Riley et al. v TUI UK Ltd
Personal Injury, Travel Sickness
The four Claimants claimed damages for sickness said to have been contracted whilst on an all-inclusive holiday organised by TUI UK Ltd. The Defendant took issue not just with the quality of the Claimants’ evidence, but also with the quality of the evidence of the GP, Dr Vikesh Kashyap, instructed to prepare medico-legal reports in support of the claims. After a 2 day trial and a reserved judgment, HHJ Gregory in Liverpool dismissed the claims on the basis of the Claimants’ lay evidence, but then passed comment on the reports of Dr Kashyap:
“61. I found his substantive reports in relation to each of the 4 Claimants to be formulaic, superficial, lacking in substance, devoid of expert analysis and, frankly, unhelpful. His response to Part 35 questions was, for the most part, similarly unhelpful and, when asked to substantiate his own opinion and to identify the relevant range of opinion, bordered on the obstructive. Given that, (as indeed Dr Kashyap himself accepted in cross examination), a significant element in the process of medical diagnosis involves an evaluation of the patient’s medical records, it is to my mind astonishing that an expert would have a standard form paragraph in a substantive medical report in terms that a “review of the medical records was not conducted and on balance would not alter my opinion or prognosis”.
62. Whatever the content and duration of his MedCo training, he seems to have retained very little about what he termed in the witness box the “legal stuff”, and whatever materials he may have been asked to consider outlining his duties as an expert witness. His shortcomings so far as compliance with Practice Direction 35 3.2 (2) and (6) are concerned, give real cause for concern. Even at trial he did not see fit to produce a copy of the World Health Organisation paper upon which he apparently placed reliance.
63. I find it surprising that, in a case such as this where the medical diagnosis is predicated on the accuracy, completeness and truthfulness of the Claimant / patient's account and history, the revelation that the first and second Claimants had not told him about identical bouts of gastric travel illness allegedly experienced in similar circumstances within a relatively short time span barely caused him a moment's reflection before he resolutely reaffirmed his diagnosis.”
Formal complaint has been made to the GMC about Dr Kashyap’s conduct in this litigation.
David Boyle has been instrumental in TUI UK Ltd taking a closer look at the quality of expert evidence in Holiday Sickness claims. This is one of the first such cases where, notwithstanding that the Defendant has no expert evidence of its own, the Claimants’ expert has been cross-examined at trial and has not come up to proof, being round to be in breach of his duties to the Court under CPR35.