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