2. It would be artificial in the extreme automatically to treat the evidence of each and every such type of expert as occupying non overlapping magisteria. There will, of course, be areas in which an expert in one discipline will obviously speak with far greater, or even exclusive, authority when compared to an expert in another discipline. There will also be others in which experts of different disciplines may, although from different perspectives, be capable of speaking with some significant, or even equal, authority. The extent of the overlap will vary on the facts of any given case.
  3. According to the Royal College of Occupational Therapists, the role of the Occupational Therapist in personal injury claims is “to assist the Court by undertaking an objective assessment of how the person making the claim has been affected. The Occupational Therapist will advise – and often give evidence as an expert witnesses in Court – on the rehabilitation and life-long special arrangements, care and equipment needed and associated costs. This helps the Court decide the compensation award. Occupational Therapists may be instructed by either the Claimant’s or Defendant’s lawyers; or jointly instructed by both.”
  4. In this case, the Recorder was entitled to accept, to the extent he did, the evidence of Ms Jenkins even where it was not entirely consistent with that of Professor Giddins because it was an area in respect of which both had expertise but neither had a monopoly of wisdom. In the end, where her evidence was preferred, the hands-on experience of Ms Jenkins was a tipping factor. In other areas, the Recorder either struck a balance between their respective views or preferred the evidence most closely consistent with that of the Professor.
  5. It is unfortunate in this case that neither side put the evidence of Ms Jenkins before Professor Giddins in order to find out the extent, if any, to which he considered it was inconsistent with his views and why. If either or both parties had been dissatisfied with his response then an application could have been made to call him to give oral evidence at trial. The fact that this did not happen meant that the Recorder, constrained to work with the evidential materials before him, had to resolve the issues arising between the somewhat open textured written opinions of the Professor and the opinions of Ms Jenkins, focussed and tested as they were, by cross examination. This was not an easy task but it is one which, in the event, he discharged in a commendably thoughtful and thorough way.
  6. I do not know why in this case Professor Giddins was not asked to comment on Ms Jenkins report. Perhaps it was mere oversight. Perhaps either or both sides may have felt that they had perfectly legitimate tactical reasons for deciding not to. One thing, however, is clear. The opinion of a single joint expert who is not called to give evidence does not automatically trump the evidence of other witnesses either lay or expert. As the Court of Appeal observed in Coopers Payen: “This evidence must then be weighed in the balance with the other evidence in the case and the judge will come to a conclusion based upon all the evidence.” In this case, the tensions between the evidence of Professor Gibbons and Ms Jenkins were evident from their respective reports and so it could have come as no surprise to the parties that, unless Ms Jenkins were to capitulate, the Recorder would have to make a choice. And that is precisely what he did and what he was entitled to do.
  7. Other first instance judges may well have reached different conclusions on the evidence in this case, but it is not the function of the appellate court merely to substitute its own views for those of the court below particularly where, as here, the Recorder had the considerable advantage over this Court of hearing at first hand all of the evidence.
  8. In all the circumstances, I am satisfied that the Recorder’s decision and the reasons he gave in support are unassailable. Accordingly, this appeal is dismissed.