In Swift v Carpenter [2018] EWHC 2060 (QB) Mrs Justice Lambert gave a lengthy judgment in a high value personal injury case. One interesting aspect of that case is the problems caused by the defendant’s expert evidence on care. An additional issue is the expert’s “interpretation” of their own notes. A statement that the claimant would not have commercial care turned out, on examination of the defendant’s own notes, to be much more nuanced.
THE CASE
The claimant brought an action for personal injury damages having suffered serious injuries, including an amputation. The defendant was her partner. The normal rule is that when a defendant provides care then that care cannot be recovered as damages. In this case the parties (more accurately the claimant and the defendant’s insurers) had entered into an agreement that the care provided by the defendant would be taken into account (this would avoid the defendant having to pay for commercial care). However nobody told the defendant’s care expert. It was only noticed shortly before the trial.
THE JUDGMENT
ii) I heard evidence from Dr Catherine Willson and Ms Barbara Scandrett on the topics of care and case management. Unfortunately, in her pre-trial reports, when addressing both past and future care needs, Ms Scandrett had, through no fault of hers, not taken into account the gratuitous care provided by the Defendant on the assumption that such care was not recoverable. As a matter of principle, she was correct. It is well established that a tortfeasor cannot benefit from his own breach. However, Ms Scandrett had not been informed by those instructing her that an agreement had been reached between the parties that the usual principle would be displaced on the understanding that the Claimant would not replace gratuitous with commercial care. The effect of her approach was that she had not brought into account any care which she considered would be provided by the Defendant. Ms Scandrett was only instructed to provide a report to make good the deficiency just before trial. Owing to her other commitments this further report was served hopelessly late (only on the evening before she was due to give evidence). Although I was asked to rule on the Defendant’s application for permission to rely on the report, before I had had a chance to hear full submissions, Mr Arney proposed that the issue be “parked” as any delay threatened to de-rail the, already tight, trial timetable. On this basis I received the late Scandrett report into evidence on the understanding that I would include my ruling in my judgment.
iii) This is that ruling. I can deal with the issue in short terms. The report was served, as I have said, very late and for no good reason. As Mr Arney pointed out to me the mistake should have been identified by the Defendant’s legal team in the autumn of last year at the latest. Since then, the Defendant has had many opportunities to rectify the mistake but delayed until the last moment to do so. All that Mr Audland was able to do was apologise to the Court. However, given the importance of the subject matter of the report and the value of the claim, I am not and would not have been (had I heard full submissions) prepared to refuse permission on lateness only. I was concerned to know whether Mr Arney would be able to deal with the points raised in the report during the currency of the trial timetable or whether he would need to re-call expert witnesses. Had I heard full argument and had Mr Arney been able to persuade me that he was not able to deal with the points or that expert witnesses would have had to have been recalled, then I would not have granted permission. However, Mr Arney informed me that he would be able to deal with the report in full without recalling expert witnesses, and this proved to be the case. I therefore give permission to the Defendant to rely on the report of Ms Scandrett of 1st May 2018. Any costs consequences are to be dealt with later.
iv) One final matter arises in connection with Ms Scandrett’s late report. She stated in that report that the Claimant had told her, during the course of her assessment interview, that she did not wish or intend to have commercial staff in the home and that the couple intended to care for Ossian themselves. Disclosure was given of Ms Scandrett’s handwritten notes of the interview which painted a rather different picture. There were a number of references to the family guarding its privacy and to the wish to keep intrusion to a minimum. In respect of caring for Ossian, Ms Scandrett noted down “The couple know how they want to live their life. They are private and do not wish interference. They like to make decisions and will instigate options. They have specific ideas about bringing up children….. they have a good friend set and have used advice etc.. don’t trust nannies generally would want personal introduction. She believes that she will know if she needs help. Likes to make own decisions”. Ms Scandrett appears therefore to have misinterpreted what she was told by the Claimant. The Claimant, although acknowledging that she was a private person, of firm views who would make her own decisions, was not stating that she would not engage commercial childcare; only that she would be cautious in her selection of the carer. I bear this in mind when considering the various elements of the claim.
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