Any views expressed in this article are those of the author and should not be interpreted as ICAEW views or guidance.
Strange Beginnings?
A review of a personal injury case in a County Court therefore may initially suggest that we are light on relevant valuation material. However, this case shines an unforgiving, clinical light on the complex duties of experts in court. For those of us engaged in contentious valuation it is an unflattering reminder of our duties and responsibilities, including the need for deep courtesy, one to another.
Complex Regional Pain Syndrome
It must always be difficult for a Court to divine the truth when dealing with debilitating pain which has no physical manifestations. This is Complex Regional Pain Syndrome or CRPS.
The claimant gave evidence that she had enjoyed a rich and varied quality of life before the road traffic accident. The active variety included, on a very regular basis, fitness classes, riding, swimming and clubbing with her girlfriends. Following the 2012 accident, in which her boyfriend inexplicably drove his car into a tree, her right lower leg was injured. She found herself virtually housebound due largely to CRPS arising from the accident.
Her claim for special damages included the costs of a bungalow as her first-floor flat was no longer suitable.
The claimant was supported in her case by Dr J, a Consultant to a London hospital who also had a clinic in Harley Street. He reported that prior to the accident she was fit and well. He also found her to be a reliable historian in recounting accurately the path of her medical condition.
The Historical Record
The Judge described the medical records of the claimant as being long and complex, filling many lever arch files. These records gave graphic details of a long history of various complaints with no physical symptoms, a complex psychological history and a great many sessions with various health professionals. At some of these sessions she provided inaccurate information regarding her condition.
Three months prior to the accident she had made a claim for Disability Allowance and the form included the following statement:
The physical symptoms are so consuming, that I need the support of a trusted friend to break through the trance-like state.”
The Criticism of Dr J
The Judge found that there were three central planks on which Dr J based his findings, including the view that the claimant had provided reliable evidence. He demolished each in turn.
In a searing comment, the Judge said:
“The detail of this history stands in stark contrast to the impression of an active and healthy lifestyle given by the claimant in her witness statement….. and to the remarkable statement by Doctor [J] that prior to the index accident the claimant was 'fit and well'.”
Here are some withering comments made by the Judge about Dr J in the Written Decision:
“I regret that I have been driven to the firm conclusion that his expert evidence in this case is so flawed that I cannot rely on any contentious aspect of the same.”
"Dr [J] was neither careful nor forensically thorough.”
“The contrast between Dr [J]’s determined advocacy of the claimant’s position and the more considered and balanced evidence of the other three medical experts was striking.”
Further Lessons
As if this was not enough, the Judge was also moved to criticise the manner in which Dr J commented on the reports of the other experts. The Judge described these as being “at best off-hand, at worst, rude.”
Here are some of Dr J’s statements, quoted by the Judge:
"Dr G is deliberately trying to raise the element of doubt in the examination findings of Miss Ruffell….. In my opinion Dr G is being misleading.”
“Dr B does not appear to be aware of any of these basic facts.”
“I cannot accept his views as he does not have the appropriate training and experience to make such comments and assertions.”
The Written Decision
The claimant sought special damages of some £1.6 million. The amount awarded was £350, plus general damages of £12,500.
Comment
As expert witnesses we can all recognise the ease with which we can identify with the position of clients: it is part of our DNA as Chartered Accountants to want to do the best that we can. There is a constant tension between being appointed by one side in adversarial litigation and our duties as experts.
This case can perhaps serve as a reminder that our first duty is to the Court. It is not our role to take up cudgels on behalf of our clients.
It also refreshes the concept that we should behave with all due courtesy when dealing with our fellow experts, especially when they hold opinions with which we disagree.
The final words about Dr J from the Judge can serve as a reminder to all of us: “…he repeatedly acted as an advocate for the claimant.”
Andrew Strickland, Consultant, Scrutton Bland
