PROVING THINGS 99: THE ROLE OF THE JOINTLY INSTRUCTED EXPERTS: TRIAL JUDGE COULD PREFER VIEWS OF OTHER EXPERT
The opinion of a single joint expert is not binding on the court. This is clear from the judgment of Mr Justice Turner today in HJ v Burton Hospitals NHS Foundation Trust [2018] EWHC 1227 (QB)
“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.”
“On this appeal, the defendant has fallen into error by treating the OT expert as if she belongs to a breed of therapeutic quantity surveyors who are entitled to entertain no view of their own on the levels of care and the range of equipment needed by any given claimant… counsel for the defendant was scarcely able to contain her disbelief that an OT expert should have the temerity to take a different approach on such issues from that of a consultant surgeon:”
KEY POINTS
- The trial judge was not bound to accept the matters set out in the report of the joint expert.
- It would have been a simple matter for the parties to have put the evidence of the OT expert before the joint expert and obtain his comments upon the recommendations. Neither party did so.
- In the absence of the joint expert’s comments on the OT report the trial judge was entitled to consider, and if appropriate prefer, the evidence of the OT over that of the joint report.
THE CASE
The defendant appealed an assessment of damages carried out by a Recorder. The defendant’s main argument was that the Recorder had erred in preferring the evidence of an occupational therapy expert where it conflicted with a jointly instructed orthopaedic expert.
THE DEFENDANT’S OBJECTION
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“The central objection taken by the defendant is a limited one. There were some areas of assessment in which Ms Jenkins’ views on the claimant’s predicted levels of need for support, assistance, aids and equipment and the like departed from those adopted by Professor Giddins in his written evidence. The defendant contends that it was impermissible for the Recorder in his assessment of damages to rely upon the evidence of Ms Jenkins on these issues insofar as they were inconsistent with the evidence of Professor Giddins. Accordingly, it is argued, the Recorder’s judgment should be set aside with respect to those heads of loss the calculation of which was contaminated by this mistake.”
THE JUDGMENT ON APPEAL
On appeal Turner J considered the argument that the view of the jointly instructed expert, Professor Giddins, was not determinative of the issues.
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Taking the judgment as a whole, I am satisfied that the Recorder, when referring to Professor Giddins’ evidence as a corner-stone, did not intend thereby to indicate that he thereafter regarded himself to be bound rigorously to apply such evidence as a straitjacket upon the views of the other experts. I find no internal inconsistency in the judgment in this regard.
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THE ROLE OF THE JOINT EXPERT
“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.”
“39. Mr Russell’s submissions depend to a significant extent upon the evidence of the joint expert. Mr Russell submits that the judge rejected his evidence in circumstances in which she should not have done, given that he was a joint expert. He relies upon this statement of Lord Woolf MR in Peet v Mid-Kent Healthcare Trust [2001] EWCA Civ 1703, [2002] 1 WLR 210 (at paragraph 28)…
41. Mr Buckingham…summarised his relevant submissions in this regard as follows:
(i) Generally the expert’s report will be his evidence, without the need for amplification or cross-examination.
(ii) However, in some circumstances it will be appropriate for the parties to have the opportunity to cross-examine the expert; for instance, as in this case, where the report was produced very late and the expert has not considered all the written questions that had been put to him.
(iii) The report and the expert’s oral evidence, if applicable, is then the evidence of the expert.
(iv) 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.
(v) The principles set out by Lord Woolf in Peet v Mid-Care Healthcare Trust are directed at the first three of those points. The case does not establish that the evidence of the expert must then be accepted by the court. The court must take its own view of the expert evidence in the light of all the other evidence.
I would accept those submissions…I would add these further observations.
42. 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.
43. 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.” [Emphasis added].
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The defendant would seek to persuade this court that Professor Giddins was indeed “the only witness on a particular topic” contending in its 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.”
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I disagree.
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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.
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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.
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On this appeal, the defendant has fallen into error by treating the OT expert as if she belongs to a breed of therapeutic quantity surveyors who are entitled to entertain no view of their own on the levels of care and the range of equipment needed by any given claimant. The following extract from the transcript of the trial reveals that counsel for the defendant was scarcely able to contain her disbelief that an OT expert should have the temerity to take a different approach on such issues from that of a consultant surgeon:
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“Q. …What I’ve said to you and I’m putting to you is that your recommendations are at odds with an agreed report from a qualified orthopaedic hand surgeon, who clearly says that in his experience this is what he considers she’ll be able to do. Is it or is it not the case that you don’t obviously agree with him?
A. No, I don’t agree with Professor Giddins.
Q. That’s fine. You don’t agree, you, the occupational therapist, consider that your report, your recommendations, have greater attraction than an agreed report from a professor of orthopaedic surgery. Is that your position?
A. That’s my position when I’ve looked at the activities that I would expect [HJ] to be able to complete with a child pre-school, a toddler that is mobile, a toddler that may not be co-operative, a toddler that would need to be lifted into a car.
Q. Yes, fair enough.
A. When I’ve done an activity analysis of it, yes, my opinion is different.
Q. Yes, so your view is you know better than him?
A. I wouldn’t say I know better, I’ve got a difference of opinion.
Q. Okay, fair enough. That’s all I wanted to know. Your difference of opinion is quite different from his – your opinion is different from his. So, therefore, was it the position that you looked at that and ignored it? Were you shown Professor Giddins’ report?
A. Yes.
Q. What was your reaction to it: “I’m going to ignore this, I don’t agree with it”? Did you address it in your report?
A. I’ve set out in my report why I think [HJ] would require that additional information.
Q. Did you set out in your report why you disagreed with—
A. No.
Q. —what a professor of orthopaedic surgery had said?
A. No, I haven’t set it out, no.
Q. Did you decide to leave it, therefore, and ignore it?
A. No, I haven’t ignored it. I’m aware that he—-
Q. You have ignored it. You’ve ignored what he said?”
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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.”
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Happily, this description fully accords with the experience of this court of cases in which the evidence of occupational therapists falls to be considered. It is also consistent with the “hands on” experience of Ms Jenkins which is described in her CV which is appended to her report.
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Of course, there are some topics upon which the evidence of orthopaedic surgeons and occupational therapists will not overlap. An occupational therapist is no more likely to contradict an orthopaedic surgeon on the issue of his choice of surgical instruments for any given procedure than the surgeon is likely to voice an opinion on the average life expectancy of a clos-o-mat toilet. However, there is a crossover area of expertise where the views of both have a level of validity.
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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.
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It is, in this regard, to be noted that the Recorder did not slavishly follow the recommendations and assessment of Ms Jenkins throughout his judgment. It would be disproportionate to deal with every example of areas in which the Recorder declined to accept her evidence but the following passage is illustrative of a nuanced approach:
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“63. Dealing now with the more difficult aspects of future loss and damage that I have not so far dealt with, as indicated previously I generally prefer the evidence of Miss Jenkins to Mr Beacock, but to a degree Miss Jenkins has not reflected adequately on Professor Giddins’ views relating to [HJ]’s likely abilities when it comes to child care…
65. Turning to the childcare, there is little doubt that [HJ] has an additional care need over and above that described above for care/substituted services to assist her with having children. Though I generally prefer Miss Jenkins to Mr Beacock, I do find in this regard that the Defendant’s anticipated regime is more aligned with Professor Giddins’ observations and anticipations about that need than Miss Jenkins has supposed.”
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Of course, the judgment of this court should not be taken as an encouragement to experts to stray freely outside the scope of their respective disciplines. However, there will be cases in which areas of expertise encroach upon each other and a rigid compartmentalisation is not always appropriate.
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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.
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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.
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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.