Experts warned over bias and use of language in recent judgment

A high-court judge has reminded two experts of their duties in the judgment of Palmer v Mantas & Anor [2022] EWHC 90 (QB). The experts were specifically warned about the way they expressed themselves and a level of unconscious bias towards the claimant. The full judgment can be accessed from the link below, but the excerpt relating to the experts can be found below.

Simon Berney-Edwards, Chief Executive Officer, said "This is yet another reminder of the importance of the Expert Witness developing a firm understanding of their duty to the court. I would recommend any Expert who is considering undertaking Expert Witness work to look at our Core Competencies for Expert Witnesses and to ensure that they have had relevant training before accepting any instruction. The issue raised in this judgment of unconscious bias is important for all Expert Witnesses to consider. I am therefore pleased that Frederico Singarajah from Gatehouse Chambers will be covering this at our online conference on the 20th May 2022."

Excerpt of judgment from Palmer v Mantas & Anor [2022] EWHC 90 (QB) by Anthony Metzer Q.C (sitting as a Deputy High Court Judge

I wish to record my considerable gratitude to most of the experts called on behalf of both parties. Many of the issues concerning the Claimant's symptoms and the complicated inter-play between the physical, neurological and psychological consequences of the accident required sophisticated and at times cutting-edge expert evidence. The assistance obtained from six of the medical legal experts called live was of an extremely high standard and where appropriate, suitable concessions were made by those experts on behalf of the party calling them in accordance with their duties under Part 35 of the CPR.

It is however necessary to make specific reference to two experts called by the Second Defendant in more detail, as my findings in relation to how they gave their evidence is of significance in determining the extent of the Claimant's symptoms and why I preferred one expert over another within their relevant fields. I turn first to Dr Torrens. At the outset I wish to make clear that I found her to be a helpful witness who gave genuine and honest answers and who, it is important to observe, felt sympathetic towards the Claimant and accepted that she was genuine in describing her symptoms when she saw her and her mother for examination. However, I do agree with the criticism of her by Dr Murphy that her first report was "littered with judgemental and rather scathing comments". The references to the Claimant being "self-pitying" and "histrionic" (which she conceded in oral evidence is a term that she would not have used to describe a man), and the raising of "possible Social Services risk assessment" required to ensure the Claimant's unborn child was properly safeguarded, were unnecessary and inappropriate. I do accept what Dr Torrens says that she likes to use straightforward language, and the references in the report including what she described as an unhealthy over-reliance upon her mother was said out of genuine concern, but I do find that the way she expressed herself when criticising the Claimant, as previously and similarly observed about a different Claimant by Master Davison in Mustard v Flower and Direct Line HQ17P00164 1 November 2019 (unreported at Paragraph 3) went beyond language which is appropriate for an expert to employ and suggests a level of unconscious bias, even where there is a lack of belief in the Claimant's case, which she undoubtedly did find (and was entitled to do so), once she considered the Claimant's medical records and the social media evidence. I consider that Dr Torrens placed an over-reliance upon a single occasion in January 2011 in the medical records, in which the Claimant apparently drank a copious amount of wine, about which the Claimant was not able to respond, and where post-accident the Claimant had alcohol intolerance as one of her symptoms. I was surprised at the conclusion of her evidence that Dr Torrens relied upon a particular example of the Claimant failing to volunteer the fact that she may have been tired because she had been to Paris for the weekend shortly before her appointment as being an example of potential dishonesty. All the strident language she used may not necessarily be indicative of unconscious bias in circumstances where there were expressed criticisms of the Claimant. However, I find the over-reliance upon a small detail in the medical records and what the Claimant volunteered to her is concerning. When noting the absence of balance from Dr Torrens in her analysis of the Claimant's personnel record which demonstrated many positive aspects of her work record and the views of her colleagues, and also noting that it was not until she gave oral evidence did she confirm that she deferred to Dr Jacobson's analysis about the Claimant's pre-accident health and that she was presently very unwell and incapable of work, means that I found it difficult to safely rely upon her expertise where it differed from Dr Murphy because of what I perceived to be unconscious bias, as although I have found there was no intentionality in relation to the adverse conclusions and observations Dr Torrens made about the Claimant, where there were differences between her evidence and that of Dr Murphy, I preferred the evidence of the latter.

I turn now to the evidence of Dr Miller. I note at the outset the powerful observation made by Mr Woodhouse that adverse criticism of him may have "career-damaging effect". I have absolutely no desire to do that and I hope the criticism which I consider it is necessary to make can be limited to the findings in this case. Wisely in my view, Mr Woodhouse accepted that he could place no reliance upon Dr Miller's evidence and candidly accepted that in respect of the pain experts, Dr Munglani who was called on behalf of the Claimant "was more impressive than Dr Miller", though he did made submissions in relation to whether there was satisfactory oral evidence from the former expert too. He also acknowledged in his closing written submissions that "the suggestion in the Claimant's opening statement that Dr Miller did not believe the Claimant from the outset is probably reasonable. Dr Miller's evidence may have been better if he had simply accepted that proposition". In his oral evidence, Dr Miller effectively accepted that proposition. Although the Second Defendant did not place any reliance upon Dr Miller's evidence at the conclusion of the trial, his evidence was clearly relied upon by the Second Defendant when the report was served. The duty of medico-legal experts under CPR 35 and the relevant practice direction cannot be over-emphasised. It is essential that they understand that their duty is to assist the Court by providing their objective, unbiased opinion upon consideration of all material facts, including those which might detract from their opinion and are not in their best interests of the party who has instructed them see Liverpool Victoria Insurance Company Limited v Zafar [2019] EWCA Civ392. Whilst it is clearly open to an expert to disbelieve a Claimant presenting with symptoms in the context of their overall medical records and any other evidence then or subsequently available to the expert, there needs necessarily to be a strict and close adherence to their Part 35 duty which should not be departed from, either intentionally or recklessly. It is imperative that the Court can safely rely upon the expertise of the experts within their field in accordance with that duty.

In the course of his reports and oral evidence, Dr Miller accepted he was "over-zealous in his use of language from the outset … and when I re-read my reports in preparation, I winced and thought I could have been a little bit more reflective and kinder and provided a little bit more range of opinion". He agreed that he had been "probably slightly unfair" to describe the Claimant in a report commenting on surveillance evidence as being "more or less housebound". The Claimant had never asserted that, and it was never a part of the Second Defendant's case in any event. I have already indicated that the Second Defendant did not seek to rely upon the surveillance evidence at all in asserting the primary case of fundamental dishonesty. When confronted with this characterisation of the Claimant in cross-examination, Dr Miller sought to amend his assertion to "She was more housebound than most people of the Claimant's age", which conveys a completely different meaning.

Dr Miller made what I consider to be an unfair attack on Dr Allder, who had properly considered the pre-accident GP and hospital records regarding the Claimant's previous trauma and head injury which Dr Miller, to his credit, accepted, stating "This is my fault, I apologise to the Court". He further criticised Dr Allder by stating that he "Opined that all of [the Claimant's] ongoing complaints were resultant from the brain injury", which was incorrect and which he ought to have been aware of, as parts of Dr Allder's report were joined into his own report. Again, Dr Miller conceded an error and made an apology to the Court. Candidly, and again to his credit, he accepted "What I said about Dr Allder's report and how I reviewed it was simply not good enough". He also admitted he made an error in the joint pain statement with Dr Munglani, where he erroneously stated that "Dr Munglani appears to have predicated his opinion and prognosis around the severe traumatic diffuse axonal injury and the brain injury opinion of Dr Allder" whereas in fact Dr Munglani had advanced that opinion and prognosis with three alternatives which the brain injury was only one. He agreed in evidence that Dr Munglani's opinion "Was more complex".

As Dr Miller did not believe the Claimant from the outset, he did not consider the alternative case in respect of pain management, and it was only in oral evidence that he agreed with Dr Munglani's diagnosis that set out at paragraph 237 that the Claimant had "Somatic System Disorder with predominant pain". He therefore agreed there may have been amplification of the processing of the physical pain.

Dr Miller's approach to his reports is not to consider any of the Claimant's clinical records ahead of the assessment. Counsel disagreed as to whether this was common practice and I make no findings in respect of this method. What it does mean is that having taken a relatively short medical history from the Claimant in respect of her recollection and then reviewing the record and raising concerns about her honesty, there was no opportunity for the Claimant to comment on the contents of those records. Dr Miller agreed it was unlikely that she would have reviewed them before she saw him. His evident disbelief of the Claimant was reflected in his third report by using the words "Purporting to have chronic pain". There was no reference in Dr Miller's review of the social media (and surveillance evidence) of anything supportive of the Claimant's case, and there was an unfortunate, unchallenged assertion that the Claimant had made a complaint about Dr Miller's manner towards her, which she considered affected her ability to answer his questions and pointed out numerous factual inaccuracies in relation to her account. A small point of detail but indicative of such error is a reference of Dr Miller's that the Claimant attended the examination alone, whereas she in fact attended with her mother (as she did with other medical legal experts), which the Second Defendant through Mr Woodhouse accepted was an error on Dr Miller's part.

Overall, for the reasons set out above, I was troubled by the extent of departure of Dr Miller from his Part 35 duty, and I considered that it lacked the appropriate necessary balance, probably as a result of his initial views of the Claimant's credibility. In the circumstances, on matters of variance where his opinion departed from Dr Munglani's, I preferred the latter expert's evidence. Mr Woodhouse did not seek to contend otherwise.