EWJ June 2024 web - Journal - Page 27
should be making sure that the schedules and counter
schedules we produce properly align with the relevant
legal principles for recovery of damages, regardless of
what the experts have opined. This point particularly
applies to claimants, as discussed below.
2) Updating Experts
Both cases remind parties of the need to keep experts
up-to-date on developments so that they have a complete picture and can consider whether their opinion
has changed. Even after the reminder in Muyepa on
this point, in Scarcliffe both the Claimant’s pain expert
and care expert were being called to give evidence at
trial without having adequately considered and addressed relevant important changes. This fell foul of
the sixth Ikarian Reefer principle.
Lessons for Claimants – Legal Principles of
Recovery
As Mr Justice Cotter put it in Muyepa: “comparatively
few personal injury/clinical negligence cases reach a hearing
where the issues of care/aids and equipment are contested, and
as a result few reminders are given by the Courts of the correct approach”. Unfortunately, in carrying the burden of
proving loss, the Claimant, his legal representatives,
and his instructed experts are especially exposed to
criticism if the incorrect approach is taken to trial.
Clearly, a failure to heed new information and to
change opinion as necessary will lead to difficult and
embarrassing cross-examination for the expert. Perhaps more importantly it may mean that parties are
approaching the case (and negotiating) on a fundamentally incorrect basis.
Mr Justice Cotter has gone to lengths within the
judgments to remind claimants of the relevant principles of recovery in care and/or aids and equipment
claims. Very briefly, the principles are that:
1) the sine qua non is the need must have been caused
by the injury;
The solution is for legal representatives to notify the
experts of any evidence which may materially alter
their opinion, and for the experts to then be tested
and pushed to ensure they are considering the new
developments objectively, providing an updated
opinion as necessary.
2) need simpliciter is not enough, it must be a reasonable requirement (i.e. no recovery if the cost is
disproportionate to the benefit);
In practical terms, this might look like the following:
(i) obtain a care report, (ii) conference with the care
expert to test their evidence and ensure they understand their duties (iii) obtain finalised medical evidence
from other disciplines (iv) further conference with care
expert to understand how matters have changed (v)
updating report as necessary (vi) draft finalised schedule. That example is without any surveillance and allegations of fundamental dishonesty which would only
add to the requirement for further conferences and
addenda.
3) when assessing reasonableness, all relevant circumstances must be considered, including whether care
might negate the need for items of equipment/aid and
vice versa; and
4) damages cannot be recovered if the loss would always have been incurred in any event e.g. buying a
new microwave, or providing care that always would
have been provided.
In both Muyepa and Scarcliffe, the care experts fell foul
of these principles.
Clearly there is a tension between that approach and
the case management directions we are used to seeing at CCMCs. We will all be familiar with the “one and
done” approach many judges take to conferences, allowing a single conference in the Expert phase and
nothing further. But Muyepa and Scarcliffe should send
a clear message, and can be relied upon by parties at
CCMC to show, that expert evidence cannot sensibly
be considered as complete with the simple report-conference-joint statement model in high-value litigation.
Even if parties have only achieved permission for the
one conference in directions, if evidence arises which
may materially alter the opinion of the experts, that
could be considered a significant development for
budgeting purposes.
In Muyepa, the care report included things such as:
a) equipment, the need for which was not caused by
the accident (for example, a chair to help the Claimant
stretch his back out in a case to do with peripheral
neuropathy of the extremities with no associated back
pain);
b) equipment that was plainly not reasonably
necessary as the cost was disproportionate to the benefit (for example, a wash dry toilet, whirlpool bath,
and body drier); and
c) equipment and expenditure that the Claimant was
going to have purchased himself in any event (such as
car breakdown assistance)
In Scarcliffe, the care report did things such as:
a) included sums for walking two dogs for 40 years
when one of those dogs had already died and the
other was 8 and was content exercising itself in the
large garden;
3) Critical Analysis for Quantum
It would be wrong to think that the problem lies
entirely with the inexperience of experts. Mr Justice
Cotter observes in Scarcliffe that, all too often, lawyers
are simply transposing the erroneous content of care
(and it equally applies to employment) reports into
their schedules and counter schedules. There is limited critical analysis or challenge, and insufficient
thought on whether the sums can properly be sustained at trial. As mentioned above, we lawyers should
be making sure that the experts aren’t getting their
reports wrong in the first place. Beyond that, we
EXPERT WITNESS JOURNAL
b) ignored the reality that grandparents would have
always provided some childcare;
c) failed to acknowledge that the Claimant’s wife
would have done many of the domestic activities
claimed but for the injury;
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JUNE 2024