piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

The addition of a late expert: case note

Van Niekerk v Carnival Plc & Anor. [2012] LTL 13/6/12 (QB, HHJ Seymour QC)   This claim concerned further directions for a High Court trial that was listed a little over 2 months after a Pre-trial review in which further permissions for expert evidence were sought. The Claimant’s husband had died on holiday while he had been taking part in a diving excursion arranged by or through the Defendant cruise line operator. Liability, causation and quantum were all in issue. The Claimant brought a substantial claim for damages. The Claimant’s schedule of loss included, among other things, a claim for loss of financial dependency based on pension income. In correspondence, the Defendant had queried the calculation of this head of loss. Approximately, two months before the date fixed for trial of liability and quantum the Claimant applied for permission to obtain and rely on a report from an expert forensic accountant on the investment growth rates relating to the financial dependency claim. Each party had also obtained a medico-legal report on the cause of death. The Claimant's expert was a histopathologist. The Defendant's expert was a cardiologist with experience in the cardiological aspects associated with diving. The issues considered at the Pre-trial review concerned: (i) whether permission should be granted to adduce expert accounting evidence; (ii) whether directions should be given for a joint statement by the cause of death experts; (iii) the appropriate order for costs.HELD: (1) Permission was granted to obtain expert accounting evidence limited to the issue of investment growth rates - while this evidence was being sought at a late stage, it would likely assist in the accurate calculation of loss and would be helpful to the Trial Judge. (2) There was potential value in the cause of death experts producing a joint statement, despite the risk that it would simply repeat their individual reports (and in spite of the fact that they were experts in different disciplines). (3) Although the Claimant had succeeded on her application to admit accounting evidence, it had been necessary because there was a deficiency in her case which the Defendant had pointed out some months earlier, and she had sought to adduce additional evidence close to the trial and in circumstances where it raised serious questions about whether the trial could proceed in the event that permission were granted. The issue about a joint experts' report had been a serious issue. Taking those issues into account, the proximity to trial and the matters on which the parties had argued, it was appropriate to consider the hearing as a pre-trial review. In those circumstances, the appropriate order for costs was costs in the case.

The Animals Act rears its head again…

‘Oracular and opaque’ are the words Jackson L.J. uses of the Animals Act in a judgment (Goldsmith v Patchcott [2012] EWCA Civ 183) which is impeccably logical and clear. The facts are the easy bit: ‘Red’ was a horse who reared and then bucked violently, throwing the claimant to the ground and then striking her in the face with its hoof and causing her nasty injuries. Hold tight for a moment whilst we canter through the law: If you are dealing with an animal which is not of a dangerous species then you need to establish that (a) the damage the animal caused by the animal is likely to be severe unless the animal is restrained (b) the likelihood of damage is caused by characteristics of the animal not normally found in animals of the same species or not normally so found except at particular times or in particular circumstances and (c) those characteristics were known to the keeper at the time. It is a defence for a defendant if the claimant voluntarily accepted the risk (s.5(2)). The judge found that horses’ characteristics included bucking in particular circumstances when they were startled or alarmed and thus (b) above was made out. The claimant took issue: horses do not only buck when they are startled or alarmed. Jackson L.J. said that was a conclusion the judge was entitled to come to on the evidence. Strikingly however there was no expert evidence in this case. Longmore L.J. said that the appeal on (b) would have succeeded if there had been expert evidence that bucking was a normal characteristic of any horse in any circumstance. The lesson for defendants is to go to court armed with such expert evidence. However the claim failed because the judge found that the claimant had voluntarily accepted the risk of Red rearing and bucking. The claimant’s argument was that she had not voluntarily accepted the risk of the horse rearing and bucking as violently as it did. The Court of Appeal found that the claimant did not need to foresee the precise degree of energy with which the animal would engage in its characteristic behaviour. This case includes a useful review of the authorities on sections 2 and 5 of the Animals Act for anyone who practices in this field…   (Photograph courtesy of Freefoto.com)

Whiplash: Again ...

A short article in yesterday’s Guardian caught my eye (Let’s not add insult to personal injury: 20.2.12). It wasn’t the author’s commentary on David Cameron’s recent “Insurance Summit” that attracted my attention (see, Laura Johnson’s PIBLAWG piece a week ago). It wasn’t the reporting of the statistics, although it has to be admitted that these are eye-popping (the CRU apparently reports a 52% increase in reporting of motor personal injury claims – up to 790,999 claims in 2010/11. The reported statistics are not consistent, but everyone seems to agree that there has been an increase in claims and, er/um, the increase has been massive: can we believe that all of these claims are entirely genuine?) Instead, my eye was drawn to the following, “The practice of insurers making a compensation offer to injured people before they have even had a proper medical examination has become more widespread, and they are trying hard to get to third parties quickly and settle their claims before they have gone to a solicitor for independent advice. This all encourages people to have a go. Why, instead, have insurers not challenged in court claims they believe to be bogus? Interestingly, one outcome of the Downing Street summit was a commitment that they will. [emphasis added by me]” It remains to be seen whether the insurers’ “commitment” proves to be real, but we probably all know why such claims are not contested to trial. First, by the time that a modest whiplash claim comes to Court, the costs will usually have outstripped by a considerable margin the amount that is at stake in the claim itself: an obvious reason why insurers will instead seek to settle claims early – even those that are believed to be bogus (indeed, contesting a bogus or fraudulent claim will generate greater costs than taking issue with discrete aspects of a claim believed to be genuine). The problem, of course, with paying Danegeld of this kind is that it simply encourages more claims – as the statistics referred to above make clear. It also removes work from solicitors, although insurers probably won’t lose any sleep over this. Second, it is not easy to satisfy a Court that a claim is bogus; most Judges will apply – whether or not this is acknowledged – a Hornal v Neuberger Products [1957] 1 QB 247 approach to any allegation that a claim is bogus/fraudulent and will require a quantity of cogent evidence in order to find such allegation proved. Some medical expert witnesses are adept at finding a whiplash injury in factual circumstances where it would be surprising (at least to the lay person) that a Claimant had sustained any injury at all. Where such medical evidence is available, it is not easy for the Defendant to challenge this without incurring speculative costs. The result is that, by a default process, the claim will succeed/be settled. Third, it has to be said (on the finest anecdotal evidence) that on occasions the Courts have encouraged questionable claims. One is reminded of the increasing volume of highway tripping claims (some decades ago); the advancing tide was only retarded when the higher Courts started to dismiss these claims and provided guidance on what needed to be proved in order for the Claimant to succeed. If the Judiciary had been less credulous as to whiplash then we might all – genuine Claimants and insurers alike – have been in a happier position. If the Guardian piece is to be believed, we seem now to be reaching a position where only the bravest insurer would challenge a whiplash injury claim at trial; it will be interesting to see whether recent Government action will make any difference.  

Camel Accident Gives Holiday Consumers the Hump!

  A cantankerous, even-toed ungulate was the unlikely subject of the latest in a line of cases examining the tortious duty of care owed by tour operators for accidents during holiday excursions.       Hendry and another v Kuoni Travel Ltd (Guildford County Court, HHJ Reid QC, 10 – 11 November and 16 December 2011) concerned the provision of a “Camel Safari” excursion during a package holiday to Rajasthan, India. The plan was simple: the Claimants were to ride on the back of a Bactrian (two-humped) camel, setting off from their hotel. The camel had other ideas. Before the claimants were out of the hotel gates, it began “making sidesteps in a very jaunty manner” causing the Claimants to lose their balance and fall off, each sustaining serious injury. The Claimants were accompanied on the safari by the Defendant tour operator’s local representative who provided instructions in English (the camel handlers or raikas spoke no English). The representative had no particular knowledge of camel riding and, indeed, this was his first (and only) time assisting with the excursion.   The excursion was described in the Defendant tour operator’s brochure as an “optional experience” “available locally at extra cost”. The Defendant’s Booking Conditions provided that “the experience will be supervised and all reasonable precautions will be taken to ensure that you and your party are safe. We will only accept responsibility for personal injury where it is caused by our negligence or the negligence of our suppliers”. The Claimants maintained in evidence that they made no separate booking for the excursion and were not asked at any stage for payment and so the excursion must have formed part of the package of services provide pursuant to the holiday contract, to which the Package Travel, Package Holidays and Package Tours Regulations 1992 applied. The court held that the excursion had been booked separately and so was outside the scope of the 1992 Regulations. The Claimant’s alternative case was that they had made a separate contract for the excursion which was governed by the terms of the Defendant’s Booking Conditions; this argument was also rejected by the Judge.   This was not, however, the end of the road for the Claimants. Following Parker v TUI [2009] EWCA Civ 1261, they argued – in the further alternative – that the Defendant, in providing a local representative to accompany the excursion and to give instructions beforehand, had assumed responsibility to the Claimants for the reasonable safety of the excursion and, accordingly, owed them a tortious duty of care. It was held that the content of this common law, tortious duty was defined by local standards in accordance with the Court of Appeal’s guidance in Gouldbourn v Balkan Holidays Ltd [2010] EWCA Civ 372 (and other case law subsequent to Wilson v Best Travel Ltd [1993] 1 All ER 353 (QBD). Unsurprisingly, there were no specific statutes, rules or regulations to govern the provision of camel rides and safaris in India. Instead, there was local customary practice and both parties relied on expert evidence of what such practice required. The saddle on the camel’s back consisted of a seat with a hook-shaped “pommel” at the front and was attached by a rope running around the camel’s belly with a carpet and quilt placed loosely over the top. There were no stirrups or rope loops along the side of the camel that either rider could hold for stability. The reins were held at the front by the camel handler. It was held that the failure to provide stirrups constituted a breach of local customary practices. The court went on “so far as the second alleged breach of duty is concerned, in my judgment it is made out. There is simply no evidence that the defendant took any steps whatsoever to establish that the excursion provider was competent”. Judgment for the Claimants.   This case underlines the significance attached to the attendance on the excursion by a local representative in the context of the tortious route to liability for excursions that go wrong.   [Case note prepared with the assistance of Thomas Collins, Pupil Barrister.]

EXPERTS: BUY ONE GET ONE FREE?

In an earlier post on piBlawg – “An End to Expert Shopping” – Thomas Crockett discussed the likely impact of Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136.    In Edwards-Tubb it was held that a claimant who obtains a medical report from an expert (A), but chooses, for whatever reason, not to rely on it and applies, instead, for permission to rely on another expert in the same field (B), the court has a discretionary power under CPR 35.4 to require him to disclose A’s report as a condition for the grant of permission to rely on B (see Hughes LJ, at paragraph 31 of the judgment).     In the very recent case of Burnett v Discover the World (14.10.11), Teare J, sitting in the Admiralty Court, had to consider the meaning of “in the same field”. In Burnett, A was a neurologist and B was a neuropsychologist. The Claimant had suffered a head injury. He disclosed only the report of B, although stated in correspondence that he also had a report from A. The Defendant wanted to see A’s report. The Claimant opposed this on the grounds that A’s report was privileged and that A and B worked in different fields of medicine. Accordingly, it was argued that the disclosure sought by the Defendant fell outside the scope of the approach taken by the Court of Appeal in Edwards-Tubb.   On the face of it, the two experts worked in different medical fields: neurology is generally concerned with objective nervous system pathology, particularly of the brain. By contrast, neuropsychology is principally concerned with psychological conditions which may or may not originate in the neuropathology. It was submitted for the claimant that B’s report had only been commissioned on A’s express recommendation (presumably on the basis that B would consider matters that were outside the scope of A’s expertise). Teare J held that “the same field” (where used by the Court of Appeal in Edwards-Tubb) required a wide construction. The court was concerned with examining the nature and extent of the injuries alleged and the symptoms attributable to the same. Where A and B are attempting to investigate substantially the same symptoms, both reports will be of assistance to the court, notwithstanding that the experts have subtly different expertise or methodologies. Requiring a litigant to disclose an earlier expert’s report is the price for the permission to rely on another. The choice, therefore, lies with the litigant. As such, the approach taken in Edwards-Tubb contemplates the waiver of privilege as to the earlier report as the condition for the grant of the Court’s permission to rely on the subsequent expert; it maximises the information available to the court and discourages “expert shopping”. It is clear that in many cases litigants have attempted to obtain more favourable evidence yet side step the rule in Edwards-Tubb by approaching experts with similar expertise, but from slightly different scientific/medical disciplines. This ruling may close off this escape route. It suggests that the court will look to the symptoms in question in order to see whether A and B are in, in substance “in the same field”.   Case note prepared with the assistance of Thomas Collins, Pupil Barrister.  

Exaggerate and risk indemnity costs

In Desai vs North Essex Partnership NHS Foundation Trust [8MA25049; Judgment 19th April 2011, trial 14th February 2011; HHJ Knight QC; Central London County Court) the Court found that exaggeration of a claim could leave a claimant open to an award of indemnity costs against her. Mrs Desai had an incident at work on 28th December 2005 in an NHS psychiatric ward. More...