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.

Liability of a Motor Insurer for Criminal Acts

CASE REPORT:-      AXN & Ors v (1) John Worboys (2) Inceptum Insurance Co Ltd (formerly HSBC Insurance (UK) LTD) [2012] EWHC 1730 (QB)   The preliminary issues concerned whether, and to what extent, the claimants had, in addition to their claims against Worboys, valid causes of action against the defendant insurer as the provider of the compulsory motor insurance required by the Road Traffic Act 1988. His insurance policy provided cover for "social, domestic and pleasure purposes and for use for public hire".   The Court was asked to determine whether: (i) the bodily injuries suffered by the claimants "arose out of the use of Worboys’ vehicle on a road or other public place" within the meaning of s145(3)(a) of the 1988 Act; (ii) liability in respect of Worboys’ acts of poisoning and sexual assault was required by s145(3)(a) to be covered by a policy of insurance, and was covered by the policy issued by his insurer; (iii) Worboy's use of the vehicle at the material times was a use insured by the policy; (iv) the insurer was liable pursuant to s151 to pay to the claimants any sum payable pursuant to a judgment obtained against Worboys. Mr Justice Silber determined this preliminary issue in favour of defendant insurer. The Court held: (1) the claimants’ injuries were caused by the criminal acts of Worboys in administering sedatives and then in attempting to or actually assaulting the claimants, and did not arise out of the use of the taxi on a road; (2) as the injuries sustained by the claimants did not arise out of Worboys' use of a vehicle on a road and so they were not required by s145(3)(a) to be covered by insurance;  (3) if the essential character of the journey consisted of use for a criminal purpose then the vehicle would not be covered by its insurance (Caple v Sewell [2011] EWCA Civ 1948). By the time that the claimants were sedated and assaulted, the essential character or purpose of the journey was criminal and the use was not covered by the insurance; and  (4) therefore having regard to the answers to the first three issues, the insurer was not liable, pursuant to s151, to pay to the claimants any sum payable pursuant to a judgment obtained against Worboys.

What is it about Preston County Court?

The case of R (on the application of Sharing) v Preston County Court [EWHC 515] is perhaps a surprising one to comment on in a personal injury blog. It concerns wrongful eviction, rent arrears and judicial review. However it is of wider interest because the claimant, whose claim for damages was dismissed by the district judge and whose application for permission to appeal to the circuit judge was also refused, successfully had the refusal of permission to appeal quashed in the administrative court and remitted to a different circuit judge. Both this case and the case cited below came from Preston County Court and the circuit judge in concern ended up in the judicial stocks...   The facts of Sharing are, in brief, as follows. The claimant brought a claim for damages for unlawful eviction. The defendant relied upon two witnesses: a WPC and another tenant. At trial he said that the WPC had been served with a witness summons but had said she was unavailable - he was a bit cagy about it when pressed. The other witness was held out to be an independent witness. The trial judge found the independent witness to be essentially truthful and that the claimant had lied about a tenancy deposit. He dismissed the claim finding the police evidence favoured the defendant. The claimant then obtained a statement from the WPC to the effect that she had not received a witness summons, she had been available and that when she interviewed the ‘independent’ witness, she had assumed she was in fact the defendant’s partner because of the way they related to one another. The WPC also provided other evidence which undermined some of the defendant’s case. The claimant then sought permission to appeal on the basis of the WPC’s fresh evidence. That permission was refused and hence an application was made to the Administrative Court for judicial review. Wilkie J was troubled by the way the circuit judge had conducted the hearing saying that, from the transcript, it was apparent that he gave counsel for the claimant an ‘extremely rough ride’. He did not permit her to develop the main point she wished to make and he repeatedly said the case had been won or lost because the district judge had not believed the claimant. He found with great hesitation and regret that the circuit judge acted in such a way that a fair-minded and independent bystander would conclude that he had finally and firmly made up his mind from the outset of the application that he was going to refuse it, that he was going to refuse to admit the fresh evidence of the WPC and his repeated interruptions of counsel and the way he focused on the way in which the district judge had decided the case was the clearest possible evidence of apparent bias. The key case on applying for judicial review of the decision of a circuit judge is R (on the application of Strickson) v Preston County Court & Ors [2007] EWCA Civ 1132. There Laws L.J. said that before JR could be granted a defect much more fundamental than an error of law had to be established. He said ‘I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both) and a case where… the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case.’ He gave a number of examples: the court embarking on an enquiry it lacks all power to deal with, failure to enquire or adjudicate upon a matter which was its unequivocal duty to address, a substantial denial of the right to a fair hearing, a court acting ‘incomplete disregard of its duties’. Photo courtesy of Freefoto.com

A catastrophic getaway

  Mr O’Brien and his nephew Mr Joyce must be amongst the most incompetent thieves around. They stole a ladder from the front garden of a house and put it into the back of the van but could not close the door. Mr O’Brien drove the van off to make a speedy getaway whilst Mr Joyce hung onto the back of the van, standing on a footplate with the ladder under or over his right arm. He was holding onto the door or roof whilst a door was flapping around. The van lurched around a bend without reducing speed making Mr Joyce yet more unstable. Finally, on another bend he lost his grip, fell and suffered a severe head injury. Mr O’Brien seemed more concerned about trying to hide the ladders than helping his nephew. His excuses for the accident were inconsistent, ridiculous and not worthy of a schoolboy. He said that he did not know that his nephew was hanging onto the rear of the vehicle by the doors or ladders, that his nephew clambered through the back of the vehicle to secure the doors which had come open, that he was riding on the footplate as a ‘joke’ and that his nephew had got out of the van to secure the doors and was not on it at the material time. The judge commented that it was no surprise that nobody wished to call him as a witness or rely upon his evidence. The case was Joyce v Tradex Insurance Company Limited [2012] EWHC 1324;  the issue was whether Mr Joyce could recover damages for personal injury from Mr O’Brien when the claimant was injured whilst both were engaged in a joint criminal enterprise.   Cooke J found that Mr Joyce’s injuries were caused by the speed of the vehicle (essential to the getaway) and his position on the back of the vehicle (holding the ladders and the van whilst standing on the footplate). What Mr Joyce had done was so unusual as to be as causative of his injuries as Mr O’Brien’s driving. Accordingly the claim failed on causation. The claim also failed as a matter of general public policy: a participant in a joint enterprise theft which involves a speedy getaway in a van with a participant driving and the other clinging dangerously to the stolen items and the van cannot recover for injuries sustained in the course of that enterprise. The driver could not owe a duty to his co-conspirator and it was not possible to set a standard of care. What’s more, risk and danger were inherent in the enterprise. Accordingly Mr Joyce’s own criminal conduct precluded him from recovering. (Image Courtesy of Freefoto.com)  

Vicarious Liability for a non-employee - again

XVW & YZA v X School for Girls & Adventure Lifesigns Ltd [2012] EWHC 575 (QB) This action was brought by two Claimants and arose out of a school trip/expedition to Belize in July/August 2005. The Claimants were pupils at the D1 school; they were aged 16 years and 15 years respectively. D2, a UK company, assisted with the planning of the expedition, as well as providing two ex-military adult staff to accompany the same. The expedition was a developmental training experience for the participants; it was not a holiday. The young women who participated were actively involved in the choice, selection, planning and budgeting for the index expedition. A teacher from D1 also accompanied the expedition. During the course of the expedition it was necessary for the planned itinerary to be altered as a result of a hurricane which affected the area (Mexico) to which the group intended to travel. The young women participating in the expedition were actively involved in the change of plan and the arrangements for alternative accommodation. A local Belizean company provided accommodation to members of the expedition party in return for work undertaken by the participants and an agreement to undertake trips with the Belizean company to be paid for by the participants from funds held by them. A local man (A) was the son of the owner of the Belizean accommodation and might have been co-owner of the resort where the group stayed. During the early hours of the morning of 1 August 2005 A raped the Claimants and another of the young women on the expedition who was staying in the same cabana accommodation at the resort. The Claimants alleged that they had sustained psychiatric injury as a result of the sexual assaults. They brought proceedings against the Defendants in respect of the alleged intentional wrongdoing of A. The Claimants’ case was that D1 and/or D2 were vicariously liable for the conduct of A. Alternatively, it was submitted on their behalf that the scope of D1 and/or D2’s duty of care extended to the intervening criminal conduct of A (which was, the Claimants alleged, foreseeable) and that there had been a number of causally relevant breaches of duty by D1 and D2 with respect to the planning of the expedition, the supervision of the expedition, the vetting of A and the security of the Claimants. The Claimants relied on a number of alleged incidents of inappropriate behaviour by A prior to the assaults (although it was denied that these incidents had come to the notice of D1 or D2’s staff). The trial took place before Mackay J on 27 – 29 February and 1 March 2012. The Claimants’ claims were dismissed and it was held: (1) A was not an employee of D1 or D2 and his involvement, such as it was, in the expedition was sufficiently limited that it was not just and fair to describe him as a person for whose actions D1 or D2 were vicariously liable (Lister v Hesley Hall Limited [2002] 1 AC 215 (HL(E), JGE v The English Province of Our Lady of Charity & Anor. [2011] EWHC 2871 (QB) and EL v The Children’s Society [2012] EWHC 365 (QB) considered, among other cases; (2) The scope of the duty of care was to be determined by application of the Caparo test: was it fair, just and reasonable for the duty to extend as far as the Claimants contended; (3) There was no causative breach of duty in this case. It was not alleged that A had a criminal record which went undiscovered or that Belize had a UK-style system of CRB checks. The local police would, if they had been consulted in advance, probably have given A a good character reference. The school party was continuously supervised by 3 experienced adults and, short of placing a guard outside each cabana occupied by the school party at the resort, there was no means by which to defeat A’s assault (he had been careful to keep his conduct towards the young women, prior to the assaults, hidden from the adult staff).  This case is the latest in a number of recent decisions in which vicarious liability is discussed in respect of persons who are not employees (or even deemed or temporary employees) of the Defendant. These cases are discussed in the most recent (March 2012) edition of the Chambers Personal Injury Briefing  and in Lisa Dobie's post  below.

RTA Fraudsters Beware!

As I expect many will agree, there has been a recent upsurge in the past 12 or so months in cases of alleged fraudulent accidents coming before the courts. Are these sorts of accidents becoming more common? Or are insurer’s simply getting tougher and more bullish in alleging fraud? I think the answer is possibly “both”. There are some typical hallmarks of these sorts of fraud which can often be easily observed on a reading of the papers. Further research into a party’s (and often their relatives’) claim history can be very illuminating.   But of course such fraudulent claimants should be aware, it seems that the High Court also wishes to send a message out to them that they too are getting tougher on ‘this sort of thing’.     The Administrative Court (Sir John Thomas and Silber J) gave judgment yesterday in Liverpool Victoria Insurance Company Limited v Bashir & Ors. This case was a fairly standard sort of fraudulent motor insurance claim – a contrived accident between parties (a husband and wife inviting the involvement of acquaintances) who agreed to share any profits from the multiple claims for personal injuries and special damage. What was slightly more unusual in this case (and from some experience, I stress the “slightly”) was that the parties were prepared to involve their two children, one of whom was only 4 months old.   What perhaps is genuinely more unusual is that in the course of the proceedings, the Respondents admitted the claim was fraudulent.   In a move which could only be welcomed by insurers, the court held that it had no option but to impose an immediate custodial sentence upon the fraudulent (adult) parties, in the interests of the public at large and in deterring such conduct in the future. The court would have imposed a sentence well in excess of 12 months but took into account the fact that the Respondents’ admitted the fraud, and that the husband and wife assisted Liverpool Victoria with the disclosure of documents. On these Respondents, the court imposed a sentence of 6 weeks imprisonment. On the other Respondents the same sentence was imposed, but was however suspended to reflect the fact that the husband and wife had induced them into being involved.

The English Claimant in Spain

  Gallagher v Wright (Manchester CC, Recorder Gregory, 25 November 2011 and 2 February 2012)   The Claimant (G) was a rear seat passenger   in a car travelling to Alicante airport, Spain when the Defendant driver (W) entered a slip road on the wrong side of the road and collided head on with a vehicle approaching in the opposite direction. The Claimant sustained multiple injuries and sued W who promptly admitted liability.   Both G and W were British nationals, domiciled in England. The car had been hired in Spain and was insured under a Spanish insurance policy. The question for the court – at preliminary issue trial – was whether the nature, extent and assessment of the damages to which the Claimant was entitled would be dealt with in accordance with English or Spanish law.   Previous entries on this blog have discussed the temporal scope of the Rome II Regulation. The recent decision of Homawoo v GMF Assurances SA – (ECJ, Case C-412-10) conclusively determines that Rome II does not apply to accidents giving rise to damage which occurred before 11 January 2009. Accordingly, the Private International Law (Miscellaneous Provisions) Act 1995 was the correct instrument for determining applicable law in G’s case.   Section 11 of the 1995 Act establishes the general rule that a claim in tort will be determined according to the law of the country in which the tort occurred (in this case, Spain). Section 12 provides that the party seeking to displace the general rule must demonstrate that it is “substantially more appropriate” to apply the law of a different country. According to Waller LJ in Roerig v Valiant Trawlers [2002] 1 WLR 2304 (CA) “the word ‘substantially’ is the key word. The general rule is not to be dislodged easily”.   In Roerig, Waller LJ went on to provide guidance as to the correct approach to determining the applicable law, using a three stage exercise:   Stage Application to the facts (1) Identify the issue to which the general rule may not be applicable The assessment and quantification of damages (2) Identify the factors connecting the tort with the other country (England) - The nationality and domicile of G - The nationality and domicile of W - W had admitted 100% liability - G and W had been in a relationship in England and had come to Spain for the purposes of a short holiday - The location of G’s treatment and losses, including most of her pain, suffering and loss of amenity (3) Identify the factors connecting the tort with the country (Spain)* - The nationality and domicile of W’s insurer     In the light of the numerous factors connecting the accident with England, it was argued by counsel for W that the nationality of W’s insurer was a “crucial consideration”. The insurer stood behind W and would manage the litigation and satisfy the judgment and so was, in effect, the “real Defendant”. Furthermore, it was entirely fortuitous that G had elected not to proceed against the insurer directly in accordance with the jurisdictional route provided by section 3 of the Judgments Regulation (EU (Council) Regulation 44/2001, as interpreted by the ECJ in Odenbreit (2007)).   HELD:   The mere fact that G could have pursued W’s insurer directly did not require the Court to treat the insurer’s nationality with the same weight as if it was in fact a party to proceedings. Following Garland J in Edmunds v Simmonds [2000] [2001] 1 WLR 1003 (QB), the domicile of the Defendant’s insurer was not a factor of overwhelming weight or importance.   Further, insurers of hire cars in tourist areas had to contemplate that the majority of hirers would be foreign and that accidents involving them might result in damages being quantified according to different systems of law. The weight to be given to the factors connecting the accident with England were sufficient to displace the general rule; it was substantially more appropriate for the applicable law to be the law of England and Wales.   This case raises an interesting strategic dilemma in overseas RTA litigation: pursuing foreign insurers directly, rather than the tortfeasor, has the advantage of simplicity and certainty of recovery, but in doing so the domicile of the insurer may carry greater weight for the purpose of determining applicable law (although HHJ Armitage QC – also sitting in the Manchester County Court – thought otherwise in Kershaw v Carey & Anor. 6 September 2011).   [Case note prepared with the assistance of Thomas Collins, Pupil Barrister.]

A Tale of Two Defences: Drugs, Ex Turpi Causa and the Uninsured Drivers Agreement

What’s the scope of the “criminal conduct” exception in the Uninsured Drivers Agreement and how does it relate to the principle formally known as ex turpi causa? This was the issue before the Court of Appeal in Delaney v (1) Pickett (2) Tradewise Insurance Services Ltd [2011] EWCA Civ 1532. C was a passenger in D’s vehicle and was badly injured because of D’s negligent driving. Substantial quantities of cannabis were found on the parties after the accident, and the judge found that C and D had travelled together to buy and then transport cannabis for subsequent resale. D defended the claim, relying on ex turpi causa. In the mean time, D had confessed habitual drug use to the police. His insurers discovered this and successfully took proceedings to avoid his insurance policy for material non-disclosure. Under the Uninsured Drivers Agreement the insurer was potentially liable to satisfy the judgment as road traffic accident insurers. But the general duty to indemnify is subject to a number of exceptions, notably Paragraph 6(e)(ii), where “a claim which is made… by a claimant who… was voluntarily allowing himself to be carried in the vehicle and… knew or ought to know that… the vehicle was being used in the course of or furtherance of a crime”. Insurers argued that this clause should be given a literal construction: the vehicle was being used in the process of committing the crime and as part of the carrying out of criminal activity. Both defences succeeded at first instance, and C appealed. The Court of Appeal disagreed with the judge’s conclusion on ex turpi causa. Following Gray v Thames Trains [2009] 1 AC 1339 and Pitts v Hunt [1991] 2 QB 24: This was not a case where the Court could not determine a standard of care for D’s driving, unlike (say) a getaway car.       This was not a case where liability would be an affront to the public conscience.  The crime provided the occasion for the accident rather than actually being the cause of it. The immediate cause was D’s negligent driving, and not the crime. The illegal acts were incidental.    Given the size of this claim, success against D would be cold comfort unless the insurers were also liable. So where did this leave the insurer’s argument? Was the exclusion under Paragraph 6(e)(ii) wider than the ex turpi causa defence?   Their Lordships were all agreed that, taking a literal reading of the clause, (on the judge’s findings) to C’s knowledge, the vehicle was indeed being used “in the furtherance of crime”. But this would mean a very wide exception, and potentially prevent recovery even where the crime in question was very minor – for example speeding, or possession of a small amount of a controlled drug.    Ward LJ’s answer was that the exception should be “proportionate” and was limited to “serious” crime of the sort that would give the driver a defence of illegality: this crime was not “serious” enough and the exception should not apply.   The majority (Richards and Tomlinson LJJ) did not agree. Their reasoning is not consistent, however:- Richards LJ considered there was a de minimis exception, but that possession with intent to supply was certainly serious enough. The use of the vehicle did not have to constitute an ingredient of the offence for the exception to apply.   Tomlinson LJ took a firmer line. Use of the vehicle was not incidental to the crime, it was an integral part of it. Whilst the literal reading of the clause could lead to recovery being denied where the crime was minor, it was not appropriate for the court to make a value judgment about the seriousness of the offence, which was irrelevant to the criteria for liability under the agreement. Tomlinson LJ did not endorse the de minimis exception. This case underlines that the ex turpi causa defence will rarely succeed. But exceptions to liability under the Uninsured Drivers Agreement will succeed far more often. When these succeed, the cause of the accident may well be nothing to do with the circumstance prohibiting recovery – for example that C knew (or ought to know) the vehicle was stolen, or that D was not insured. In those cases, blameworthiness on C’s part is not “the touchstone of recovery”. However, if insurers use this decision to argue more frequently that there should be no recovery by reason of very minor crimes, it is likely that pressure will mount for a change to the 1999 Agreement.

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.