PROVING THINGS 89: AN APPROACH THAT IS JUST DANGEROUS: ABDICATION OF THE LAWYER’S ROLE TO AN EXPERT

This is the third post today on Wright v Satellite Information Services Ltd [2018] EWHC 812 (QB). The case demonstrates an approach to a claim for damages that is simply dangerous: asserting a claim for damages where there is no  adequate evidence in support,  but simply relying on an expert report.   The safest way for a claim for damages to proceed is from the facts, with at least some firm evidential base.

“Frankly, I question whether expert evidence was required to address the issue of care in this claim.”

THE CASE

The defendant appealed a finding that the claimant had not been fundamentally dishonest.  The Schedule of Damages made a claim for future care. This claim was based on an expert’s report.

KEY POINTS

In cases of major injuries it is not unusual to defer to experts in relation to future care needs. However even in those cases there is a need to assess the question of whether the evidence in support exists. In this “moderate” injury type case.

• The judge doubted whether a care expert was, in fact, needed.
• The judge found that there was no proper explanation as to why the claimant required care.
• The claimant’s own evidence contradicted the report.
• This whole issue could have been addressed by proper witness statements being taken on behalf of the claimant.  Setting out what care had been provided and what, if any, ongoing assistance was being provided.
• The essential point is to ensure that the statements made are accurate and reflect the assistance being provided as a result of the injuries.
• Strangely the figures in the schedule differed from those in the expert’s report. There was no explanation for this.

THE JUDGMENT ON DAMAGES AND THE EXPERT REPORT

The judge considered how the claim for care came to be formulated.

1. There is an initial unsigned and undated statement from the Claimant and a similar one from his wife. It is clear that these statements related to the early months following the accident, when the Claimant undoubtedly had a need for support from his wife. The judge made an allowance for past care to cover this. There is limited specific detail of the nature and quantity of care received.

2. Chronologically, the next relevant evidence is the care report of Rachel O’Brien dated 22^nd May 2015. Like the trial judge, I am unimpressed by this expert evidence. Frankly, I question whether expert evidence was required to address the issue of care in this claim. I note that Ms O’Brien is an occupational therapist and that her report also covered a number of other heads of loss. It was perhaps justifiable to have an expert opinion to assist in quantifying the Claimant’s likely care needs following future surgery, since the Claimant and his wife would not simply be able to give evidence of a future requirement in the same way that they could detail the ongoing position. However, generally I would question the need for a formal care report to deal with a limited need for a short period post-surgery.

3. There is fairly limited detail as to how Ms O’Brien arrived at her assessment that the Claimant had required 10 hours of care up to the date of her assessment and would continue to need 6.5 hours care per week in the future. In recording what she was told by the Claimant, she indicated that he required supervision when showering. He was able to get in and out of the shower independently but was afraid of slipping. He had no difficulty with dressing or with transfers. There were some restrictions in his mobility and he had difficulty bending and was unable to kneel or squat. It was said that he could not bend to low cupboards. He could no longer do the gardening, household maintenance or wash the car. Ms O’Brien assessed the present need for personal care on the basis that it amounted to 10 hours per week and a future need for 6.5 hours with additional care being required in the event of surgery. There was no narrative to explain the reduction of 3.5 hours from her present assessment to the future requirement. It seems plain that this simply represented her estimate of the amount of time the Claimant’s wife would, on average, be engaged in providing the minor assistance identified.

4. In my judgment, the Claimant did not labour the point as far as his care claim was concerned in his further statements. In a statement dated February 2016, which was subsequently amended and re-dated April 2016, he simply stated that he still required assistance from his wife and remained unable to do domestic chores that were his before the accident. In his statement dated June 2016 he said that he still required assistance, especially with washing and that his wife still did all of the domestic chores. His wife’s statement from the same time said that she continued to do “the vast majority of the household chores”. She now did the gardening. The Claimant coped with dressing although it took longer. He still required help with showering. She said that she was concerned for the future knowing that there would be periods after surgery when she would need to “be there for him and to care for him.”

5. The claim for special damage and future loss was initially set out in a schedule dated 2 September 2015. The total, excluding pain, suffering and loss of amenity was over £350,000. This included a past care claim of £14,569 and a claim for future care of £109,050. The schedule was updated and revised prior to trial, the second schedule being dated 9 May 2015. Both documents were drafted by the Claimant’s solicitors. Each was supported by a statement of truth signed by the Claimant himself.

THE SCHEDULE DIFFERED TO THE CARE REPORT

A strange feature of this case was that figures put forward in the Schedule differed to those set out in the care report. Nobody knows why.

1. In relation to the care claim, it seemed at first blush that the schedule simply lifted the contents of the report of Ms O’Brien. However, on closer inspection, the claim for past care did not precisely mirror this expert evidence. There was no explanation for this. There was no narrative explaining the number of hours claimed for future care, the only narrative was as to the hourly rate. It might be thought that this was the wrong way round. The Claimant would have no knowledge of the appropriate hourly rate and reference could be made to the expert opinion for that. However, he was able to specify the nature and extent of the ongoing care. Indeed, when asked about this in cross-examination, his answers, given readily, were such that the judge rightly concluded that the claim as presented by Ms O’Brien could not be maintained.

2. In fact, it appears to me that the Claimant had been broadly consistent in what he had said in relation to any need for ongoing assistance. The judge accepted that his wife may occasionally do tasks for him such as reaching items out of a cupboard and that she would be present to provide support while he was showering. That fits with what the Claimant had said. The rejection of the care claim as pleaded seems to have flowed from a proper analysis of what was actually being done for the Claimant and the conclusion that this did not properly sound in damages. The judge concluded that “it is almost impossible in my view to value such occasional assistance.”

3. Read in the context of the evidence and the way in which the claim was presented in the schedule, it is clear that in finding that the claimant had not established his claim for future care, the judge was not bound to find that the claimant had acted dishonestly merely in presenting such a claim. The reason for the judge’s rejection of this element of the claim was not that he found the Claimant’s evidence to be untruthful, but rather that a proper interpretation of that evidence did not support the assessment of the care expert.