BACK TO THE CASE OF WILSON: THIS TIME THE “CHERRY PICKING” EXPERT WHO VEERED INTO A PARTISAN APPROACH

We are returning to the judgment of HHJ Melissa Clarke (sitting as a judge of the High Court) in Wilson v Ministry of Justice [2024] EWHC 2389 (KB) and staying with the theme of expert witnesses whose evidence was found wanting.  (This is not the last time we will be looking at this case. The judge had much to say about the defendant’s accommodation expert).

“It seems to me that Ms Keech in producing this report has departed from her fair and independent approach to Mr Wilson’s case as illustrated by her initial report and joint statement, to one which veers into a partisan approach.”

THE CASE

The claimant suffered serious injury when he was attacked by a fellow prisoner.  The defendant admitted negligence.  The claimant’s injuries were life threatening and life-changing.   There were seven different disciplines of expert at the trial on damages.

THE EVIDENCE OF THE DEFENDANT’S PHYSIOTHERAPY EXPERT

There was initially a great deal of agreement between the physiotherapy experts.  However the defendant’s expert produced a supplementary report having seen video evidence. The judge held that the expert was not entitled to draw the conclusions she did from that evidence. This led the judge to question the expert’s impartiality.

53.Nonetheless, when she met with Ms Bochkoltz and produced a joint statement there was a very large measure of agreement between them. Once again, her view changed in the expert report she wrote after seeing the video surveillance evidence. I deal with that later evidence below, but I am satisfied that is flawed, and for that reason I prefer Ms Bochkoltz’s assessment of what it shows. On balance, where Ms Bochkoltz and Ms Keech are in dispute, I prefer the evidence of Ms Bochkoltz.

70. The Defendant’s expert Ms Keech in her supplemental report of 19 April 2024 notes Mr Wilson’s lack of use of walking aids, use of upper limbs for support on occasion and good strength and stability in his right leg in the videos. She notes in relation to ET 04 that he mobilises with a limp and in relation to ET 07 that he presents with a mild limp with a steady gait pattern, and notes that he weight-bears on the left leg without observed clonus or shaking in both ET 07 and ET 06. She opines that Mr Wilson has “made significant improvements in his physical abilities and presentation since my assessment with him on 19 January 2023. He is observed being able to take steps outside of his home, steadily and safely, without the use of a walking aid. He is able to transfer weight to his left and right leg, and step freely, achieving hip and knee flexion without any apparent signs of clonus, muscle spasms or shaking of his limbs. He did not fix his left knee into extension and circumduct his hip to achieve foot clearance as he did during my assessment with him, and demonstrated stability and control at both of his knees and hips when walking and standing”. She describes his gait pattern as appearing “more natural and fluid” in the last video compared to the first, although acknowledges that there are still some abnormalities within his mobility and gait pattern and that the footage does not demonstrate him mobilising over longer distances and is only a snapshot of his presentation. However she describes Mr Wilson’s improvement as “remarkable especially in relation to his mobility, gait pattern and stability over the past fifteen months. He remains at risk of falls, but this risk has reduced and the evidence provided indicates that he has been able to complete stairs, to access a property on the first floor, although there is no footage to demonstrate how… well, or safely he managed this”. She reviews her recommendations for Year 1 such that she now opines that the physiotherapy and personal training recommendations made for the initial period of 12 months are no longer required, as he has demonstrated that he has made improvements without structured physiotherapy intervention, and the focus should be on supporting him with a self-led rehabilitation model. She also says that 12 month seating reviews are not required, and nor is an ankle/foot orthosis given the improvements she observed with his gait pattern.

71. I doubt that Ms Keech enjoyed her cross-examination. She accepted that in ET01 Mr Wilson is doing all he can to keep his weight off his weaker, left leg, but that she had not said so. She accepted that although she had said in respect of ET03 that Mr Wilson was walking independently without the use of walking aids, it was not possible to see how he was walking as his legs were obscured. She said in relation to ET05 that Mr Wilson shifts his weight and picks something up “without appearing unsteady“, when she accepted that in fact as he goes through the front door he loses balance and leans on the door frame. She first said that she did not think that was important enough to mention as she would expect him to lose balance at times because of his reduced sensation in his lower limbs, and then said that she had not picked that up when viewing the video, and finally said “It was not significant enough to change my view even if I had spotted it“. She further accepted that in relation to ET06, when he puts weight on his left leg, he loses his balance and his elbow shoots out to balance on the door frame, but she did not mention that, choosing instead to note that he had no clonus or shaking. She said “I chose just to summarise the main findings of my assessment” and said it was more important to note that he sustained weight on his left leg without shaking than to note he had lost his balance. This is difficult for me to accept, given that one of her conclusions following the video surveillance was that he was at reduced risk of falls, yet the short surveillance clips show on two separate occasions him losing his balance. I do not accept it. Another of her conclusions following the surveillance evidence was that Mr Wilson had reduced reliance on a self-propelled wheelchair. She was asked how she had come to this conclusion when there was no use of a self-propelled wheelchair in any of the video clips and Mr Wilson had only taken a few steps in each of those clips, and she said that she was looking at the “general picture” of how he presented at her assessment in January 2023 and how he presented in the video surveillance. Of course she did not assess him outside in January 2023 and so did not see him use a wheelchair then either, and only assessed him inside his own flat when on her own admission he walked similar distances to those which he can be seen walking in the video surveillance, i.e. a few meters. I do not consider that was a conclusion which it was fairly open to her to reach. It seems to me, although she denied it when it was put to her in different terms, that Ms Keech was cherry-picking what she mentioned and what she failed to mention in order to paint a positive and improved picture of Mr Wilson which was not one that could fairly be drawn from the video surveillance. It seems to me that Ms Keech in producing this report has departed from her fair and independent approach to Mr Wilson’s case as illustrated by her initial report and joint statement, to one which veers into a partisan approach. This, worryingly is a similar conclusion that I have come to in relation to the Defendant’s accommodation expert Mr Burton, as I will come to explain. On balance, I reject Ms Keech’s evidence in relation to the video surveillance and prefer that of Ms Bochkoltz which is in my view a more objective and fairer assessment of the surveillance evidence.

WEBINAR – EXPERTS IN THE COURTS IN 2024 11th DECEMBER 2024

On the 11th December 2024 I am giving a webinar reviewing the key cases and comments on expert evidence throughout the year (this is another hour long webinar that could easily be extended to last a whole day).

Matters to be considered include:

• Experts reporting outside their expertise
• Experts in fundamental dishonesty cases
• Compliance with the rules
• Conduct and alleged misconduct.

Booking details are available here.