The appeal court confirmed that the judge at first instance was entitled to prefer the evidence of a care/occupational therapist over that of an orthopaedic surgeon in the case of HJ (a child proceeding by her mother and litigation friend LJ) v Burton Hospitals NHS Foundation Trust [2018] EWHC 1227.
HJ had suffered a birth injury resulting in Erb’s palsy. Liability had been compromised at 65% so the case proceeded to a trial of quantum only. At trial, the judge largely preferred the evidence of the claimant’s care/occupational therapy (OT) expert and awarded the claimant net damages of £578,276.30.
This case was not widely reported but is one that all experts involved in claims for catastrophic injuries, particularly quantum experts, should read.
The unsuccessful defendant believed that the trial judge was wrong to prefer the evidence of a care/OT expert over the opinion of an orthopaedic surgeon. It tried to persuade the court that expert evidence is hierarchical and that the opinions of surgeons should be given more weight than the opinions of non-medics and therapists. The court gave this appeal short shrift: “The defendant has fallen into error by treating the OT expert as if she belongs to a breed of therapeutic quantity surveyors who are entitled to entertain no view of their own on the levels of care and the range of equipment needed by any given claimant.”
The case also serves as a salient reminder to solicitors to choose the right expert for the case.
The parties involved in the case
The defendant appealed the findings of the Recorder of Sheffield, Mr Recorder Murphy, who had been the trial judge at Sheffield County Court. The appeal was heard in the Sheffield District Registry of the High Court, by Mr Justice Turner, on 10 May 2018.
Oral evidence had been heard at trial from the claimant’s mother, a psychologist for each party, and a care/OT expert for each party. Written evidence was submitted from a jointly instructed consultant orthopaedic surgeon, Professor Giddins. Neither party applied for Professor Giddins to be called to give evidence.
The claimant’s care/OT expert was Rachel Jenkins. Internet searches reveal that she is an occupational therapist by profession, specialising in paediatrics. She works at West Country Case Management. Her profile states that she has experience of working with families and carers caring for children and young adults with complex needs, setting up and managing care packages for children with complex disabilities, overseeing housing adaptations and the provision of specialist equipment, and working within an education setting and integrating children with complex disabilities into mainstream school.
The defendant’s care/OT expert was Colin Beacock. He was described in the appeal judgment as a senior nurse in service and educational management. Internet searches reveal that he is the director and owner of East Yorkshire Care Consultancy Ltd, which provides teaching, training, consultancy and expert witness services for the nursing, healthcare and social care industries. The company’s specialist interests are said to include the care of people with learning difficulties, acquired brain injury, forensic histories, orthopaedic trauma and mental health needs. The website makes no mention of a specialism in paediatrics.
The single joint expert was Professor Giddins, a consultant orthopaedic surgeon in Bath. He specialises in elbow, wrist and hand problems and nerve injuries. One of his clinical interests is said to be Erb’s palsy.
The grounds of appeal
There were two main grounds of appeal:
1. Recorder Murphy’s preference for the evidence of Ms Jenkins was inconsistent with his findings as to the weight to be given to the evidence of Professor Giddins.
Mr Justice Turner dismissed the first head of appeal quite quickly. At trial, Recorder Murphy had said that he started his judgment with the agreed evidence of Professor Giddins and would use his evidence as the cornerstone for the award of damages to which he would then add other evidence in order to complete the task.
Mr Justice Turner said that when referring to Professor Giddins’ evidence as a cornerstone, Recorder Murphy did not intend to regard himself as “bound rigorously to apply such evidence as a straitjacket upon the views of the other experts”.
Furthermore, Recorder Murphy had made specific reference to the approach he intended to take when accepting Ms Jenkins’ evidence over Professor Giddins’ by saying: “She accepted and acknowledged that her view of the claimant’s needs were greater perhaps … than Professor Giddins … but that did not divert her from her opinion and that rather reinforced in my mind’s eye that she was confident by reason of her actual experience and implementation of therapies, care regimes and treatments, even in the face of a very eminent expert such as Professor Giddins, and that encouraged me in my overall decision that she is the correct expert certainly, in particular, in comparison to Mr Beacock.”
2. Professor Giddins’ role as a joint expert and his discipline as an orthopaedic and hand surgeon enjoyed such primacy as to preclude Ms Jenkins from venturing an assessment of care and occupational therapy needs that departed from the views Professor Giddins had expressed in writing.
In its skeleton argument, the defendant had expanded on this, saying: “It is the function of any care or OT expert … to provide costings to give effect to that medical opinion and not to provide costings which give effect to her own opinion and to substitute her own opinion as to what the injured party can or will be able to do.”
Mr Justice Turner stated plainly: “I disagree.”
He continued: “In the context of modern and serious catastrophic personal injury litigation, there is likely to be a panoply of expert witnesses which may include: orthopaedic surgeons, neurologists, neuropsychologists, psychiatrists, educational psychologists, care experts, occupational therapists, speech therapists, accommodation experts, physiotherapists, information technology experts or accountants. It would be artificial in the extreme automatically to treat the evidence of each and every such type of expert as occupying non-overlapping magisteria.”
Mr Justice Turner agreed with the description provided by the Royal College of Occupational Therapists that it is the role of an occupational therapist in personal injury claims to assist the court by undertaking an objective assessment of how the person making the claim has been affected and making recommendations on the rehabilitation and life-long special arrangements, care and equipment needed and associated costs.
He said that Recorder Murphy was entitled to find that the hands-on experience of Ms Jenkins tipped the balance in favour of her evidence.
Mr Justice Turner summed up that where two experts do not agree on an area in respect of which they both have expertise but neither has a “monopoly of wisdom”, the trial judge should strike a balance and decide which evidence to favour. He said of course there are some topics on which the evidence of orthopaedic surgeons and occupational therapists will not overlap: “An occupational therapist is no more likely to contradict an orthopaedic surgeon on the issue of his choice of surgical instruments for any given procedure than the surgeon is likely to voice an opinion on the average life expectancy of a clos-o-mat toilet. However, there is a cross-over area of expertise where the views of both have a level of validity.”
The second ground of appeal was also dismissed.
If a trial judge has applied the burden of proof and made finding of facts having regard to all the evidence in the case, giving reasons, then their decision is likely to be “unassailable”.
Key points for experts
Hands-on experience
This case proves that hands-on experience can be extremely persuasive. Experts should be confident in their own knowledge, experience and opinions and draw on this when necessary in order to give a meaningful and balanced explanation to the judge as to why their opinion on a given topic differs from the opinion of another.
It is not known whether Professor Giddins examined HJ himself, either in his consulting rooms or in her own home. What is clear, however, is that Ms Jenkins did, and was able to point to her observations of HJ’s activities to support her views of HJ’s abilities and explain why she differed in this respect from Professor Giddins. As a general point, experts who are instructed to report on the papers are at a disadvantage compared with those instructed to conduct face-to-face assessments.
Qualifications
Experts are not obliged to accept instructions when approached. Experts should consider whether their qualifications are appropriate for the case in question.
Without impugning Mr Beacock’s credentials, it appears, from the limited information given in the appeal judgment, that Ms Jenkins’ qualifications were better suited to this case than his. The trial judge largely, although not exclusively, preferred her evidence.
It does not serve the court, the parties, or the credibility of the expert if the expert is not suitably qualified to advise on the condition, prognosis or needs arising from the claimant’s specific injury. Experts should not be afraid to decline instructions in such circumstances.
Furthermore, an expert should review the CV of their counterpart after exchange of evidence and inform their instructing solicitors if they consider that the other side’s expert has more relevant experience in one of the areas on which they are both commenting.
Area of expertise
Experts should resist any attempt by those instructing them to provide comment on areas outside their expertise. As Mr Justice Turner explained: “The judgment of this court should not be taken as an encouragement to experts to stray freely outside the scope of their respective disciplines.
Cross-examination
Mr Justice Turner included a sample of the trial transcript in his judgment, explaining that it revealed that “counsel for the defendant was scarcely able to contain her disbelief that an OT expert should have the temerity to take a different approach on such issues from that of a consultant surgeon”.
Ms Jenkins had explained that she did not agree with Professor Giddins on some aspects of what the claimant would be able to do in the future. Counsel for the defendant said: “You don’t agree, you, the occupational therapist, consider that your report, your recommendations, have greater attraction than an agreed report from a professor of orthopaedic surgery. Is that your position?”
The remainder of the transcript suggests that Ms Jenkins remained calm in the face of, at times, an objectionable line of questioning, whilst firmly holding her ground. In doing so, she impressed the trial judge and ultimately tipped the balance in favour of a larger award for the claimant for her future needs.
Conclusion
At trial, Recorder Murphy had awarded the claimant net damages in the region of £578,000. At a 65% settlement, the claim must have been considered by the trial judge to be worth a figure approaching £900,000. Experts who accept instructions from either party in catastrophic injury litigation are responsible for assisting the court to reach a settlement figure that fairly compensates claimants for their devastating and life-changing injuries.
The court refused, in this case, to allow “the opinion of a single joint expert who is not called to give evidence…[to] automatically trump the evidence of other witnesses”. This should reassure experts that all opinions before the court (provided of course that they are within the expert’s area of expertise) will be given equal consideration by the trial judge, even though ultimately, in areas of conflict, one opinion will inevitably have to be preferred over another. Expert witnesses possessing the qualities described above can be instrumental in the outcome of the case.
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