GRIFFITHS -v- TUI IN THE COURT OF APPEAL 2: THE OTHER GROUNDS OF APPEAL: AN EXPERT’S REPORT WITHOUT REASONING IS “ALL BUT WORTHLESS”

This is the second post about the Court of Appeal decision in   Griffiths v Tui (UK) Ltd [2021] EWCA Civ 1442.  Here we look at the other grounds of appeal considered by the majority.  In particular an expert’s duty to state whether there is a range of opinion and why they prefer their own conclusions.

“Although it is true that reasoning is only referred to under CPR PD 35 para 3.2(6)(b) where there is a range of opinion, it is apparent from what I have already said and from the dicta of Lords Hodge and Reed in Kennedy v Cordia that in most cases, some reasoning is necessary in order to support an expert’s conclusion. Otherwise, it is all but worthless.”

WEBINAR ON EXPERT EVIDENCE: 20th OCTOBER 2021

This case, alongside a number of other recent cases on expert evidence, will be considered in the webinar “Expert Evidence – Understanding the Basics and Avoiding the Pitfall” on the 20th October 2021. Details of how to book are here. 

 

THE CASE

The claimant brought a case for damages for personal injury on the basis that he had suffered gastric illness whilst on holiday in Turkey. In support of his claim the claimant commissioned a report from Professor Pennington.  This was described as “short, indeed one could describe it as “minimalist”.   The report was admitted into evidence at the trial. The defendant put questions to the expert but did not call any evidence of their own, nor did they ask that the expert attend trial to be cross-examined.   The trial judge dismissed the claimant’s claim.   The claimant was found to be a totally honest witness, however the trial judge discounted the expert evidence and found that the claimant had not proven his claim.  This decision was overturned on appeal to the High Court judge, that decision was considered here. 

The High Court Judge found, in essence, that since the defendant did not call evidence to counter the expert’s evidence, and it was not challenged at trial (the report being admitted as evidence), it was not open to the trial judge to reject the conclusions of the expert report.  The defendant was successful in its appeal to the Court of Appeal, the majority in the Court finding that the trial judge was not bound to accept the claimant’s expert evidence, this is considered here. 

THE OTHER GROUNDS OF APPEAL

The Court of Appeal also considered, briefly, the other grounds of appeal. It appears likely that the Defendant would have succeeded on those grounds, had it been necessary to consider them in full.  Lady Justice Asplin stated:
72. In the light of my reasoning in relation to the first ground of appeal, it is not strictly necessary to consider the remaining grounds. However, I will set out my conclusions, albeit briefly.
    1. The second ground is that the Judge erred in law in holding that Professor Pennington’s report met the minimum standard required by CPR PD 35 because contrary to the Judge’s finding the Professor did not provide a range of opinion in response to question 4. In this regard, it will be apparent from what I have already said that I disagree with the Judge’s conclusion at [35(x)] of his judgment. It seems to me that the Professor’s answer to question 4 was no answer at all. He merely set out a statement of the approach which experts would take and stated that he did the same. It does not follow that all experts would reach the same conclusion as the Professor or where his opinion fell within the range.
    1. Given that Giardia and two different viruses were found in Mr Griffiths’ samples, the Professor himself raised the question of whether Mr Griffiths might have suffered two illnesses rather than one (but did not elaborate upon that issue at all), issues arose in relation to the incubation period for Giardia and Mr Griffiths had consumed food outside the hotel, there was obviously scope for a range of opinion. This was all the more so, in the light of the Professor’s acceptance of the various publications as reliable sources in his answer to question 10. They raised the possibility of causes of Mr Griffiths’ illness other than food and drink which the Professor did not address but in relation to which there would also have been a range of opinion.
    1. In the light of those deficiencies, it seems to me that it is no answer to say, as the Judge did, that TUI could have made an application to the court for an order requiring the Professor to provide an answer to question 4. It was incumbent upon the Professor to answer the question and his failure to do so created an important deficiency in his evidence.
    1. The third ground of appeal is concerned with whether an expert is required to provide reasoning for his conclusion. The Judge held at [36] that the law does not require it. Although it is true that reasoning is only referred to under CPR PD 35 para 3.2(6)(b) where there is a range of opinion, it is apparent from what I have already said and from the dicta of Lords Hodge and Reed in Kennedy v Cordia that in most cases, some reasoning is necessary in order to support an expert’s conclusion. Otherwise, it is all but worthless. Such a conclusion is mere common sense. If the expert is to fulfil his overriding duty to assist the court, it is inevitable that a report must contain a basis for the expert’s conclusions. This is reflected in paragraph 62 of the Civil Justice Council “Guidance for the instruction of experts in civil claims” (2014) which, amongst other things, provides that the summary should be at the end of a report “after the reasoning” and that the judge may be “assisted in the comprehension of the facts and analysis if the report explains at the outset the basis of the reasoning”. Obviously, the extent of the reasoning required will depend upon what is necessary in the circumstances.
    1. The fourth ground of appeal challenges what is described as a rigid test said to have been adopted by the Judge under which uncontroverted expert evidence must be accepted if it meets the minimum standards established by CPR PD 35. It will be apparent from everything which I have already said that I consider that a rigid test based solely upon whether the requirements of CPR PD 35 have been met is inappropriate. A failure to meet those requirements is obviously relevant to the court’s approach to an expert’s report. However, compliance with CPR PD 35 alone is insufficient to require the court to accept uncontroverted expert evidence. It all depends on the circumstances. There is no rigid test.
    1. Lastly, as I have already mentioned, I consider that Judge Truman was entitled to conclude that Professor Pennington’s evidence was insufficient to satisfy the burden of proof on Mr Griffiths in relation to causation for the cogent reasons she gave. It is not for this court to interfere, nor was the Judge right to do so. Accordingly, if the Judge’s statement at [38] of his judgment that the Professor “went a long way towards substantiating his opinion” should be understood as meaning that the burden of proof was satisfied, it seems to me that the Judge was wrong to have disagreed with Judge Truman in the way he did.
  1. For all of the reasons set out above, I would allow the appeal.