EXPERT WITNESSES: HANDING THE JUDGE AN UNSORTED MEDLEY OF DOCUMENTS MAY NOT GO DOWN TOO WELL

 There was one aspect of the evidence mentioned in the judgment Morrow v Shrewsbury Rugby Union Football Club Ltd [2020] EWHC 379 (QB) Mrs Justice Farbey that was somewhat unusual.  An expert handed the judge a “file of documents” to support their opinions – this was not of great assistance.

THE CASE

The claimant had been injured when a rugby post fell upon him when he was watching a rugby game.  Liability was admitted however the issue of causation was very much in dispute.   Both sides called a number of experts. The judge was considering the evidence of the orthopaedic surgeons.

THE JUDGMENT ON THIS ISSUE

The judge was considering the evidence of the orthopaedic surgeons called by both sides.

1. Both consultant orthopaedic surgeons (Mr Saeed Mohammad for the claimant and Mr TR Redfern for the defendant) agreed that the blow from the rugby post caused a soft tissue injury at the neck without a structural bony injury. There was dorsal but not lumbar spine tenderness recorded. Problems reported by the claimant after the accident relating to pain from his left foot, gout in a toe, Freiburg’s disease, hamstring tendinitis and forearm tendinitis were not related to the trauma sustained in the accident.

2. Mr Redfern does not accept that the claimant has any ongoing disability as a consequence of the accident and does not accept that post-accident musculoskeletal complaints were related to the accident. Mr Mohammad believes that even symptoms that post-date the accident may be related to it and that, in any event, the claimant has developed a pain syndrome. He takes the view that the claimant is disabled by ongoing problems in the neck and lower back which can be wholly attributed to the accident. His disability means that he is disadvantaged in the labour market.

3. Mr Mohammad provided me with a file of documents to support his opinions. While I appreciate his own efforts, I doubt the forensic utility of this approach: it is a matter for counsel to draw the court’s attention to the relevant evidence. I have not derived assistance from the medley of documents (which were not sorted or put into context by anyone). The issue of pain syndrome loomed larger in Mr Mohammad’s evidence than in the pleadings. I am not persuaded that Mr Mohammad has the expertise to give his opinion on matters outside the field of orthopaedic surgery. At the end of his evidence I was left in some doubt as to whether he attributed post-accident pain to organic or psychological causes, or a mixture.

4. The Joint Report suggests that the different views of the experts may stem from their different perspectives. Mr Mohammad is a specialist spinal surgeon in a tertiary referral centre. Mr Redfern has worked in a “normal district hospital setting”. Mr Redfern accepted that he did not have the benefit of working in a teaching hospital with the large teams of professionals that would have assisted Mr Mohammad. I am not however persuaded, or prepared to infer, that the sophistication of a teaching hospital would enable an orthopaedic surgeon to gain expertise in psychology or psychiatry to the extent needed for medicolegal purposes or at least for the purposes of the complex issues in this case.

5. Where the two experts hold different views, I prefer the evidence of Mr Redfern. The claimant does not prove pain syndrome or ongoing orthopaedic problems caused by the rugby post.