piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Getting your hands on an undisclosed expert report and more

When the other side wants to change expert are you entitled to their original expert’s reports and other documentation containing the substance of the expert’s opinion? This was the question considered in the case Allen Tod Architecture v Capita Property and Infrastructure Ltd ([2016] EWHC 2171). Unsurprisingly the claimant in that case resisted disclosure on the grounds that the documents and reports sought were privileged. The claimant had grown exasperated by his expert’s delays and shortcomings and so turned to an alternative expert. At paragraph 32 of his judgment the judge set out the authorities and principles to be applied when considering whether to grant permission to a party to change expert:  (1) The court has a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence (2) In exercising that power or discretion, the court may give permission for a party to rely on a second replacement expert, but such power or discretion is usually exercised on condition that the report of the first expert is disclosed (and privilege waived - see Vasiliou v Hajigeorgiou [2005] 1 WLR 2195) (3)  Once the parties have engaged in a relevant pre-action protocol process, and an expert has prepared a report in the context of such process, that expert then owes a duty to the Court irrespective of his instruction by one of the parties, and accordingly there was no justification for not disclosing that report as a condition for changing expert (see  Edwards-Tubb v JD Wetherspoon plc [2011] 1 W.L.R. 1373 – a PI case)  (4) The court's power to exercise its discretion whether to impose terms when giving permission to a party to adduce expert opinion evidence arises irrespective of the occurrence of any ‘expert shopping’. It is a power to be exercised reasonably on a case-by-case basis, in each case having regard to all the circumstances of that particular case.   (5) The court will require strong evidence of ‘expert shopping’ before imposing a term that a party discloses other forms of document than the report of expert A (such as attendance notes and memoranda made by a party's solicitor of his or her discussions with expert A) as a condition of giving permission to rely on expert B (see (BMG (Mansfield) Ltd v Galliford Try Construction Ltd  [2013] EWHC 3183)  In the case of Allen Tod itself the judge found that there was no real reason for making a distinction between the expert’s final report, draft or provisional reports or other documents setting out his opinion: neither would have been discloseable if the expert had remained the claimant’s expert. He ordered disclosure of the original expert’s notes and preliminary report as a condition of permitting the claimant to rely on the new expert and he also ordered disclosure of any document in which the original expert had provided his opinion. To the extent any other material was contained in any such document, it was to be redacted before disclosure.

Foreign Law in the English Courts

A number of the English lawyers who conduct PI litigation in cross-border cases have warned that the full implications of the Rome II Regulation (864/2007) – and the impact that it has on the assessment of damages awarded to English Claimants by English Judges – have yet to be felt. By way of recap, Rome II provides (in Article 15(c)) that once the applicable law of the tort has been identified it will apply (among other things) to the existence, the nature and the assessment of the damages to which the Claimant is entitled. In other words, (and by contrast to the previous position under the Private International Law (Miscellaneous Provisions) Act 1995) Rome II extends the reach of the foreign applicable law beyond the identification of heads of recoverable loss and into the assessment of damages process itself. This means a much greater role for foreign legal experts in the English Courts and it also means that English Judges may find themselves confronting (on a regular basis, given the volume of EU RTA claims in the English jurisdiction) vexed foreign law issues which have not been clearly resolved in the foreign jurisdiction from which they derive. In this sense, an English Judge may be called to determine (if you like “to make”) German/French/Lithuanian (delete as appropriate) law. Soole J confronted a dilemma of just this kind in the very recent case of Syred v PZU SA [2015] EWHC 254 (QB) (12.2.16): a PI claim by an English Claimant against a Polish insurer Defendant in respect of an RTA in Poland (to which the English Court applied the law of Poland). One of the issues confronting the Court was the assessment of (what we would call) general damages for pain, suffering and loss of amenity. Polish law provided no fixed scales or guidelines for such damages, but there was evidence that Polish Judges tended to use the non-pecuniary elements of a table or tariff published in an Ordinance by the Polish Labour Ministry. So far, so good, but the additional expert evidence was that the Polish Supreme Court had criticised the use of the Ordinance in this way. Despite this, the Polish lower Courts had continued to use the Ordinance and the Supreme Court had failed to provide an alternative method of calculation of such damages. What was the English Judge to do? The use of the Ordinance was (per Polish Supreme Court) unlawful where it was the sole method of assessment of general damages, however, it was a continuing convention of the Polish Courts to have regard to the Ordinance (in the "overall" assessment process) and it was, therefore, permissible for the English Judge to have similar regard in assessing damages (see, Wall v Mutuelle de Poitiers Assurance [2014] 1 WLR 4263 (CA)). Soole J went ahead and assessed damages accordingly. This looks like a pragmatic solution: after all, the Judge has to find some means by which to make the appropriate award. However, it also looks like an English Judge has resolved an issue of Polish law that the Polish Courts have yet wholly to resolve for themselves. One wonders whether Soole J’s decision will have any precedent value in Poland?

Daniel v St George's Healthcare NHS Trust & London Ambulance Service: a human rights cautionary tale?

  Daniel v St George’s Healthcare NHS Trust  and London Ambulance Service [2016] EWHC 23 (QB) Introduction Edward Bishop QC has successfully defended an NHS trust and the London Ambulance Service against claims under the Human Rights Act 1998 brought by the foster family of a man who died of a heart attack in Wandsworth Prison.  The judgment deals with the legal test for liability, causation and victim status.     The central allegation was that there was culpable delay in the attendance of paramedics caused by nursing error and an insufficiently flexible ambulance triage system.  The judge rejected both allegations on the facts and clarified the law on causation in cases of death in custody from natural causes.  She also dealt with “victim status” under the HRA, ruling that the deceased’s foster mother was entitled to bring a claim but his “foster brother” was not. Background James Best (“JB”) was a prisoner on remand at Her Majesty’s Prison (HMP) Wandsworth when he died from natural causes on 8 September 2011. He suffered a myocardial infarction (a heart attack), as a result of a ruptured plaque in the coronary artery, which caused cardiac arrest and death. He was only 37. He had no previous history of heart disease and it is likely that the plaque was ruptured by over-exertion in the prison gym. The First Defendant (“St George’s”) is a National Health Service (“NHS”) Trust responsible for the provision of primary health care within HMP Wandsworth. Doctors and nurses employed by the First Defendant in the Department of Primary Care at HMP Wandsworth tried unsuccessfully to save JB’s life on the day of his death. The Second Defendant (“the LAS”) is a NHS Trust responsible for the provision of ambulances within the London area. HMP Wandsworth is within its catchment area. On 8 September 2011, an emergency call for an ambulance for JB was made, but he was dead by the time the ambulance arrived. The central allegations were that the nurse who attended on JB in his cell failed to request an ambulance quickly enough, and further that there was unnecessary and unreasonable delay in the dispatch of an ambulance by the LAS. The Claimants had a close relationship with JB which began when the First Claimant fostered JB for 3 years when he was a teenager, between 1988 and 1991. The Second Claimant is the First Claimant’s biological son, and described JB as his foster brother. The Claimants have brought their claim for declarations and damages under the Human Rights Act 1998 (“HRA 1998”), alleging that the First and Second Defendants, as public authorities, acted in breach of Articles 2 and 3 of the European Convention on Human Rights (“ECHR”). Violation of Articles 2 and 3 Mrs Justice Lang set out the appropriate legal test to be applied when considering whether or not there had been a breach. She reiterated the guidance: “I remind myself that the test to be applied is whether the Defendants did “all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge” (Osman at [116]). In Rabone, Lord Dyson considered that an “immediate” risk was one which “present and continuing” (at [39]). He added, at [43]:   “The standard required for the performance of the operational duty is one of reasonableness. This brings in “consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available”; per Lord Carswell In re Officer L [2007] 1 WLR 2135 , para 21.   The ECtHR and the domestic courts have emphasised that the operational duty must not be interpreted in a way “which imposes an impossible or disproportionate burden on the authorities” (Osman at [116])”   On causation, and having considered the evidence, the test was: “the legal test of causation is whether there was a failure to take reasonably available measures which could have had a “real prospect of altering the outcome”. Put another way, the Claimants have to establish that JB “lost a substantial chance of avoiding the outcome”.”   The court heard extensive evidence, not just from the actual persons involved in the immediate aftermath, but also from medical experts who gave evidence on the chances of survival following such a heart attack. Careful consideration was given to transcripts of the 999 call-outs, and the exact timing of those calls. The criteria and policy of the ambulance service was scrutinised.   Mrs Justice Lang was emphatic in her dismissal of the claims of breach. She did not consider that the “Claimants have succeeded in establishing, on the balance of probabilities, that, even if [the nurse at the prison] had called an ambulance earlier, or LAS had dispatched an ambulance sooner, that there would have been a “real prospect of altering the outcome” or that JB “lost a substantial chance of avoiding the outcome”.   As for the claims brought under Article 3, the Judge said: “The claim under Article 3 was unarguable, in my view. [the prison nurse] acted promptly, reasonably and professionally and did all she could to save JB’s life. There was no unreasonable delay in calling an ambulance. The LAS handled the emergency call in accordance with their procedures which were required to ensure that a limited resource of emergency vehicles and personnel were allocated fairly within the community according to priority need. ” It certainly did not amount to “inhuman and degrading treatment”.   Victim status   Both Claimants brought claims alleging that they were “indirect victims”. Mrs Justice Lang considered the law on victim status, and set out the relevant test:   “In my judgment, the likely approach of the ECtHR in determining the status of the Claimants in this case would be to consider all the facts and circumstances to assess: ·       1. the nature of the legal/family relationship between the Claimants and JB; ·       2. the nature of the personal ties between the Claimants and JB; ·       3. the extent to which the alleged violations of the Convention (1) affected them personally and (2) caused them to suffer; ·       4. involvement in the proceedings arising out of JB’s death.”   On applying that criteria, she was satisfied that the first Claimant was a indirect victim as she had been JB’s foster mother for three years, leading to a longstanding parent-child relationship. JB had no other family of his own, and shortly before his death referred to himself as the first Claimant’s “third son”. Not only this, but the first Claimant had clearly suffered from acute distress following JB’s demise, and had been extremely active in the aftermath of his death.   However, the second Claimant was found not be an indirect victim. The status of “foster brother” is not recognised in UK domestic law or in ECtHR case law. There can be no question that the second Claimant suffered hugely from the loss of a close friend; but this alone is not a sufficient basis on which to found a claim.   The claims were dismissed.

Stroke Caused By Beauty Facial Case Settles

Claims against negligent beauticians and the like are not altogether uncommon. The injuries tend to be dermatological in nature consequent of some allergic reaction to an untested product. But who would have thought it possible, let alone likely, for someone to suffer a stroke as a result of a beauty facial treatment? Tragically that is what happened to Elizabeth Hughes after her visit to the spa at the Eastwell Manor Hotel. What should have been a weekend treat resulted in a serious stroke that left her disabled for life. Her claim, which otherwise would have been tried in the High Court this week, settled for an undisclosed amount. How did it happen? The medical experts on both sides were agreed that the stroke occurred as a result of a dissection to the carotid artery. The dissection was in all probability caused when beauty cream was massaged onto the sides of her neck by the beauty therapist. The issue was whether she was negligent or had applied an excessive degree of force. Unlike sports injury or deep tissue massages, where there are reported cases of stroke, this was a novel situation. This type of injury had not been encountered previously by beauty therapists. Mrs Hughes who was employed by the NHS as a nurse was left significantly disabled. Her disabilities prevented her from returning to employment in the nursing sector. The case has been watched closely by the beauty industry and the press. (http://www.mirror.co.uk/news/uk-news/nurse-disabled-stroke-after-allegedly-6798935) Elizabeth Hughes was represented by Edward Bishop QC and Kiril Waite at 1 Chancery Lane, instructed by Ciaran McCabe at Moore Blatch Legal Resolve.

CPR 35.1: When is expert evidence ‘reasonably required’? (1/2)

Expert evidence is often talked of in terms of parties’ ‘rights’, i.e. to a fair trial or for equality of arms. In the field of PI and Clinical Negligence, it is taken for granted that except in the clearest of cases, the Court will admit (often gratefully) expert opinion on condition and prognosis as well as liability and causation. However, two recent decisions in different divisions of the High Court are a reminder that the Court’s powers under Part 35 are framed in terms of the power to restrict rather than permit, the use of experts.   Background   CPR 35.1 ("Duty to restrict expert evidence") provides:   "Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings."   The White Book notes (at paragraph 35.1.1) that the underlying objective is to reduce the inappropriate use of expert evidence.   The courts have taken an increasingly strict line on this, particularly following the changes to civil procedure ushered in by LASPO 2012 (the so called ‘Jackson reforms’).  In Andrew Mitchell MP v News Group Newspapers Limited [2014] EWHC 3590 (QB) for instance, Warby J considered whether it would be appropriate to admit expert evidence:   "CPR 35.1 imposes a duty on the court to restrict expert evidence to that which is reasonably required. I do not, however, read this as imposing a test of absolute necessity. A judgment has to be made in the individual case, and it has to be made before the evidence is heard and evaluated. My conclusion was that evidence which it is credibly said could conclusively determine the single most important issue in the case meets the criterion in the rule."   British Airways Plc v Spencer and (and ors) [2015] EWHC 2477 (Ch)   In British Airways Plc v Spencer and 11 others (present trustees of the British Airways Pension Scheme) [2015] EWHC 2477 (Ch), the Deputy Master refused BA permission to rely on expert evidence. He held that ‘various points raised in the pleadings’ on which BA suggested expert evidence would assist were, in fact, ‘eminently capable of being determined by the judge at trial as issues of fact and law without the assistance of expert evidence...’.  BA appealed.  The appeal succeeded in part. Warren J encouraged courts to consider applications to rely on expert evidence in the following way: Whether, looking at each issue, expert evidence is necessary to resolve it. If it is necessary (not just helpful), it must be admitted. If the evidence is not necessary, whether it would assist the court in resolving the issue. If it would be of assistance, but not necessary, the court could determine the issue without it. Whether (in circumstances where the evidence would be of assistance but not necessary), in the context of the proceedings as a whole, expert evidence on that issue is reasonably required to resolve the proceedings (taking account of factors such as the value of the claim, the likely impact of the judgment, where the costs will fall, and the possible impact on the conduct of the trial).    Although the decision was fact sensitive, the court identified the following points in favour of allowing expert evidence:    The ‘very large’ financial implications of the decision for BA meant that it should be entitled to advance its best case. It would be undesirable to ’tie the hands of’ the trial judge. If the trial judge concluded that expert evidence would not assist, then he could decline to receive that evidence. The fact that BA would bear the costs of the expert evidence whatever happened, and that the trustees would bear no financial risk.    The full judgment is available at http://www.bailii.org/ew/cases/EWHC/Ch/2015/2477.html

Sherlock Holmes in the Court of Appeal

"How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?”    The Sign of Four begins with a bored Holmes mired in cocaine addiction, much to the disquiet of Dr Watson. A young woman appears. She has a mystery that needs solving. Holmes solves it. He is cured from his addiction and, by the end of the book, the young woman is set to become Mrs Watson.    Amidst all the action comes the pronouncement quoted at the start of this post. It has become one of Holmes’ most enduring dicta on the science of deduction; so enduring, in fact, that his deer-stalkered head was reared in the Court of Appeal last month. The case was Graves v Brouwer [2015] EWCA Civ 595. It concerned a house fire, but the principles are of general application to many cases where a court is obliged to wrestle with competing theories as to causation.    Mr Brouwer and Ms Graves were next-door neighbours. Mr Brouwer was an odd man: he described himself as controlling to the point of being “anal”, a description the judge was happy to adopt. One day he decided to dispose of a small quantity of papers by burning them in the passage by the side of his house. He set them alight and then doused the ashes with a hose. Shortly thereafter, Ms Graves’ house caught fire. In due course she brought a claim against Mr Brouwer, alleging that the fire he started had somehow spread to her house.    Both parties instructed experts. They agreed that the chances of an ember containing sufficient residual energy to start a fire escaping from Mr Brouwer’s passageway and travelling to the eaves of Ms Graves house’ was small. However, the other possibilities were also not particularly attractive. One that was mentioned was “anting”, i.e. birds picking up smoldering cigarette ends and transporting them back to their nests. But there was no positive evidence of birds nesting under the eaves of Ms Graves house. The only other theory that was posited was that persons unknown had deliberately set fire to Ms Graves’ house, i.e. arson.   During cross-examination, Mr Brouwer’s expert was asked whether, if the court took the view that arson did not cause the fire, then on the balance of probabilities, the fire started by Mr Brouwer had to be the cause of the fire in the Claimant’s house, even if improbable. He replied in the affirmative.   The trial judge held that, but for the expert’s concession in cross-examination, she would have been minded to dismiss the claim on causation. But, having rejected the arson theory and the concession having being made, she felt compelled to find for the claimant on causation. She went on to find, however, that Mr Brouwer had not been negligent in the way he has carried out the “burn” and so the claim failed anyway. Both parties appealed. Ms Graves appealed the finding of negligence; Mr Brouwer cross-appealed the finding on causation.   The Court of Appeal took the opportunity to conduct a helpful exposition of the correct principles from the authorities, stretching back to the case in which Holmes made his first appearance in this field, namely The Popi M [1985] 1 WLR 948. That case was about a ship had been lost at sea. The trial judge was Bingham J (as he then was). The House of Lords held that he had fallen into error in deciding the case on causation because he had (albeit implicitly) translated Holmes’ dictum too willingly into a legal context.   What works in a fictional detective story does always not work in court of law. In practice, it is rare to be able eliminate all other possibilities. Some may exist but not have been suggested to the court; others will have been suggested but it will be impossible to eliminate them entirely due to deficiencies in the evidence. So it is incumbent upon a judge to step back and ask themselves whether a particular cause is more likely than not to be the correct one. The exercise is not one of identifying the least unlikely cause and then declaring that the correct one. If, having heard all the evidence, the judge remains of the view that the causal mechanism which establishes the claim is improbable then the claimant has failed to discharge the burden of proof and the claim must fail.    In Graves v Brouwer the Court of Appeal held, applying The Popi M, that the judge had been wrong to place the reliance she did on the expert’s answer in cross-examination. It went further. The question, it said, should not have been asked at all because it invite him to express a conclusion of question of mixed fact and law which it was the task of the judge to reach. The judge had, as a result, fallen into the same error as Bingham J in The Popi M by applying the Holmesian dictum too literally. She should have asked herself whether, all things considered, a flying ember from the fire started by Mr Brouwer was more likely than not to have caused the fire. She had not done so and hence had misdirected herself. So the Court of Appeal allowed Mr Brouwer’s appeal on causation. (It also, incidentally, upheld the judge’s finding on negligence for good measure). Judges may think they know all they need to know about probability because they apply the balance of probabilities every day. But if a judge as capable as the late Sir Thomas Bingham can get it wrong then any judge can get it wrong. Graves v Brouwer is a useful case to use if you want to ensure that they get it right.

Scrutiny of Medical Evidence & Physiotherapy Charges in low-value PI cases

I recently acted for an insurer in a routine low value personal injury case (to which QOCS applied) which had an unusual twist.   The claimant claimed damages for neck injuries sustained in a road traffic accident. He signed the Particulars of Claim which were vague as to the description of his injury, but which made reference to an appended medical report. The medical report was of the lamentably short “tick box” variety and concluded that the claimant had sustained a “soft tissue neck injury which resolved in around five months”. At the time of the examination by the GP expert around three months post-accident, the claimant complained of some ongoing symptoms.   Well, the Claimant’s social media persona begged to differ. The Defendant’s online sleuths obtained evidence that the Claimant actually undertook a half marathon a few days post-accident and an ‘Iron Man’ a few weeks after that. This was at a time when the medical report suggested that the Claimant’s symptoms were most acute (“moderately-severe” – whatever that means!).   The Claimant submitted a Notice to Discontinue.   His solicitors came off the record as acting for him.   The Defendant applied to have the Notice of Discontinuance set aside.   On the day of the listed hearing, the Defendant’s solicitors received a remarkably candid witness statement from the Claimant, who had procured the services of a direct access counsel. This expressed a great deal of regret for what had occurred and made a large number of serious allegations against the claimant firm of personal injury solicitors including: that the firm aggressively pursued the Claimant to encourage him to litigate when he was reluctant; indeed, that the firm “reminded” him that he may have sustained an injury despite his being unaware of it at the time and/or drawing any causal link with the index accident; that despite the Claimant telling the firm that his injury resolved in “about one week” she was pressured into attending physiotherapy sessions; the said physiotherapy sessions were arranged by the solicitors without any reference to any medical opinion; and he was persuaded to sign the Particulars referencing the medical report despite knowing the conclusion of the doctor therein to be incorrect. (This does not explain the complaints of ongoing symptoms however!).   The Claimant settled with the Defendant insurer with a Strike Out on the grounds of Abuse of Process by consent ant the payment of costs, however the case throws into an unpleasantly harsh light the tactics which many who may represent insurers and indeed the insurers themselves have long since suspected are employed by some less scrupulous law firms.   The lesson for such firms is of course obvious, but those for legal professionals representing defendant parties can be distilled thus in cases where the medical evidence appears formulaic (i.e. in the majority of routine Fast Track cases, particularly now costs for the provision of such evidence have been limited by the CPR): defendants should be less prepared to accept the conclusions of medical professionals as face value; claimants ought to me more rigorously cross-examined on the duration and significance of their symptoms; charges for physiotherapy charges should be more stringently scrutinised. These frequently are “evidenced” by invoices made out to the solicitors. Without further evidence of under what mechanism the claimant party is expected to meet these, they are arguably unproven losses. This may raise consumer credit points of course and potentially wider issues in cases where it transpires there is a connection between solicitors and physiotherapy providers. In my experience it is not unusual for the claimant to deny receiving such treatment or as many sessions as claimed for; the chronology also should be more carefully looked into. Perhaps Part 35 Questions should ask when was physiotherapy recommended and by whom? If it was the (medically-unqualified (and often formally legally-unqualified) “solicitors”, can the fact that a subsequent medical report makes reference to this in the “treatment received” section, undermine such a report or seriously be said to pertain upon its conclusion?

Car vs Cyclist: Apportionment of liabilty

Fenella Sinclair (A protected person by her litigation friend & daughter) v Rachel Joyner [2015] EWHC 1800 (QB). The Claimant was cycling along a rural road. She was in the middle  of the road, standing on her pedals. She was not wearing a helmet. The Defendant was driving her car along the same road in the opposite direction. She had just come around a bend when she saw the Claimant. She had not been travelling very fast before the bend and she immediately slowed down to around 20 mph. That was the speed she was travelling when she passed the Claimant. Her evidence also was that she was as far over to the nearside of her lane as possible. As the car and and the bike passsed one another their wheels collided.  The Claimant lost control and fell.  She suffered multiple injuries, including a severe brain injury. She was left with a permanently impaired conscious level. The trial was liability only. The Claimant's case was that the Defendant had not kept a proper look out and had failed to properly assess the hazard presented by the Cliamant who was in the middle of the road stadning on her pedals. The Defendant maintained that as she approached and past the Claimant she was driving slowly and appropriately. She reasonably considered the Claimant to present a hazard which required her to do no more than slow down and drive past her. The Claimant lost control of her bike and deviated unexpectedly onto the Defendant's side of the road so that contact occurred. She (the Defendant) was not responsible for that. Mrs Justic Cox held: 1. The courts must not fall into the trap of imposing a counsel of perfection on car drivers. 2. Nevertheless, cyclists are amongst the most vulnerable of road users. The Highway Code expressly says so and advises car drivers to give them plenty of room. 3. The Claimant was on her side of the road but only just. She was also standing on her pedals. The evidence suggested that she was grimacing or loooking uncomfortable. 4. In all the circumstances, a reasonably prudent driver would have appplied the brakes immediately and stopped to allow the Claimant to pass safely. The Defendant did not do that and primary liability was therefore established against her. 5. In terms of contributory negligence, the Claimant should not have been riding in the middle of the road. Her conduct in doing so materially contributed to the damage and was negligent. 6. In assessing apportionment: "The causative potency of the motor vehicle is highly significant in assessing apportionment. There was a risk of very serious injury to the Claimant in this case if the Volvo were to collide with her...the appropriate apportionment of fault for the Claimant in this case is 25 per cent" 7. The Defendant had pleaded that failure to wear a helmet was contributorily negligent. It was not explored in evidence, however, and was not addressed in the Defendant's closing submissions. The judge said that there was no medical evidence adduced to show that failure to wear a helmet had made the injury worse. The allegation was therefore rejected.   Comment This strikes me as placing really quite an onerous burden on drivers. After all, the Claimant was in the middle of the road, on her pedals and approaching a bend. The Defendant was not speeding, she slowed down and she was as far over to the nearside as possible. To suggest that she ought to have stopped completely seems too high a requirement. The case is also worth a read because it involved live evidence from the parties' accident reconstruction experts. The Defendant's expert appears to have been so poor in evidence that, ultimately, counsel did not rely on him. The judge thought this was wise and was critical of his report and his oral evidence.   Sophie Mortimer

Expert evidence in road traffic cases

Is the evidence of an expert in cycling safety reasonably required in a personal injury claim arising out of an accident which the claimant alleges was caused by the highway authority’s breach of duty (in respect of maintenance, layout etc)? At a Case Management conference in the case of Allen v Cornwall Council [2015] EWHC 1461 the District Judge gave the claimant permission to rely on such evidence to deal with allegations of contributory negligence made by the defendant. He refused to grant the defendant permission to rely on its own evidence.  In the case of Liddell v Middleton (7th July 1995, Unreported), the Court of Appeal gave guidance as to the admissibility of expert evidence in road traffic claims. Stuart-Smith L.J. said that in such cases the function of the expert is to furnish the judge with the necessary scientific criteria and assistance based upon his special skill and experience not possessed by ordinary laymen to enable the judge to interpret the factual evidence of the marks on the road, the damage, or whatever it may be. What he is not entitled to do is reach conclusions on facts or give his opinion on whether there was a breach of duty. In Liddell the Court of Appeal found the ‘expert’ had overstepped the mark and given evidence which was entirely irrelevant and inadmissible. The defendant in Allen appealed the District Judge’s order and the case was heard by Green J. He would not interfere with what was a case management decision of the district judge. Green J found that the district judge was addressing a threshold issue as to whether the evidence should be admitted for the purpose of case management but, he had made it clear it was without prejudice to any more mature and considered view which a trial judge might take. He had not given the defendant permission to have its own report because it might see the expert evidence of the claimant and decide that it wanted to abandon allegations of contributory negligence altogether. Green J held that the district judge had not seen the expert’s report at the time he made his decision and therefore he was not in a position to assess its content; he took account of the fact his decision would not bind the trial judge. Green J thought that the facts of the case were somewhat unusual (as it was not a case of a collision with a pedestrian or another vehicle but one involving the condition and layout of the highway). He did not rule on the admissibility of the evidence but thought the judge had not acted outside the generous ambit afforded to a judge exercising his case management powers. Green J acknowledged the ‘practical force’ of the defendant’s complaint that the judge should have required the report to be prepared and produced before granting permission. Indeed the defendant’s suggestion that this would have been the appropriate course was commended as ‘sensible’. It is notably the course commended by the Court of Appeal in Casey v Cartwright in the context of low velocity road traffic accident litigation. But Green J did not think the judge had erred in not adopting this approach. This case raises an interesting question as to when exactly the threshold is reached for the granting of permission for expert evidence at the case management stage: when is expert evidence ‘reasonably required’ (CPR 35.1)? In Casey the question was whether, once the judge had seen the expert evidence, the issue itself had a ‘real prospect of success’. Liddell v Middleton and the decision in Allen tend to suggest that at the case management stage the question is no more than whether it is arguable that the evidence is admissible - the final decision rests with the trial judge. The questions the expert was to examine included where a cyclist should be positioned on a carriageway and whether he was cycling too fast or should have dismounted where visibility was poor. Do such questions require expert evidence? If so, why not in cases involving motorcycling, lorry driving and other modes of transport which may be outside the experience of a trial judge? It will be interesting to see what the trial judge decides. In the meantime it is striking that, at the appeal, Green J gave the defendant permission to rely on its own expert evidence before it had seen the evidence of the claimant. Draw what conclusions you will… (Ian Miller represented the defendant on the appeal)