EWJ June 2024 web - Journal - Page 31
Are you the right expert?
Be prepared to decline instructions where appropriate. As with the liability reports, the quantum experts
must ensure the claim falls within their sphere of expertise. There may be dangers, for example, of a care
expert commenting upon a package of care if they
have had no practical experience of establishing
similar provision. That was the case in
l Medical experts will be concerned primarily with
CCC v Sheffield Teaching Hospitals NHS Trust [2023]
EWHC 1770 (KB), where Mr Justice Ritchie was excoriating of an expert occupational therapist obliged
to admit that he lacked requisite professional experience and his clinical practice had been limited to
adults rather than including paediatrics.
Experts will need to set out the key factors from the
records and what progress has been made. There may
be situations where experts will be faced with a
claimant who has no access to funds. Such claimants
will find it more difficult to trial equipment or make
the changes to their care or living arrangements,
which can be compelling evidence for the court. Experts faced with this scenario will need to rely upon
their experience as to how valuable their proposals
may be to support rehabilitation and independent
living.
medical history, and relevant entries should be set out
clearly and their relevance stated.
l Other professionals, such as care experts or
therapists, will likely have more regard to the records
obtained from the treating team “on the ground”,
such as case managers, carers, therapists and local
authorities, for example.
Presenting evidence regarding future needs
As a claimant representative, our intention is to get the
most out of an expert’s view in order to advance the
case on behalf of our client. This will usually involve
considering all eventualities: claimants may choose to
start or add to their family, move to another part of
the country, continue taking their ‘big holiday’ every
few years or experience deteriorations in their health.
Any or all of those life events will impact their present
or future needs and, it follows, the value of the claim.
It is essential that experts give their proper view of the
evidence and that their opinions are justifiable. That
means experts can expect a careful
examination of their views.
Assessment and examination
Apart from some desktop quantum opinions, much
of the expert’s view will be gleaned from their own examination or assessment of the claimant (and, quite
often, family members who live with them). Until recently, those assessments were always undertaken in
face-to-face meetings at home. That remains the gold
standard and remains essential for the care expert, for
example. However, Zoom or Teams interviews are increasingly used and can be sufficient for some fields of
expertise.
If that is second nature for the expert, the question is
then what additional evidence is needed, how should
it be presented, and how will the expert report assist
the court to come to its conclusions? As set out in the
first article in this series, a logical presentation of the
evidence is essential. A persuasive report is one that is
also easy for the judge to read. Using a summary, subheadings and, in a lengthy report, even an index will
all assist. Quantum reports will frequently involve detailed costings. They may also refer to medical literature or other sources of information. Clearly marked
and structured appendices will often be essential.
Lay witness evidence
The claimant’s witness evidence is key. A wellprepared quantum statement should touch upon all
facets of everyday life, from employment and care and
accommodation needs to hobbies and personal relationships. Experts should ensure they have the right
evidence before them. If an initial assessment has been
undertaken before a statement is completed, as sometimes occurs, the report will likely need to be updated
before it is finalised for the court, remembering that
the expert’s declaration requires confirmation that the
opinion is complete. Similarly, in CCC when there
were changes to the claimant’s circumstances, the
court resolved that it was better for the claimant to
serve (late) a second, updating witness statement
rather than have the court and the parties make do
with evidence that was around 18 months out of date.
Similarly, experts may find there is subject matter (for
example, discussion of a general features of a condition such as post-traumatic epilepsy, syringomyelia or
the risk of loss of a residual limb) that is statistically or
descriptively bulky. Those are all best contained within
an appendix. This is an effective way of retaining detail within the report while keeping the opinions
within the main report clear and concise.
Multiple experts
There is often an interrelationship between expert
evidence. For example, the care expert will need to
know the claimant’s life expectancy and what the
medical recommendations are. The accommodation
expert will need to understand how many carers may
need to live in the property or whether a home gym
is required, for example.
Whereas liability experts are invariably interested in
the past, quantum evidence is often more the art of
prediction. After all, if a claimant is 20 years of age and
has a normal or near to normal life expectancy, an expert will have to come to a view as to the most likely
outcome since there cannot be 100% certainty. For example, if the claimant can walk with a stick today, it
may be necessary to estimate the age(s) at which they
may progress to a walking frame or wheelchair.
It is perhaps an obvious point, but it is worth restating
that all experts should stay within their own field of
expertise and not pre-empt or stray into unfamiliar
territory. If an aspect of the condition and prognosis
requires a different expert, that should be acknowledged within the report. The legal team will consider
There is a debate to be had as to how much narrative
history and examination of records should be in an
expert’s report before it becomes too long and
cumbersome.
EXPERT WITNESS JOURNAL
29
JUNE 2024