Reviewing your opinion and the need for better analysis and reports from Care Experts

The recent judgment by His Honour Justice Cotter in the case of Benjamin Scarcliffe v Brampton Valley Group Ltd [2023] EWHC 1565(KB) provides important direction and lessons to be learned for Expert Witnesses.

This claim arose out of an accident in 2017 where Mr Scarcliffe, a tree surgeon, suffered two spinal fractures when a colleague lost control of a solid section of tree trunk, and it fell on him. Judgment had been found in favour of Mr Scarliffe and therefore these proceedings were specifically to assess damages.

The claim detailed significant requirements going forward as two of his five children are disabled. The original claim was for £6 million, but the final award was £275,000.

The judge formed a strong view that Mr Scarcliffe had exaggerated his level of involvement in the care of the children and the running of the household before the accident and his post-accident disability. HHJ Cotter found inconsistencies between the accounts he gave to professionals including the experts in the case.

Each side had called five Experts: an Orthopaedic Spinal Surgeon, Clinical Psychologist, Pain Management, Consultant Paediatrician, and Care Expert.

This judgment includes a lot of discussion of the expert evidence and as a result, it is well worth reading the full judgment.

However, there were two key themes that come out of this judgment and these were issues previously considered by HHJ Cotter in his judgement on Muyepa v Ministry of Defence [2022] EWHC 2648 (KB) which experts will remember was similarly critical of the expert evidence.

1. If new evidence comes to light, you should take the time to properly consider the impact on your expert opinion and make sure you inform your instructing parties if there is a change in your opinion.

HHJ Cotter highlighted that the Orthopaedic Experts had identified a mistake in their analysis which led to a change in their opinion. They had quite rightly contacted their instructing parties and issued a revised statement based on their change of opinion. This meant that no time was wasted dealing with this in the trial.

Conversely, he criticised the pain experts as he was surprised that with a significant change in opinion from the Orthopaedic Experts they had ample time to set out any revised opinion but did not do so.

HHJ Cotter, asked counsel to remind their experts of their duty to notify the parties and the Court of any change of opinion and was extremely concerned that, in particular the Claimants Pain Expert and Care Experts “would give oral evidence without adequately addressing the obviously relevant and important changes in evidence which had occurred since they complied their reports.”

He noted that “Dr Rayen produced his addendum report very quickly after I had risen to allow his position to be clarified. Unfortunately, it obviously did not fully address the impact of the changes to the reports on his previously expressed views and still left many obvious issues unanswered.”

Unsurprisingly, under cross-examination, Dr Rayen conceded a view that was more closely aligned to that of the Defendant’s Pain Expert.

2. Those undertaking care reports need to be vigilant in considering the evidence and how this might shape likely care requirements going forward.

Turning to the Claimant’s Care Expert, HHJ Cotter said that the Expert:

“will have found it a very uncomfortable experience indeed as obvious mistakes and omissions were pointed out. Significant parts of her evidence were unsatisfactory and/or ill thought through. I find it very concerning indeed that such evidence underpinned a very large, and when properly tested, in part clearly unsupportable claim within the schedules.”

He highlighted a number of issues with her analysis and expert opinion, including:

• Not addressing the impact of important changes in other reports which had changed since completion of her report.
• Analysis of the complex issues was not sufficiently thorough.
• Matters which required further investigation had not been followed up.
• Providing 90 pages of additional statutory assessments to the judge on the morning she was due to give evidence which should have been obtained and analysed in advance of trial.
• Ignoring inconsistencies and conflicts between reports from professionals and the evidence from the claimant.
• Following additional time given, producing an addendum report which abandoned certain elements of her previous opinion, but which failed to address statutory assessment in any detail.
• Failed to set out needs based on what the extra care requirements would be above and beyond the support already in place and frequently duplicated care requirements meaning that submitted costs were excessive.
• Did not base costs on real life examples of what might be needed.
• Did not correct obvious and significant errors based on factual evidence.
• Did not investigate the likely provision of statutory care for one of the children.

These form important learning points for Care Experts when considering your expert analysis and opinion. The legal principle in assessing quantum is that of “reasonable restitution” requiring experts to take into account the pre-injury condition and circumstances. This is something this care expert clearly did failed to do.

HHJ Cotter said:

“In my experience the content of care reports is sometimes transposed directly into schedules and counter-schedules by lawyers with limited critical analysis or challenge. If care experts fail exercise the reasonable skill which can expected of those who hold themselves out as experts, and also do not fully abide by the well known requirements of an expert within litigation, this can lead to unrealistic valuations, which impede the just resolution of claims. This case adds yet further to my concerns about the approach sometimes taken in compiling care reports which underpin very high claims (and in respect of which very significant fees are often, if not usually, charged). 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 very carefully considered and automatically stress tested against the realities of life. Anything less is inadequate.”

This judgment provides important learning points for all experts, but particularly those engaged in care assessments. The duties of experts are quite clear and this goes to show that your credibility will be affected if you fail to follow these. We have received feedback in the past from Experts saying that their instructing solicitors have not given them all of the necessary evidence, hence why they have not addressed issues. Whilst this may be a short-coming of instructing solicitors, Expert Witnesses should be “forensic” in their approach and have a duty to request information they think may be pertinent to their opinion.