Jersey Unreported Judgments

[2010]JRC149

royal court

(Samedi Division)

16^th August 2101

Advocate R. D. S. Tremoceiro for the Plaintiff.

Advocate D. J. Benest for the Defendant.

judgment

the Comissioner:

1.        This is a personal injuries claim due to be heard on 22^nd November, 2010.  It arises out of an accident which occurred on 14^th November, 2005, in which the plaintiff, a building labourer, suffered injury to his spinal cord. 

2.        At a directions hearing on 20^th July, 2010, an issue arose as to whether the two neurological experts instructed by the parties should be present to be examined on their reports. 

3.        On 16^th November, 2009, the Master gave directions in relation to the calling of expert evidence and ordered that the experts should discuss the case on a without prejudice basis in order to identify, inter alia, the extent of agreement between them.  The two experts namely Dr Charles Clarke, for the plaintiff, and Dr Oliver Foster, for the defendant, duly met and have prepared a joint report dated 8^th March, 2010. 

4.        Both experts agreed on the relevant issues and in particular that there was a pre-existing problem with the bones of the plaintiff's spine:-

"Overall, they thus agree and estimate that it is likely on the balance of probability that some significant spinal cord damage with consequent impairment would have developed in any event within ten years of November 2005."

Thus the plaintiff, they say, would have suffered damage to his spinal cord in any event within ten years.  

5.        Assuming liability is established, it is self evident that if this opinion is accepted by the Court, it will have a significant impact upon the plaintiff's claim for loss of future earnings. 

6.        The defendant's position is that it is unreasonable in terms of costs for these consultants to be brought to Jersey for the hearing, when they are agreed on all of the relevant issues.  Whilst accepting that the Civil Procedure Rules have no application in this jurisdiction, Mr Benest drew to my attention Rule 35.1 which is in the following terms:-

"Duty to restrict expert evidence

Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings."

7.        He then drew my attention to the following commentary in Civil Litigation 14^th edition by John O'Hare and Kevin Browne at paragraph 23.018:-

"The court will not permit oral expert evidence unless it is necessary.  Where each party has been allowed to appoint its own expert the court will usually direct that the experts identify and discuss the expert issues to try and reach agreement and to narrow down those issues.  If it is convenient and cost effective most experts will meet face to face but a direction to discuss the matter could also be complied with by telephone or video conference.  Following the discussion the experts are normally directed to prepare a statement "for the court" showing those issues on which they agree and disagree with a summary of their reasons for disagreeing.  If the experts have a fundamental difference of opinion as to the correct approach to be taken in respect of an issue that would clearly justify a direction for each to attend the trial to give oral evidence.

...

Any agreement reached as a consequence of a discussion between experts will not be binding on the parties unless they expressly decide to accept it.  Obviously, a party may not be best pleased if his expert has a change of view as a result of the discussion.  The party will have to decide whether or not to accept the expert's new position and what room he has left to manoeuvre.  So if a party's own expert now agrees wholly or mainly with the opponent's expert, will that party be given the court's permission to rely on alternative expert evidence?  The answer is only in rare cases where the party can demonstrate a good reason, such as the expert acting outside his instructions or expertise, or otherwise shown to have acted incompetently  The obvious starting point should be to ask the expert why he has changed his views ...."

8.        Mr Benest submitted that this case was relatively straightforward.  The plaintiff's claim (assuming liability was established) is valued at its highest at some £275,000 and at its lowest some £57,000.  Paying these experts to come over to the trial when they are agreed on the relevant issues (costing potentially between some £6,000 to £10,000) was disproportionate and unreasonable. 

9.        Mr Tremoceiro drew my attention to Rule 35.12(4) and (5) of the CPR:-

"(4)     The content of the discussion between the experts shall not be referred to at the trial unless the parties agree. 

(5)       Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement."

10.      He pointed out that there had been a discernible shift in the opinion of his client's expert, Dr Clarke.  In his opinion, dated 12^th November, 2008, he had expressed the following opinion:-

"It is also likely that in the absence of trauma to the neck, such as happened in the November 2005 accident, the previous odontoid facture would not have decompensated i.e. the bones would not have slipped to press upon the spinal cord.  There is no way of saying this with certainty but it seems in my view to be likely on the balance of probability from my clinical experience."

11.      In his letter of 11^th December, 2008, Dr Clarke summarised the position as follows:-

"To summarise these points:-

Accident 1 (many years ago) caused an odontoid peg fracture. 

Accident 2 (November 2005) caused this odontoid peg facture to move and cause spinal cord compression/damage.  This would not have happened in any event i.e. in the absence of the November 2005 accident."

12.      Bearing in mind the importance of this evidence to the plaintiff, Mr Tremoceiro wishes to be able to explore the reasons for this shift in Dr Clarke's opinion and to probe both experts on their opinions; for example the basis upon which they have lighted upon 10 years as opposed to some other period. 

13.      Whilst accepting that further questions could be put to the neurological experts in writing, he submitted that the answers may give rise to further questions and that these matters were best dealt with and explored in oral evidence before the Court. 

14.      Mr Benest was unable to point to any law or authority supporting the proposition that a trial judge has the power to order that a joint report by experts can, without the consent of the parties, be admitted in evidence as if it were oral evidence, thus depriving the parties of the ability to examine the experts on the same.  

15.      The fundamental rule is that evidence has to be given orally (see Rule 6/20(1) of the Royal Court Rules).  The Court has power under Rule 6/20(2)(a) to order that any particular fact may be proved by affidavit but the only provision in relation to expert evidence is Rule 6/20(2)(d), which gives the Court the power to limit the number of expert witnesses called.  Counsel have confirmed that there is no equivalent in the civil regime to Article 8 of the Criminal Justice (Evidence and Procedure) (Jersey) Law 1998 which provides that with leave and subject to a number of safeguards an expert report is admissible as evidence in criminal proceedings whether or not the person making it gives evidence. 

16.      Whilst no doubt Mr Benest is content for this joint report to be admitted as if it were oral evidence, Mr Tremoceiro does not consent to that course of action.  He wishes the evidence of the two experts to be given orally in the usual way so that they can be examined on the same.  In my view the Court has no power to compel him otherwise.  If he is acting unreasonably in requiring both experts to be present, then that is something which the trial judge can take into account when awarding costs. 

17.      I therefore decline to order that the joint report of the experts shall be admitted as if it were oral evidence.  It follows that the neurological experts must be present in Court to give their evidence orally and to be questioned thereon.  

Authorities

Civil Procedure Rules.

Civil Litigation 14th edition by John O'Hare and Kevin Browne.

Royal Court Rules.

Criminal Justice (Evidence and Procedure) (Jersey) Law 1998.