EVIDENCE OF EXPERTS SHOULD BE SCRUTINISED AND NOT SIMPLY TRANSPOSED INTO SCHEDULES: “A CARE EXPERT SHOULD BE ABLE TO FULLY JUSTIFY ANY ASPECT OF CARE… WHICH THE COURT IS BEING ADVISED SHOULD BE PROVIDED”

In Scarcliffe -v- Bramton Valley Group Ltd [2023] EWHC 1565 (KB) Mr Justice Cotter sent out another warning about the inadequate state of expert reports.  Here we look at the judgment in relation to the care experts. (A copy of the judgment, on Old Square Chambers website, is available here.)

 

 

“…she had given an opinion that there were past sums due for, and should be future provision of, care (i.e. paid at carer’s rates) of 7 hours a week for life to walk two dogs (at a cost of £172.03 per week or £4,240 per annum). One dog was elderly at the time of her report and died before trial and one was noted by Mr Madar to be eight years old (and unlikely to live well in excess of another 40 years). The result was a large sum (hundreds of thousands of pounds on her figures over life) the basis for which was unclear. She had also not been made aware of the evidence given in Court by Ms Scarcliffe that that in the past 5.5 years since the accident the dogs had not been walked by anyone and that they exercised themselves in the quarter of an acre garden.”

 

THE CASE

The claimant brought an action for damages for personal injury. The claim was initially put at over £6 million. The judge awarded damages of  £275,063.03.

THE JUDGMENT ON THE CARE EXPERT EVIDENCE

The judge considered the evidence given by the claimant’s care expert. This gave rise to some concerns.

 

 

167. Ms Lewis, who gave expert evidence as to care will have found it a very
uncomfortable experience indeed as obvious mistakes and omissions were pointed
out. Significant parts of her evidence were unsatisfactory and/or ill thought through. I
find it very concerning indeed that such evidence underpinned a very large, and when
properly tested, in part clearly unsupportable claim within the schedules. Worryingly
it is not the first time that I have had very real concerns about the approach to care
evidence in a high value claim.

168. The analysis of the complex issues in this case was not sufficiently thorough and
matters which obviously required further investigation had not been followed up. At
the outset of the case I raised the issue of statutory care and the lack of documentation
in relation to it given the very large claim made in respect of Ottilie’s future care
alone (on Ms Lewis’ expert evidence £34,542 per annum). At 9.00 on the morning
that the care experts were due to give evidence I was handed 90 pages of statutory
assessments in respect of Ottilie and Alfie. This documentation should have been
obtained and analysed long before the trial.

169. The content of this documentation immediately raised very obvious and serious issues
with regards to the Claimant’s case as regards the need for care to compensate for the
lack of care which he can provide to Ottilie and Alfie. Even on brief consideration it
was apparent that the child and family assessment undertaken by Helen Wood in
respect of Ottilie, had content which conflicted with the Claimant’s evidence.

170. Mr Hunjan KC appeared to initially see no real issues arising from the content. As
was apparent to all in court I found his stance somewhat remarkable. The case
advanced before me was that the Claimant was so severely disabled by pain that he
was unable to provide any substantial care for Ottilie (he could do little more than
listen out at night). The assessment on 11th March 2022 (so a year ago) appeared to
paint a very different picture. Neither care expert had addressed it.

171. An updated document had been provided by the care experts which dealt with the
costs of rehabilitation for one year (in light of the evidence of Dr Edwards).
However, I had no indication as to how Ms Lewis in particular intended to deal with
the statutory assessment (the content provided significant support for the views
expressed by Ms Madar).

172. After examination in chief I raised this issue with Ms Lewis. I indicated my intention
was to afford her time if required to consider her position given her duties to the
Court. During the exchange I also referred to obvious matters which may require
amendment in light of the evidence given (and other obvious significant errors),
the potential combined effect of which was to reduce the claim by a very large sum of
money. I specifically asked for her opinion (which had not been set out anywhere)
about what appeared to me to be the significant contradictions between what had been
explained to the expert social worker who undertook the child and family assessment
and what had been said to her. Ms Lewis said that she “disagreed” with the statutory
assessment. I indicated that I would give her time over an extended lunchbreak to set
out what she meant by disagreement with the report (given that it was compiled on the
basis of information provided by Mr and Mrs Scarcliffe) and also to address the other
matters. I did this to allow her some time to reflect on these issues, rather than give
“off the cuff” answers, the content of which neither party would have any prior
knowledge of. This was clearly required in the interests of fairness given that the care
claim for Ottilie alone amounted to such a large amount of money.
173. Ms Lewis produced an addendum report which abandoned certain elements of her
previous opinion but which failed to address statutory assessment in any detail. This
was obviously unsatisfactory.
174. As for the expert instructed on behalf of the Defendant, Ms Madar, whilst her general
approach was far more realistic and careful, her evidence on one issue displayed a
partisan approach.
175. As I set out in Muyepa -v-Ministry of Defence [2022] EWHC 2648 (KB) at
paragraph 284

“Experts should constantly remind themselves throughout the
litigation process that they are not part of the Claimant’s or
Defendant’s “team” with their role being the securing and
maximising, or avoiding or minimising, a claim for damages.
Although experts always owe a duty to exercise reasonable
skill and care to those instructing them, and to comply with any
relevant professional code, as CPR 35.3 expressly states they
have, at all times, an overriding duty to help the Court on
matters within their expertise. That they have a particular
expertise and the court and parties do not (save in some
professional negligence claims) means that significant reliance
may be placed on their analysis which must be objective and
non-partisan if a just outcome is to be achieved in the
litigation.”
176. In my experience the content of care reports is sometimes transposed directly into
schedules and counter-schedules by lawyers with limited critical analysis or
challenge. If care experts fail exercise the reasonable skill which can expected of
those who hold themselves out as experts, and also do not fully abide by the well
known requirements of an expert within litigation, this can lead to unrealistic
valuations, which impede the just resolution of claims. This case adds yet further to
my concerns about the approach sometimes taken in compiling care reports which
underpin very high claims (and in respect of which very significant fees are often, if
not usually, charged). A care expert should be able to fully justify any aspect of care,
therapy or equipment which the court is being advised should be provided. The advice
should be very carefully considered and automatically stress tested against the
realities of life. Anything less is inadequate.

177. I shall return to the evidence of the care experts when I consider the various heads of
claim.