Opinions matter – especially when you are looking for an expert opinion!
For any practitioner in Personal Injury and Clinical Negligence, it is common knowledge that many factors can turn a case and GKE v Brett Nigel Travers Gunning [2023] is a great example of the importance of choosing the right expert to comment on your case.
The Claimant was a client of the Defendant. The Defendant was providing well-being coaching sessions via a workplace environment and later, on a private therapy basis to the Claimant. During the private therapy sessions, which the Claimant had requested, the Defendant spoke to the Claimant in a manner not befitting a therapist. The comments were of an extremely sexual nature and left the Claimant seeking compensation for psychological injuries as a result.
The judgment, whilst being a lengthy read, contains a great summary on the law of duty of care with multiple references to binding and persuasive case law. Continuing on from the duty of care was the standard of care which referenced the well known Bolam and Bolitho cases regarding the recognised and competent clinician acting in a manner congruent with an accepted standard of practice.
Consideration was also given to the tort of intentionally causing harm by words and aggravated damages with supportive case law referred to in relation to both. However, criticism was given to the way the case was pleaded in relation to the arguments being used, as well as trying to shoehorn in evidence during closing arguments that was not raised and examined thoroughly during the trial.
Despite all of the arguments by both parties, the most prominent issue that appears to arise is the issue surrounding the expert that the Claimant chose to rely on for the purpose of the civil case. It is a well known and understood fact that you must have an expert that has the requisite experience to comment on the case via a CPR 35 compliant report. This means, in simplistic terms, if the Claimant has a broken leg then an orthopaedic expert needs to prepare the report.
The problem lies that where there are a number of similar disciplines that can comment on the case, importance should be stressed in the approach as to what exact issues need to be addressed to ensure that the requisite experience and training, compliance with ethics and codes of conducts, or other professional bodies can be evidenced. In relation to negligence cases, i.e. breach of duty and causation evidence being required, it is important that the expert can address these issues. It is simply not sufficient to identify a breach of duty and not comment on the standard of duty of care that is owed. It is the explanation of the standard of duty of care that assists the court in determining that the care provided was substandard.
Further to this, it is noted that sometimes an expert can only comment on breach of duty and a second expert is required to comment on the causal factors of the identified breach of duty. This is a well-recognised practice within law firms and is often used in negligence cases.
In personal injury cases, the issue of breach of duty and causation lie outside the remit of the expert as they are dealt with by the legal practitioner so it is more common for experts to comment on condition and prognosis.
In this case, the expert instructed did not hold the requisite experience or training to be able to comment on the methods of therapy being utilised by the Defendant. Therefore, whilst breach of duty was identified, there was no explanation as to the standard of care that the Claimant should have been afforded and why the treatment the Claimant did receive was substandard. By his own admission, he was not a trained counsellor, was not a member of BACP, and did not have to comply with the code of conduct that the Defendant had to comply with. Therefore, the expert instructed was the wrong expert to comment on breach of duty.
Further to this, the expert did not examine or interview the Claimant but was still prepared to summarise the post index event suffering in psychiatric terms, despite being a neuro-psychologist.
The unfortunate result of the wrong expert instruction meant that the court could not rely on the information within the report. This meant that the court made its own decision as to the impact the incident had on the Claimant based on the courts own valuation of the claim using the JC Guidelines and Kemp & Kemp.
To summarise, a major issue identified in this case is the requirement to ensure that the correct expert is instructed in order to comment on the breach of duty, causation, condition and prognosis of the case. The experts instructed by both parties need to be able to have a discussion on a peer level and this can only be done if the experts are of the same discipline.
Approach letters to experts should highlight that if they do not have the requisite expertise to comment on the case then do not accept the instructions. The minutiae of expert disciplines are often best identified by the experts themselves. If in doubt, take the extra time to speak to the expert or send a further email to clarify an issue and make sure a detailed file note is recorded to show that the legal practitioner is thinking about the case as a whole and ensuring that their client’s best interests are met. It is better to know before securing a medical report that it is the wrong expert than be left with an unrecoverable invoice, or worse, a lost case.
How can PIC help?
PIC can provide training on time recording, which would include justifying additional or exceptional time in circumstances such as these. Should you wish to arrange a training session on time recording, please contact our training manager.
Susie Power, Senior Costs Consultant
30.05.2024