Unsatisfactory Care Expert Evidence and Unsupportable Claims

Alex Taylor reflects on some salutary warnings from the High Court Bench

Cotter J has recently handed down judgment in Scarcliffe v Brampton Valley Group Ltd [2023] EWHC 1565 (KB) which adds to and reminds us of the guidance regarding care and occupational therapy evidence found in his earlier judgment in Muyepa v MOD [2022] EWHC 2648 (KB). As a former barrister and an author, Cotter J is steeped in experience in the personal injury arena. His words will carry weight with the wider judiciary and should be heeded by practitioners.

Both Muyepa and Scarcliffe were cases involving substantial claims for care / OT damages with care experts on both sides. A common feature of the two cases is that the claimant’s description of his care needs to the experts was substantially undermined at trial. In Muyepa, this was due to fundamental dishonesty on the part of the claimant. In Scarcliffe, Cotter J found that the claimant’s contentions did not accord with reality and were undermined by the contents of a statutory assessment of the care needs of one of his disabled children that was disclosed during the trial. The assessment showed the claimant providing a level of care to his children that was inconsistent with the level of incapacity described within the claim.

Care evidence, by its very nature, is dependent upon the claimant’s lay witness evidence and the expert medical evidence to establish the extent of the relevant incapacity. When preparing their reports, care experts necessarily have to analyse, evaluate and apply that evidence. They must do so impartially. Where there is a range of medical opinion in a case and / or a contested factual position, they should explain how the claimant’s care requirements would be affected, depending on the court’s findings. They should apply the correct principles when making recommendations for care or aids and equipment and address any known range of opinion. Muyepa and Scarcliffe demonstrate the perils that await if an expert falls below the expected standards, with the claimant’s experts in both cases receiving scathing criticism from the judge.

This article is intended to provide a short summary of the principal themes emerging from Muyepa and Scarcliffe and to act as an aide memoire for practitioners who instruct care experts and wish to avoid the sort of criticism meted out in these judgments.

The need for impartiality

In both judgments, Cotter J emphasised the need for experts to remind themselves constantly that they are not part of the claimant’s or defendant’s “team”, in light of their overriding duty to the court. Evidence must be objective and non-partisan if a just outcome is to be achieved in litigation.

Practitioners will be well aware that experts frequently fall short of the required standard of impartiality. Simply including a reminder of the CPR 35.3 overriding duty to the court within instructions is often insufficient to achieve compliance. Both Muyepa and Scarcliffe clearly illustrate that lawyers have an important role in critically analysing and challenging the expert’s opinion to ensure it is properly balanced. Simply transposing the contents of care reports into schedules or counter-schedules, however tempting that may be when it is favourable to the client, risks the evidence being undermined at trial if it is shown to be partial, that it is selective, gives undue weight to favourable evidence or does not correctly apply the relevant principles. Lawyers must address these issues as part of case preparation if they are to avoid the risk of expert evidence being undermined when subjected to cross-examination.

In Muyepa, having stressed that experts must not cherry pick the evidence relied upon, Cotter J re-iterated the need for experts to pro-actively address the available range of opinion, in the following terms:

• Where there is a contrary interpretation, analysis or view it should be set out in the report and it is a breach of the duties owed to the Court by an expert to leave such issues to be raised by an expert instructed by the other party.

Relevant principles for assessment of damages for care and aids and equipment

In both Muyepa and Scarcliffe Cotter J returned to first principles and criticised the claimant’s care experts for making recommendations which were contrary to them. Cotter J identified a 3-step process: 

1. A reasonable requirement for the care or aid / equipment

• A claimant is entitled to damages to meet his or her “reasonable requirements” or “reasonable needs” arising from his negligently caused disability¹.
• The question of what is reasonable includes a requirement of proportionality between the cost to the defendant and the extent of the benefit to the claimant². There is no entitlement to have funding for a wish list of all care and expenditure which could conceivably provide any benefits.

¹ Sowden v Lodge [2004] EWCA Civ 1370
² Whiten v St George’s [2001] EWHC 2066 (QB), per Swift J 

• A theoretical, limited or occasional need is unlikely to be a reasonable requirement.
• The interaction between care and aids/equipment should be considered. An aid may reduce a care need, or conversely the presence of carers may remove the need for an aid.
• Where care or aids/equipment confer therapeutic or pleasurable benefits, consideration should be given as to whether the claimant should be compensated for the loss of ability to undertake the activity in the award for psla, rather than recovering the cost of maintaining it. An example in Scarcliffe is the significant cost of dog walkers for the remainder of the claimant’s life, where the more appropriate approach may be compensation for the loss of ability to keep a dog, beyond the lifetime of the current pet.

2. Whether the uninjured claimant would have paid for or had access to what is being recommended in any event.

• Ordinary household items such as a lawnmower, a microwave or kitchen equipment are unlikely to be recoverable 
• The expert should consider whether the claimant would have been likely to have bought something in any event

3. Whether the claimant will actually use / receive what would be recommended as a reasonable necessity 

• A claimant cannot recover damages for an expense that will not in reality be incurred or which would not be used if the expense is incurred
• The ‘reasonable necessity’ test perhaps raises the question of how something which is truly a necessity could ever be unreasonable, but there will usually be a question of whether a need could be met or avoided in an alternative and cheaper way and, of course, one person’s understanding of the concept of necessity may not align with another person’s understanding, such that a qualification of reasonableness may have a role to play.

A change of opinion

It is clearly established that where an expert changes an opinion, such a change should be communicated to all the parties without delay, and where appropriate to the court (CPR 35 PD 2.5 and the 6th of the Ikarian Reefer principles3). In both Muyepa and Scarcliffe, issues arose whereby the evidential basis for the claimants’ care experts’ opinions changed before they gave oral evidence. Changes included:

• video footage showing a claimant with greater mobility than had been described to the care expert previously;
• a change of position by an orthopaedic expert as to whether certain symptoms were accident related;
• disclosure of a statutory care assessment showing a claimant had greater capacity to assist in the home than the care expert had been told.

In the words of Cotter J: “An expert should not step into a witness box having changed his / her view without having made this plain beforehand”. 

In practice, the ramifications of this principle are that practitioners should ensure that care experts have available all relevant factual and expert evidence at the outset and that it is taken into account. If, following disclosure of a care / OT report, the evidential basis for the opinions expressed changes due to new evidence or a change of opinion by other experts, the care expert must be informed and asked whether their opinion has changed.

This duty continues during the trial, where the risk of a shift in the evidential foundation for the care evidence is significant. In the event of such a shift, for example if the claimant or an expert makes a concession during oral evidence or a new document is disclosed (as occurred in Scarcliffe), the expert should consider the effect of the change on their opinion before giving oral evidence. If necessary, the court should be asked for time for the expert to provide a supplementary report and for the other side to consider it, before the expert is called. Cotter J stated in Muyepa: “A court will, if time is available, give an opportunity for an expert to provide a revised report/recalculation” (paragraph 302(d)).

Such supplemental reports were required in both Muyepa and in Scarcliffe, but in both cases Cotter J criticised their contents for failing adequately to address the implications of the new evidence. The lesson is that experts who unrealistically seek to maintain a position which is undermined by further evidence do themselves no credit in the eyes of the court and practitioners should encourage a realistic approach whenever there is a proper reason for a change of opinion.

Whilst not an issue addressed in Muyepa or Scarcliffe, it is readily forseeable that practitioners could be placed in a position where an expert expresses a changed opinion, perhaps in conference, which weakens a claim or reduces its value. The temptation may then be to attempt an immediate settlement of claim, perhaps before joint statements or before the expert gives evidence, to avoid revealing the change of opinion and facing its consequences. Given that the duty requires that a change of opinion is communicated to the other party without delay, a decision to conduct negotiations in the knowledge of such a change, but without informing the other side of it, is likely to be unethical.

³ National Justice Compania Naviera SA Prudential Assurance Co Ltd (“the Ikarian Reefer”) [1993] 2 Lloyd’s Rep 68

Disclosing the balance of instructions

In Muyepa, Cotter J referred to “the understandable concern a court will have as to the risks that arise when an expert’s workload (and income) is solely for one side to litigation”. He referred to the risk of a contravention of the independence principle arising from a need to maintain a source of instructions and the pressure to prepare a report which is favourable to the instructing party.

Referring to the split in instructions, Cotter J included a mandate that “Such a breakdown should be set out in any report by any expert whose income is largely if not solely derived from giving expert evidence” (see footnote 34). As such, it is clearly legitimate and indeed recommended for a party to seek this information from the other side’s experts in the circumstances identified. It is prudent for practitioners to ask their own experts to include this information rather than leaving the other side or even the judge to ask the question. By extension, an expert who accepts instructions for both sides with a reasonable balance between the two, is likely to engender greater confidence in a judge than one who has pitched their expert tent in one camp alone. There is surely a case to be made for choosing an expert who starts from a position of strength.

Single joint experts

As part of his wide-ranging critique of the common shortcomings in care / OT expert evidence, Cotter J expressed the view that the common working assumption in the fields of higher value personal injury claims and clinical negligence claims that each party will have their own expert is misplaced. As such he applied the weight of his considerable judicial influence in favour of single joint experts to address care needs, even in high value personal injury and clinical negligence claims.

It remains to be seen whether these comments will influence case management decisions in such cases going forwards. Cotter J stated that there is no principled reason against the instruction of a single joint expert. A defendant who wishes to restrain the costs of litigation and avoid polarised care reports may wish to rely on these obiter comments. In high value and complex cases, however, the parties are likely to want the ability to have conferences with their experts, which cannot be done with a SJE. Indeed, in order to ensure that the expert has met the standards set out by Cotter J in these judgments, a conference may well be an essential part of proper case preparation.

Conclusion

To quote Cotter J in Scarcliffe: “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 carefully considered and automatically stress tested against the realities of life. Anything less is inadequate”. Lawyers have an essential role in ensuring that care experts live up to these standards, that the correct tests are applied and that all relevant evidence is taken into account. Muyepa and Scarcliffe remind us that care evidence must be properly and realistically vetted at all stages up to and during trial, if it is to serve its purpose.

About the Author

Alex Taylor is ranked as tier 1 counsel for Personal Injury work in the Legal 500 and undertakes Personal Injury, Clinical Negligence and Professional Negligence work in claims involving serious and catastrophic injuries.

"Alex has a very good tactical nous. He is very approachable and great with clients, and whilst incredibly sharp, is still very personable. He is an excellent advocate and seems to be able to build a rapport with the Judge. His turnover time is excellent too." - Legal 500 2023