QUEEN'S BENCH DIVISION
SHEFFIELD DISTRICT REGISTRY
ON APPEAL FROM SHEFFIELD COUNTY COURT
1 Oxford Row
Leeds, LS1 3BG
B e f o r e :
| HJ (A Child proceeding by her Mother and Litigation Friend LJ)
|- and -
|Burton Hospitals NHS Foundation Trust
Jacqueline A Perry QC (instructed by Weightmans LLP) for the Defendant/Appellant
Hearing dates: 10th May 2018
Crown Copyright ©
Mr Justice Turner :
i) The Recorder'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; and/or
ii) 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 which departed from the views which he had expressed in writing.
In her oral submissions on behalf of the defendant, Ms Perry QC conceded that her challenge was limited to four heads of future loss: care for the claimant, child care, "DIY, gardening etc." and aids and equipment.
WHAT THE RECORDER SAID ABOUT THE PROFESSOR'S EVIDENCE
"I start this judgment with the agreed evidence of Professor Giddins. My assessment of damages in this case will use his evidence as the corner-stone for the award of damages to which I will add other evidence in order to complete that task."
"She accepted and acknowledged that her view of [HJ]'s needs were greater perhaps than it was suggested that Professor Giddins might be read to mean, 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 had encouraged me in my overall decision that she is the correct expert certainly, in particular, in comparison to Mr Beacock."
THE ROLE OF THE JOINT EXPERT
"If there is no reason which justifies more evidence than that from a single expert on any particular topic, then again in the normal way the report prepared by the single expert should be the evidence in the case on the issues covered by that expert's report."
"39. Mr Russell's submissions depend to a significant extent upon the evidence of the joint expert. Mr Russell submits that the judge rejected his evidence in circumstances in which she should not have done, given that he was a joint expert. He relies upon this statement of Lord Woolf MR in Peet v Mid-Kent Healthcare Trust  EWCA Civ 1703,  1 WLR 210 (at paragraph 28)…
41. Mr Buckingham…summarised his relevant submissions in this regard as follows:
(i) Generally the expert's report will be his evidence, without the need for amplification or cross-examination.
(ii) However, in some circumstances it will be appropriate for the parties to have the opportunity to cross-examine the expert; for instance, as in this case, where the report was produced very late and the expert has not considered all the written questions that had been put to him.
(iii) The report and the expert's oral evidence, if applicable, is then the evidence of the expert.
(iv) This evidence must then be weighed in the balance with the other evidence in the case and the judge will come to a conclusion based upon all the evidence.
(v) The principles set out by Lord Woolf in Peet v Mid-Care Healthcare Trust are directed at the first three of those points. The case does not establish that the evidence of the expert must then be accepted by the court. The court must take its own view of the expert evidence in the light of all the other evidence.
I would accept those submissions…I would add these further observations.
42. All depends upon the circumstances of the particular case. For example, the joint expert may be the only witness on a particular topic, as for instance where the facts on which he expresses an opinion are agreed. In such circumstances it is difficult to envisage a case in which it would be appropriate to decide this case on the basis that the expert's opinion was wrong. More often, however, the expert's opinion will be only part of the evidence in the case. For example, the assumptions upon which the expert gave his opinion may prove to be incorrect by the time the judge has heard all the evidence of fact. In that event the opinion of the expert may no longer be relevant, although it is to be hoped that all relevant assumptions of fact will be put to the expert because the court will or may otherwise be left without expert evidence on what may be a significant question in the case. However, at the end of the trial the duty of the court is to apply the burden of proof and to find the facts having regard to all the evidence in the case, which will or may include both evidence of fact and evidence of opinion which may interrelate.
43. In the instant case the judge did not disregard the evidence of the joint expert. On the contrary in some respects she accepted it. A judge should vary rarely disregard such evidence. He or she must evaluate it and reach appropriate conclusions with regard to it. Appropriate reasons for any conclusions reached should of course be given." [Emphasis added].
"Q. ...What I've said to you and I'm putting to you is that your recommendations are at odds with an agreed report from a qualified orthopaedic hand surgeon, who clearly says that in his experience this is what he considers she'll be able to do. Is it or is it not the case that you don't obviously agree with him?
A. No, I don't agree with Professor Giddins.
Q. That's fine. 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?
A. That's my position when I've looked at the activities that I would expect [HJ] to be able to complete with a child pre-school, a toddler that is mobile, a toddler that may not be co-operative, a toddler that would need to be lifted into a car.
Q. Yes, fair enough.
A. When I've done an activity analysis of it, yes, my opinion is different.
Q. Yes, so your view is you know better than him?
A. I wouldn't say I know better, I've got a difference of opinion.
Q. Okay, fair enough. That's all I wanted to know. Your difference of opinion is quite different from his – your opinion is different from his. So, therefore, was it the position that you looked at that and ignored it? Were you shown Professor Giddins' report?
Q. What was your reaction to it: "I'm going to ignore this, I don't agree with it"? Did you address it in your report?
A. I've set out in my report why I think [HJ] would require that additional information.
Q. Did you set out in your report why you disagreed with---
Q. ---what a professor of orthopaedic surgery had said?
A. No, I haven't set it out, no.
Q. Did you decide to leave it, therefore, and ignore it?
A. No, I haven't ignored it. I'm aware that he----
Q. You have ignored it. You've ignored what he said?"
"63. Dealing now with the more difficult aspects of future loss and damage that I have not so far dealt with, as indicated previously I generally prefer the evidence of Miss Jenkins to Mr Beacock, but to a degree Miss Jenkins has not reflected adequately on Professor Giddins' views relating to [HJ]'s likely abilities when it comes to child care…
65. Turning to the childcare, there is little doubt that [HJ] has an additional care need over and above that described above for care/substituted services to assist her with having children. Though I generally prefer Miss Jenkins to Mr Beacock, I do find in this regard that the Defendant's anticipated regime is more aligned with Professor Giddins' observations and anticipations about that need than Miss Jenkins has supposed."