oct ewj 24 online - Flipbook - Page 87
Scarcliffe v Brampton Valley Group Ltd
by Dr Thomas Walford, Expert Evidence International Limited - www.expert-evidence.com
Mr Scarcliffe (‘S‘), the Claimant, was a tree surgeon
employed by the defendant (‘BVG‘). In September
2017 working in a Nature Reserve in Northamptonshire, and during the course of his normal duties, he
had an accident. A colleague lost control of a solid section of the tree trunk which fell on S’s back. This resulted in two transverse process spinal fractures at L2
and L3 leading to chronic pain in his back. BVG admitted liability without argument and judgment was
entered in favour of S. However the parties could not
agree on the actual quantum of damages claimed by
S. The discrepancy between the two figures was enormous with S claiming around £6 million and BVG assessing damages to be around £137,000 (excluding
those for pain, suffering and loss of amenity). One of
the main reasons for this wide margin was that the
parties disagreed on the “but for” position i.e. the
situation S would have been in had he never had this
accident, and the extent of his pre-existing conditions.
accurately reflected his disabilities and limitations,
whether Mrs. S could cope with the limited level of
care provided by S, whether S’s loss of employment
and pension should be compensated and whether the
past and future care and assistance claims were reasonable and accurately calculated.
To thine own self be true, and it must follow, as
the night the day, thou canst not then be false to
any man.”
William Shakespeare
After considering all the expert reports from both
sides, the Judge concluded that S and Mrs. S were not
credible with regard to their evidence about the pre
and post- accident situation at home which meant that
the claims for care and loss of earnings were “unsustainable”. S had exaggerated his contribution to care of
the children and housework pre-accident. He had
overplayed his post-accident disability and underplayed his physical capability. There was a failure to
reflect the true “but for” situation. Further some of the
care claims made were highly inflated. For instance,
professional carers (with the accompanying high rates)
were not necessary for menial household work. There
was a failure to correct “obvious and significant errors” –
amounts claimed to walk two family dogs were no
longer relevant when one dog had died, and the other
was old and already had access to a large garden.
Sums claimed to transport children to and from
school were found to have been calculated until the
Claimant retired when the children in question would
have been in their mid-twenties! The Judge criticized
the approach taken by experts, particularly those in
high value care cases, where there was a lack of attention to detail. Moreover, there was a lack of forensic
analysis, critical thought and questioning on the part
of the Claimant’s legal team when assessing the expert
evidence and its significance. With both sides’ eyes
being on settlement rather than trial, reports have not
been strongly challenged or tested, and often therefore cannot be sustained at trial. Mr. Justice Cotter
stated “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”.
Before the accident, S was already suffering from a
degenerative condition in his spine. His family situation was complex: his wife, a specialist midwife, also
had health issues including asthma, palindromic
rheumatism and osteoarthritis of the pelvis and hip
joints. Two of his three children were profoundly disabled, and by the time the case came to trial he had
had two more children one of whom was undergoing
investigations into his behaviour and development. A
case manager was appointed to help with S’s care and
rehabilitation needs resulting in a claim which BVG
argued did not reflect reality. S’s representatives
claimed that the chronic post traumatic pain S suffered as a result of the accident was disabling and
lifechanging. He would be unable to continue to work
and wouldn’t be able to help with household chores or
childcare. It was claimed that he also needed considerable care on a daily basis himself.
BVG argued that the spinal fractures were stable and
not at risk of arthritic changes in the future. They asserted that S would have developed chronic pain even
without the accident due to the progression of his degenerative spine and his psychological vulnerability.
The case was heard before Mr. Justice Cotter, and the
issues to be considered were whether S’s care claim
EXPERT WITNESS JOURNAL
85
O C TO B E R 2 0 2 4
