Jersey Unreported Judgments

Personal injuries claim - reasons for refusing permission to adduce expert medical evidence.

[2015]JRC050

Royal Court

(Samedi)

2 March 2015

Before     :

Advocate Matthew John Thompson, Master of the Royal Court, sitting alone.

 

Advocate N. MacDonald for the Plaintiff.

Advocate L. K. A. Richardson for the First Defendant.

Advocate L. A. Ingram for the Second Defendant.

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1
2.	Background	2-3
3.	Relevant procedural history	4-17
4.	The parties' contentions	18-25
5.	The law	26-28
6.	The status of the second defendant	29-32
7.	Decision	33-44

judgment

the master:

Introduction

1.        This judgment represents my reasons for refusing the second defendant permission to adduce expert medical evidence. 

Background

2.        The present proceedings follow on from the judgment of the Royal Court reported at Morley-v-Reed [2012] JRC 127A.  In that judgment the Royal Court considered whether the first defendant was liable for an accident, which occurred on the Five Mile Road on 4^th August, 2007.  Following three days of evidence, in a reserved judgment, the Royal Court held that the first defendant was negligent but that the plaintiff contributed to the accident to the extent of 40%.  The judgment was not appealed. 

3.        The proceedings therefore now concern the quantum of damages arising out of injuries to the plaintiff's left knee suffered during the accident. 

Relevant procedural history

4.        In relation to the present application, I set out the relevant parts of the procedural history of this matter based on a chronology helpfully supplied by Advocate Richardson. 

5.        Proceedings were first commenced on 14^th June, 2010, shortly before expiry of the three year limitation period applicable to claims in negligence. 

6.        Following closure of pleadings, on 21^st December, 2010, directions were given by consent.  The directions permitted the plaintiff and the first defendant to adduce expert evidence including one expert each in the field of orthopaedics.  The directions contemplated a single trial on liability and quantum.  There were no directions given in respect of the second defendant. 

7.        Pursuant to these directions the plaintiff served evidence from an orthopaedic consultant, Mr David Pring, by reports dated 30^th March, 2009, 26^th March, 2010, 27^th January, 2012, and three letters dated 29^th March, 2012, 14^th May, 2012, and 2^nd October, 2012. 

8.        One report and three letters were produced by Professor John King, another orthopaedic specialist.  His report, dated 28^th September, 2010, the first two letters, dated 20^th December, 2010, and 13^th May, 2011, were provided to Advocate Dorey then of Messrs Backhurst, Dorey and Crane, who at that time was acting for the second defendant.  The final letter from Professor King dated 2^nd March, 2012, was addressed to Messrs Appleby who acted for the first defendant.  All these reports and letters were disclosed to the plaintiff and, until October 2014, as far as the plaintiff was concerned, no distinction was drawn between the defendants who both relied on Professor King's report and letters. 

9.        It was explained to me during the course of argument that there were differences of opinion between the first defendant and the second defendant in relation to the plaintiff's claim which led to the first defendant taking over conduct of the trial on liability to which I have referred and which also led to Professor King being instructed by the first defendant.  I return to this later in this judgment. 

10.      On 1^st May, 2012, Mr Pring and Professor King met and produced a joint statement.  At paragraph 6 of their joint statement, both experts agreed that the plaintiff would require some form of knee replacement surgery within ten years and the actual timing depended very much on the balance between the plaintiff's perception of his disability and his understanding of the risks and advantages of a complex procedure.  The experts further agreed that any replacement would be likely to last between ten to fifteen years. 

11.      In March 2012, the plaintiff served a report from an actuary.  In summary the effect of this report was to increase significantly the damages being claimed by the plaintiff.  The first defendant applied to disallow the report because it was served out of time and too late given the trial dates then fixed for April 2012.  This application was refused but the Royal Court did order a split trial should occur with issues of liability only being determined and quantum being reserved to a later date.  As I have set out above the trial on liability duly took place resulting in the Royal Court's judgment to which I have already made reference. 

12.      Following the trial on liability nothing further occurred until April 2014 when the action was placed on the strike out list. 

13.      Following the appearance of the matter on the strike out list, the plaintiff firstly applied to amend its order of justice to add a claim for provisional damages.  This application was granted on 23^rd April, 2014.  At the same time the plaintiff was permitted to file updated expert evidence in various fields including that of orthopaedic surgery.  The defendants were also given permission to file updated orthopaedic evidence.  Paragraph 10 of the order provided as follows:-

"The defendants are further permitted to file updated orthopaedic evidence from its existing expert by 30^th September, 2014, if the defendants wish to rely on such evidence in the course of any negotiations or mediation."

14.      The intention of the direction contained in the 23^rd April order was to allow the plaintiff on the one hand and the defendants on the other to update their existing medical evidence to enable the parties to attempt to resolve their differences by way of mediation pursuant to the powers vested in me by Royal Court Rule 6/28.  There was no discussion about an additional orthopaedic expert being retained by the second defendant only. 

15.      Regrettably, the matter did not settle.  While I was not informed (quite properly) about what took place during the period of the stay, I was told that it was at this stage that the second defendant sought to rely on the report of the expert it now seeks leave to adduce at trial.  The impact of this evidence was no doubt significant when taken in conjunction with the actuarial evidence the plaintiff wished to adduce in respect of the appropriate multiplier to be applied to the plaintiff's claims compared with that which the defendants contended for.  This is because, on the second defendant's case, the amount of care required was for one replacement knee operation rather than two as Professor King and Mr Pring had agreed, which had a material effect on the plaintiff's claim. 

16.      Given the matter did not settle, further directions were sought, so that a trial on quantum could proceed.  These directions were given on 12^th January, 2015.  During this application the second defendant indicated it wished to file additional orthopaedic evidence.  I was not willing to consider the second defendant's application that day without detailed submissions on the application.  The application was therefore adjourned. 

17.      The second defendant's application was ultimately determined on 26^th January, 2015, when I dismissed the application with detailed reasons to follow. 

The parties' contentions

18.      The second defendant's application was to file expert evidence from Mr Peter Earnshaw, a Consultant Orthopaedic Surgeon at Guys and St Thomas' Hospital in London.  In support of the application a desktop report (i.e. a report based on a review of medical records only) dated 24^th August, 2014, obtained by Berrymans Lace Mawer, English Solicitors acting for the second defendant, was produced. 

19.      Advocate Ingram contended that this report would assist the Royal Court at trial.  He argued that Mr Earnshaw had reached a different view from that of Mr Pring and Professor King.  The difference between Mr Earnshaw and Mr Pring and Professor King was that Mr Earnshaw felt that a knee replacement for the plaintiff would be necessary but only at a later stage, i.e. by the time the plaintiff was aged fifty rather than aged forty.  He also felt that only one replacement knee operation would be all that was needed because any replacement knee surgery would last longer than that anticipated by Mr Pring and Professor King as well as taking place later.  As I have noted above, this report, if accepted, would have the effect of reducing the plaintiff's claim significantly. 

20.      Advocate Ingram fairly accepted that Mr Earnshaw was no more qualified than Mr Pring or Professor King.  He also explained he had not approached Professor King for an updated report or to comment on the desktop report produced by Mr Earnshaw because Professor King had become the expert of the first defendant. 

21.      Rather the focus of his argument, by reference to the case of Daniels v Walker [2000] 1 WLR 1382, was that he should be permitted to call additional expert evidence because what was before the court was a joint opinion.  He contended that Daniels v Walker dealt with a situation where a defendant who was party to a joint instruction wished to call expert evidence.  The relevant extracts are to be found at lines 1387D-G and 1387H to 1388C as follows:-

"In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue.  It is to be hoped that in the majority of cases it will not only be the first step but the last step.  If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence. 

In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert.  In many cases it would be wrong to make a decision until one is in a position to consider the situation in the round.  You cannot make generalisations, but in a case where there is a modest sum involved a court may take a more rigorous approach.  It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances.  At most what should be allowed is merely to put a question to the expert who has already prepared a report. 

................

In a case where there is a substantial sum involved, one starts, as I have indicated, from the position that, wherever possible, a joint report is obtained.  If there is disagreement on that report, then there would be an issue as to whether to ask questions or whether to get your own expert's report.  If questions do not resolve the matter and a party, or both parties, obtain their own expert's reports, then that will result in a decision having to be reached as to what evidence should be called.  That decision should not be taken until there has been a meeting between the experts involved.  It may be that agreement could then be reached; it may be that agreement is reached as a result of asking the appropriate questions.  It is only as a last resort that you accept that it is necessary for oral evidence to be given by the experts before the court.  The cross-examination of expert witnesses at the hearing, even in a substantial case, can be very expensive.  

The great advantage of adopting the course of instructing a joint expert at the outset is that in the majority of cases it will have the effect of narrowing the issues.  The fact that additional experts may have to be involved is regrettable, but in the majority of cases the expert issues will already have been reduced.  Even if you have the unfortunate result that there are three different views as to the right outcome on a particular issue, the expense which will be incurred as result of that is justified by the prospect of it being avoided in the majority of cases."

22.      Finally, Advocate Ingram made it clear that the second defendant was a party to the proceedings and should be afforded the same rights as any other party to fully participate in the proceedings.  This was because any damages, if the plaintiff was right on his arguments about the correct multiplier and discount rate for a lump sum payment, were going to be substantial and would have to be paid by the second defendant.  He also argued there was no question of any delay arising, because the instruction of a further expert and any meetings would not disrupt the likely court timetable since any trial was not going to take place until the end of the year in any event. 

23.      Advocate Richardson, for the first defendant, supported the second defendant's submissions and made the additional observation that it would be difficult for the first defendant to understand why a further expert could not give evidence to assist the court.  Advocate Richardson added it was not fair when the plaintiff was permitted to update its report if the defendants could not provide updated orthopaedic evidence. 

24.      Advocate MacDonald for the plaintiff in response contended as follows:-

(i)        The court had a discretion to limit expert evidence. 

(ii)       By analogy with the Civil Procedure Rules Part 35 such evidence should be restricted to evidence reasonably required to resolve the proceedings. 

(iii)      Mr Earnshaw's evidence was not reasonably required where the existing experts were in agreement. 

(iv)      The defendants between them could update their evidence but that did not justify an additional expert. 

(v)       The directions on 23^rd April, 2014, simply contemplated existing expert evidence being updated and not new expert evidence being adduced. 

(vi)      The interests of the first and second defendants were aligned. 

(vii)     Mr Earnshaw was no more qualified to give evidence than Mr Pring or Professor King.  He had also not identified any gap or area where Mr Pring or Professor King were unable to reach a view.  Mr Earnshaw's report was therefore simply a different opinion and amounted to expert shopping. 

(viii)    Moreover his desktop report was defective in that it did not address the final report issued by Professor King by his letter dated 2^nd March, 2012, or the joint statement. 

(ix)      Allowing an additional expert would simply increase time and costs. 

(x)       Mr Earnshaw had not examined the plaintiff. 

(xi)      Daniels v Walker did not assist in the present case because the plaintiff on the one hand and the defendants on the other had separate experts.  Daniels v Walker is simply an authority that permits a party to adduce its own expert evidence where a joint expert only has been retained.  It did not justify the calling of a second expert where experts had already been engaged and had agreed. 

25.      Advocate MacDonald also confirmed to the court and to the parties that his claim for provisional damages was only in respect of the matters pleaded at paragraphs 12(iii)-(vi) of the amended order of justice.  Provisional damages were not sought in respect of the need to replace the plaintiff's knee. 

Law

26.      I now turn to consider the nature of the jurisdiction vested in me in relation to expert evidence.  This is found in Rule 6/20 of the Royal Court Rules 2004, as amended, ("the Rules").  Rule 6/20(1), (2) and (3) of the Rules provide as follows:-

"6/20 Evidence

(1)       Subject to these Rules and to any other enactment relating to evidence, any fact required to be proved at the hearing of any proceedings by the evidence of witnesses shall be proved by the examination of the witnesses orally and in open court. 

(2)       However, the Court may -

(a) subject to paragraph (4), order that any particular facts to be specified may be proved by affidavit;

(b) order that the affidavit of any witness may be read at the hearing on such conditions as the Court thinks reasonable;

(c) order that evidence of any particular fact to be specified shall be given at the hearing by statement on oath of information and belief or by production of documents or entries in books or by copies of documents or entries or otherwise as the Court may direct; and

(d) order that not more than a specified number of expert witnesses may be called.

(3)       The Court shall have full discretionary power, at any time before the delivery of judgment, to receive such further evidence as in the opinion of the Court the justice of the case may require, and may of its own motion direct that additional witnesses be heard."

27.      Ultimately, it was not disputed between the parties that firstly I might limit the number of expert witnesses and secondly I enjoyed a discretion, as does the trial judge, as to what evidence might be admitted. 

28.      However I do not consider that a test of a reasonable requirement by reference to the Civil Procedure Rules now in force in England should be applied because those Rules have a different jurisdictional basis.  Rather I approach the issue as one of discretion. 

The status of the second defendant

29.      In reaching my decision it is necessary to explain the position of the second defendant.  This is because of the assertion advanced by the second defendant that it was a party to proceedings and should not therefore be deprived of an opportunity to adduce relevant evidence. 

30.      In my judgment there is a difference between the first defendant and the second defendant.  The first defendant was the individual who acted in breach of a duty of care and caused the accident (in part), which led to the plaintiff suffering injuries.  The second defendant's only involvement is because the first defendant was uninsured.  In Jersey, this situation is covered by an agreement between the second defendant and the States of Jersey dated 20^th September, 2000, by which the second defendant agreed to pay unsatisfied judgments. 

31.      However, there are exceptions to the agreement between the States of Jersey and the second defendant.  The agreement also does not in any individual case compel the second defendant to indemnify any driver who is uninsured.  There is only a contractual promise to the States of Jersey to do so.  It is for this reason, which is quite understandable, that a plaintiff may well join the second defendant to proceedings alleging negligence against a driver to avoid any issues arising should a plaintiff be left with an unsatisfied judgment against an uninsured driver such as the first defendant.  This procedure then allows a successful plaintiff to enforce any judgment obtained against a negligent driver, which is not satisfied, against the second defendant and avoids the risk of a plaintiff having to issue a second claim against the second defendant or requiring the States of Jersey to do so. 

32.      Where the second defendant is joined as a party to an action, conduct of the defence may take place in a number of different ways.  The action may be conducted by the driver as the other defendant or by the second defendant; it might be conducted by the driver but with the second defendant being involved behind the scenes, in particular, meeting the cost of obtaining relevant expert evidence.  A driver may also assign his rights.  The second defendant may simply await the outcome of a trial.  The second defendant cannot compel the driver to assign his or her rights to the second defendant although he or she may do so.  Where a driver, as a defendant, has retained an expert, the second defendant cannot compel such a defendant to waive privilege in respect of access to any expert retained by such a defendant.  All these possibilities illustrate that the second defendant's position is not that of a normal co-defendant sued because a breach of a duty of care is alleged against two individuals or entities. 

Decision

33.      Ultimately the decision whether or not to allow the second defendant to adduce expert evidence is a matter of discretion by reference to Rule 6/20(2)(b) and (3). 

34.      I start by considering the actual role the second defendant has played in this case.  By reference to the chronology set out above, the second defendant, prior to the trial on liability, played some role in retaining Professor King.  It then appears that there was a difference of opinion between the first defendant and the second defendant.  While I accept I am not entitled to know what the differences are between the defendants in the present matter, and the defendants are not required to explain to me what those differences might be, I consider I am entitled to form a view on the extent of any differences between the defendants, having regard to my experience and because the question of whether or not the second defendant's application should succeed is a matter of discretion. 

35.      In the present case, I can quite understand why there may have been differences of opinion between the defendants on issues of liability and contributory negligence.  However it is difficult to see why there is a difference of opinion in respect of quantum.  Both have the same interest in compensating the plaintiff only to the extent that is appropriate.  Indeed in this case, had I accepted that Mr Earnshaw's evidence could be admitted, that would benefit the first defendant just as much as the second defendant.  In the absence of any explanation otherwise, while each defendant is entitled to maintain privilege in respect of experts they have retained, I therefore consider I am entitled to proceed on the assumption that the interests of the defendants in respect of the assessment of damages are aligned and there is no material difference in terms of resisting the plaintiff's claim for damages. 

36.      Secondly, I do not accept the second defendant's argument that its position is analogous with Daniels v Walker.  What Daniels v Walker recognises is that a party, where a joint expert's report has been obtained, should nevertheless be permitted to challenge the evidence of a joint expert, if it wishes to do so, so long as the challenge is proportionate.  That might be by putting questions to a joint expert; it might involve a further report or a meeting of experts; in some cases the evidence may have to be tested at trial.  Much depends on what is at stake and what is proportionate.  I observe that in Daniels v Walker that the court suggested that where a substantial sum was involved it was reasonable for a party to wish to call their own expert.  However, that is not the position that is before me, because the plaintiff and each of the defendants acting together had obtained separate expert evidence, which experts had agreed.  This is not therefore a case where only a joint expert has been retained.  Rather, the plaintiff on the one hand and the defendants (acting as described at paragraph 5 above) on the other, had retained separate experts and this is how the court has proceeded since 2010.  In particular both defendants have effectively relied upon one expert and both were involved in his instruction.  Even when, at the court's instigation, the case resumed and directions were given in April 2014, there was no indication that the second defendant required additional orthopaedic expert evidence. 

37.      Thirdly, in his desktop report, no issue was identified by Mr Earnshaw where additional expert evidence was required.  It was also accepted by Advocate Ingram that Mr Earnshaw was no more qualified than Professor King or Mr Pring.  Furthermore, having considered Mr Earnshaw's desktop report, I could not identify what area of Mr Pring and Professor King's joint statement required additional evidence.  My reading of the desk top report was therefore that Mr Earnshaw was simply putting forward a different view. 

38.      Fourthly, the desktop report also failed to comment upon the last letter of Professor King dated 2^nd March, 2012, or the joint statement and to set out what it was, by reference to those two documents that Professor King, as the expert initially retained by the second defendant and then the first defendant, had failed to consider. 

39.      Fifthly, the second defendant had also not approached Professor King to see whether Professor King still stood by the joint statement or whether he had changed his mind, in light of Mr Earnshaw's challenge.  While I accept that privilege in terms of Professor King, now retained by the first defendant as his expert, was vested in the first defendant, this did not mean that the second defendant could not have approached the first defendant via his advocate to ask Professor King to comment on the desk top report of Mr Earnshaw.  Such an approach did not occur. 

40.      Ultimately, I accepted the plaintiff's submission that the production of the report of Mr Earnshaw was simply trying to put forward a different view to the Royal Court in order to persuade the Royal Court to reduce the amount of compensation payable to the plaintiff.  In that regard I accepted the submission that the second defendant's approach amounted to expert shopping. 

41.      I was also concerned that production of a report by Mr Earnshaw would increase time and cost.  This would require a further meeting of experts and, if they did not agree, would lead to all three experts having to give evidence, whereas at present such evidence may not be necessary or only required on a limited basis. 

42.      If I had acceded to the second defendant's application, in every case where the second defendant was involved, the second defendant would be entitled to adduce its own expert evidence in addition to that of the first defendant.  That in my judgment would produce unnecessary cost and expense.  Accordingly, for the second defendant to produce evidence in addition to evidence produced by an uninsured driver who is a co-defendant, some form of justification is required.  In the present case for the reasons I have given I was not satisfied in this case at the date of the application that such a justification existed. 

43.      If that position were to change and if Professor King indicated that he no longer stood by the joint statement, by reference to the views expressed by Mr Earnshaw, then I would be willing to consider an application to admit additional evidence.  Such an application would be different because at that stage there would be a difference of opinion between Mr Pring and Professor King where the evidence of Mr Earnshaw might assist. 

44.      At present there is no evidence that Professor King does not stand by his letter of 2^nd March, 2012, or the joint statement agreed with Mr Pring and in such circumstances I am not willing to allow the second defendant to open up an agreed position by production of an additional report from Mr Earnshaw.  The length of time between the joint statement and trial can be addressed by permitting Professor King to respond to any additional evidence from Mr Pring that the plaintiff seeks to rely on. 

Authorities

Morley-v-Reed [2012] JRC 127A.

Daniels v Walker [2000] 1 WLR 1382.

Rule 6/20 of the Royal Court Rules 2004, as amended.