Masthead Local Govt - Litigation

Good expert or bad?

Witness iStock 000005559204XSmall 146x219When it comes to historic social care claims, the answer lies in the prep, writes Laura Broadhead.

As those who are experienced in handling social care claims will know, parties are often heavily or even wholly reliant upon the claimant’s word alone in assessing the impact that abuse has had upon a claimant. The difficulty this brings is that events often occurred many years ago. Accurately describing the impact of abuse upon one’s own life sometimes decades after the event can be an almost impossible task in itself. Add in the additional stresses of life and distressing events such as relationship breakdowns, illnesses or bereavements and that accurate picture becomes ever more blurred.

The impact of time upon memory and recall has been summarised in research by Sabbagh (2009), Schachter (2007) and Fernyhough (2013). The fallacy of memory over time means that information given can be distorted or even creative. This is not related to the honesty, integrity, intelligence or level of education of an individual but rather is a natural response to the passage of time.

In light of this, it is important that recollections are tested for reliability and accuracy against other sources of information. In many cases this will be an individual’s medical or social services records. The recent case of Ruffell v Lovatt is a cautionary tale for experts who fail to properly read the papers provided to them and one which experts and those who instruct them should be aware.

The facts

The claimant sustained injury in a road traffic accident in January 2012. She was a passenger in a car driven by her then boyfriend. He unexplainably lost control of the vehicle, left the road and collided with a tree. Liability was admitted and the case went to trial on the extent and causation of her injuries and quantum. The claimant valued the claim in excess of £1.6m, alleging she now suffered from complex regional pain syndrome as a result of the accident. She relied on medical evidence from a variety of experts including a care expert, a pain expert, a psychiatrist and a housing expert, all of whom gave evidence at trial. The judge was unconvinced by much of the evidence, mainly because the claimant was shown to be an unreliable historian who lacked credibility. It was however Dr Jenner, the claimant’s pain expert, whose evidence attracted the judge’s wrath.

The trial

Dr Jenner explained that in his view, neuropathic pain was organic in origin, being pain caused by damage or disease of the somatosensory nervous system. He suggested the claimant displayed evidence of neuropathic pain affecting her right lower limb (CRPS). He suggested a useful definition of pain was “pain is whatever the patient says it is” and concluded the claimant suffered from chronic musculo-skeletal pain and CRPS as a direct result of the accident. Absent the accident, he suggested the claimant would not have had mobility difficulties, would have been capable of work and would have had a relatively normal level of functional ability. He considered the claimant to be a reliable historian and accepted that save for a previous history of neck and back pain she was otherwise fit and well prior to the accident.

The judgment

In a 67 page judgment, a significant amount of which relates to Dr Jenner, the judge found that CRPS is a controversial diagnosis and is subject to debate. There was overwhelming evidence in this case the claimant’s psychological problems were the cause of her CRPS and they pre-dated the index accident. Dr Jenner had failed to properly read and consider the claimant’s entire medical records before reaching his conclusions and “never properly attempted to understand the Claimant’s history”. There was evidence of the claimant regularly complaining to her doctors of one sort of psychosomatic illness after another, together with a number of discrete physical ailments.

The claimant was not a reliable historian and because Dr Jenner was obliged to rely on the history she provided, his conclusions were based on unreliable evidence. Had he properly considered the claimant’s pre-accident history, he could not have reached those conclusions. The judge damningly commented “the opinions of an expert doctor, in a case such as this, who has so strikingly demonstrated no real knowledge or proper understanding of the Claimant’s extensive and highly relevant pre-accident history are of little or no value.” Dr Jenner’s dismissal of the views of other doctors within his reports was also criticised as “at best off-hand, at worst, rude” and this continued when giving oral evidence which the judge noted to be “inconsistent with the obligation on an expert witness to consider and acknowledge where there is a range of opinions, even if the expert, for his own reasons, rejects them.” The judge was of the view that Dr Jenner’s evidence was combative and that he repeatedly acted as an advocate for the claimant.

The claimant was awarded £12,500 for general damages and £350 for past losses, less than 1% of the pleaded value of her claim.

The lesson

This judgment is a good reminder that the fact a claimant complains of certain symptoms does not automatically prove that such symptoms were caused by the index accident – the judge reminds us that it would be a 'fundamental error' to proceed on the basis that a correlation in time represents causation. It is always necessary to analyse the history, both before and after the alleged incidents, to test the claimant’s recollection and to seek to find a medical reason to explain causation. That necessity can only be heightened further in a social care claim in which experts may be required to provide an opinion on a claimant’s mental health sometimes decades after the event.

This case emphasises that experts must ensure that they:

  • read all the relevant papers and respond to the evidence
  • test the reliability of what they are told as sequences of events can be inadvertently misremembered even by the most credible of historians
  • do not act as an advocate for the party instructing them
  • behave with open minded professional courtesy and respect.

If an expert fails to abide by these requirements then this case shows that the credibility of the expert, and therefore his expert opinion, can be seriously undermined to the detriment of the party instructing him.

Laura Broadhead is a solicitor at Browne Jacobson. She can be contacted on 0115 908 4818 or This email address is being protected from spambots. You need JavaScript enabled to view it..

Lexis Information Hub

Archive

Search more than 10,000 articles

Featured Jobs

Newsletter Subscription

* indicates required
Choose Newsletter(s) (tick all that apply)
 

Featured Events

Fixed term tenancies - Cornerstone Barristers

London

CPD Hours3 FeeEarly Bird offer £30+VAT (Until 1st October) / Standard Ticket £40 +VAT VenueCornerstone Barristers, 2-3 Gray's Inn Square, London, WC1R 5JH More details to follow...
→ View listing
Succession & assignment of tenancies - Cornerstone Barristers

London

CPD Hours3 FeeEarly Bird offer £30+VAT (Until 1st August) / Standard Ticket £40 +VAT VenueCornerstone Barristers, 2-3 Gray's Inn Square, London, WC1R 5JH More details to follow...
→ View listing
No upcoming events.
HB Editorial Services Ltd 2016.