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ISSN 2397-2769
THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES
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PERSONAL INJURY PSYCHOLOGY - VICARIOUS LIABILITY DISABILITY - VASCULAR SURGERY
Vol 1 Issue 27 - Spring 2019 - £5.00 €6.00
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Welcome to the Expert Witness Journal Hello and welcome to the 27th edition of the Expert Witness Journal. One of our main features covers all aspects of Personal Injury, including a speech from Lord Justice Irwin – ‘What do Damages For Personal Injury Represent?’ an article on Vascular Surgery Complications by John H Scurr, an article by Prof. Peter Sullivan on the Human and Financial Cost of Brain Injury at Birth and an excellent article from David Hills & Mary Tebb on Residential Rehabilitation for Amputees. We also feature articles on Clinical Negligence, Mental Capacity, Children’s Play areas, Rogue Traders and Accidents Abroad. We will also be attending the APIL Annual Conference at the Hilton Birmingham Metropole from May 16th to 17th, please pop by our stand and say hello. Throughout the two day programme, there will be a number of highly topical plenary sessions, and a range of seminar streams, where delegates will have the opportunity to attend five seminars throughout the two day conference. For further information please visit: www.apil.org.uk/training/2977/apil-annual-conference-2019 Our next issue will be covering the non-medical side of Expert Witness work along with our usual general related articles. If you would like to submit or comment on any articles, please contact myself at the email below. Many thanks for your continued support. Chris Connelly Editor Email:chris.connelly@expertwitness.co.uk
This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products. No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’. All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Exper t Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal. The publisher does not accept responsibility for advertising content. The information in this magazine does not constitute a legal standpoint. The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2019. Expert Witness Publishing Limited, Unit 1/06, Ivy Business Centre, Crown St, Failsworth, Manchester M35 9BG
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Expert Witnesses - A Cautionary Tale In the dim and distant past expert witnesses could not be sued for negligence. That changed in 2011, and they can now be sued when acting as an expert. Although the hope was that this may help to drive up levels of care and skill amongst professionals when acting as experts, there are signs that further improvement is still required.
He went on to say “On all matters where the experts for the two parties hold different views, I prefer the evidence of [Merit’s expert]…I find his evidence to be wholly impartial and his independence to be uncompromised. His conclusions were sensible and did not seek to advance the case of the party instructing him. The same, regrettably, could not be said of [ICI’s two experts].”
There have been a number of recent court decisions criticising expert witnesses who the court has regarded as acting as the equivalent of “hired guns” for the party which has appointed them.
So while it may be understandable that a party may want their expert only to express views which are favourable to their case, recent case law highlights the danger of this approach. It can backfire, resulting in the judge preferring the evidence of the other expert if the judge believes that other expert is acting impartially.
It is understandable that some parties regard their expert as there to help them win their case, in the same way as their solicitor or barrister. After all, the party is paying the expert’s fees. However, the court rules are clear in requiring experts to act independently and impartially. They are there to assist the court on matters within their field of expertise.
Acting in breach of the court’s rules could also put the expert at risk of a claim from the party instructing him if it can be shown that his failure to follow the court rules on expert witness independence and impartiality has damaged his/her party’s case at trial.
Despite those clear rules, they have not always been followed by experts. For example, in the 2017 case of Imperial Chemicals Industries Limited v Merit Merrell Technology Limited, the Technology and Construction Court judge dealing with the case was highly critical of ICI’s experts.
Such risks for parties and experts alike can be avoided by following the court rules on expert witnesses, and for parties to avoid the temptation to put pressure on their expert to say what the party wants to hear.
He stated in relation to the evidence of one expert for ICI at trial given in cross examination that it was “…not the sort of evidence one would expect from a wholly impartial independent expert witness.”
Many thanks to Wright Hassall for permission to reprint this article www.wrighthassall.co.uk
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Contents Some of the highlights of this issue Events and Training
page 5
Setting the Interest Rate Terms for PI Compensation by Peter Crowley, Windsor Actuarial
page 8
Medical Aspects of Causation in Relation to Quantum – Issues for Experts to Consider by Andrew Benzeval
page 11
Identifying Professional Negligence Lender Claims by Chris Freeman
page 19
The Problems with Inadequate Medical Record Keeping by Giles Eyre
page 23
Can Compensation Bring Satisfaction? What do Damages For Personal Injury Represent? Speech by Lord Justice Irwin page 25 Vascular Surgery Complications in Personal Injury by John H Scurr
page 37
The Human and Financial Cost of Brain Injury at BirthC by Professor Peter B Sullivan
page 44
To What Extent can CRPS be Defined as a Psychological Condition? by Dr Jenner
page 48
Noise Induced Hearing Loss Claims: Sounding a Note of Engineering Pragmatism by Ed Clarke
page 52
The Importance of Good Design in Disabled Adapations by Alex French
page 59
Digging a Little Deeper… by Jackie Dean
page 61
Residential Rehabilitation for Amputees - What a Difference a Week Makes by David Hills and Mary Tebb of the Dorset Orthopaedic Company
page 64
Psychological Injury in Clinical Negligence Cases: What Needs Consideration? Hugh Koch, Emma Solomon, Eleanor Sutton, and Jill Molloy
page 74
Expert Witnesses – The Good, The Bad and The Guns for Hire Martin Burns
page 90
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UK North 07774 32 32 67 UK South 07506 55 99 52 Email: - info@floorslip.co.uk
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Sound and Vision – The Future of Drug Discovery A marriage of sound and light could hold the key to diagnosis of the early stages of various diseases, including cancer, new research led by the University of St Andrews reveals.
slow and unpredictable as they have to permeate through pores in the gel. The use of sound solely to immobilise samples removes this issue as the object is held in its native liquid medium.
The international research team, in collaboration with the University of Edinburgh, University of Glasgow, Illinois Wesleyan University, USA, and the University of Western Australia, Perth, developed an innovative new way to hold samples using sound whilst they are gently imaged using light.
The team held a range of samples including zebrafish embryos and larvae and a variety of marine animals. Once held, the sample was rapidly sampled by light sheet imaging, a powerful way to rapidly acquire three dimensional volumes of organisms. As an example, they monitored the reaction of the heartbeat of zebrafish larvae to drugs, which are known to affect cardiovascular function. They explored the cardiac cycle of the zebrafish and described a new way to see changes in contractile volume within the heart that in future could lead to new insights for cardiovascular research.
Published in the journal Nature Communications, the research paves the way to move to a host of new studies for advanced drug discovery and combating conditions such as coronary heart disease. The ability to hold and image objects has had a profound impact across biomedical sciences, especially those focused upon disease identification, neuroscience and developmental biology. The innovative approach developed by the team uses sound waves to grip small samples. The sound wave or acoustic beam impinging on an object can result in a “radiation force” as the object scatters the sound waves. If the beam is suitably shaped, this force can be used to immobilise an object. The normal way to immobilise the object would be to use a gel but is not compatible with many organisms. More pertinently, when one wants to introduce drugs to the sample this can be
Professor Kishan Dholakia, from the University of St Andrews School of Physics and Astronomy, said: “This is a new way to perform drug-based studies for cardiovascular disease and developmental biology. We anticipate this approach can also be used for high throughput drug discovery, an important topic for future healthcare.” The paper Light sheet microscopy with acoustic sample confinement is published in Nature Communications and is available online.
Dr Elizabeth Soilleux Consultant Histopathologist MA, MB, BChir, PhD, FRCPath, PGCertMedEd, European Board of Pathology, Cardiff University Bond Solon Expert Witness Certificate (Civil Law)
Practising consultant haematopathologist and autopsy pathologist in Cambridge. Cambridge University lecturer and fellow/director of studies in medicine, Churchill College, Cambridge. Expertise in: Haematopathology - histopathological assessment of lymph nodes, bone marrow, thymus, spleen, lymphomas, leukaemias, myelomas, myelodysplastic syndrome, myeloproliferative disorders, benign conditions, including infections, molecular tests in haematopathology. Autopsy (post mortem) pathology. Contact: Tel: 07798 643879 Email: expwitpathol@gmail.com Website: www.expertwitnesspathologist.co.uk 60 Cow Lane, Fulbourn, Cambridge, CB21 5HB
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Facial Recognition Technology to Help in Fight Against Prison Drug Trafficking Biometric technology which can identify visitors who may be trafficking drugs into prisons has been successfully trialled, Justice Secretary David Gauke has revealed The technology, which includes iris scanning and facial recognition software, has been tested at 3 jails and is part of a wider crackdown on drugs entering prisons.
It can also act as a deterrent, with one trial prison seeing a higher than usual ‘no shows’ rate at visits after attendees found out the software would be in operation.
This trial comes against a backdrop of wide-ranging measures to tackle drugs and violence in prisons, including security scanners, drug search terms, digital technology to identify criminal kingpins and a Financial Crime Unit with the power to freeze suspect bank accounts linked to prisoners. All of this has been underpinned by a significant boost in prison officer numbers following a major recruitment campaign.
Justice Secretary David Gauke said: “New technology is vital in our fight against the gangs that seek to cause chaos in prisons, and this biometric equipment has the potential to significantly aid our efforts. It forms part of this government’s multi-millionpound investment to improve the safety and security of our prisons. Alongside our successful officer recruitment drive, measures like this will help make prisons places of rehabilitation where offenders can turn their lives around. This will cut reoffending and make the public safer.”
Intelligence work has identified a trend of prison visitors supplying illicit items to multiple prisoners and jails across the estate. These individuals have been difficult to track, however, as organised criminals may also falsify their identity documentation.
Last year more than 23,000 drugs and mobile phones seizures were made by prison staff, an increase of almost 4,000 from the previous year, showing the scale of the problem.
While some prisons have fingerprint recognition, most sites use paper-based verification, using documents like driving licences. In addition to being open to abuse by contraband traffickers, this system is slow and resource intensive.
The new technology will help in efforts to reduce drug use in prison, which drives up violence and self-harm. It is the latest development in a multi-million pound drive to improve security and safety in the prison estate. This includes £16 million to improve conditions for prisoners and staff and £7 million on new security measures, such as security scanners, improved searching techniques, phoneblocking technology and a financial crime unit to target the criminal kingpins operating in prisons.
The state-of-the-art biometric technology allows prison staff to identify visitors using applications based around document validation, iris scanning and facial recognition software. It has been successfully trialled at HMP Hull, Humber and Lindholme. The Prison Service is now looking at how this, and other similar technology, could be used most effectively across the estate. The machines highlight suspicious individuals, allowing staff to refuse entry and providing evidence that could be used in a subsequent Prison Service or police investigation. This will mean police and prison staff can better target the activity of those that seek to bring drugs into prison – disrupting their criminal networks.
Meanwhile, the ‘10 Prisons Project’ has seen £10 million investment in some of the most challenging prisons to curb the flow of drugs and phones, while also improving conditions and leadership at those jails. This will tackle drug supply enhancing physical security at the jails, with investment in drug-detection dogs, body scanners, and improved perimeter defences.
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Events successful legal team in the Montgomery case. Leading clinical negligence lawyers will provide an update on current case law, and our panel will take questions and facilitate discussion on the expert-lawyer relationship in clinical negligence litigation
Inspire MediLaw Inspire MediLaw’s medico-legal conferences cover a whole range of medical and legal issues relating to clinical negligence. Our Medico-Legal conferences focus on providing medical knowledge for legal professionals with presentations by leading medical experts, lively discussion and debate and the latest case studies. With an interesting balance between medical and legal speakers our APIL CPD accredited conferences will be of interest to both claimant and defendant practitioners.
Summer Medico-Legal Conference (Oxford) 6 June 2019 De Vere Oxford Thames Hotel Join medico-legal collegues for updates on case law and tips for medico-legal practice. Participating in the Meeting of Experts sessions will help you learn and consolidate techniques for preparation and attendance of these crucial meetings.
Clinical Negligence Conference Edinburgh 29 April 2019 The Principal Edinburgh Charlotte Square Pulmonary embolism remains the leading cause of preventable in-hospital death. This training day, chaired by Lauren Sutherland QC, will specifically address thromboprophylaxis in medical and surgical patients, as well as other medico-legal issues arising, in Neurosurgery, General Surgery, Obstetrics, Cardiology, Stroke, and Orthopaedics.
Inspire MediLaw, Merchant House 5 East St, Helen’s Street, Abingdon, OX14 5EG Phone: 01235 426870 Email: info@inspiremedilaw.co.uk Website: www.inspiremedilaw.co.uk
RICS
This event offers claimant and defendant lawyers the opportunity to learn from leading consultants and medicolegal professionals, with a view to enhancing their own medical knowledge in practice.
Fire Safety in Blocks of Flats 6 hours CPD Date and time: Thu 30 May 2019 Venue: London
Expert Witness Training for Medical Professionals 9 May 2019 Oxford Spires Hotel Inspire's Expert Witness training is designed specifically to guide and prepare medical professionals in the essentials of medico-legal practice. This two day CPD course explains the practicalities of setting up a medico-legal practice, what to expect from instructing parties, the legal procedural rules that govern expert witnesses, successful report writing, preparation of joint statements with opposing experts, meetings with counsel and giving evidence in court.
Expert Witness Certificate Founded on the official RICS Professional Guidance, this blended learning programme will ensure you develop the core competencies needed to be an effective expert witness. Practically orientated, this 12-week programme is designed to give you a sound knowledge of the law and best practice. Mon 15 Apr 2019 - Fri 12 Jul 2019 Time: 09:00 AM - 05:00 PM Venue: Birmingham, Birmingham CPD: 6 hours formal CPD
Medico-Legal issues in Emergency Medicine Conference 15 May 2019 The Morrison DoubleTree by Hilton Hotel, Dublin Inspire MediLaw’s medico-legal conferences cover a whole range of medical and legal issues relating to Emergency Medicine negligence. Our Medico-Legal conferences focus on providing medical knowledge for legal professionals with presentations by leading medical experts, lively discussion and debate and the latest case studies. With an interesting balance between medical and legal speakers our APIL CPD accredited conferences will be of interest to both claimant and defendant practitioners.
Professional Solutions
Annual Expert Witness Conference & Networking (Scotland) 17 May 2019 The Royal College of Physicians, Edinburgh Join us at the launch of our Annual Scottish Expert Witness Conference. This event will bring together experts from across the country for a day of medico-legal updates, practical training and networking.
Our focus is to help clients achieve excellence in all aspects of professional communication, so that they can demonstrate their expertise to clients and prosper in the challenging marketplace for professional services.
Phone: +44 (0)24 7686 8555 UK Training enquiries: +44 (0)24 7686 8584 Email: contactrics@rics.org Knowledge Leaders in Professional and Forensic Communication. Professional Solutions is a knowledge leader in the fields of professional and forensic communication. For the last 20 years, we have offered advisory services and learning and development solutions to National and Local Government, international multi-disciplinary consultancies, expertise specific consultancies, independent professional practitioners and professional bodies.
Professional Solutions (Learning and Development) Ltd Chartered Institute of Arbitrators 12 Bloomsbury Square, London, WC1A 2LP Email: info@prosols.uk.com - ww.prosols.uk.com
The programme for the day includes a masterclass on consent, by Lauren Sutherland QC, a member of the EXPERT WITNESS JOURNAL
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Bond Solon
Discussions between Experts This course will provide experts with a comprehensive overview of what these discussions entail, possible pitfalls and the implications if best practice is not followed.
Expert Witness Courses Excellence in Report Writing This course provides expert witnesses with the key skills to produce court compliant reports. Experts will learn how to produce quickly and consistently reports that are both court compliant and will withstand cross-examination.
Concurrent Expert Evidence (Hot-Tubbing) An intensive one-day course, providing civil expert witnesses with the core skills and knowledge to give concurrent expert evidence in court.
Courtroom Skills This one day course will provide expert witnesses with the core skills to effectively present opinion based evidence in court under cross-examination. Cross-Examination Day A follow on day to the Courtroom Skills Training, this course enables expert witnesses to refine and enhance their skills in presenting evidence in court.
Masterclass in Report Writing This masterclass is designed for experts who have already undertaken the Excellence in Report Writing. The course acts as a useful refresher and is designed to enhance your report writing skills to an advanced level.
Civil Law and Procedure This course provides civil court experts with a comprehensive understanding of their requirements of CPR Part 35, Practice Direction 35, the Protocol for the Instruction of Experts and practice direction on pre-action conduct.
Masterclass in Courtroom Skills The advanced masterclass is designed for expert witnesses who have already undertaken the Courtroom Skills. Experts should consider this course every 2-3 years to refresh and enhance their skills in giving evidence.
Criminal Law and Procedure This course provides criminal court expert witnesses with a comprehensive understanding of their requirements under Part 33 of the Criminal Procedure Rules.
GDPR for Expert Witnesses Toolkit This toolkit will help you understand what the General Data Protection Regulations means to you as an expert witness and provide you with tools you are most likely to need to comply with the GDPR.
Family Law and Procedure This course provides family court expert witnesses with a comprehensive understanding of their requirements under Part 25 and 25A.
To secure your place, either book online or call us on 020 7549 2549 or visit; www.bondsolon.com
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Benefits of Inspire Expert Witness Training With a wealth of experience in the legal and healthcare sectors, we are uniquely placed to offer this RSM accredited expert witness training and follow up, carefully tailored to your medico-legal requirements. This includes: v Interactive training sessions with experienced clinical negligence v professionals; v GMC and GDPR advice sessions; v Comprehensive course materials for easy future reference; v Marketing of your expertise to our network of lawyers; v Advice on presenting your CV; v Networking and speaking opportunities; v Ongoing coaching and mentoring by our experienced panel of lawyers and medical experts; v CPD accreditation. To find out more about Inspire MediLaw, upcoming conferences for expert witnesses, and other course dates for 2019 visit their website at www.inspiremedilaw.co.uk or contact Caren Scott or Vikki Forrester on 01235 426870 or email: info@inspiremedilaw.co.uk.
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Inspire MediLaw is a provider of first class conferences, accredited training and CPD events in medicine and law. We provide knowledge for medical experts who need to understand the law and for lawyers who need to understand the medicine. Inspire MediLaw is passionate about bringing medical and legal professionals together to learn, shape best practice and share ideas.
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Setting the Interest Rate Terms for PI Compensation by Peter Crowley, Windsor Actuarial said on behalf of the inadequacy of past rewards for the period 2001 – 2017 to the weakest in society.
More financial problems in Britain have been caused since 1990 by the process of converting a series of future cash flows into a capital sum equivalent than anything else.
If the revised rate of -3/4% is judged as "correct", there is the issue that awards since 2001 were understated, and should be reviewed.
Pension and interest rate swap miss-selling, the demise of final salary pension schemes and Equitable Life are just four of those problems. No wonder that the Ogden Table Discount rate changes have opened up a hornets’ nest.
Although the UK Courts take the Lord Chancellor's word as law (so the 2.5% rate up to 2017 cannot be challenged), the same may not be true of EU courts, under whose jurisdiction we currently remain.
Summarising the issues: Lord Irvine - the then Lord Chancellor - set a real discount rate (i.e., one allowing for payments made to grow with inflation) on 25 June 2001 to 2.5% per annum, based on the then index linked gilt rates of return. However, he made no provision for this rate to change automatically if the yields on those gilts changed. Since then, the real yield on index-linked gilts (risk free investments issued by HM Government) has fallen steadily.
As an example, in 2011, the "Test-Achats" ruling in the EU Court declared it illegal to discriminate by sex when setting life assurance, annuity or general insurance premiums in the UK after 20 December 2012.
The rate has been persistently criticised for being too high in the most trenchant terms in the annual publication 'Facts and Figures', recognised as authority in the Personal Injury courts.
Test-Achats ruling was not retrospective - however, the plight of undercompensated quadriplegics may seem more worthy of a revisit than the Test-Achats cases, due to:
Facts and Figures is an incredibly detailed handbook covering up to date information to identify compensation costs. Of 385 pages, 125 were Ogden tables the other 260 were other supportive information. Clearly, an enormous amount of work goes into this publication.
- Greater levels of loss
As a result, male open market pensioners effectively subsidise similar female pensioners, who live longer and female drivers subsidise their male equivalents, who have more frequent and expensive accidents.
- The far greater exposure to over-penal loss, bearing in mind the difficulty of obtaining remunerative work and the income and support needs which increasingly fail to be met from an over-rapidly decreasing fund
Using too high a rate effectively penalises the Permanently Injured (e.g., quadriplegics), and prematurely bereaved (e.g., a young widow with children). This must be seen as depreciable, as the weakest in society are not only undercompensated but unavoidably misled by the courts that the compensation is adequate and fit for purpose.
On the other side of the coin is the fact that there is a point at which insurance premiums become too onerous, if not unaffordable. Many of the claims are against public service sectors - especially, negligence claims against the NHS – which can be expensive to fight, let alone pay. Some NHS trusts are rumoured to have embraced a coverup policy - contrast the aviation industry, which is more open about its failings - See the first chapter of Matthew Syed's book "Black Box Thinking".
Although it has been argued that some claims are bogus (e.g., false whiplash claims), it is clearly unfair to suggest that losses so generated should be reduced by undercompensating genuine victims. Examination by the courts should sift out the former types.
We therefore have the following problems: a Fair compensation b Contained costs c Appropriate interest rate if requirement is capitalised.
On 27 February 2017, the Lord Chancellor, Ms Liz Truss, announced a reduction in the discount rate (effective 20 March 2017) to -3/4% - a fall of 3 1/4%, which was clearly an enormous change. The reasons for the change were so well explained, I have included them in full at the end of this article.
I suggest the following principles for operation: a and b will always fight against each other - but we must see that the result of the fight is open and just. Similarly, there will be pressure to capitalise using weak assumptions (benefit payers clearly favoured a high real rate of 2.5%, even if this represented undercompensation), and recipients would require a
Outcry followed - mainly on behalf of those representing car insurers and medical establishments, as insurance premiums in respect of uninsured drivers and negligent medics would rise steeply. Little was EXPERT WITNESS JOURNAL
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certainty of payment reflected in gilt level rates, which payers would find unpalatable.
Windsor Actuarial Consultants is an independent firm of actuarial consultants with considerable expertise in derivatives and pensions. Our excellent actuarial and consultancy is complemented by our cuttingedge software and technical support.
No less than nineteen documents are available from the Ministry of Justice website: https://consult.justice.gov.uk/digital-communications/personal-injurydiscount-rate/
We are an owner-managed business.
To simplify matters, I suggest the following solutions:
Our consultants are both major stakeholders in the firm and qualified actuaries. They can provide the advice our clients need and they also have a vested interest in ensuring that they get the best service possible.
Private Sector As victims should not be exposed to the risk of the compensating company's possible insolvency, paying a capital sum appears unavoidable.
The level of personal commitment from us could not be higher.
Similarly, an index linked gilt rate seems unavoidable, bearing in mind the inability of victims to take up future work to make up for under-compensation.
Our clients include interest rate swap victims of all sizes, trustees and sponsors of pension schemes, financial advisers, solicitors and individuals.
However, if the Lord Chancellor specified a rate based on the gilt rate at the time of compensation, the problems with the 2.5% rate would be avoided. Similarly, any risk that the -3/4% rate would become in time (hopefully!) too generous would be removed.
Suite 46, Albert Buildings 49 Queen Victoria Street London EC4 4SA Work undertaken worldwide
Public Sector The risk of failures in payments is removed. Payments funded by the government directly can be regarded as fully secured.
Tel: 020 7653 1908 DX 98948 CHEAPSIDE 2 Fax: 0207 681 2778 mail@windsorac.com www.windsorac.com
As the government's practice for similar payments (i.e., public sector pensions) is not to fund, but to pay out of current revenue, there appears no good reason why the same should not be done for PI victims.
Peter also advises solicitors and other professionals on the individual aspects of pensions in divorce, compensation on the loss of pension rights, pensions mis-selling and reversions. He has produced a substantial number of reports on this subject,involving cases of varying complexity, and including overseas pensions
Lord Chancellor and Justice Secretary Elizabeth Truss said: The law is absolutely clear - as Lord Chancellor, I must make sure the right rate is set to compensate claimants. I am clear that this is the only legally acceptable rate I can set. The Discount Rate has been unchanged since 2001.
While a retiring nurse, teacher or civil servant can usually obtain post retirement employment to supplement any shortfall in income, the same cannot be said for our quadriplegic. Notional capitalisation can then be carried out, using a discount rate of choice. The government needs only publish the projected aggregate cash flows year by year (along with any inflation assumptions used).
Today’s decision, as well as seeing compensation payments rise, is also likely to have a significant impact on the insurance industry and a knock-on effect on public services with large personal injury liabilities – particularly the NHS.
https://www.gov.uk/government/news/new-discountrate-for-personal-injury-claims-announced When victims of life-changing injuries accept lump sum compensation payments, the actual amount they receive is adjusted according to the interest they can expect to earn by investing it.
But in the announcement to the London Stock Exchange this morning, four key pledges were made: - the government has committed to ensuring that the NHS Litigation Authority has appropriate funding to cover changes to hospitals’ clinical negligence costs - the Department of Health will work closely with GPs and Medical Defence Organisations to ensure that appropriate funding is available to meet additional costs to GPs, recognising the crucial role they play in the delivery of NHS
In finalising the compensation amount, courts apply a calculation called the Discount Rate – with the percentage linked in law to returns on the lowest risk investments, typically Index Linked Gilts. Today’s decision by Elizabeth Truss to lower the Discount Rate from 2.5% to minus 0.75% was made in accordance with the law and in her capacity as independent Lord Chancellor.
- the government will launch a consultation in the coming weeks to consider whether there is a better or fairer framework for claimants and defendants, with the government bringing forward any necessary legislation at an early stage
The law makes clear that claimants must be treated as risk averse investors, reflecting the fact that they are financially dependent on this lump sum, often for long periods or the duration of their life. Compensation awards using the rate should put the claimant in the same financial position had they not been injured, including loss of future earnings and care costs. EXPERT WITNESS JOURNAL
Peter Crowley, established Windsor Actuarial Consultants in 2005, combines a wide experience of financial products and pensions with a speciality for explaining the concepts in plain English.
- Chancellor of the Exchequer Philip Hammond will meet representatives of the insurance industry to assess the impact of the rate adjustment
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The consultation, which will be launched before Easter, will consider options for reform – including whether the rate should in future be set by an independent body; whether more frequent reviews would improve predictability and certainty for all parties; and whether the methodology is appropriate for the future.
Dr Ian Starke Consultant Physician in Stroke Medicine and Geriatric Medicine MSc, MD, FRCP.
Dr Starke has been a practising Consultant Physician in Stroke Medicine, Geriatric Medicine and General Medicine at University Hospital, Lewisham and Guy’s, King’s and St Thomas’ School of Medicine since 1988.
The new discount rate will come into effect on 20 March 2017, following amendments to current legislation.
Dr Starke provides expert reports for clinical negligence and medical injury cases in stroke medicine and geriatric medicine and on fitness to practise.
Mr Peter Crowley Windsor Actuarial Consultants FIA MEWI BSc
He has provided expert examinations and reports for immigration and HM prison services. He is able to assess clients within or outside London.
Windsor Actuarial is an independent firm of actuarial consultants with considerable expertise in corporate pensions. Established by Peter Crowley in 2005, their excellent actuarial and pensions consultancy is complemented by cutting-edge software and technical support.
Contact: University Hospital Lewisham Lewisham High Street, London SE13 6LH Tel: 0208 333 3379 Fax: 0208 333 3381 Email: ianstarke@nhs.net
Windsor Actuarial Consultants Ltd Tel: 020 7653 1908 Email: mail@windsorac.com Fax:020 7681 2778 DX Number: 98948 CHEAPSIDE 2 Website: www.windsorac.co.uk
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Medical Aspects of Causation in Relation to Quantum – Issues for Experts to Consider This article covers issues relevant to the authors of quantum expert reports, whether medical condition and prognosis reports or non-medical quantum reports. The purpose of this article is to consider the medical causation issues relating to the quantum of a case. In particular, it considers the issues that arise where the claimant’s situation is such that it is not clear what has caused the injury (or aspects of the injury) that gives rise to the claim, and how to deal with those issues. This article comes from the standpoint of those representing claimants. Although experts have a duty to the court and not to the party paying their fees, we consider how expert opinion can be used by a claimant to maximise his or her damages.
Where serious injuries are concerned, the majority of future losses will be made up of the consequences of the injury; for example, the claimant’s loss of earnings or need for care and case management. If, however, there are features of the claimant’s history that may have meant significant needs in any event, how does the court differentiate between them?
First principles It is worth reminding ourselves of the basic principles enshrined within the Civil Procedure Rules (CPR) in respect of expert evidence. The key points are:
Causation of the injuries will, therefore, have a significant role to play, and the claimant will need to prove not only that the breach of duty caused some injury, but that the negligence caused needs in order to recover those sums. This may appear straightforward in a case for an otherwise fit and healthy individual who has suffered a catastrophic injury as the result of an accident, but may be far more complex where there are competing potential causes.
1, The expert writes the report for the benefit of the court, and not for the party paying them to do so; 2, The expert should only comment upon matters within their own expertise. It should always be remembered that the CPR requires the court to allow expert evidence only where it is required. To quote the rule at CPR 35.1:“Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.”
It is important, therefore, to correctly identify the damage that has been caused by the negligence. This will invariably take the form of a two-stage process. The first stage is to establish the injury caused, and the second is to establish the effect of the injury in terms of the claimant’s needs and thus his or her damages.
Where “causative quantum” is concerned, the court will need to be persuaded that an expert is required to advise as to what is claimable as a result of the negligence that has occurred.
This article will look at two areas of investigation that may occur.
Medical issues as to causation can be significant in serious injury cases, not just in terms of whether a defendant is liable (in other words their breach of duty has caused an injury for which damages are recoverable), but also the extent to which that negligence sounds in damages, and in some cases to specific heads of loss, as will be seen from the review of some key issues below.
Acceleration injuries The first potential area where causation in relation to quantum may be relevant is that of an acceleration injury. An acceleration in this context is exactly that: the claimant has suffered an injury caused by the defendant’s negligence, but the defendant argues that rather than the injury occurring where it would otherwise have not, it has merely “brought forward” that injury.
Damages – what will be compensated? In basic terms, the court will, in assessing damages, attempt to put the claimant back in the position they would have been in but for the injury suffered. That, in the case of serious or catastrophic injury, is not possible, and so the court has to decide how best to bridge the gap. The court will be looking to apply what is effectively a reasonableness test to the assessment of damages, and it is that test, on the balance of probabilities, that experts should apply. EXPERT WITNESS JOURNAL
In such circumstances, if an acceleration is proven, damages would only apply during the period of acceleration, thus significantly limiting the claimant’s recovery. The medical expert’s role here is critical in terms of medical causation. An example of this type of allegation could be a spinal injury suffered by a claimant as the result of an
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accident or medical accident, where the defendant seeks to show that the claimant had been suffering or would have suffered similar or identical injury, perhaps due to a spinal stenosis or other constitutional degenerative problem such as a prolapsed intervertebral disc.
Pre-existing injuries and differentiating between them The second potential issue that will be considered here is the situation where a claimant has suffered injury due to the negligence of a defendant but who are themselves already suffering an injury, disability or other impairment that was pre-existing and causing loss.
The expert’s role will be to determine on the balance of probabilities the likely “but for” position in terms of medical causation. The possibilities would be:
There are a four possible ways that this scenario could manifest, two of which are extremes (that is to say all losses are caused by the negligence or none of them are), but the intermediate positions are that which will be discussed:
1, The condition may have been present but entirely asymptomatic, and would have remained so, for the remainder of the claimant’s life. 2, The condition may have been present but would have become symptomatic, but would have been alleviated with prompt and appropriate treatment (contrary to what was in fact received).
1, There is some damage caused by the negligence, and that damage is distinguishable on the evidence; or 2, There is some damage caused by the negligence, but it cannot be divided.
3, The condition may have been present but would have become symptomatic, but in a different way and with different consequences to that which in fact occurred due to the negligence.
The recent case of Reaney v. University Hospital of North Staffordshire NHS Trust [2015] EWCA Civ 1119, which was decided in the Court of Appeal in 2015, is helpful in setting out the way that experts should approach a claimant with pre-existing injuries in the first of these two categories.
4, The condition may have been present but would have become symptomatic in the same manner that it, in fact, did due to the negligence, and thus an acceleration has occurred.
The facts of Reaney were as follows: Mrs Reaney was a lady in her late sixties who developed transverse myelitis. Despite treatment, she was left with a paraplegia at T7 level, and consequent needs including the need for care. It was a matter of agreement that this condition was not caused by negligence.
An expert’s role here would be to examine the likely prognosis of that individual “but for” the negligence, and to consider what outcome the claimant could have expected. In, for example, cauda equina syndrome cases where degenerative disc disease in any event has been identified, it will be for the expert to consider whether any subsequent symptoms would have led to cauda equina syndrome, not just whether or not the prolapse would have become symptomatic.
Mrs Reaney went on to suffer significant pressure sores whilst in the defendant hospital’s care, described by the court as follows: “During an extended period of hospitalisation, she developed a number of deep pressure sores (grade 4) with consequent osteomyelitis (infection of the bone marrow), hip dislocation, serious contractures of the lower limbs and increased lower limb spasticity. Her seating posture was permanently damaged by the hip dislocation so that she was unable to use a standard wheelchair safely. She was left with a large area of vulnerable skin on the sacrum and buttocks where the pressure sores had healed, but the skin was thin and tethered to the bone beneath.”
Although not an acceleration decision, the decision in Cooper v. Bright Horizons Ltd [2013] EWHC 2349 (QB) is also of note in this context. In Cooper, a nursery nurse suffered a prolapsed disc and cauda equina syndrome due to, in the court’s decision, a failure on the part of her employer to adequately risk assess her working practices, particularly in view of her history of back problems. In that case, the court found that there were two distinct stages to the injury, and that they would need to be considered separately in their contribution to the overall injury. Further, the court rejected an argument that a history of back problems would have meant cauda equina syndrome in any event, as was advanced by the defendant.
The issue for the court was what level of damages could be recovered, given the change in circumstances and given that the needs that already existed were not the fault of the defendant. Where the needs were clearly identifiable prior to the negligence, the issue will then be the difference in need, both qualitatively and quantitively, between the positions. In Reaney, the negligence was of a separate and distinguishable injury; there was no contribution to the underlying condition (in Mrs Reaney’s case, that of paraplegia). Where the additional need is in quantitive terms only, the additional needs are recoverable. However, where the needs were qualitatively
Experts will therefore need to consider each stage of an injury forensically. It should not automatically follow that a pre-existing medical condition means that future suffering due to negligence was unavoidable. Each stage of the process is important; experts should not simply consider the end result but should consider each stage.
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different as a result of the negligence, they would be recoverable in their entirety.
to how sometimes the medical records simply will not be detailed enough, but experts must use their clinical judgement to identify the key points.
By contrast, the decision in Sklair v. Haycock [2009] EWHC 3328 (QB) dealt with a claimant with Asperger syndrome who had suffered an injury in a road traffic accident.
Thereafter, a clear understanding of the claimant’s needs, in their entirety, needs to be identified. At that point, on the basis of Reaney and Sklair, experts will need to identify how the need differs from the position but for the negligence. The decision in Reaney very clearly demonstrates that claimants who are able, with the assistance of experts, to set out how their need for, for example, care and support, has changed rather than merely increased, will be in a better position to argue for recovery of damages to cover those needs.
Prior to the accident, the claimant had benefitted from support and supervision provided by his family. After the accident, he required what was effectively 24-hour care. Again, there was no suggestion that the negligence had contributed to the underlying condition. The defendant argued that the claimant would have needed such support at the point his carer (his father) ceased to be able to care for him. The court, however, considered not just the need for care, but how it would be provided and on what basis. Considering that the need could be clearly contrasted, the court allowed the full package even beyond the point when “some” supervision would have been required. The court further confirmed a claimant’s right to claim against a defendant in litigation rather than rely on the obligations of a public authority.
The facts of a particular case may also distinguish between heads of loss; for example, a subsequent negligent act may give rise to a need for care, but the claimant’s ability to work is unaffected. An otherwise able-bodied and non-injured claimant perhaps would not have such a distinction applied. If that can be clearly distinguished, and again, the change in need clearly identified and costed, the claimant will be in a good position to argue that it is more than simply a material contribution to an existing need, and thus the defendant should provide damages for those needs.
The question for the court as a result of these decisions is what has caused the need for the care, and whether that can be distinguished or divided, and whether the need post negligence is quantitively or qualitatively different.
Many thanks to Andrew Benzeval Senior Associate, Personal Injury, Stewarts www.stewartslaw.com You can find further information regarding Stewarts expertise, experience and team on their Personal Injury pages at; www.stewartslaw.com/expertise/personal-injury
Practical points For experts, both medical and non-medical, the medical aspects of causation will be important in considering whether the underlying injury can be identified, whether it can be clearly distinguished from the new injury, and if it can, whether the needs that now arise can be quantified. The first point to make is to remind experts that in the civil courts the balance of probabilities is the standard of proof required. In other words, it is “more likely than not”. Experts thus do not have to be sure, nor do they have to be necessarily convinced. What they have to do is form a view on what is probable and reasonable in the circumstances, on the basis of the available evidence. Courts will make findings of fact, but experts will comment upon what that means for the claimant.
Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA
Chronic Pain Expert Dr Adedokun has extensive clinical experience in the management of various Chronic Pain Syndromes including persistent Neck, Back, Neuropathic or Complex Regional Pain Syndrome especially following Personal and Occupational Injuries. He also has wide experience in Medical Negligence claims.
In practical terms, the first step for expert will be a careful consideration of the history. Any opinion given will need to be based upon as clear an understanding as is possible of what the claimant has suffered to date and how it has affected his or her life and capabilities at that point.
Listed on the UK register of Expert Witnesses, an APIL expert, Member of Society of Expert Witnesses and the Expert Witness Institute. Dr Adedokun accepts instructions from Claimants, Defendants and as a Single Joint Expert. He covers Nationwide, including Manchester, Liverpool, Leeds, Birmingham and London. Domiciliary visits can be arranged.
A further point in this context from the judgment in Cooper is that the court made a point of noting that medical records and history are not always written down by practitioners for the purposes of future litigation (quite understandably). The experts will need to unravel that history and use their clinical experience to try to predict (again, on the balance of probabilities) what would have happened but for the negligence. The decision in Cooper made reference EXPERT WITNESS JOURNAL
Contact: Tel: 0161 449 7442 - Lorna Brindley: 07711 963 200 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk Spire Manchester, 170 Barlow Moor Road, Manchester M20 2AF
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The Importance of Medical Defence Dr Rob Hendry, Medical Director at the Medical Protection, explains why medical defence will still be important, even after the introduction of state-backed indemnity. This article first appeared on GP Connect. Practising medicine can be an extremely rewarding career – I was a full time GP partner for 12 years but when it comes to professional accountability, it can be high risk and complicated. Unfortunately, being held to account where there is a perception (perhaps wrongly) that something has gone wrong can be one of the most stressful things to happen to a GP in the course of their career. Many GPs worry about being sued for clinical negligence. The majority of them focus only on the need for indemnity for compensation claims. Sadly this is far from the case. Dealing with complaints, perhaps involving the Ombudsman, giving evidence to Coroner’s Inquests, being referred for investigation by the GMC and on rare occasions facing criminal prosecutions are among the many other challenges that GPs can face. Dealing with complaints While a full-time GP can expect to receive two clinical negligence claims over a typical career, they can also expect to receive nine complaints or professional challenges during the same period.
It is a common misconception that bad things happen to bad people and if you’re a good GP everyone else will see it that way. Unfortunately that’s not always the case, and even when no medical mistake has been made, a complaint or allegation could still be made - driven by a misconstrued interaction, poor communication or an emotionally volatile situation. Complaints and claims are rarely expected, and often come out of the blue. Many can be easily rectified with the right advice and support, and although few escalate in ways that can threaten a doctor’s professional livelihood or even their liberty. GPs deal with such a diverse range of patients and ailments that they cannot expect to make the right diagnosis every time. Even if you are sure you’ve done nothing wrong, once a complaint is made or a GMC investigation starts, there is always a sense that the doctor needs to prove their innocence, and that’s hard to do alone. GMC hearings Receiving a complaint to the GMC is always stressful, and if the case proceeds to a fitness to practise hearing it will also be very costly and require
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specialist representation. We can be there to protect you financially and emotionally, while providing you with the best expert and legal representation. GPs without legal representation fair particularly badly. The vast majority of GPs (84%) erased from the register in recent years following a hearing had no legal representation, whereas nearly all GPs (91%) who do not receive a sanction had legal representation.
Mr Kim Neal Hakin FRCS, FRCOphth Mr Kim Hakin is a Consultant Ophthalmic Surgeon providing ophthalmic services (NHS & Private.) He undertakes medico legal work at; Optegra Eye Hospital Central London. 25 Queen Anne Street, London, W1G 9HT. The Nuffield Hospital, Taunton, TA2 6AN.
Having an expert at the end of the phone to help with practical and ethical dilemmas can make all the difference when you’re put in a distressing situation - someone there to support you through what could be the darkest days of your career and help protect your professional reputation every step of the way.
He can deal with most ophthalmological issues with special interests in cataract surgery, ocular trauma, eyelid & lacrimal surgery including cosmetic eyelid surgery, facial laser surgery.
• For more information call Medical Protection Society now on 0800 561 9090 or visit our website, www.medicalprotection.org/uk
Mr Hakin holds the Expert Witness Certificate from Bond Solon/Cardiff University, is a member of the Expert Witness Institute, and formerly advisor to Nuffield Hospitals and the Healthcare Commission. He regularly undertakes work for organisations such as the General Medical Council, Medical Defence Union, Medical Protection Society, NHS Litigation Authority, as well as many solicitors' firms and legal agencies.
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All correspondence to Nuffield Health Taunton Hospital, Staplegrove Elm, Taunton TA2 6AN, or by email.
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How is Severe Facial Scarring Assessed in a Personal Injury Claim? by Karen Mann, Associate - Hodge Jones & Allen Solicitors As a result of a personal injury, you may have suffered facial injuries which could potentially lead to scarring. As a Personal Injury Solicitor, I would say that valuing facial scarring is one of the most difficult injuries to assess. Every individual’s case will be assessed on a case by case basis. For example, the value may vary depending on whether you are male or female, your age, your complexion, visibility etc.
Third, in cases of disfigurement there may also be severe psychological reactions which put the total award at the top of the bracket, or above it altogether’ Case Law Given the limited guidance in the JC Guidelines above it is useful to look at case law to assess similar facial injuries and awards that have been received. Medical Evidence
It is important to note that there is no exact science to value a claim for facial scarring.
In order to value the claim for facial scarring not only is it useful to have photographs of the scarring injury, but medical evidence. It is worth obtaining GP and hospital records to assess what treating doctors have noted in terms of whether the scarring is likely to be permanent and what treatment if any has been received to date.
My starting point is usually to look at colour photographs of the injury that have been taken at the time of the accident and then comparing them to colour photographs taken at the time when a client wishes to settle their claim. It is always worthwhile to get someone to take the photographs for you at a conversational distance because this gives a snapshot of what family and friends may be able to see. I will also ask my clients if they are conscious of the scarring and whether they use make-up for example to try and cover the scarring.
It is also useful to have a client examined by a medico legal expert to comment on the severity of the scarring and to comment on whether the scarring is likely to improve with time, whether it will be permanent and whether any recommendations can be made for treatment such as scar revision surgery for example and what the likely cost of that could be which can be added to the claim.
Judicial College Guidelines As a Solicitor when valuing facial scarring I will look to the Judicial College Guidelines which are guidelines prepared by a panel of Judges. Under Section 9 of the JC Guidelines under Facial Injuries, it provides the following:-
It may be appropriate to instruct a Plastic Surgeon expert to prepare a medico legal report or a Maxillo Facial expert, if for example a fracture or orthopaedic facial injury has been suffered in addition to scarring. If a client is very conscious of the scarring and it has resulted in psychological symptoms then it may be necessary to get a medico legal report from a Psychiatrist or Clinical Psychologist.
‘The assessment of general damages for facial injuries is an extremely difficult task, there being three elements which complicate the award. First, while in most of the cases dealt with below the injuries described are skeletal, many of them will involve an element of disfigurement or at least some cosmetic effect.
Factors to be taken into account Other factors that can be taken into account when valuing facial scarring can include:u Pain or sensitivity of the scarring u Psychological impact u Impact on lifestyle and work
Second, in cases where there is a cosmetic element the courts have hitherto drawn a distinction between the awards of damages to males and females, the latter attracting significantly higher awards. That distinction, arising from cases that stretch back into the mists of time, has been reflected in succeeding editions of these Guidelines. Such distinction appears difficult to justify and has not been retained. In consequence the previous brackets have been merged and are currently wide and overlapping. They will be narrowed in future editions to the extent that judicial decisions warrant it’. EXPERT WITNESS JOURNAL
Karen Mann | Associate kmann@hja.net 020 7874 8494 APIL Accredited Senior Litigator logoI specialise in Personal Injury Law dealing with Employers Liability, Public Liability and Road Traffic accident claims. I qualified as a solicitor at Tollers Solicitors in Northampton and practiced there for two and a half years before joining Hodge Jones & Allen in London in October 2013. 16
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Premier League Footballers Participate in New Ground-breaking Concussion Study The University of Birmingham and University Hospitals Birmingham NHS Foundation Trust have launched a new study funded by The Drake Foundation to review and potentially enhance concussion diagnosis in football. Dr Valentina Di Pietro, molecular neuroscientist at the University of Birmingham’s Institute of Inflammation and Ageing, said: “Sports around the world want a more reliable and objective assessment for concussion than currently exists and the test we have developed in the laboratory is the first in the development of a pitch-side test to enhance assessment.”
This new study, supported by the Premier League Doctors Group which is allowing access to players, is running throughout the 2018/19 football season. It involves saliva and urine samples being collected from injured Premier League players, as well as uninjured “control players”, by club doctors immediately post-match and at further time points over the course of a players’ recovery.
Dr Patrick O’Halloran, Sports Concussion Research Fellow at the University of Birmingham, Sport and Exercise Medicine Registrar at UHB, and Academy Doctor at Wolverhampton Wanderers FC, said: “This research has the potential to benefit professional, grassroots and youth level footballers alike, making the process for diagnosing concussion as effective as possible. Similarly, this may be valuable in other sports or for patients in NHS Accident and Emergency departments.”
These samples are then being tested in the laboratory at the University of Birmingham using a new ground-breaking test, called the ‘Birmingham Concussion Test’, which has been developed following a decade of research led by academic neurosurgeon Professor Tony Belli. The test looks for molecules in the blood, saliva or urine known as microRNAs, which can act as biomarkers to indicate whether the brain has suffered injury.” The patented technology from the University of Birmingham is being commercially developed in partnership with Mirna Diagnostics Limited which owns the global patent licence of these biomarkers.
James Drake, Founder of The Drake Foundation, a not-for-profit organisation committed to improving evidence-based measures for the management of concussion injuries in contact sport, said: “We are delighted to fund this essential study in Premier League football. The conversation around concussion has come a long way in the last five years and scientific research such as this is essential in keeping our players safe.”
This expands research also being carried out by the University of Birmingham and UHB, which began in 2017 and is currently ongoing, testing the urine and saliva of concussed Rugby Football Union players. This research is part of the ongoing Repetitive Concussion in Sport (RECOS) study, being led by the University of Birmingham’s College of Medical and Dental Sciences and UHB through The National Institute for Health Research Surgical Reconstruction and Microbiology Research Centre (NIHR SRMRC)
Gordon Taylor OBE, Chief Executive of the Professional Footballers’ Association, said: “We are pleased to support all our Premier League members who are taking part in this innovative study which will hopefully bring a health and safety benefit to players at all levels of our game.
In the future, it is hoped that the Birmingham Concussion Test could be used pitch-side and would have the potential to assist in return-to-play decisions or concussion diagnosis across sports, from grassroots to professional, in addition to military and other frontline settings.
This latest study will also look to evaluate the effectiveness of the current Premier League Doctors Group Standard Operating Procedure for diagnosis of concussion. When a team doctor suspects a player has been concussed, the following date will be sought to accelerate and more accurately diagnose any potential concussion:
Professor Tony Belli, Academic Neurosurgeon at the University of Birmingham and UHB and Director of NIHR SRMRC, said: “Early and accurate diagnosis of concussion is one of the biggest challenges we face clinically and is particularly a major concern in the sporting world.
• Pitch-side assessment • Video review of the incident at the pitch-side • clinical reviews of the player after the match and in the days following the game • The time course and trajectory of recovery post injury
“This exciting new study is an important addition to the breadth of research we are undertaking into concussion and player welfare in sport more broadly.” EXPERT WITNESS JOURNAL
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Can there still be Liability in Dangerous Situations? Victoria Oliver, Associate in the Spinal Injury team at Bolt Burdon Kemp, writes about personal injury claims. The examples above come from real life cases[i] where the Claimants were successful in showing that whilst the activity they were taking part in carried significant risks, the fact that they were injured as a result of the Defendants failing to take sufficient care meant that they had valid claims.
One thing I have learned from 12 years in the personal injury field is that serious injuries can result from the most simple scenarios. A minor pavement trip resulting in a tetraplegic injury. A morning walk resulting in a brain injury. There are of course activities which are, statistically, more dangerous than others and winter sports such as bobsleigh and ski jump fall into that category. So perhaps it wasn’t surprising when Beth Tweddle sustained serious spinal injuries whilst taking part in the Channel 4 show ‘The Jump’ in 2016. A show in which “Celebrities take on some of the most challenging and dangerous winter sports as they bid to be crowned champion of The Jump”.
I am passionate about the area of law I practice which, as a general rule, does not seek to pigeon hole each and every set of circumstance and instead seeks to ask three straightforward questions: u Was there a duty owed? u Was that duty breached? u Was there damage as a result of that breach?
Ms Tweddle’s injuries consisted of two fractured vertebrae which necessitated surgery on her spinal cord. Significant and traumatising injuries that will most likely have an ongoing impact on Ms Tweddle’s day to day life for many years to come and will have certainly impacted her gymnastics.
Treating each case individually After that, each case must be judged on its own facts and its own merits. So whilst the Claimants in the above cases succeeded, the Claimant who dived into a shallow pool in an unauthorised swimming area with clear warning signs failed in his claim for his injuries. Similarly, the inexperienced indoor rock climber who attempted to imitate other climbers and fell badly, also failed.
Read the comments under the various press articles surrounding Ms Tweddle’s decision to issue court proceedings against the production company and you can see a trend of public incredulity that someone should take part in a dangerous activity, presumably one covered by multiple contracts and waivers and be able to sue.
I haven’t seen the Particulars of Claim in Beth Tweddle’s case so I cannot comment on the specifics of her claim but if it transpires that something did go wrong, that human error meant the barrier she collided with was placed incorrectly or she was given the wrong instructions then it is completely right that she has an opportunity to seek redress in the courts. I think the following quote sums it up quite nicely:
Can you sue despite signing a waiver? Well the reality is that you can; because under English law you can’t exclude liability for death or personal injury caused by negligence. And that is a good thing because people make mistakes; sometimes intentionally but more often unintentionally (“human error”) and sometimes this leads to devastating consequences. The fact that the activity was dangerous in the first place shouldn’t preclude someone from taking legal action if they are subsequently hurt in unforeseeable circumstances.
“Games might be and are the serious business of life to many people. It would be extraordinary to say that people could not recover from injuries sustained in the business of life, whether that was football, or motor racing, or any other of those pursuits which are instinctively classed as games but which everyone knew quite well to be serious business transactions for the persons engaged therein.”[ii]
Take for example football players of any age and level. Players taking part in a football match know there is a risk of injury but does that mean that you should accept the consequences of another player undertaking such a careless tackle that it breaks your leg and ends your career or enjoyment of the game?
Victoria Oliver is a solicitor and Associate in the Spinal Injuries team at Bolt Burdon Kemp. If you or a loved one have suffered a spinal injury as a result of result of an accident, someone else’s negligence or you are concerned about the treatment you have received contact Victoria in confidence on 020 8049 8030 or at victoriaOliver@boltburdonkemp.co.uk.
Or imagine taking part in a track day at an eminent race track. You know there are risks inherent with racing but does that mean your family should accept the consequences when you are killed because the crash barriers were not suitable?
EXPERT WITNESS JOURNAL
[i] Ben Collett (Manchester United FC) v Gary Smith & Middlesborough FC (2008) & Wattleworth v Goodwood Racing Co Ltd [ii] Cleghorn v Oldham [1927] 43 TLR 465 18
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Identifying Professional Negligence Lender Claims Chris Freeman, senior associate in Ashfords’ Dispute Resolution team, explores how lenders can seek to maximise recoveries from their loan books by being alive to the red flags of professional negligence, and the initial steps and key battlegrounds in professional negligence lender claims a lender’s support, restructuring or recovery departments. The sooner a claim is identified, the better. Professional negligence claims must be brought within a certain period of time and therefore being able to identify them and react is essential. Moreover, it means that claims that might otherwise fall through the cracks (because of a lack of awareness that they may exist) can be spotted and recoveries can potentially be made which would otherwise be lost.
It is a fact of life that everyone makes mistakes. This is equally true in the case of professional advisors to lenders and, in some cases, those mistakes can amount to professional negligence. Lenders should be alive to this when considering why a particular loan has failed and they are left facing significant losses. The most common claims are seen against valuers and solicitors (and sometimes both in relation to the same advance), but are no means limited to those two professions. The point of bringing such claims is not for the lender to seek to punish the professional firm involved – indeed the lender will often continue to instruct that firm on other matters – but to seek to recover losses suffered as a consequence of negligence on a particular occasion.
So how do lenders go about spotting such claims? In the context of negligent overvaluations, often one of the key indicators of a possible overvaluation is a significant fall in the value of security on revaluation (for example, when a lender is considering next steps following a loan going into arrears) or following the initial advice on current value after the appointment of Law of Property Act (LPA) receivers.
Market movements In the context of claims against valuers, a rising market can often mask overvaluations on the basis that, even if the valuer has negligently overvalued the property in question, by the time the lender comes to realise its security, that property has risen in value sufficiently to cover losses that the lender might otherwise have suffered. However, when the market falls, the opposite is true – a lender facing a loss following the sale of the property can look to recover some of that loss from a negligent valuer.
To take a relatively extreme example, a property was valued at £1 million at the time of the original lending decision but the LPA receivers’ advice some time later is that the likely outcome is a sale for around £500,000, that would be a clear red flag. That is of course not to say that there may be some other (nonnegligent) reason for the fall in value (such as a market collapse for that type of property) but it does indicate to the lender that the possibility of an overvaluation at the time of the original lending should be investigated.
The financial crisis of 2007/8 had precisely this effect on negligent overvaluations in the same way that the recession in the 1990s did. History tells us that it is only a matter of time before the economy takes another dip and more claims come to light.
In the context of claims against solicitors, issues with the title or security taken, which again are often identified when the lender seeks to realise its security, can be indicators of potential negligence and are matters which the lender should be alive to.
That is not to say however that even in a rising market claims cannot be caught and significant recoveries made by lenders. Indeed, some of the overvaluations we have seen have been so significant that a rising market has not helped a negligent valuer. In a similar vein, some of the mistakes made by solicitors have been so fundamental that a significant loss is an inevitable consequence of those mistakes, regardless of what the market for that particular property may be doing.
The key questions for lenders to consider are: why has the lending gone wrong and have we possibly been let down by one of our professional advisors? That mind-set will help to spot claims that might otherwise be missed. The future Looking to the short to medium term future, there remains much uncertainty about the impact Brexit will have on the economy in general and, of particular relevance in this context, the property market. If the market falls, this may have the knock-on effect of an uptick in the number of professional negligence claims being identified and brought by lenders. In the meantime, though, lenders would be well advised
How to spot claims Ensuring that those who might be in a position to spot potential claims are aware of how to identify them is crucial. These individuals are often based in EXPERT WITNESS JOURNAL
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The professional has 21 days to acknowledge the Letter of Claim and then up to three months from the date of that acknowledgment to investigate the matter and provide a Letter of Response or Letter of Settlement (or both).
to consider whether there may be potential claims already existing in their current loan portfolio which have yet to be identified. We work with our lender clients in providing training on how to identify potential claims as soon as possible in order to maximise recoveries.
Key battlegrounds In the majority of cases, following the Letter of Response, the parties will enter further negotiations and correspondence in order to try to resolve matters, which often involves discussions and (if agreed) arrangements about mediation.
What happens once a potential claim has been identified and passed to us to review and advise on. Initial steps Once a possible claim has been flagged to us, the first step is to conduct a thorough review of the documentary evidence.
The key battlegrounds with the defendant professional (and its insurers) tend to be on liability, causation and contributory negligence.
This includes reviewing contemporaneous documentation from the time of the lending in question (such as lending applications and sanctioning decisions); as well as documents and correspondence generated since that time showing the lifecycle of the loan – including any steps taken to sell the security and recover outstanding sums due from the borrower.
As a general rule, it is usually accepted that the professional owed a duty of care towards the lender and therefore defendants tend to focus on attacking the other pillars needed to build a successful professional negligence claim. Overcoming the liability hurdle is achieved by obtaining good quality, independent expert evidence.
As part of this review, we also assess whether there are any pressing time limits which require urgent action to be taken – for example, whether the potential claim is approaching the expiry of the applicable limitation period (i.e. the deadline by which a claim has to be brought at court).
Cases stand and fall on the quality of the expert evidence a party is relying on and failure to establish that there has been a breach of duty on the part of the professional means that the claim will fail.
In claims against valuers, this initial investigatory stage usually then leads to instructing an expert to advise on whether the original valuation was negligent. It is a question of asking the expert to metaphorically transport him or herself back in time to the date of the valuation to put themselves in the shoes of the original valuer to determine whether that original valuation was negligent.
Disputes around causation in these types of claims – that is to say did the negligence by the relevant professional cause the lender’s loss – tend to involve allegations that the lender has not truly relied on the professional’s advice when making its lending decision. Clear documentary and witness evidence of reliance by the lender is therefore helpful in defeating such arguments.
It is worth bearing in mind that whilst an expert may consider that the original valuer had overvalued a particular property or site, this does not automatically mean that the original valuation was negligent.
As for contributory negligence, lenders have been operating tighter lending controls given the lessons learned from the financial crisis a decade ago.
To amount to negligence, the valuation has to fall outside the permissible margin of error, usually somewhere between 5% and 15% depending on the particular property in question.
The consequence of this is that it is likely to prove more difficult for defendants to professional negligence claims brought by lenders to seek to reduce their liability by alleging that the lender has caused or contributed to its own loss by making poor lending decisions.
Subject to the nature of the claim against a solicitor, expert evidence may be required at the investigation stage to determine the strength of the case in these types of claim as well.
However, lenders would be well advised to ensure that lending proposals are carefully analysed, and sufficient checks made on affordability and repayment in particular, with supporting documentary evidence retained, in case that decision is later subject to scrutiny. Finally, allegations that the lender has failed to adequately mitigate its loss are also often made by defendant professionals. This is usually an allegation that the security should have been sold for more than it was sold for, or that the lender has failed to take sufficient steps to pursue its borrower for repayment.
Pre-Action Protocol The next stage (assuming there are no pressing limitation issues) is to comply with the Pre-Action Protocol for Professional Negligence under the Civil Procedure Rules. This involves putting the professional on notice of a claim (if this hasn’t already been done) and then setting out the lender’s claim in detail in a Letter of Claim, including the financial loss the lender has suffered. EXPERT WITNESS JOURNAL
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These are things which the lender should be mindful of when conducting its recoveries process. Chris Freeman Senior Associate Email: c.freeman@ashfords.co.uk www.ashfords.co.uk Chris has extensive experience in advising lenders on professional negligence claims, primarily against solicitors, valuers and project monitors. Having specialised in this area for a number of years now, he has built up a wealth of expertise in this sector. In addition, Chris also advises in relation to commercial disputes in the professional practices and technology sectors. Chris advises clients throughout the litigation process, including the Pre-Action Protocol phase, and has substantial practical expertise in Alternative Dispute Resolution, having been involved in a significant number of successful mediations and negotiations in recent years. These articles were originally featured in the Mortgage Finance Gazette, many thanks for permission to reprint them.
Need an expert fast, call our free searchline on 0161 834 0017 we reply within 2 hours
Mr Fortune Iwuagwu Consultant Plastic, Reconstructive and Hand Surgeon MB BS, MSc, FRCS (Glas), FRCS (Ed), FRCS (Plast Surg.) Mr Iwuagwu has over eighteen years experience in the fields of plastic, cosmetic and reconstructive surgery. He offers a full range of cosmetic surgery procedures and treatments to enhance your image and boost confidence. Mr Iwuagwu trained in all aspects of plastic surgery in various internationally acclaimed units in both the UK and USA, gaining extensive expertise and experience in cosmetic, reconstructive and hand surgery. Medico-legal Experience: Mr Iwuagwu has been preparing medico-legal reports for medico-legal agencies and solicitors for more than 14 years. He prepares approximately 100 medical reports a year. The distribution is approximately claimant (80%) to defendant (20%). From instruction to completion of report is approximately three weeks if the client and medical records are available for examination/review. Mr Iwuagwu has undertaken specialist expert witness training. Special interests: Scars, burn scars, hand injuries, soft tissue reconstruction, cosmetic surgery Consulting rooms in London and Essex: Spire Roding Hospital, Roding Lane South, Ilford, Essex IG4 5PZ Springfield Hospital, Lawn Lane, Springfield, Chelmsford CM1 7GU Nuffield Hospital, Shenfield Road, Brentwood CM15 8EH St Andrews Centre for Plastic Surgery, Broomfield Hospital, Chelmsford CM1 7ET Whipps Cross Hospital, Leytonstone, London E11 1NR London Medical Centre, 142-146 Harley Street, London W1G 7LD London Independent Hospital, I Beaumont Square, Stepney Green, London E1 4NL
Tel: 01277 219752 - Mobile: 07508 824858 - Fax: 01277 219752 Email: austingracesuk@aol.com - Website: www.austingraces.com EXPERT WITNESS JOURNAL
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Why instruct an Oral and Maxillofacial Surgeon ? by Bernard Speculand , MDS, FDSRCS(Eng), FFDRCS(Irel), FRACDS (OMS), Consultant Oral and Maxillofacial Surgeon, BMI Priory Hospital, Birmingham. Email: speculand@gmail.com - info@medsecadmin.co.uk Web: www.birminghamtmj.co.uk Oral and Maxillofacial Surgery (OMFS) is a surgical specialty concerned with managing disorders and diseases of the mouth, jaws and face. Originally a specialty which arose out of Dentistry, partly as a result of war surgery experience, it today requires trainees to qualify in both Medicine and Dentistry and to have appropriate surgical training before starting specialty training.
It is obviously important for the expert to stay within his or her area of expertise within the specialty when accepting instructions. The case needs to be judged by the standards of practice applicable at the time of the alleged harm, and these may be different to those of today. Knowledge of the Bolam and Montgomery tests is important, the latter in relation to fully informed consent .
In the UK and Ireland there is a trend towards subspecialisation into two broad areas of interest: deformity surgery , and head and neck oncology ( cancer ) surgery including salivary gland surgery. Surgeons who specialise in deformity surgery may further narrow down their interests into combinations of: orthognathic surgery using osteotomies to reset jaw positions; cleft lip and palate surgery; craniofacial surgery for skull/facial deformity; temporomandibular joint (TMJ) surgery; and aesthetic facial surgery (rhinoplasties, facelifts etc.). An additional area of interest which sometimes crosses these boundaries is dental implant surgery for correction of tooth loss, or even loss of ears, nose or eyes.
Instructing solicitors frequently ask for an initial scoping report before issuing instructions for a full Breach of Duty and Causation Report and perhaps also a Condition and Prognosis Report. I personally have difficulty with that type of request as in my experience it takes as much effort and time to go through all the documentation for a scoping report as it does for a full Breach of Duty and Causation report. Finally many cases of alleged Breach of Duty boil down to a question of whether the index problem was as a consequence of bad luck or bad judgement, and where in the chain of events this took place.
Instructing solicitors have, of course, two differing requirements – personal injury claims and medical negligence claims. Personal injury clients may have experienced dental, oral and facial damage as a consequence of injuries sustained in falls, pedestrian or cyclist versus motor vehicles, other road traffic accidents, or work-related injuries. Sports injuries which I have seen have involved causes ranging from a golf club to a horse !
birmingham tmj Temporomadibular Joint Disorders
Birmingham TMJ is a private oral and maxillofacial service delivered by surgeon Bernard Speculand. Providing diagnosis and treatment of conditions affecting the head, neck, jaw, mouth and face. Medico Legal Reporting Bernard Speculand is an experienced Medico Legal reporter with over 25 years experience providing the highest quality expert medical reports. l Oral and Maxillofacial Services l Oral and Maxillofacial Surgery l Temporo-Mandibular Joint Disorders l Salivary Gland Disorders l Mucosal Disorders l Impacted Teeth l Jaw Deformity
Allegations of medical negligence in the field of OMFS may be concerned with surgical activities including but not restricted to: wisdom teeth surgery resulting in sensory loss on the tongue and/or lower lip, and even jaw fracture; dental implant surgery resulting in the same concerns ; complications from osteotomies to improve jaw position; surgery for facial injuries where a less than desirable outcome has been achieved; complications form TMJ surgery; and complications or perceived poor results from aesthetic facial surgery procedures.
Bernard Speculand Consultant Oral and Maxillofacial Surgeon MDS, FDS, FFD, FRACDS (OMS)
Address: Mrs Yvette Young PO Box 10190 B44 9XD, Birmingham
OMFS surgeons specialising in head and neck cancer surgery may be asked to advise in cases where a suspicious mouth ulcer has been neglected and then later found to be a cancer. Other cases may concern graft failures, infections, inadequate tumour clearance leading to tumour recurrence, and even death. EXPERT WITNESS JOURNAL
0121 605 1884 www.birminghamtmj.co.uk Email: speculand@gmail.com info@medsecadmin.co.uk
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The Problems with Inadequate Medical Record Keeping by Giles Eyre The judge accepted the patient’s account of the urinary accident and her ‘Bambi’ legs (which were supported by her husband), and found that straight leg raising was probably prevented by pain. The GP had no recollection of how the SLR assessment was made.
The inadequacy of medical record keeping is again in the legal headlines. In Shaw v Stead1 the issue for the judge was whether the patient’s red flag symptoms for possible cauda equina were missed by the out-ofhours GP. The patient, while crouching, had been kicked in the back by a 5 year old pupil. The patient and her husband had different recollections of the appointment to the GP, who could not remember the examination and had to rely on his notes.
The judge’s conclusion was that the patient did have “red flags” necessitating a referral at the time of the GP’s examination and therefore that the GP’s record could not be relied upon. The GP was found to be in breach of duty to the patient. The judge was not called upon at this stage to address the issue of the damage resulting from the delay in referral that this caused.
It was not in contention that the red flags would have been: (a) any change in saddle sensation; (b) any change in bladder or bowel function; (c) severe or progressive loss of power in the lower limbs; and (d) bilateral leg pain and/or sensory disturbance.
This case is another clear illustration of the importance of making complete records of examinations so as to be able to explain what occurred at the examination if some years later the events are the focus of investigation. It may not be negligent to fail to do so, but the consequences are nonetheless clear and potentially serious. Relying on ‘standard’ or ‘usual practice’ is insufficient. In this case the records should have contained a brief note of:
The patient asserted that she had attended the appointment in a wheelchair, that she told the nurse she had been unable to pass urine but had wet herself subsequently, that her legs felt like ‘Bambi’ and that the examination was brief. The GP said that it was his usual practice to ask patients with low back pain questions to exclude red flag symptoms suggesting possible cauda equina syndrome. This would include asking about problems passing urine and questions such as whether the patient felt her legs would not take her weight, or whether pain was restricting her walking.
- The patient’s presentation (eg walking, using a stick, in a wheelchair, apparently in pain) - The history taken and any unusual and relevant events or their absence (eg urinary retention or incontinence or the absence of both)
The GP’s note read "no red flags, tender lower back especially left sacro iliac area. Unable to perform straight leg raise either leg reflexes equal and normal. Sensation normal.” This meant, he asserted, that he would have asked questions about each of the red flag symptoms and that there was nothing in the history given by the patient to require referral. The GP experts in the case accepted that a reasonable GP might use this as shorthand rather than noting the response to each red flag question.
- In relation to the relevant red flags, a brief indication of the questions asked and answers given (eg no urinary retention/incontinence, weakness in legs, how SLR finding was made) - In relation to the examination, how it was carried out (eg sensation tested on low back through thin garment). Finally to say “usual advice given” or “call back if no improvement” is not the same as stating “advised to call if (a) any change in saddle sensation; (b) any change in bladder or bowel function; (c) severe or progressive loss of power in the lower limbs; and (d) bilateral leg pain and/or sensory disturbance”
The record of "sensation normal" meant, he said, that he had checked the sensation in both legs by running a finger along the claimant's bare skin. She recalled keeping her pyjama bottoms on at all times. He also noted his record "call back if no improvement" and asserted that he would specifically have advised about red flags to look out for and told the patient to seek further medical advice if any emerged.
or recording that an advisory sheet was given containing that information.
Although there was no note that the patient attended in a wheelchair, the GP said it would have been his usual practice to record a wheelchair, but nonetheless accepted that that might well have been the case, although at earlier stages in the proceedings he had denied it. This inconsistency did not assist the GP’s case. EXPERT WITNESS JOURNAL
Similar problems arose for the surgeon in Hassell v Hillingdon Hospitals NHS Foundation Trust2. A patient underwent a C5/6 decompression and disc replacement operation performed by a spinal orthopaedic surgeon. Unfortunately, she suffered a spinal cord injury during the operation which caused tetraparesis and rendered her permanently disabled. The patient 23
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These lessons are equally important whether in relation to consenting or to recording decisions or diagnoses, and for the same reasons. If asked, in the course of any subsequent inquiry, to justify a decision made in the treatment of a patient, then the clinician will be well supported by a contemporaneous brief note of the material facts relied on, the decision made and the reasons for the decision. This will frequently provide convincing evidence as to why a complaint or a claim against the clinician will not succeed.
asserted that the surgeon did not warn her that the operation might leave her paralysed and did not discuss other conservative treatments before the decision to have the operation was made, as he was required to do when consenting a patient following the decision in Montgomery3. The surgeon said that he had warned the patient about the risks of paralysis and also discussed other conservative treatment options. However, the patient’s claim succeeded on the basis of a failure to obtain informed consent and she recovered substantial damages.
Giles Eyre Giles Eyre is a recently retired barrister and an Associate Member of Chambers at 9 Gough Square, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer for clinicians (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.uk.com), and regularly writes articles on these subjects.
The judge in this case decided, having heard the evidence of both the surgeon and the patient, that on the balance of probabilities the warning was not given and alternative treatments were not discussed. 7 different reasons were relied upon by the judge for coming to that conclusion, all of which indicated either weakness (or silence) in the records made by the surgeon in his dealings with the patient, or inconsistencies in the surgeon’s evidence, or both. The surgeon had not recorded any details of discussion of conservative treatment options. In relation to operation risks he relied on his ‘invariable practice’ to mention various complications but the judge found that what he said sometimes, and on the relevant occasion, differed from his ‘invariable’ practice. Warning of the risk of paralysis was not specifically noted and the judge concluded, on the facts, that that warning was likely to have been remembered by the patient particularly as she recalled a discussion about a much less serious potential complication. There were also inconsistencies in the surgeon’s recollection between the evidence given at different stages in the proceedings, and his accounts were not reflected in the contemporaneous records.
References 1, [2019] EWHC 520 2, [2018] EWHC 164, http://www.bailii.org/ew/cases/EWHC/QB/2018/164.html 3, Montgomery v Lanarkshire Health Board [2015] SC 11
Mr Kallingal Riyad
Discussion A lawyer would not find these decisions and the approach of the judges to the evidence surprising. The absence of complete or thorough contemporaneous notes consistent with the evidence given at all later occasions by the clinician greatly undermines the clinician’s evidence, particularly if there is credible contrary evidence from the patient (or the patient’s family). Clinicians need at all stages of treatment of patients not only to communicate clearly, but to record the essentials of that communication, and material matters discussed, in a clear and reliable form at that time so as to be able to assert confidently at any later inquiry what that communication involved. Time has to be found in which to do this, but it need not take much time.
Consultant General and Colorectal Surgeon MBBS, MS, FRCS (Glasgow), FRCS (UK), PGCert, PGDip in Clin Ed I am consultant surgeon (Hon. Senior Lecturer in Surgery) with specialist interest in colorectal surgery employed by the Leeds Teaching Hospitals. I have been a consultant since 2007 intially with East Lancashire Hospital NHS Trust and now with St. James’s University Hospital Leeds. I am an expert in hernia (laparoscopic and open), laparoscopic and open resections of bowel for cancer and other benign conditions. I have a vast experience in emergency general surgery. I am a skilled colonoscopist performing complex therapeutic procedures. I am happy to provide expert opinion in the above conditions.
A checklist of matters to be raised with the patient during the consenting process must be prepared, and some simple and effective measure used to show that they were in fact raised. This may be no more than a list of key words followed by ticks or crosses, or an acronym to represent the key words similarly marked, but could be a printed or computer list of matters, again with suitable confirming marks. It is for the clinician to find a system that works for him or her, and which he or she can use accurately and quickly to record the essence of all material matters during a consultation or examination. EXPERT WITNESS JOURNAL
Tel: 07734 823 801 - Email: kalriyad@gmail.com Department of General and Colorectal Surgery, Lincoln Wing St James's University Hospital, Leeds, LS9 7TF Area of Work Nationwide
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Can Compensation Bring Satisfaction? What do Damages For Personal Injury Represent? Speech by Lord Justice Irwin Personal Injury Bar Association, Annual Lecture, 15 November 2018 There are two stimuli for this talk. Firstly, it is good, from time to time, to lift our heads above the detail, the practical administration of the law, and ask ourselves in a broader sense what we are about. The second stimulus came as I listened to a section of this lecture given last year by my most distinguished predecessor, Lord Sumption. Those of you who were present may recall that, towards the end of his talk, he suggested that our system of tort damages should in effect be abolished, in favour of a no-fault insurance system, stripping out the cost and trouble of deciding fault, and focussing simply on the assessment of the award. Somewhat wistfully, he immediately went on to say his suggestion would never be put into practice however, because it would cost too much.
from the Lord Chancellor’s Department or its successors. At the outset in the late 1980s the idea was that conditional fee agreements, an established but very limited mechanism in Scotland, would fill the gap1. Other ideas, such as a Contingency Legal Aid Fund on the Hong Kong model, were pushed aside, as was the fact that the nett cost to government of personal injury legal aid, once recovered costs and recouped benefits were accounted for, was £30 million per annum, even then a very minor figure in the departmental budget. The governmental drive for change was unstoppable. During this process, the Treasury dispatched a young, very clever and personable official, to oversee discussions between the DCA as it had become, the Bar Council and the Law Society. His name was Simon Less, which I always liked: less by name, less his objective.
As I listened, I found myself disagreeing with the idea, not because of the cost, and not because it would greatly add to the income of the members of this association, litigating causation and quantum for many more clients. Why was I disagreeing? Because it felt wrong, unjust, to abolish the notion of fault from an award of damages. And why is that? What is the reason for the instinctive (or is it learned) link between fault and compensation? What does an award of damages mean to people? How far do damages bring more than simple financial recompense, whether for past or future loss? Have the commercial interests of insurers and lawyers, and risk avoidance by government, reduced the satisfaction derived from damages? I want to reflect on these questions in this talk. I rather fear, we may end with nearly as many questions as we began.
Over the same period at the end of the 20th Century and the beginning of the 21st Century, union membership fell2. In 1989 UK trades union membership was 10.04m. In 2004/2005 it was 7.5m. In 1989, 38.6% of employees were unionised. In 2005 the figure was 28.3% (incidentally, in 2017 it was 22.9%). A big benefit that unions could offer was access to legal services, and no-win, no-fee arrangements reduced their appeal. Through the years since, conditional fees have been extended and altered, contingency fees legalised and expanded, and legal aid in personal injury claims very largely abolished. You know that better than I. At the same time, the reforms following on from the Clementi Report of December 20043 have transformed the ownership and organisation of many legal practices. The effects of the Legal Services Act 2007 have been swift and transparent in terms of the formal regulatory structures governing the legal profession. However, their effects so far as Alternative Business Structures, and the question of who owns legal practices, are much more opaque.
I am going to start, not by looking at damages themselves, but at the system through which personal injury damages are recovered. I wish to take the bird’s eye view, perhaps I should say the drone’s eye view, quite consciously. By the late 20th Century, the insurance industry had long morphed from its beginnings in bodies providing mutual assurance into major profit-driven commercial enterprises. By the 1990s there were few mutual bodies surviving. The NHS Litigation Authority, now NHS Resolution, is the only major exception I can think of, which is not a commercial enterprise.
Sir David Clementi, now Chairman of the BBC, was himself a former Chairman of Prudential plc. The holdings of a major publicly-listed insurance corporation such as The Pru will be clear and transparent, for those who know how to trace them. However, as recent events may suggest, other ownership structures and flows of money in the insurance industry may be markedly less transparent.
From the 1990s, legal aid for personal injury claims has been progressively restricted or abolished. The drive to do so has emerged from the Treasury, not EXPERT WITNESS JOURNAL
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claimants who receive modest and often standardised awards, but to those who process the claims, both for and against such claimants. We should not forget that, without claims, defendants’ insurers would make no profit.
Regulatory control of Alternative Business Structures is quite limited. Such enterprises must be licensed, and a range of particulars must be furnished to the relevant regulator, either the Solicitors’ Regulation Authority or the Bar Standards Board4. The BSB has been notified of ten ABS entities, the SRA of some hundreds. In neither case does the Register tell the reader who owns the entity.
When the figures are teased out, there has been no marked increase in the number of personal injury claims over very recent years: in fact there has been a decrease. The figures for the last eight years are tabulated by the Government’s Compensation Recovery Unit5. Overall claims were 987,381 in 2010/11, peaked at 1,048,309 in 2012/13 and in 2017/18 were around 19% down at 853,615. This must reflect in part, ever safer roads. 2013 and 2015 represented the two years with the lowest ever reported personal injury accidents6.
There is nothing to prevent, for example, a legal practice being owned by a claims handling company (a so-called claims farmer), or the claims handling company (or the indeed legal practice) being owned by an insurer. Nor, as far as I can see, is there any necessity for such ownership to be transparent. These are not ordinary businesses, but companies in control of professional practices, which require rigorous enforcement of professional rules and the avoidance of conflicts of interest. There is much more reason for transparency than in the ordinary commercial sphere. I wonder if there is not a need to make such information publicly available, in a clear and comprehensible form. Should we not see who is profiting from what? As the Americans say: who has skin in the game?
However, if one goes further back, a different pattern can be discerned. In 1979, according to government statistics, there were 72,751 serious or fatal road accidents in Great Britain. In 2016, the number was 23,4207. So, our roads are very much safer now that they were forty years ago. Yet in 2017/18 there were 683,329 motor claims. From 2000 to 2017 AXA reported there had been a 100% increase in motor claims8. As another example, fatal injuries to workers were 495 in 1980 and 135 in 2016/2017, yet workplace claims increased.
Now what has all this got to do with personal injury damages, the ingredient of fault in the award of damages, and what damages mean to those who are injured? Well, I suggest that the commercialisation of the system – I apologise for the word – may mean that commercial or “producer” interests have become dominant, and that at least to some extent the way personal injury litigation and compensation is managed reflects the interests of the producer more than those injured, or the public at large. In cruder language, that this is often a sausage machine, processing large numbers of claims of small or moderate value in a very risk-averse and costs-responsive way.
I appreciate of course that statistics may mislead. Fatal accidents may not be a perfect proxy for injuries. Improved medical science keeps people alive who would previously have died. But the broad picture, despite some decline in very recent years, has been more personal injury litigation, against a background of a much safer environment. We will see if recent costs changes alter that. I have been able to find no reliable research or data on under-settlements. Intuitively, my guess is that they are widespread. The costs risk now being primarily borne by lawyers, insurers and even potentially claims farmers, are a potent force towards under-settlement. Of course, if the case being undersettled is a minor claim which was only stimulated by advertising no-win, no-fee arrangements in the first place, then no great loss to the injured party will arise. But the pressures leading to under-settlement cannot be confined to such cases. Perhaps the real point is that we have no evidence as to the extent of this effect.
One measure of that would be if there are significant numbers of claims brought which would not have been brought in the past, and would not be pursued now, but for the combination of no win, no fee agreements on the one hand, and marketing and advertising by the commercial parties on the other. Another measure of the impact of “producer” interests might be consistent under-settlement of claims, to limit exposure on the part of legal practices, and insurers. And what of the recent drive to establish fraud if at all possible, not for its own sake, but so as to avoid qualified one-way costs shifting? The hackneyed phrase “compensation culture” is not only tired and dull, but misleading. If there is an excess number of not very worthwhile personal injury claims – arising from events which, in a former era, the aggrieved party would have ignored, or treated with stoicism – then that change does not arise from a general spontaneous uprising in greed. The cases arise because people have been subjected to intensive and repeated marketing by claims handlers or law firms. And often the prime benefit for such claims, claims which would not otherwise be brought because not so serious as to demand action, is not to the EXPERT WITNESS JOURNAL
Over the same decades there have been a number of moves to make damages awards more consistent, and thus more predictable. It is easy to see the utility of those changes. The down-side may be a sense that here too a sausage-machine is operating, different from the long common law tradition of jury awards, which persisted in England beyond World War II, and still persists in the USA. In fact, standardisation of damages’ awards is a very old idea. People think of the maxim “an eye for an eye, a tooth for a tooth” as biblical in origin9, but
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Christ in the Sermon on the Mount was referring to a provision which is traceable to the Code of Hammurabi, King of Babylon from 1792 to 1750 BC.
satisfaction, and thus kept the peace. These awards were intended to go beyond compensation in the narrowest sense.
But how about this. Legal procedures were crude, lawyers a subset of the priesthood and very thin on the ground, and legal aid non-existent. So King Aethelberht of Kent (who reigned in the early 7th Century AD) set the compensation to be paid for each injury10. There was a comprehensive range of standard awards. For striking off the little finger, 11 shillings; for a stab to the thigh 1-2 inches deep, 1 shilling; 2-3 inches deep, 2 shillings; 3 inches deep, 3 shillings. Loss of four front teeth was 6 shillings. Bruises were differently compensated if they were showing outside the clothes or not. Toes other than the big toe required half the compensation of the corresponding finger – and so forth. There was a standardised award for those who needed medical treatment of 30 shillings. It is worth pointing out that in 7th Century Kent a shilling was a measure of gold, about 1.3 grams, and so a reasonable sum.
Perhaps the greatest jurist and scholar of Natural Law – that law that is said to arise universally and without reference to specific creed or express law of the state – was the 17th Century Dutchman Hugo de Groot, or Grotius12. In his famous book De Jure Belli ac Pacis13 he wrote: “It has been said … that the rights due to us arise from three sources, which are contract, injury and law. It is unnecessary here to dwell upon the nature of contracts which has been already so fully discussed. The next point therefore to which we proceed is an inquiry into the rights resulting to us from injuries received. Here the name of crime or misdemeanor is applied to every act of commission or neglect repugnant to the duties required of all men, either from their common nature or particular calling. For such offences naturally create an obligation to repair the loss or injury that has been sustained.” (Chapter 17)
There are some standard awards which look odd to the modern eye. At six shillings, the compensation for piercing through the generative organ seems a little mean to me, particularly in the light of the 11 shillings award for the loss of a little finger. Then, if you stole church property (that is to say, God’s property) you had to pay the church twelve-fold compensation. If a man lay with a maiden belonging to the King (this being a slave society) he had to pay 50 shillings compensation (to the King, not the maiden).
Grotius wrote that “the loss or diminution of anyone’s possessions is not confined to injuries done to the substance alone of the property, but includes everything affecting the produce of it, whether it has been gathered or not”, in other words compensation must extend to the consequences of damage or loss. And critically, the individual who committed the injury, whether by negligence or otherwise, is responsible for repair of the losses. According to the eminent English legal historian Sir Frederick Pollock, it was natural law, thinking, in particular as described by Grotius, which was the origin of, or was at least a congruent development with, the common law notion of the responsibilities and standard of action of the “reasonable man”. In his essay “The History of the Law of Nature: A Preliminary Study14 he wrote: “Within the last century and a quarter, or thereabouts, the whole doctrine of negligence has been built up on the foundation of holding every lawful man answerable for at least the amount of prudence which might be expected of an average reasonable man in the circumstances. Now, St German pointed out as early as the sixteenth century that the words “reason” and “reasonable” donate for the common lawyer the ideas which the civilian or canonist puts under the head of “Law of Nature”. Thus natural law may fairly claim, in principle though not by name, the “reasonable man” of English and American law and all his works, which are many.”
The most important award was the Wergild, the amount to be paid for the death of a man. This was again standardised, and depended on the status or inherited rank of the man or woman who died: 1200 shillings for a 1200 shilling man, 200 for a 200 shilling man, and so forth. In the code of King Alfred11, the law had to accommodate the presence of Britons – Celtic people not Saxons - who were referred to as “Welshmen”. They cost less: 60 shillings for the death of a Welshman with no land, for example. Well, apart from the curiosity of all this, it can I think tell us of the universality of the idea that compensation needs to be regulated; and that as a means of reparation it is very widespread in time and place. One more thing, it was linked to fault: it had to be paid by the wrongdoer, in some cases assisted by his kin. The Kentish Code is insistent on this. Decree 30 of Aethelberht reads: “If one man slays another, he shall pay the wergild with his own money and property (i.e. livestock or other goods) which whatever its nature must be free from blemish [or damage].”
Thus, it seems to me fair to observe that the principle that reasonable compensation for injury, and the consequences of injury, are the responsibility of the person who has caused the injury, is an absolutely fundamental part of just law, of natural law, as well as of common law. So let us now turn to the common law.
The Code also provided for staged payments of the Wergild, and for sureties to guarantee the payments were kept up. This was all critically important, not just to replace the wealth or earnings capacity lost, but to assuage the feelings of the injured person or the family of the deceased. This was the means by which the State ensured a sufficient sense of justice, of EXPERT WITNESS JOURNAL
McGregor on Damages has had two very distinguished editors, the late and much missed Harvey McGregor QC, and now Mr Justice Edelman, of the 27
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High Court of Australia. The introductory parts of Chapter 1 of the 20th Edition constitute an elegant analysis of the legal fundamentals, and include the definition of damages, initially laid down by McGregor in 1961. Edelman traces the changes since then. McGregor’s 1961 definition was adopted wholesale by the House of Lords in Broome v Cassell & Co15. For reasons which Edelman explains, the definition has had to change. There is no time to discuss those changes here, but I recommend those pages as mindclearing for all tort lawyers. Edelman emphasises that: “The requirement of a wrong is entirely necessary; it is an essential feature of damages. There is thus excluded from damages three common types of case giving pecuniary satisfaction by success in an action because they are not dependent on wrongdoing. These are actions for money payable by the terms of a contract, actions for restitution based on unjust enrichment, and actions under statutes where the right to recover is independent of any wrong.”16
the wrong for which he is now getting his compensation or reparation.” That is the passage we have seen so often. The speech goes on: “That must be qualified by a great many things which may arise - such, for instance, as by the consideration whether the damage has been maliciously done, or whether it has been done with full knowledge that the person doing it was doing wrong. There could be no doubt that there you would say that everything would be taken into view that would go most against the wilful wrongdoer - many things which you would properly allow in favour of an innocent mistaken trespasser would be disallowed as against a wilful and intentional trespasser on the ground that he must not qualify his own wrong, and various things of that sort. But in such a case as the present, where it is agreed that the Defenders, without any fault whatever on their part, have innocently, and, being ignorant, with as little negligence or carelessness as possible, taken this coal, believing it to be their own, when in fact it belonged to the Pursuer, then comes the question, - how are we to get at the sum of money which will compensate them?”
In Chapter 2 McGregor addresses the “object of an award of compensatory damages”. He straight away cites what has become Answer 1 from the law student’s Catechism of Damages, the general rule as to the measure of compensatory damages, as laid down in the speech of Lord Blackburn in Livingstone v Rawyards Coal Company17: “that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.”
Thus, on this formulation, the principle of exact compensation for loss sustained is confined to the innocent trespasser, is not appropriate for a wilful or intentional trespasser, and arguably not for cases of any significant negligence or carelessness. Now of course the law has developed since then, despite the repeated reliance on Lord Blackburn’s dictum. In Rookes v Barnard18 the House of Lords clarified the circumstances in which exemplary and aggravated damages could be awarded, please note, by the jury, still then responsible for making the award in many cases. There could still be a considerable degree of flexibility, often even where exemplary or aggravated damages are not in question. As Lord Devlin put it: “It must be remembered that in many cases of tort damages are at large, that is to say, the award is not limited to the pecuniary loss that can be specifically proved. In the present case, for example, and leaving aside any question of exemplary or aggravated damages, the appellant's damages would not necessarily be confined to those which he would obtain in an action for wrongful dismissal. He can invite the jury to look at all the circumstances, the inconveniences caused to him by the change of job and the unhappiness maybe by a change of livelihood. In such a case as this, it is quite proper without any departure from the compensatory principle to award a round sum based on the pecuniary loss proved.” [p.1221]
How often have we all seen that cited as the ultimate ground for the scope of compensation? How rarely have we looked back at the case itself, to find the context and the full extent of Lord Blackburn’s speech. Livingstone v Rawyards concerned land in Lanarkshire. The pursuer Livingstone held property rights – the “feu” – in something over 1½ acres of land, on which 30 cottages were built. The land was surrounded by the Rawyards property. In the 1870s, the Rawyards Co mined the Coal under Mr Livingstone’s land, believing they had the right to do so. Livingstone was ignorant of his rights. The mining caused subsidence. In the course of investigation, it transpired that Livingstone had the rights in the coal under his land, not the Rawyards Coal Company. The extraction was what in English law would be called trespass, but it was agreed it was innocent trespass. The innocence of both parties is emphasised in the speeches of Lord Cairns LC and Lord Hatherley. And thus the measure of damage fell to be decided. The full principle enunciated by Lord Blackburn goes beyond the passage so frequently cited. The full passage reads: “The point may be reduced to a small compass when you come to look at it. I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained EXPERT WITNESS JOURNAL
In personal injury cases, damages for pain, suffering and loss of amenity are “at large”. In Broome v Cassell the House of Lords essentially upheld the analysis of Lord Devlin in Rookes v Barnard. It is fair to say that their Lordships differed, as Justices of the Supreme Court sometimes still do, in considering the wider implications and approach. Lord Hailsham LC, for example, emphasised the breadth, or potential breadth, of even explicitly com28
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You see the same impulse in the increasing and worldwide phenomenon of leaders apologising for past wrongs that were very often never the responsibility of the leader concerned. One of the very earliest examples of such an apology was in 1970 when Chancellor Willy Brandt of West Germany fell to his knees before the monument to the Warsaw Uprising. In 2007 Prime Minister Blair apologise for the slave trade, and Prime Minister Gordon Brown apologised in 2009 for the treatment of Alan Turing and of other gay men. Prime Minister Cameron apologised in 2012 for the disaster at the Hillsborough Stadium in 1989, and for the failure in the following years to identify and acknowledge the poor decisions and actions of the police which allowed the tragedy to happen. In May this year, Prime Minister May apologised for the treatment of the “Windrush” citizens.
breadth, or potential breadth, of even explicitly compensatory awards: “Nevertheless in all actions in which damages, purely compensatory in character, are awarded for suffering, from the purely pecuniary point of view the plaintiff may be better off. The principle of restitutio in integrum, which compels the use of money as its sole instrument for restoring the status quo, necessarily involves a factor larger than any pecuniary loss.” [p.1071B] By 1999, the Law Commission concluded that general damages for non-pecuniary loss were too low19. This led to the hearing before the five-judge Court of Appeal in Heil v Rankin20, in which the Court moved some way to meet the views of the Law Commission. They introduced a tapered increase for awards then above £10,000, rising to an increase of one-third for catastrophic injuries.
We have seen two Australian Prime Ministers apologise for the cruelty to the “lost generation” of indigenous Australians and for the treatment of children, including child migrants, in Australian institutions. The Pope, Archbishops and Bishops have apologised for sexual abuse, and the protection of or failure to report clerical abusers. The Canadian Prime Minister Justin Trudeau has issued a raft of apologies to those who were children in institutions in Canada, to gay people, to Jewish refugees from Europe in 1939 whose ship was turned away and even to a group of Sikh, Muslim and Hindu migrants from Imperial India who were refused immigration to Canada in 1914. There is a strong desire for recognition or acknowledgement of wrongs.
By the time of Heil v Rankin, the Guidelines for the Assessment of General Damages in Person Injury Cases had been published, the First Edition in 1992. Essentially the awards for pain, suffering and loss of amenity have simply been uprated in step since. Although, Lord Judge CJ emphasised in Simmons v Castle21 that the Court of Appeal still has “the power and the duty” to review and if necessary alter “the level of damages, this has not happened save in non legally-aided cases, and there as a consequence of the Jackson Costs Reforms”. As Lord Judge acknowledged, that case had not involved a general review of the awards of general damages. The Court noted that Sir Rupert had observed that the levels of damages “… is not high at the moment”22. The Court also noted the observation by Lord Woolf in Heil v Rankin that the obligations of the Court of Appeal to review the level of damages included responding to “changes which take place in society”23.
Of course, such acknowledgement can be given in the course of a judgment at the end of a trial, but that is a rare event indeed nowadays in this field. Is it not implicit in what Lord Blackburn was saying that, to the extent that is possible, damages awards should embody recognition of fault, and the degree of fault, by differentiating between the tort that is a wrong, but “innocent”, the tort that flows from carelessness or negligence, and the tort that is grossly negligent, or indeed wilful and deliberate?
At the very least one can say that even in relation to compensatory damages, there may be more authority for flexibility, and potentially for change, than might be assumed.
In my view we have seen at least one and possibly more examples where the demand for such recognition, for an expression of justice, has spilled over from the civil law, and forced the extension of criminal liability.
Underpinning the speech of Lord Blackburn, the sense of natural justice, and I would guess the instinctive sense of all those of us who conduct or adjudicate personal injury claims, on whichever side of the adversarial fence, from the Bar or the Bench, is the idea that the outcome should be just, and bring fair recompense. If that is not the product of the system, then the public will look beyond the system of civil justice, if not for money, then for that intangible sense of justice or fair play.
I drive a motor car. Most of those here will do so. I defy any honest-minded driver to say they have never done anything whilst driving that constituted careless driving – not dangerous driving, but careless driving. A single misjudgement of distance, a slight excess of speed, or being a little late in braking. As from 2006 the offence was created of causing death by careless driving24. Thus, matters that had always been dealt with by purely civil litigation became criminal. The relevant sentencing guidelines25 mean that, if the carelessness or negligence is mid-range or above (but still short of dangerous driving), and especially if the negligence kills more than one person then, despite culpability which was previously thought insufficient to justify criminal liability, a person of good character may go to prison26.
I believe there is an increasing desire for acknowledgment or recognition of wrong beyond pure financial compensation for identified loss. You see that in how families talk after accidental bereavement: a most conspicuous recent example being the loss of so many people in the fire at the Grenfell Tower. In that inquiry and others, those who have lost relatives or those displaced from their homes, want acknowledgement as much as financial recompense; although they want and need the latter too. EXPERT WITNESS JOURNAL
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A similar process, it seems to me, has taken place in relation to corporate manslaughter, introduced by the Corporate Manslaughter and Corporate Homicide Act 2007, which set out to define and ascribe criminal liability in such cases, and has been followed by sentencing guidelines in 201527. This has intentionally extended criminal liability beyond the previous common law manslaughter by gross negligence, imported criminal liability to organisations, and greatly increased the penalties which can be passed.
I have no settled ideas on these questions, which will be for the professions to explore and develop, in any event. I do have the sense that justice requires the injured citizen, where possible, to receive satisfaction and acknowledgement of fault from our civil justice system, as well as strictly computed damages for his or her financial losses and attributable needs. References 1 Created by s.8 of the Courts and Legal Services Act 1990.
I should not be understood to suggest that the extension of criminal liability in those fields is wrong: that is a matter for Parliament. I do suggest that it is likely that the limits on damages awards in civil claims, particularly in the context of what I have called the commercialisation of the tort system, has contributed to the drive to extend criminal liability in these ways.
2 https://assets.publishing.service.gov.uk Tables 1.1 and 1.2b. 3 Report of the Review of the Regulatory Framework for Legal Services in England and Wales, December 2004: https://webarchive.nationalarchives.gov.uk 4 S.87 Legal Services Act 2007. 5 Compensation Recovery Unit performance data: updated 23 April 2018. 6 House of Commons Briefing Paper No 06061 18.x.2017. Motor Car Insurance: page 9. 7 https://www.gov.uk/government/statistical-data-sets/ras10reported-road-accidents#table-ras10013 8 House of Commons Paper 06061 18.x.2017, p.14. 9 Matthew 5 v38. 10 www.law.harvard.edu>courses>materials 11 King of Wessex, 871 to 899 AD. 12 1583 to 1645. 13 On the law of War and Peace 1625: https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/grotius/Law2.pdf 14 Journal of Comparative Legislation, 1900, p.418. 15 [1972] AC 1027 @ 1070E 16 McGregor on Damages 18th Ed. Para 1-004. 17 (1880) 5 App. Cas. 25 @ 39. 18 [1964] AC 1129 19 Law Commission Report No 257: Damages for Personal Injury: Non-pecuniary Loss 19 April 1999. 20 [2001] QB 272. 21 [2013] 1 WLR 1239; [2012] EWCA Civ 1039. Judgment of 26.vii.2012 [12]. 22 Simmons v Castle Judgment of 10.x.2012 [13]; Jackson: Final Report, Chapter 10, [5-6]. 23 Simmons v Castle Judgment of 26.vii.2012 [11]; Heil v Rankin [28-29]. 24 S.20 of the Road Safety Act 2006, inserting S.2B into the Road Traffic Act 1988. 25 Causing Death by Driving: Definitive Guideline, Sentencing Council 19 July 2018 26 Guideline (ibid) p. 15 27 Health & Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offence: Definitive Guideline, Sentencing Council 2015
Let me try and draw the threads together. First, a couple of suggestions which I believe make good sense. Would it not be good for our system if regulators were required to be informed, and to publish, all the ownership, including ultimate ownership, of legal practices? These are not just ordinary businesses. When law practices or chambers were confined by the old professional Rules, their independence from outside ownership was protective at least to some degree of conflict and undue commercial pressure. That has gone with Alternative Business Structures. Let us see in detail who owns whom: who has skin in the game. Second, it seems to me that under-settlement of personal injury claims is a ripe field for academic study. I have no doubt about the complexity of the exercise: confidentiality, commercial reputation, legal professional privilege and sheer judgement about litigation risk would all represent considerable barriers. However, it would be a valuable piece of research if it could be achieved. On a more reflective note, am I right in my sense that our system of claiming and awarding damages has become too standardised, and is failing to bring acknowledgement, or recognition, where it should do so? Actual losses, past and future, should be computed as carefully, and with as much technical accuracy as possible. A great deal has been done over recent decades to improve that: more accurate and elaborated heads of claim, periodical payments, conditional awards and so on. Nor do we want to stimulate pointless marginal contests in place of sensible settlements. But if I am right that fault is intrinsic to tort, and Lord Sumption is right that a no-fault system of compensation will never come about, then I suggest it may be time to consider how acknowledgement, or recognition of fault, may be marked, at least in more egregious cases of fault and in larger cases. That might be by greater use of claims for aggravated or exemplary damages, where appropriate. It might be by stipulating public acknowledgement of fault and apology as part of settlement. Should the Civil Procedure Rules address that? Should there be costs consequences of gross negligence, or of a failure to admit and acknowledge serious fault? Should aggravated and exemplary damages be recoverable by the insurer from the insured? EXPERT WITNESS JOURNAL
Thank you very much to Lord Justice Irwin and judiciary uk for permission to print this speech. Lord Justice Irwin acknowledgements I am very grateful to Dr Philip Holdsworth for his assistance on Saxon law, and to my judicial assistant Ifsa Mahmood, for assistance in the preparation of this lecture. www.judiciary.uk
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Accidents Abroad and Brexit Wrangles At the time of writing it is still not clear when the UK will leave the EU, or indeed at all. Bearing in mind that Article 50 of the Treaty on European Union was triggered 2 years ago, it is perhaps surprising that with a week to go such uncertainty remains. County Court money claims is likely to be inundated with urgent requests for cases to be issued, thereby putting a strain on its limited resources.
Whilst Brexit has been a mainstay of the news feeds 24/7 for most of the past 2 years, what is less well publicised is the fact that the question of whether the government manages to negotiate a deal with the EU prior to our departure will impact upon how cross border motor accident claims are dealt with after that date.
There is a trap for the unwary when it comes to what is meant by issuing court proceedings in this context. Most lawyers involved in litigation are familiar with the need to issue claims protectively in order to avoid them becoming time barred. In that context it is usually sufficient for the claim form to simply have been received by the court, even if it has not physically been issued. This arises by the operation of Civil Procedure Rule Practice Direction 7A, paragraph 5.1, which says Proceedings are started when the court issues a claim form at the request of the Claimant but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date. However, it seems that it should not be assumed that this will be sufficient for the purposes of making sure the current rules on jurisdiction are retained. Indeed, it is almost certainly the case that it will not be sufficient and that the Claim Form will need to have been actually issued and not merely received by the Court.
Currently a system known as the Green Card Scheme allows vehicles to move freely across the borders of all 48 subscribing countries and ensures that when a visiting vehicle causes damage, there is easy access to compensation in the victim’s home country. This system is not European-born and will continue postBrexit. That system enables cross border travel while protecting victims injured in their own country by a foreign registered vehicle. However there is another system, known as the Fourth Directive, to assist victims who are injured while abroad. This scheme is European-born and this is much more likely to face disruption depending on the progress of Brexit negotiations. The Fourth Directive enables victims to return home and then pursue a claim in their home country either via a local representative of the foreign insurer, or a special body known as the compensation body. Specialist claims handing companies such as Van Ameyde exist to deal with these cases. If the scheme is not maintained postBrexit, then victims will have no choice but to pursue their claims in a foreign country, in an unfamiliar language.
There are some other fairly fine points which seem to be causing confusion amongst some practitioners. Although it is necessary to issue proceedings to be sure of retaining the current jurisdiction regime, it is not a requirement for those proceedings to be served ahead of our departure. The House of Lords confirmed in the case of Canada Trust Co v Stolzenberg (No.2) (2002) that the jurisdiction will be seised once proceedings are issued. It will therefore be sufficient for a Claimant to issue a claim on 28 March (or the day before we leave the EU) and serve it out of the jurisdiction within the following 6 months without running the risk of losing the ability the bring a foreign accident claim in the UK. Some practitioners are either unaware of this or are taking a “belt and braces” approach. This is likely to mean that in some cases they will be urgently instructing medical experts to make sure they have a medical report available when serving the proceedings. In other cases the writer has already seen that some lawyers have proceeded to serve proceedings without any medical evidence. This means that they risk falling foul of Civil Procedure Rule 16 Paragraph 4.3 which states that where the Claimant is relying on the evidence of a medical
The UK may well decide to keep its laws in line with the EU Motor Insurance Directives. However, if the Fourth Directive scheme is to be maintained in the UK it will require the agreement of all the other Member States. This is because, unlike the Green Card Scheme, it is based on reciprocal agreements and provisions in national laws. One practical consequence of this is that any UK lawyers currently dealing with cases involving accidents abroad are having to issue court proceedings in those cases, whatever their state of readiness. If proceedings are issued prior to 29 March (or such later date on which the UK leaves the EU) then the lawyer will have retained the ability for their client to proceed with the case in the UK under the current favourable jurisdiction regime. This means that the CCMC which currently deals with the issuing of all EXPERT WITNESS JOURNAL
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practitioner the Claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim.
Mr Peter Talbot Cox Consultant Surgeon
Insurance companies, specialist claims handling organisations and insurance lawyers alike are keeping a close eye on Brexit developments. The outcome is already and could continue to impact on the way in which these specialist claims are dealt with in a variety of ways. This article is intended to serve as merely a reminder of the number of issues that may be impacted by Brexit and which were not within the contemplation of the majority of people at the time of the referendum.
MBChB, MD, FRCS Consultant Orthopaedic surgeon for over twenty five years. Medico-legal work, predominately with regard to personal injury issues, has been carried out throughout this period. Reports have been prepared for Claimants and Defendants although Claimant work has, in the past, been predominant. Evidence has been given in Court on a frequent basis over the years. Fully experienced in the preparation of Claimant, Defendant and jointly instructed reports and completion of associated correspondence relating to personal injury claims and selected medical negligence claims.
Article by Kelvin Farmaner March 2019 www.trethowans.com
Carrying out legal discussions with opposing experts to clarify and express points of agreement and disagreement.
Kelvin Farmaner and the team at Trethowans have many years of experience in dealing with foreign accident claims. They are active members of the Forum of Insurance Lawyers (FOIL) and Kelvin sits on FOIL’s “European Issues” Sector Focus Team.
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Dr Khalid Binymin
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Consultant Rheumatologist Hononary Lecturer at Liverpool University
MBChB MRCGP DRCOG DCH DFFP DipOcc.Med DMJ MFFLM MEWI Cardiff University Bond Solon Expert Witness Certificate (Criminal Law)
MBChB, FRCP, MSc Consultant Rheumatologist and lecturer. I have over 25 years experience as a doctor. I am the author of two published medical books and the rheumatology chapter of the masterclass book for the Royal College of Physicians. Appointed as the Royal College of Physicians Tutor, Honorary lecturer at Liverpool University. I ran various nationwide training courses. Research areas include; SLE, fibromyalgia, rheumatoid arthritis, Psoriatic arthritis, mechanical trauma and back pain. Medicolegal reports have been written for most legal firms in the north west region with great emphasis on punctuality and quality. Personal injury, ill health retirement and medical negligence is major area of work.
Dr Amandeep Singh Ranu currently, holds the position of Senior Forensic Medical Examiner in independent practice providing services to the Metropolitan Police and other constabularies. He is a Registered Medical Practitioner with over 20 years working experience in the UK. His higher clinical forensic training and, working experience has afforded a relevant knowledge-base that renders him capable of expressing an opinion on the subject of injury interpretation. Dr Ranu undertakes work as an expert witness accepting instruction from the prosecution, defence and regulatory bodies in cases concerning the interpretation of injuries, in cases of assault, wounding from knife injuries and blunt force trauma. Expert interpretation includes consideration of ageing of bruising and evaluation of the consistency of injuries with the reported mechanism of injury, including consideration of the likelihood of self-inflicted injury.
Contact Renacres Hall Hospital Renacres Lane, Halsall Nr. Ormskirk, L39 8SE Area of work: Nationwide
His expertise also covers the interpretation of injuries sustained by both complainants and detained suspects relevant to Sexual Offence case work in adults and children. Also the care of individuals suspected of involvement in terrorism related offences. Dr Ranu also regularly prepares expert medical reports for the immigration courts, after examining individuals alleging having been subjected to torture and other forms of ill treatment. He is well aware of assessment guidelines outlined in the Istanbul Protocol manual on effective investigation and document of torture and other cruel, inhuman or degrading treatment or punishment.
Tel: 01704 841133 Mobile: 07939 540 839 Fax:01704 842030 Email: kbinymin2012@yahoo.com or kbinymin@nhs.net
Contact: Dr. Amandeep S Ranu Tel: 07951 048 626.- E mail: drranu.gmc@hotmail.co.uk Web: www.expertphysician.info - Area of work Nationwide
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Exaggeration Not Necessarily Fundamental Dishonesty Spencer Smith v Ashwell Maintenance Limited (Leicester County Court, 21/1/2019)
Claimant who was found to have exaggerated and overstated his difficulties not fundamentally dishonest on the basis that his motive was to convince rather than to deceive The history of hostility arose at an early stage, with various documents compiled by or on behalf of the defendant containing changing and contradictory accounts of the accident. For example ‘slipping’ into the hole became ‘jumping’ and the ‘four foot hole’ became ‘two foot six inches’ (the significance of which is that a two foot six inch deep hole would not require being shored up). In early denials of liability the defendant relied on witnesses who were not in fact on site at the time.
The claimant was a qualified gas engineer who, on 14th July 2013 in the course of his employment, slipped and fell into a four foot hole and injured his ankle. The gravity of the injury and the extent of any continuing disability arising from it were the principal subjects of the litigation. It was the claimant’s case that he had suffered a significant injury as a result of the fall, that he continued to suffer debilitating pain and as a result was unlikely to find gainful employment.
Much was made of the claimant’s appearance in the TV programme and the surveillance footage. The claimant was subjected to lengthy cross examination about the contents of his bank statements, which the defendant asserted established that the claimant had been working for financial reward. The Gas Safety Register was interrogated and the defendant followed up entries from the register indicating that the claimant had certified gas installations in the period following the accident. The defendant went so far as to contact householders occupying the properties referred to in the register.
The defendant’s case was that the claimant had suffered a time limited injury from which he recovered in months and that the claimant’s presentation to the medical witnesses and of the claim overall was so exaggerated as to amount to fundamental dishonesty. Accordingly the court was invited to dismiss the claim either pursuant to the principles established by the Supreme Court in Summers v Fairclough Homes [2012] UKSC 26 or pursuant to Section 57 of the Criminal Justice and Courts Act 2015. The defendant relied on surveillance evidence and the claimant’s appearance in filming carried out on behalf of the Channel 4 programme “Selling Houses with Amanda Lamb”. The filming for Channel 4 was referred to as the Reef footage during the trial and showed the claimant undertaking various do-it-yourself and decorating activities and negotiating stairs without difficulty. In the course of filming the claimant attended an appointment with the first orthopaedic expert in the case, to whom he described being unable to squat or kneel and struggling with stairs.
The Judge observed that there were significant contradictions in the claimant’s case which he found ‘troubling’, not least the contrast between what he could be seen doing in the surveillance and TV footage and his presentation to the various medical experts. There was also ‘unconvincing’ evidence regarding the long-haul holidays the claimant had taken in that he said he had only been able to undertake one such holiday, when in fact he had undertaken three. The Claimant was described in a physiotherapy note in November 2014 as “mobilising unaided” but he attended a number of medicolegal examinations using either crutches or a stick.
In the surveillance footage filmed over a number of occasions in 2014 and 2016 the claimant was seen to be driving, walking without any or any substantial difficulty and engaging in activities which the defendant argued were work related.
However the Judge also observed that there were objective signs of injury on examination in April 2014, including positive anterior draw, which is an objective test and cannot be feigned by the patient.
HHJ Hampton described the trial as having been characterised by ‘contradictions throughout’ and ‘hostility to the Claimant on the part of the Defendant’s representatives and medical experts’, which the Judge found ‘surprising in the context of modern litigation, particularly from the medical experts involved’. EXPERT WITNESS JOURNAL
When cross examined about the various contradictions, the claimant asserted that the pain was variable and that much of what he could be seen doing on the Reef footage was thanks to strong painkillers. In relation to transactions indicative of the claimant’s en33
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gagement in working activity, the claimant gave what the Judge considered to be ‘acceptable explanations’ (mostly to the effect that his son performed the majority of the physical work and that his involvement was limited to the administrative side of things (such as the gas safety registrations) and light work.
undoubtedly amount to fundamental dishonesty. Exaggeration, with mixed motives of attempting to convince or deceive, is not’. After a review of the medical evidence the Judge continued: ‘[61] For the reasons given, I do not find that the Claimant has engaged in fundamental dishonesty in this claim. I do not find that he has faked injury, or continuing pain, for the purpose of financial gain. [62] Nevertheless I find there has been a degree of overstatement...embellishment, of the Claimant’s pain and its effect upon him. I find that the Claimant has engaged in this conduct in order to convince rather than to deceive....His conduct does not amount to the sort of conduct that would justify dismissal of the claim in accordance with the principles outlined in the Summers v Fairclough case...’
The defendant was given very late permission to rely on evidence from a number of customers of the claimant, however three of the customers who were called to give evidence volunteered without prompting that when they had contacted the claimant with a view to procuring his services he had said that he could not do the work himself as he was too unwell. The defendant also presented a witness summary from a Mr Reyat, from whom the claimant later obtained a statement and went on to call at trial. The witness summary asserted, amongst other things, that the claimant fitted a boiler. Mr Reyat completely disavowed the contents of the witness summary at trial. The Judge said that he was ‘driven to the conclusion that there was an element of bad faith on the part of the Defendant’ in relation to the introduction of the witness summary. He observed that but for the efforts of the claimant’s legal representatives, the witness summary might have gone before the court uncontradicted.
The Judge went on to say that on the basis of his findings he was not satisfied that the grounds were established for striking out the claim pursuant to Section 57, but that even if he were wrong in that, he would find that it was not appropriate under the principles stated in the Fairclough case to strike out the claim, rather than give judgment on quantum in the ordinary way. He also found that if the claim were dismissed the claimant would suffer substantial injustice in circumstances where he had suffered a painful injury and was required to resist the defendant’s vigorous attempts to avoid responsibility for the accident.
The Judge concluded as follows: ‘[39]...this is not a case where there has been fundamental dishonesty by the Claimant...Nevertheless, I find that this is a case where the effect of the Claimant’s injury was not as severe as the Claimant presents. I find that the Claimant has been capable not only of putting on a show for the camera as seen in the Reef footage, but also putting on a show for the medical experts. [40] There is an interesting quote in the report of Dr Luscombe referring to an article in the learned journal Clinical Medicine published in November/December 2002 written by Dr Christopher Bas, Consultant Psychiatrist and Dr Tim Jack, Consultant Anaesthetist in which they state: “Outright faking of pain for financial gain is rare, but exaggeration is not, especially if the patient is involved in litigation. It is often difficult to determine whether this represents an attempt to convince or to deceive the clinician”. [41] That observation succinctly sums up the court’s own experience. I do not find in the present case that there has been an outright faking of pain. I do however find that there has been an element of exaggeration. It has been necessary to consider carefully whether the exaggeration represents an attempt to convince or deceive the medical witnesses and indeed the court. I note the Defendant’s attitude until half way through the trial, as to liability in this case. The Claimant must have felt, that from the earliest intimation of the claim, that the Defendant has shown a determination to avoid fully compensating him....Thus, I find, that the Claimant’s exaggeration and overstatement of his difficulties, are the result of an attempt by him to convince, rather than to deceive. I find to some extent, the Claimant genuinely believes himself to be more significantly disabled by his continuing pain than, objectively, is in fact the case. [42] Faking pain, as described by the learned authors referred to above, would almost EXPERT WITNESS JOURNAL
Injustice done or just deserts for the defendant – you decide! Article by Bronia Hartley, Zenith Chamber 10 Park Square, Leeds, LS1 2LH. www.zenithchambers.co.uk
Mr Nikhil Shah Consultant Trauma and Orthopaedic Surgeon FRCS(Tr & Orth), FRCS(Glasg), MCh(Orth), MS(Orth), DNB(Orth).
I provide medico legal reports in personal injury in various conditions - trips, slips, whiplash injury, hip surgery, complex pelvic acetabular fractures, long bone and articular fractures, ankle, lower limb injuries, hip/knee joint replacements, periprosthetic fractures, soft tissue injuries and LVI cases. I also provide clinical negligence related reports in my specialist area of practice concerning hip and knee replacements, revision surgery, and trauma including pelvic-acetabular fractures. Instructions from claimant/defendant solicitors or single joint expert approximately (ratio 45:45:10). I provide the regional tertiary service in pelvic-acetabular fractures. Contact: Nikhil Shah, c/o Consultantcare Ltd Jayne Bailey Riverside Centre, Alexandra Hospital Mill Lane, Cheadle, SK8 2PX Area of Work; Manchester, Cheshire and North West Tel: 0161 393 3059 Email: nikhil.shah@consultantcare.com Website: www.privatehealthcare.co.uk/privatespecialists/ find-a-doctor/knee-surgeons/nikhil-shah
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Considering Surrogacy in Clinical Negligence Cases by Charlotte Cooper l
The issue of surrogacy when determining compensation in clinical negligence cases is an issue which has recently come before the courts in the case of XX v Whittington Hospital NHS Trust, resulting in a landmark ruling for the Claimant, awarding her compensation to cover the cost of surrogacy. Medical negligence solicitor Charlotte Cooper discusses the case.
The cost of commercial surrogacy could not be a head of loss as it is not lawful in the UK;
l The cost of non-commercial surrogacy using a donor’s eggs could not be a head of loss because the loss was not being able to have your “own child” not “a child” and therefore the use of donor eggs was not a restorative loss; l
The cost of non-commercial surrogacy using the Claimant’s eggs was not recoverable because she only had a 1% chance of having a live birth, which was not sufficient enough to justify such an award
Facts of the case XX attended the Defendant Trust for smear tests in 2008 and 2012 and biopsies in 2012 and 2013, during which signs of cancer were not detected when it was argued that they should have been. XX then went on to develop invasive cervical cancer for which she required chemoradiotherapy. The treatment rendered her infertile with severe damage to her bladder, bowel and vagina as a result of the radiotherapy.
Mr Justice Nelson followed the findings in Briody in so far as he agreed that the cost of commercial surrogacy was not recoverable; nor was the option of using donor eggs because he heard expert evidence that the prospects of a live birth in this respect were small. However he did make an award for the cost of 2 non-commercial surrogacies in the UK because expert evidence was given in trial that on the balance of probabilities, XX was likely to achieve 2 live births from her 12 frozen eggs. Mr Justice Nelson felt like this was a reasonable enough chance to justify making the award.
XX had not yet had the opportunity to have children and therefore prior to treatment had 12 of her own eggs extracted and frozen so that she and her partner could still have their own biological children. XX planned to do this either by way of non-commercial surrogacy in the UK or commercial surrogacy in California. Commercial surrogacy is unlawful in the UK hence XX investigating alternative options1.
Grounds for appeal Whilst Mr Justice Nelson’s decision was novel in that XX was the first person to be awarded surrogacy costs in clinical negligence litigation, she appealed his decision on the basis that he was wrong not to award the cost of commercial surrogacy and he was also wrong in not allowing the cost of surrogacy using donor eggs.
As part of the litigation, XX claimed the costs of 4 pregnancies either by way of a commercial surrogacy in California or a non-commercial surrogacy in the UK, using her own eggs or, if necessary, those from a donor.
The Defendant Trust also appealed Mr Justice Nelson’s decision. They argued that he was wrong to award any surrogacy costs but that, if XX was to win her appeal then the amount awarded for pain, suffering and loss of amenity was too high as the £160,000 awarded took into account the loss of the claim for commercial surrogacy and any psychological damage arising from this.
Liability was admitted for the failure to identify the cancerous cells; however quantum was disputed and therefore the case proceeded to a quantum only trial in June 2017, heard by Mr Justice Nelson. Decision of the trial judge Mr Justice Nelson awarded XX £580,619 in damages which included £160,000 for pain, suffering and loss of amenity and £74,000 for the surrogacy claim (being the cost of 2 surrogacies in the UK using XX’s own eggs - notably much cheaper than a commercial arrangement in California would cost).
Decision on appeal The Court of Appeal allowed XX’s appeal, dismissing that of the Defendant Trust. Specifically the court found that there should be no differentiation between someone’s own egg and a donor egg because the law seeks to put a Claimant back in the position they would have been in (or as close to what they would have been in as possible) had they not suffered an injury and therefore if a live birth using someone’s own egg cannot be achieved then the next best thing is to use a donor egg. In terms of the cost of commercial
In deciding whether to award XX surrogacy costs, Mr Justice Nelson considered the view of Lady Justice Hale (as she then was) in 2002 case of Briody v St Helen’s and Knowsley Area Health Authority (the only other case where the issue of surrogacy has been considered). In Briody, Lady Justice Hale found that:
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surrogacy, the Court found that it would be wrong to deny XX the costs given that there was nothing unlawful about what she was intending. Whilst commercial surrogacy is not lawful in the UK, this does prevent someone from entering into a commercial arrangement in a place where it is lawful.
Footnote: 1. Commercial surrogacy is an arrangement whereby the surrogate is not only reimbursed her medical expenses but she is also paid for her services. In return for such payment, the surrogate has no legal rights over the child that she is carrying. With non-commercial surrogacies, the surrogate is only reimbursed for medical expenses however the surrogate mother is considered to be the legal mother of the child until a parental status order is obtained after birth so there is no guarantee that the child will be handed over once born.
In view of their decision, the Court said that it is appropriate to revise the level of XX’s damages with such revision to be agreed between the parties; albeit the Court of Appeal did comment specifically on the amount awarded for pain, suffering and loss of amenity suggesting that an appropriate award in this respect would be £150,000 taking into account the fact that as stated above, part of the figure awarded by Mr Justice Nelson included the likelihood of XX suffering psychological damage as a result of the loss of the claim for commercial surrogacy.
Author Charlotte Cooper Charlotte is a solicitor working with Olive Lewin in the clinical negligence department. Charlotte assists Olive with a wide range of high value and complex clinical negligence cases. These include cases involving spinal injuries, brain injuries, claims arising out birth injuries such as such as cerebral palsy, maternal death, severe tear injuries following delivery, and drug toxicity claims.
This was a significant victory for the Claimant, setting precedent for future surrogacy claims (both in the UK and internationally) as a head of loss in clinical negligence cases.
www.leighday.co.uk
Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk
Mr Matthew Smith Consultant Orthopaedic Surgeon (Shoulder & Elbow Surgery) MB ChB, MRCS(Eng), FRCS(TR & Orth), PGDip. Mr Matthew Smith is a Consultant Orthopaedic Surgeon at The Royal Liverpool and Broadgreen University Hospitals NHS Trust and has been since September 2009.
Consultant Gastroenterologist/Hepatologist and general physician
He is the Associate Clinical Director for the department with responsibility for Upper Limb Surgery. His primary role is as a subspecialist shoulder and elbow surgeon.
Dr Richard Sarsam is a consultant in gastroenterology and general internal medicine at Wexham Park Hospital since 2002. He has extensive experience in all aspects of gastroenterology and general medicine. He has performed over 20,000 endoscopic procedures including ERCP, colonic EMR and national bowel cancer screeneing colonoscopy.
He has a wealth of experience including experience of procedures that are practiced by a limited number of appropriately skilled surgeons across the country such as The Arthroscopic Latarjet or "Arthrolatarjet" and the fixation of complex shoulder fractures. He has a large arthroplasty (shoulder replacement) practice and is leading the way with innovative techniques such as CT scan navigated shoulder replacements. In addition to this ultra complex work he undertakes all aspects of routine shoulder surgery and most aspects of routine elbow surgery.
His specialist interests include ERCP, colonoscopy, irritable bowel syndrome, inflammatory bowel disease (ulcerative colitis and Crohns disease), gastrointestinal infections, upper GI cancer, hepatology and all aspects of general internal medicine.
Mr Smith undertakes medico-legal work and has been preparing medico-legal reports for over eleven years. He undertakes reports for claimant and defendant solicitors alike for both personal injury and medical negligence matters. He aims to provide fair unbiased reports for the assistance of the court, and parties involved, in all cases.
His medic-legal clinics are based in Windsor and Slough Tel: 01753 856238 Anita Baines / Franchesca O'Shea Alternate Tel: 01753 634151 Carmen Brown Mobile: 07719 708097 - Email: r.sarsam@nhs.net Alternate Email: r.sarsam@nhs.net, rsarsam@hotmail.com Fax: 01753 856591 Website: www.windsorgastro.co.uk
Contact Details Tel: 07872 031 053 Email: mat.g.smith@gmail.com Website: www.medicolegalshoulderexpert.co.uk The Bone & Joint Centre Spire Liverpool, 57 Greenbank Road, Liverpool, L18 1HQ
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Vascular Surgery Complications in Personal Injury Cases by John H Scurr Provided the arterial injury is recognised and appropriate steps taken to correct it, there may be no long term damage.
The majority of personal injury cases involve soft tissue injuries or fractures to the long bones. Some of the more serious injuries include head injuries, injuries to the spinal column, chest, and abdominal injuries.
Any significant delay in recognising the injury will result in ischaemic changes commonly giving rise to the compartment syndrome. A compartment syndrome occurs usually in the main compartments of the lower leg but can occur in the forearms where, due to ischaemia i.e. lack of blood supply, the muscles will swell, the compartment gets compressed and the blood supply cut off, resulting in irreversible neurological and muscular damage.
Acute vascular injuries may or may not be recognised at the time of the initial assessment. This applies to both arterial and venous injuries. In this article I will discuss the presentation, investigation and management of acute arterial and venous injuries. I will also discuss a common complication associated with many serious injuries and that includes the development of venous thrombo-embolic disease. Venous thrombo-embolic disease includes deep vein thrombosis, usually affecting the legs but not always. It can affect the pelvic veins and it can affect the arm veins. The most serious complication is of course the fatal pulmonary embolism. In many instances, warning emboli will occur, and with appropriate treatment the situation can be reversed.
It is important to recognise vascular injuries as soon as possible and take steps to reconstruct them. A dislocation of the knee can be associated with complete disruption of the popliteal artery, or severe damage to the popliteal artery such that acute obstruction occurs. Provided this is recognised within two to four hours immediate restorative surgery can be undertaken and the circulation to the limb restored.
With regard to vascular injuries, the arterial injuries are usually the most serious. They can be caused by direct trauma - penetrating injuries, or indirect trauma – for example dislocation of joints may be associated with acute arterial problems.
If there is a significant delay of four to six hours then preventative release of the compartment should be undertaken to prevent irreversible muscle damage. The key to all these injuries is recognition. When there is a suspicion of an injury i.e. the colour of the limb is pale, absent pulses, then steps should be taken to carry out a vascular assessment.
When a seriously ill patient is assessed, the assessment usually involves the initial rapid assessment including whether the patient is breathing, whether they have an adequate circulation, but also whether or not they have a circulation to their arms and legs.
Initial examination using Duplex ultrasound imaging may be appropriate but inevitably it invariably leads to an intra-arterial injection known as an angiogram.
The commonest presentation is an acute pulseless cold limb which may be pale on appearance.
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Any cases involving significant bleeding will provoke a clotting response. A combination of the clotting response, damage to veins and immobility predisposes the development of a deep vein thrombosis.
Once the angiogram has been undertaken, then vascular reconstruction can be carried out. There is no real value in carrying out vascular reconstruction on its own. An orthopaedic surgeon needs to stabilise the limb.
In general, following acute injuries, surgeons are reluctant to provide DVT prophylaxis until they know there are no bleeding complications.
In cases where there has been dislocation of the knee, steps need to be taken to make sure there is no recurrent dislocation at the same time that the vascular injury is repaired.
Although a delay in preventing DVT thromboprophylaxis may result in a DVT, it usually prevents that DVT extending, giving rise to a more serious condition, a pulmonary embolism.
Long bone injuries are often associated with penetrating injuries of the artery. Again, stabilisation of the fracture is necessary at the same time. There should be no delay in restoring the circulation to the limb.
Once a patient is stabilised and the risk of bleeding excluded, then DVT prophylaxis should be provided. DVT prophylaxis is indicated in patients over the age of 40, patients with serious injuries or patients with prolonged immobility. A failure to provide DVT prophylaxis may represent substandard medical care.
Any significant delay in restoring the circulation or any failure to recognise the compartment syndrome leads to a very high incidence of amputation.
The issues are often not quite so clear and sometimes there is justification for not giving DVT prophylaxis. Each case therefore needs to be decided on its merits.
Amputation can be prevented by recognising these injuries at an early stage and by taking steps to correct them.
When a patient who has undergone a limb injury then presents with increasing pain, particularly in the lower leg often associated with swelling, a simple investigation called a Duplex Ultrasound scan can determine whether there is a deep vein thrombosis.
From a personal injury or indeed from a clinical negligence perspective, proper assessment of these patients are essential. Any patient that has lost a limb as a result of a personal injury accident will usually have a limb that has been preserved.
We need to do a full leg ultrasound scan. Simply imaging the femoral vessels may miss calf-vein thrombi.
Information from the good limb can often indicate whether the patient was at risk of losing the limb at some point in the future or whether the limb loss is entirely due to the accident.
At the time of presentation, the calf-vein thrombi may not be relatively significant but there is a potential for them to extend into the main veins and then embolise to the lungs.
From a clinical perspective, the best opportunity to save a limb occurs at the time of, or shortly after, the accident.
Where a patient has only had the thigh veins scanned, they need to be re-scanned after a period of a few days. Where the full leg ultrasound has been done with no evidence of deep vein thrombosis then provided DVT prophylaxis is applied there is probably no need to repeat that scan.
In personal injury cases we are often presented with cases where the outcome has already been determined and it is simply a question of determining compensation.
Sadly, many patients will present with an acute shortness of breath. In more extreme examples they may present with sudden cardiac arrest and irreversible changes leading to death.
Once you bear in mind that sometimes the management of these patients may fall far short of what is expected and the limb loss, although initially caused by the accident, can be attributed to the management of the patient in the post-accident phase. Over the years I have been involved in many thousands of cases involving problems with arterial supply to the legs and been able to provide an opinion on long-term potential problems but also more importantly whether the problems would have been avoided but for the treatment received.
Any patient who has chest pain following a road traffic accident should have a pulmonary embolism excluded. A CT pulmonary angiogram can be carried out. This involves a simple injection and a CT scan. It is a relatively easy way of determining whether there is evidence of a pulmonary embolism.
Any patient with serious injuries will be relatively immobile and immobility is one of the most important factors in the development of a deep vein thrombosis.
If a pulmonary embolism is diagnosed and the patient receives immediate treatment, usually in the form of intravenous heparin, then the survival rate is greater than 90%.
A deep vein thrombosis occurs when the circulation slows. It is often accompanied by direct damage to the vein wall and may be accompanied by an alteration in the blood’s ability to clot.
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If a patient survives for 24 hours following the diagnosis of acute pulmonary embolism then I would normally expect them to survive.
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If a patient does not have the diagnosis of pulmonary embolism made, no treatment administered, then 90% of those patients will die from the pulmonary embolism.
The consequences of acute venous damage are very similar to the consequences of a post-venous thrombosis. In post-venous thrombosis the valves are damaged, the veins may be narrowed and symptoms may include venous reflux where the blood tends to pool in the lower limbs, resulting in swelling, skin discolouration and eventually ulceration. Or, where there is evidence of narrowing, this can result in venous claudication i.e. when a patient walks they get a bursting sensation in the limbs.
Unfortunately a small pulmonary embolism may cause shortness of breath, it may include coughing up a small amount of blood. This sign may be missed and if it is missed the next sign can be the fatal clot. Again with all cases of venous disease, one should be aware of this potential problem. Prophylaxis is important and should be applied if practical.
All these relatively serious complications of arterial and venous injuries need to be assessed. Ideally, early assessment and intervention will produce the best outcome.
Early diagnosis and treatment of clots is also very important. Damage to the veins at the time of the accident can include very serious bleeding complications. The management of tears in veins is often more complex than the management of arterial injuries.
A failure to assess them and carry out appropriate reconstruction may result in a significant claim against the treating doctor.
Simply tying off a vein may be lifesaving but it can often result in very severe distal obstruction and long term problems.
Sadly, in many cases of personal injury where veins and arteries have been damaged, the assessment is simply one of recognising the damage and predicting the future.
Again, we are often able to assess these cases posttrauma but ideally, recognition at the time of the incident and steps taken to correct it are ideal.
Mr John H Scurr Consultant General and Vascular Surgeon Senior Lecturer MBBS (Hons), BSc (Hons 1st Class) FRCS
The introduction of venous stenting to prevent bleeding and to maintain patency has changed the outcome in many of these patients.
Tel: 020 7259 0692 & 00 353 1 293 7863 Email: jhsgroup@hotmail.co.uk - medleg2@eircom.net Established in Dublin in 2000 and expanded to London, to provide expert medical opinion in cases involving medical negligence and personal injury.
Acute damage to the veins is well recognised and we can usually treat it. Occasionally we cannot and then we have to deal with the consequences.
Dr Duncan Dymond MD FRCP FACC FESC
Dr Gordon Williams
Consultant Cardiologist
MB BCh FRCP FACC
Consultant Cardiologist
Dr Duncan S Dymond has been a consultant cardiologist at St Bartholomew's Hospital, now a part of Barts Health NHS Trust since 1987.
Consultant Cardiologist at York Teaching Hospitals NHS Foundation Trust Medico-legal expertise in invasive and non-invasive investigations, diagnostic techniques, coronary artery disease, hypertension, heart failure, adult congenital heart disease and general cardiology
He has been undertaking expert witness and medicolegal work for more than 5 years and has completed his Cardiff University Bond Solon expert Witness course. Dr Dymond currently completes 1-2 medicolegal reports per week, for personal injury and medical negligence, with roughly a 60/40% split claimant/defendant.
Aviation Medicine – Cardiological Adviser to the Civil Aviation Authority Preparing Expert reports since 1985
He has also completed expert witness work for the General Medical Council, the Medical Defence Union and the Crown Prosecution Service as well as accepting private instructions directly for solicitors. He has also provided mediolegal opinions for cases in Singapore.
Spire Leeds Hospital Jackson Avenue, Leeds LS8 1NT
T: 0207 079 4260 E: medicolegal@harleycardiology.com secretary@drduncandymond.com W: www.drduncandymond.com
Email: sandra.ellerbeck@spirehealthcare.com sandra@cardioreports.co.uk Tel: 0113 218 5943 Fax: 0113 218 5987 Mob: 07740 184203 or 07702 550 758
34 Circus Road, St John's Wood, London, NW8 9SG
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The Modern Theory of Vicarious Liability In recent years, the law relating to vicarious liability has been extended dramatically in England and Wales. There have been a number of landmark Supreme Court decisions which have broadened the scope of the doctrine beyond the traditional employment relationship. exists which includes self employed workers, part time workers, temps, agency workers and home workers. Given that these workers may not satisfy the first stage of the test, the concern was that there were a variety of situations where injured third parties had no recourse against the employer. Accordingly, it was evident that the law required updating to ensure the social policy objectives of vicariously liability remained, including protection of injured third parties, loss distribution and risk allocation.
Grubb v Shannon (2018) SC GLA 13 was the first reported Scottish case to consider these judgements. In reaching his decision, Sheriff Reid helpfully summarised the development of the law in this area south of the border and acknowledged the significant changes which have been made in recent years. Ultimately, Sheriff Reid followed the Supreme Court decisions, providing the first Scottish authority for widening the circumstances where one person may be held liable for another person's wrongful act or omission. This article explores the development of the law and considers what can be expected in the future.
Development of the Law Four Supreme Court cases, as set out below, have developed this area of the law, resulting in a modernised two stage test for vicarious liability which applies is triggered if (1) the relationship between the defender and the alleged wrongdoer has certain characteristics similar to those found in employment which make it just, fair and reasonable for liability to apply; and (2) the act or omission of the wrongdoer is so closely connected with the field of activities assigned or entrusted by the defender to the wrongdoer.
Traditional Vicarious Liability - before its modernisation Vicarious Liability is when one person is held liable for the action or omission of another individual. The classic example of this is an employment relationship. Traditionally, courts applied a two stage test, the purpose of which was to determine whether there was a true employer/employee relationship between the defender and the wrongdoer. If there was not, and the wrongdoer was held to be an independent contractor, the relationship was insufficient to trigger vicarious liability. If the wrongdoer was held to be an employee, the second stage of the test determined whether the wrongdoer's act or omission fell within the scope of his employment, or if it was a "frolic" of his own, in which case the doctrine would not apply.
In the Christian Brothers case, Various Claimants v The Catholic Church Welfare Society (2012) UKSC 56, Lord Phillips extended the scope of vicarious liability to situations where there was no employment contract between the person who committed the negligent act and the defender, where the relationship was "akin to that between an employer and an employee". This case concerned whether the Institute of Brothers of the Christian Schools, a school where members - known as brothers - educated children on Christianity, was liable for the sexual abuse of children. Another organisation managed the school and employed the brothers, so the issue was whether the Institute was vicariously liable for their actions. Policy considerations clearly came into play in this case, with the rise in publicity of historic child physical and sexual abuse allegations and the desire for justice for victims making claims against various religious and care organisations.
However, the modern work environment contemplates a broader range of workers than those who are employed in the traditional sense. This has resulted in the law becoming outdated and failing to sufficiently protect injured third parties from the wrongdoings of people who were not subject to an employment contract. Whilst an essential element of the relationship test related to whether there was control exerted over the individual, many professionals were not subject to such control. In circumstances where the wrongdoer was an independent contractor, subject to certain exceptions, the employer was often held not to control them which meant that the doctrine did not apply.
Lord Phillips identified five characteristics of a relationship, as follows:- (1) that the defender will be more likely to have the means to compensate the victim than the wrongdoer and be expected to have insured against that liability; (2) that the wrong will have been committed as a result of activity being taken by the wrongdoer on behalf of the defender;
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(3) that the wrongdoer's activity is likely to be part of the business activity of the defender; (4) that the defender, by engaging the wrongdoer to carry on the activity, will have created the risk of the wrong committed by the wrongdoer; and (5) that the wrongdoer will, to a greater or lesser degree, have been under the control of the defender.
ered that in circumstances where the organisation was benefitting from the service being provided, that organisation should be liable to "bear the cost of harm which is wrongfully caused." Given that these negligent acts took place whilst foster carers were in their own homes, the control element was deemed to be less important.
Subsequent to this, Lord Reed in the Supreme Court decision in Cox v Ministry of Justice (2016) UKSC 10, acknowledged the law on vicarious liability had not yet come to a stop. In this case, the claimant was a catering manager who was injured in the course of her employment by the negligent act of a prisoner working in the prison kitchen. Whilst the prisoner received training and was paid, albeit below minimum wage, this was not a typical employment relationship. Prison work was compulsory and the prison was not carrying on activities of a commercial nature. Therefore, the issue was whether the relationship between the defender and the prisoner was sufficient to trigger vicarious liability. Lord Reed held that it was.
Finally, in Mohamud v William Morrison Supermarkets plc (2016) AC 677, the court was concerned with the second stage of the test: whether the wrongdoer's act was so closely connected to the field of activities assigned or entrusted to him by his employer to trigger vicarious liability. The difficulty with the traditional test for vicarious liability related to a situation where an employee carried out an intentional wrongdoing such as a criminal act or an expressly prohibited act of misconduct. In the Morrison case, an employee at a petrol station attacked a customer. The motive for the attack was held to be irrelevant. Morrisons were held vicariously liable for their employee's intentional criminal act on the basis that, whilst an abuse of his position, it was closely connected with the field of activities which had been assigned to him.
Lord Reed summarised the modern theory of vicarious liability as follows:“…a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defender and for the defender's benefit (rather than as activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defender by assigning those activities to the wrongdoer."
Developing the Law in Scotland The facts in the Grubb v Shannon case were unremarkable. Laura Grubb received a treatment from Rosanne Higgins which resulted in her suffering an allergic reaction causing swelling and eyebrow hair loss for eight weeks. Damages were assessed at £2,250, taking account of solatium and inconvenience. Despite the nominal sums involved, the court's decision is significant. The defender, Ms Shannon, rented a beauty salon in Shettleston, Glasgow, and traded as "Blush Hair and Beauty". Unbeknownst to Ms Grubb, Ms Higgins was self-employed and she operated an independent business within Ms Shannon's salon. Ms Higgins kept income from the treatments she performed on her clients and paid a daily rate of £20 to Ms Shannon.
Therefore, Lord Reed considered the defenders could not avoid liability on the basis of employment status, and he focussed on the business activities being carried out by the defender. He emphasised this approach was reflective of modern workplaces where in reality workers may be part of the workforce of an organisation without having a contract of employment. Essentially, this ensures that a business will ultimately be responsible for the risks created by its activities.
Nevertheless, Sheriff Reid held the relationship between Ms Shannon and Ms Higgins was "akin to that of employment such as to make it just, fair and reasonable…to impose vicarious liability" upon the defender. As with the previous cases, the focus was on the relationship between the defender and the wrongdoer. Sheriff Reid took account of the fact that Ms Higgins was not operating a recognisably independent business, and she operated within a salon rented by the defender who assigned Ms Higgins activities which were an integral part of her business, which she benefitted from.
The Supreme Court also referred to the five characteristics set out in the Christian Brothers case by Lord Phillips, stating that they should not be applied rigidly and the weight to be attached to each of them would vary on a case by case basis. It was emphasised that the overarching purpose of them was to ensure an inherently fair, just and reasonable result. Accordingly, the second, third and fourth principles were held to be the backbone of the modern theory of vicarious liability.
The future Since this decision, the Court of Appeal in Nassir Kafagi v JBW Group Limited (2018) EWCA Civ 1157 has ruled that a defender was not vicariously liable for the actions of an independent contractor who was a bailiff. This case can be distinguished from the previous cases as the bailiff was running his own discrete and readily identifiable business. For defenders, this will provide a welcome limit to the scope of vicarious liability.
In Armes v Nottinghamshire County Council UK SC 60, Lord Reed ruled that a local authority was vicariously liable for abuse by foster carers of the children they were caring for. This was despite an acknowledgement that the local authority could not control foster carers whilst they were in their own homes. This further extended the doctrine of vicarious liability to the actions of non employees. This was in line with his judgement in Cox. Lord Reed considEXPERT WITNESS JOURNAL
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Nevertheless, there will no doubt be further decisions to broaden the scope of vicarious liability in the future. Given the current climate of historic child abuse inquiries, there is clearly public support in allowing victims of abuse to seek justice and compensation. Legislation has been put in place to facilitate this, in particular The Limitation (Child Abuse) (Scotland) Act 2017 which allows victims to pursue claims which have time-barred. This will undoubtedly prompt an increase in Scotland of cases similar to those heard in England. Accordingly, I suspect the law in this area is far from settled and further decisions are awaited with interest.
Professor Habibi I am a Paediatric Intensivist and Respiratory Physician specialising in serious illnesses such as epilepsy, pneumonia, meningitis and septicaemia and conditions including, asthma, allergies, bronchiolitis and other chest conditions. I am also a specialist dealing withsleep apnoea and other sleep problems, for children of all ages. 25 years experience. Over 900 reports. 60:40 Claimant: Defendant UK Register of Expert Witnesses. Family Justice Council Member My work in Paediatric Intensive Care has lead to a special interest in end of life care, decision-making and conflict resolution between health care professionals and families.
Article by Nicola Edgar Accredited Specialist in Personal Injury Law Associate For Morton Fraser LLP t: 0141 274 1104 www.morton-fraser.com
I have assisted the Courts in a number of high profile cases: Glass v UK (Application No 61827/00) [2004] 1 FCR 553 Charlotte Wyatt October 2004 Charlotte Wyatt April 2005 Charlotte Wyatt October 2005 My Private Practice is based at 84 Harley Street in London, 243 Great Portland Street in London and New Malden Diagnostic Centre in Surrey. I am accessible, available and aim to provide the highest standard of consultation and care for children.
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Consultant Orthopaedic Surgeon
Richard Miller trained in Bristol, St Marks Hospital, London and with Minnesota Colorectal Group in the USA. He was appointed to Cambridge in 1993. He therefore has a huge clinical experience to draw on having performed for example over 800 resections of the rectum, 1400 colectomies and 7000 colonoscopies with one of the lowest complication rates and mortality in the country.
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He is competent to give expert opinions rearding coloproctology and colorectal surgery. This includes diagnosis and management of patients with colorectal disease, in the clinic setting, pre-operative decision making, colonoscopy, operative surgery, post-operative management, management of complications and follow-up. His research interests include pelvic floor, anorectal physiology and endoanal US, incontinence, colorectal cancer screening and prevention. He has also been involved in management for 25 years. He took charge of general surgery in Sept 1993, then became clinical director in 1999, Divisional Director in 2009 and finally deputy medical director in 2014-2017. He therefore has extensive experience in managing doctors, non clinical managers and specialist nurses in hospital practice, in governance, IT issues, behaviors and conflict resolution. He is trained in root cause analysis (RCA) and was the surgical representative on the Serious Incident Executive Review Panel in Cambridge.
Specialist interests – All aspects of Trauma (soft tissue and bone injuries), Upper Limb Disorders, Whiplash Injuries Medical Reporting Personal injury and Medical Negligence Expert
Contact - Tel: 07710 317968 - Mobile: 07710 317968 Email: rmiller@i31.co.uk - Website: cambridgebowelclinic.co.uk Wingate House, Maris Lane, Trumpington, Cambridge, Cambs CB2 9FF Area of work: Cambridge and Nationwide
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Anonymity Orders for Claimants in Injury and Negligence Cases By Philippa Luscombe, Partner, Penningtons Manches maintain the right to attend any approval hearing. However, if the press feels anonymity should not be granted then the burden is on them to apply with reasons in support of the fact that such an order is unnecessary or inappropriate in that particular case. The Court of Appeal provided some helpful guidance as to the approach to be taken in such cases, summarised as follows: ▪ The application and listing of the hearing will normally reflect the claimant’s details unless an anonymity order has been obtained earlier in the proceedings.
In personal injury and clinical negligence cases involving significant sums of damages and particularly for claimants with very severe disabilities who are protected parties, lawyers often need to consider whether anonymity orders are appropriate. This article provides a recap on where things stand with applications to the court for such orders. The key guidance on this was set out in a Court of Appeal case decided in 2015 - JXMX v Dartford & Gravesham NHS Trust. The case involved an infant claimant who suffered significant brain injury at birth and would never have capacity to manage her own affairs.
▪ In open court hearings the press and public have the right to attend – and the press to report on the case.
When the case came to court for approval of the substantial settlement for the claimant’s case, her mother requested an anonymity order. The approval judge refused on the grounds that he did not consider there to be any evidence of a real risk of harm from the settlement being on public record or from it being heard in open court (as is usual). The consequence of this is that the press is able to attend and report on the settlement and have access to the full details of the claimant and damages recovered. At the time, the usual procedure was for a claimant seeking anonymity to make a formal application and give reasons why such an order should be made, but in this case the judge did not accept the reasons as sufficient to justify the order.
▪ If an anonymity order is made by the judge, then the press can still report on the case and settlement – but not the details listed above regarding the claimant. ▪ Documents available on the court record are only accessible by non-parties if they are anonymised. ▪ The court should invite / hear submissions on the issue before granting an order. ▪ The default position is that an order should be granted unless the judge is satisfied by the evidence that it is not necessary – and if the judge does reach that view, it should be set out in a judgment with those reasons. ▪ In any event a short judgment on the point should usually be given.
The claimant’s mother appealed the decision on this point and the matter went to the Court of Appeal. There was a great deal of interest in the case and various representations were made. The Court of Appeal held that in future, when dealing with approval hearings of this type, the court should normally make an anonymity order without the need for a formal application unless the court is satisfied that it is for some reason unnecessary or inappropriate to do so.
Once in place, an anonymity order should ensure that the claimant’s personal details are never revealed, even if the case and settlement are reported in the press. This guidance and position relate primarily to vulnerable protected parties with significant damages, but not exclusively. The case marked a significant step forward in protecting claimants in sensitive matters and clarifying the approach to be taken.
The Court of Appeal found that ‘the court should be more willing to recognise a need to protect the interests of claimants who are children and protected parties, including their right and that of their families to respect for their privacy.’
Philippa Luscombe T: +44 (0)1483 411421 E: philippa.luscombe@penningtons.co.uk
This judgment means that in dealing with such approval hearings, a court will now normally make an anonymity order without the need for any formal application, drawn in such terms so as to prevent the publication of the name and address of the claimant, his or her immediate family and litigation friend. In order to ensure that the press still has the opportunity to report matters that are of public interest, it will EXPERT WITNESS JOURNAL
Penningtons Manches LLP is a leading UK law firm which provides high quality legal advice tailored to both businesses and individuals. Its personal injury and clinical negligence team is nationally recognised and handles a broad range of cases, from those involving brain and spinal injuries through to delayed diagnosis and surgical errors. www.penningtons.co.uk 43
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The Human and Financial Cost of Brain Injury at Birth by Professor Peter B Sullivan MA MD FRCP FRCPCH Department of Paediatrics, University of Oxford In addition, trusts spending a higher proportion of their income on clinical negligence are significantly more likely to be in deficit. In 2015-16, for example, all 14 trusts that spent 4% or more of their income on clinical negligence were in deficit.
Healthcare in the National Health Service remains one of the safest in the world. However, avoidable errors with still occur. Since 1995, NHS Resolution (the operating name of NHS Litigation Authority from April 2017) has provided indemnity cover for clinical negligence claims against trusts in England, through its Clinical Negligence Scheme for Trusts. NHS Resolution is responsible for dealing with claims on behalf of its members, including funding defence costs, and for any legal costs or damages that become payable. The scheme is not mandatory, but all 234 trusts pay NHS Resolution an annual contribution to receive indemnity coverage. As part of the NHS, NHS Resolution aims to ensure that patients who suffer clinical negligence are appropriately compensated, by settling valid claims fairly and quickly, and that it defends claims that are without merit or where the damages sought are disproportionately high, to help protect NHS resources. It also aims to help trusts learn from past claims to improve patient safety and reduce the need for future claims (1).
Despite obstetrics claims representing only 10% of clinical claims by number in 2017/18, they accounted for 48% of the total value of new claims reported (1). Within obstetrics, the most expensive individual claims financially are those for cerebral palsy, which can exceed £20 million per claim. A key component of NHSR five year strategy, therefore, is to address the escalating cost of claims and a central area of focus is maternity claims, as one of the most significant drivers of cost. Birth injury claims and the increased life expectancy in survivors and rising costs of care and all contribute to the increase in damages awarded. Giving birth in England is generally very safe. Within England, in 2015, there were 664,777 live births and the trend of reducing rates of stillbirths and neonatal deaths continued, with 3.93 stillbirths per 1000 total births and 1.71 neonatal deaths per 1000 live births (3). Data from the Office of National Statistics show that these improvements occurred despite increasing average maternal age and the highest recorded number of live births to women born outside of the UK (27.5%)(4). Unfortunately, avoidable errors within maternity still occur. These can have devastating consequences for the child, family and carers and contributed significantly to the £2,227.5m cost for clinical negligence in 2017/8.
In 2017/18 NHS Resolution (NHSR) received 10,673 new clinical negligence claims (1). Most of the claims, 13%, came from A&E. Orthopaedics were second at 12% of all claims and obstetric incidents accounted for 10%. Clinical negligence payments including interim payments for 2017/18 amounted to a total of £2,227.5 million. The cost of clinical negligence in trusts is significant and rising fast, placing increasing financial pressure on an already stretched system. According to Sir Amyas Morse, head of the National Audit Office (NAO) : “NHS Resolution and the Department (of Health) are proposing measures to tackle this, but the expected savings are small compared with the predicted rise in overall costs. At £60 billion, up from £51 billion last year, the provision for clinical negligence in trusts is one of the biggest liabilities in the government accounts, and one of the fastest growing.” (2)
Possibly the most devastating and undoubtedly the most expensive are claims for avoidable cerebral palsy, the number of which has remained relatively static over the last ten years (5). There may be as many as 1,800 new cases of cerebral palsy each year in the United Kingdom, as one in 400 babies born in the UK have a type of cerebral palsy. However, only 10% to 20% of the cases actually result from intrapartum asphyxia.
In their report “Managing the Cost of Clinical Negligence in Trusts September 2017”, the NAO note that over the last ten years, spending on the Clinical Negligence Scheme for Trusts has quadrupled from £0.4 billion in 2006-07 to £1.6 billion in 2016-17 (of total NHS funding £120.512 billion), while the number of successful clinical negligence claims where damages were awarded has more than doubled, from 2,800 to 7,300 (2). The cost of clinical negligence claims is rising at a faster rate year-on-year, than NHS funding, adding to the financial pressures already faced by many trusts, which can have an impact on patients’ access to services and quality of care. EXPERT WITNESS JOURNAL
In April 2017, NHSR changed its approach to dealing with cases of brain injury at birth through its Early Notification Scheme. This scheme requires NHS Trusts to report within 30 days all maternity incidents of potentially severe brain injury namely all babies born at term (≥37 completed weeks of gestation), following labour, that had a potentially severe brain injury diagnosed in the first seven days of life. These are any babies that fall into the categories: (i) diagnosed with grade III hypoxic ischaemic encephalopathy (HIE); (ii) therapeutically cooled 44
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In the analysis of reports from Each Baby Counts babies born during 2016 guidelines and locally agreed best practice were not followed in 45% (304) of the reports reviewed. Reasons for not following guidelines included lack of recognition of problems, communication issues, heavy workload, staffing levels, local guidelines not being based on best available evidence and gaps in training.
(active cooling only) or (iii) had decreased central tone AND was comatose AND had seizures of any kind (6). The Early Notification Scheme will provide a test bed for the Government’s proposals in relation to rapid resolution and redress. These incidents are now reported to NHSR from the outset, rather than five to six years later, as was the previous situation. Liability is admitted and they will provide the requisite financial support to families when they need it during the child’s early infancy. The aim of this is to lead to a reduction in time between the incident and resolution with an associated reduction in costs. This requires a proactive investigation of liability and for Trusts to be open and candid with families and breakdown any perception of defensiveness on behalf of the NHS. Claims for seriously injured patients who suffered brain damage at birth are usually paid as a lump sum, together with annual payments for the rest of that person’s life. This ensures the claimant is financially secure and that money would otherwise be paid out in advance is retained for patient care until it is actually needed. At the present time more cases are being committed to such a payment scheme than are leaving (ie when the patients die). As a result, the costs of these claims will continue to increase for decades to come.
One of the key recommendations identified is a need for the development of a structured communication tool to include the three-fold elements of the plan for birth: mode of birth, location of birth and category of urgency. The Each Baby Counts project team is now working with the Obstetric Anaesthetists’ Association (OAA) and Royal College of Anaesthetists (RCoA) on the development of this tool. The NHSR paper “Five Years of Cerebral Palsy Claims” focused on 50 cases of cerebral palsy following incidents between 2012-2016, where legal liability had been established (5). NHS Resolution’s claims management system was searched for all obstetric claims with an incident date between 2012 and 2016, where the alleged medical negligence resulted in cerebral palsy or neonatal brain injury. The potential financial liability of these fifty cases could be greater than £390 m, which excludes defence costs and wider health costs to the NHS.
The key to reducing the financial burden on the NHS of the growing costs of claims is learning from what goes wrong and supporting those who deliver care to make the changes necessary to prevent harm occurring in the first place. Importantly, these costs are solely those associated with compensation claims and do not include the organisational costs to the NHS, the additional costs of investigating what went wrong or the often unreported personal and psychological costs to staff.
The report found evidence of poor quality serious incident investigations at a local level: (i) the patient and family were only involved in 40% of investigations; (ii) only 32% had a review that involved an obstetrician, midwife and neonatologist; (iii) only 4% had an external reviewer; (iv) investigations focused too heavily on individual errors and (v) breech births were overrepresented within this cohort, compared to the national average.
The Royal College of Obstetricians and Gynaecologists (RCOG) in 2018 launched the “Each Baby Counts” initiative (6). Each Baby Counts is a national quality improvement programme to reduce the number of babies who die or are left severely disabled as a result of incidents occurring during term labour. In individual maternity units, these events are rare and it is therefore difficult to see clear patterns or identify how best to avoid them. The Each Baby Counts programme brings together the results of local investigations into stillbirths, neonatal deaths and brain injuries occurring during term labour to understand the bigger picture, share the lessons learned and prevent babies from dying or sustaining brain injuries in the future. In total, 1123 babies were born in 2016 who met the eligibility criteria for severe brain injury. This information is based on the first seven days after birth and it is not known how many of these babies will have a long-term disability as a result of injuries sustained at birth. The Each Baby Counts reviewers concluded that 674 babies (71%) might have had a different outcome with different care. The main themes identified where improvements could have been made were failure by health professionals to identify or act upon relevant risk factors, issues related to monitoring of fetal wellbeing with cardiotocograph (CTG) and blood sampling, and education or training issues. EXPERT WITNESS JOURNAL
The most common theme related to errors with fetal heart rate monitoring. The underlying causes, however, were often not related to individual misinterpretation but to systemic and human factors. Inadequate staff training and monitoring of competency were identified as an important issue. Shortcomings in informed consent were evident a fact that assumes greater significance in the light of the Montgomery ruling (7). Although this report analyses only a small number of specific claims, the findings resonate with other reports with similar findings (8) and suggest that there has been little improvement in these areas in recent years. Recommendations from the NHSR study “Five Years of Cerebral Palsy Claims” include: transparency with the family and investigation into systemic causative factors (5). This reduction in time lag between the incident and involvement of NHSR improves the ability of NHSR to work with Trusts to improve the way in which the NHS responds to and supports the families involved and to learn from such incidents to prevent future incidents. A key recommendation was that CTG interpretation should not occur in isolation 45
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and should always occur as part of a holistic assessment of fetal and maternal wellbeing. CTG training should incorporate risk stratification, timely escalation of concerns and the detection and treatment of the deteriorating mother and baby.
Professor Peter Sullivan BSc MB ChB (Hons) DRCOG MA (Oxon) MD (Manc) FHEA FRCPCH FRCP (London)
Consultant Paediatrician, Associate Professor in Paediatric Gastroenterology
The financial costs of litigation for cerebral palsy claims are high and quantifiable but the costs to the child, family and carers are immeasurable. Having a child suffer catastrophic avoidable harm is a tragedy for everyone involved. Cerebral palsy (CP) is the commonest cause of physical disability in early childhood, with a rate of approximately 2 per 1,000 live births . CP is a permanent neurological disorder caused by non-progressive disturbances or alterations of the developing brain that results in disordered motor function and posture . CP ranges in severity but often involves problems with muscle tone, balance, co-ordination, epilepsy, difficulties with communication, feeding and behaviour (9).
Professor Peter B Sullivan holds the academic position of Associate Professor in Paediatric Gastroenterology at Oxford University and is a Fellow of Magdalen College, Oxford. Also Associate Dean (Postgraduate Medicine) at the University of Oxford Medical School. Professor Sullivan has been a practising consultant in Teaching Hospitals for over 26 years. He initiated and developed the paediatric gastroenterology service at the John Radcliffe Hospital in Oxford. Each year this serves around 2000 Outpatients referrals, over 500 inpatients and performs over 200 gastrointestinal endoscopies. His expert witness expertise covers the full range of gastrointestinal problems in children. With particular expertise as an authority in the gastrointestinal and feeding problems of children with neurodisability especially cerebral palsy in which subject Professor Sullivan is actively engaged in research and on which he has produced numerous scientific papers and textbooks.
Gastrointestinal problems are encountered in more than 90% of children with neurological impairment. Diffuse brain lesions may disrupt neural modulation of gastrointestinal motility altering the flow of information from the brain cortex to the gut nervous system leading to significant dysfunction in the gastrointestinal tract. The degree of gastrointestinal dysfunction correlates with the degree of damage to the developing central nervous system.
Professor Sullivan has produced over 70 medico-legal reports with a mixture of reports for Defendants and Claimants. Increasingly asked to provide Joint Expert Reports. Current ratio: Claimants (41%); Defendants (45%) and joint instructions (14%).
Contact: Telephone: 01865 234220 Email: peter.sullivan@paediatrics.ox.ac.uk Oxford University Hospital NHS Trust, Oxford, OX3
therapy, mobility equipment and physical aids, specialist transport, as well as alternative or adaptations to accommodation. The high financial costs represent the lifelong care and assistance that the children often need.
Gastrointestinal problems include oropharyngeal dysfunction, gastroesophageal reflux, delayed gastric emptying, and constipation and affect quality of life and nutritional status. Oropharyngeal dysfunction and gastroesophageal reflux disease predispose to pulmonary aspiration leading to recurrent respiratory infections, which is the most common cause of death in this population.
References (1) NHS Resolution (NHSR). Annual report and accounts 2017/18. ISBN: 978-1-5286-0451-2 (2) National Audit Office ‘Managing the costs of clinical negligence in trusts’. September 7, 2017. ISBN: 9781786041395
The feeding problems and subsequent nutritional problems of children with severe CP attracted very little attention until the last couple of decades (10-12). More recently, research has highlighted the significant impact of gastrointestinal and feeding problems on children with CP and their families (12,13) . Some mothers may spend up to seven hours a day feeding their disabled child and whilst gastrostomy feeding may provide some relief, this is not without its own problems (14-16).
(3) Mankelow B, Smith L, Prunet C, Smith P, Boby T, Hyman-Taylor P, et al.(2017) MBRRACEUK Perinatal mortality surveillance report; perinatal deaths for births from January to December 2015. (4) Office for National Statistics. Births in England and Wales 2015. Published 2016 [Available from: https://www.ons.gov.uk/peoplepopulationandcommunity/ birthsdeathsandmarriages/livebirths/bulletins/ birthsummarytablesenglandandwales/2015.
These gastrointestinal and feeding problems of children with CP are just one example of a range of deficits related to motor and cognitive impairment, which profoundly affect the quality of life for the child and family. There are major issues relating to mobility, hand function, communication, education, employability and life expectancy which all need to be taken into account.
(5) Michael Magro . Five years of cerebral palsy claims: A thematic review of NHS Resolution data. September 2017 (6) Royal College of Obstetricians and Gynaecologists. Each Baby Counts: 2015 Full Report. London: RCOG; 2017 [www.rcog.org.uk/en/guidelines-research-services/auditqualityimprovement/each-baby-counts/ebc-2015-report/]
Compensation for children with CP will cover damages for pain, suffering and loss of amenity for the injury itself as well as damages for past and future monetary losses. For CP claims, this often includes loss of future earnings, the cost of care and assistance, physiotherapy, hydrotherapy, speech and language EXPERT WITNESS JOURNAL
(7) Montgomery v Lanarkshire Health Board.UKSC 11. 2015. (8) House of Commons Public Administration and Constitutional Affairs Committee. Will the NHS never learn? Follow-up to PHSO report ‘Learning from Mistakes’ on the NHS in England. 2017 46
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(9) Rosenbaum P, et al A report: the definition and classification of cerebral palsy. Dev Med Child Neurol Suppl. 2007;109(April):8-14.
Dr John O'Reilly
(10) Sullivan, P. B. & Rosenbloom, L. 1996. Feeding the Disabled Child, London, MacKeith Press.
MA (Cantab), MB, FRCP (Lond)
Consultant in Respiratory & Sleep Medicine
(11) Sullivan, P. B., et al, 2000. Prevalence and severity of feeding and nutritional problems in children with neurological impairment: Oxford Feeding Study. Dev.Med.Child Neurol., 42, 10-80.
Accredited European Sleep Specialist (ESRS Expert Somnologist) with 25 years medico-legal experience in Respiratory and Sleep Medicine, including Parasomnias (Sleep-walking and Automatism).
(12) Sullivan, P. B., et al . 2004. Impact of gastrostomy tube feeding on the quality of life of carers of children with cerebral palsy. Dev.Med.Child Neurol., 46, 796-800.
Consultant in Respiratory and Sleep Medicine. Member of European Sleep Research Society.
(13) Sullivan, P. B. 1997. Gastrointestinal problems in the neurologically impaired child. Baillieres.Clin Gastroenterol, 11, 529-546.
Co-chair of the North West Regional Sleep Network. Co-organiser of the International Sleep Medicine Course.
(14) Sullivan, P. B. 1998. Is tube-feeding in disabled children associated with excess mortality? J Pediatr Gastroenterol Nutr, 27, :240-:241
National Clinical Advisor to the NICE COPD Guideline. Past Chair of the British Thoracic Society Specialist Advisory Group on COPD.
(15). Sullivan, P. B., et al., 2006. Gastrostomy feeding in cerebral palsy: too much of a good thing? Dev.Med.Child Neurol., 48, 877-882.
Contact details Tel: 01253 394188 Email: johnoreilly@breathe.com SPIRE Fylde Coast Hospital, St Walburgas Road, Blackpool, FY3 8BP Sefton Suite, University Hospital Aintree, Liverpool, L9 7AL Tel. 0151 330 6551 Area of Work Nationwide
(16) Sullivan, P. B. 2014. Pros and cons of gastrostomy feeding in children with cerebral palsy. Paediatrics and Child Health, 24, 351-354.
Mr J W Rodney Peyton OBE TD Consultant in Trauma and General Surgery BSc(Hons) MSc(Educ) MD FRCS(Eng, Ed, Glasg & I) FRCP(Lond) PGDL
Put Mr Peyton’s 30+ years and 70,000+ cases to work for you in order to significantly improve chances of favourable outcomes Mr Rodney Peyton is internationally highly regarded as an accomplished consultant trauma surgeon, author, speaker and trainer with a longstanding commitment to surgical education. Mr Peyton has been involved in medico-legal reporting and court appearances as an expert witness for 30+ years and is a Foundation Member of the Expert Witness Institute. Over the last five years Mr Peyton has seen a minimum of 1,000 cases per annum including personal injury, RSI and medical negligence. • • • • •
Medico Legal Services – expert opinion provided in more than 70,000 medico legal cases Medical Negligence – independent opinion provided in cases in the UK, Ireland and internationally Reviews to promote improvement of clinical practice Facilitative Mediator in disputes involving medical negligence and Private Finance Initiatives Author of “Whiplash, The Cervical Spine in Medico Legal Practice”, “Facilitative Mediation” and Co-author of the “Cambridge Textbook of Accident and Emergency Medicine.”
Contact Mr Peyton today to assist your clients, legal advisors and the Courts to gain a clearer understanding of the unique aspects of medical evidence in individual cases, so that they can make better informed decisions.’
Contact Details: Beechlyn Court, Ballynorthland Park, Dungannon, Northern Ireland BT71 6DY Tel: +44 (0) 28 8772 4177 Email: rpeyton@rpeyton.com - Website: www.jwrodneypeyton.com EXPERT WITNESS JOURNAL
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To What Extent can CRPS be Defined as a Psychological Condition? by Dr Jenner, Medicolegal Partners. A Consultant in Pain Medicine, Dr Christopher Jenner MB BS, FRCA FFPMRCA has expertise in treating more than 90 different pain conditions. www.medicolegal-partners.com support a diagnosis of CRPS I patients as being psychologically different (9). Combined evidence from 31 studies found no overall association, with the few prospective studies considered showing no relationship between CRPS I and depression, anxiety, neuroticism or anger. Results from retrospective and cross-sectional studies were contradictory, although a majority showed no association. Importantly, studies of higher methodological quality tended to report no relationship with psychological symptoms, but many of the studies were of poor quality (10). A more recent review also concluded that while CRPS is not surprisingly associated with negative psychological outcomes, there is no support for specific personality or psychopathology predictors of the condition(12). Furthermore, there is no evidence that psychological intervention alone is sufficient to cure the condition (6). It is also possible that the tendency of some practitioners to label CRPS as a psychological or psychiatric condition, when that is not the case, may actually be harmful to patients (7).
Complex Regional Pain Syndrome (CRPS) is an extremely painful chronic condition that usually occurs after injury or surgery, although there have been reports of spontaneously arising cases. The disease is characterised by pain, heat and swelling of the affected limb, along with skin changes, which are disproportionate to the initiating event and do not heal within the expected time frame for the original injury. In chronic cases, the affected limb can become pale and cold, and muscle spasm and tightening may occur (1). CRPS is subdivided into types I and II, depending on the absence or presence of a specific nerve injury. The condition affects three times more women than men, with the combined incidence of the two CRPS types varying between 6.28 and 26.2 per 100,000 person-years, the differences being due in part to variation in the application of the diagnostic criteria (1,2). However, these figures are probably conservative, as the condition is likely to be under-diagnosed due to a lack of knowledge about CRPS among health professionals (3). Diagnosis is based on the Budapest criteria, which includes the presence of at least two clinical signs, and three symptoms, in four categories(4), but there is no definitive test for the condition (1). Thus, diagnosis can be problematic.
While the relationship between CRPS and psychological factors is unconvincing, there is better evidence of a pathophysiological cause for the condition and several mechanisms have been suggested. Much of the current research on CRPS centres around the possibility that it is a result of an exaggerated inflammatory response by the body to injury (2,8,13). Indeed, the clinical signs of CRPS, such as pain and swelling, are typical of inflammation (2). Following tissue damage or neuronal injury, alterations in the central and peripheral nervous systems may lead to increased inflammation and an enhanced responsiveness to pain (2). A review of 22 studies revealed that patients with CRPS had higher levels of inflammatory factors in their blood, blister fluid and cerebrospinal fluid, and that different profiles were found for acute and chronic cases (13). Risk factors for CRPS identified by epidemiological studies include asthma and ACE inhibitor intake, again suggesting that neurogenic inflammation is a likely contributor (7,14). For ACE inhibitors, the association with CRPS was stronger if the inhibitors were used for a longer time, or at higher dosages (14).
Although CRPS was first described during the American Civil War (1), the cause of the condition is still unclear. It has been suggested that CRPS may be predominately psychological, or somatoform, in origin and that a diagnosis of CRPS validates a condition that often does not really exist (5). A somatoform disorder is one in which the symptoms presented mimic a physical disease or injury but for which there is no identifiable cause. Therefore, CRPS sufferers are often viewed as malingerers or vulnerable individuals who have been labelled as sick by the medical profession (6). However, this view has been disputed by many CRPS experts (1,3,7–12). Individual studies have failed to find any correlation between psychological factors and the development of CRPS (3,7,11). In fact, scores for psychological symptoms are generally average or below average when compared to those of pain or psychiatric patients, and there is no evidence to EXPERT WITNESS JOURNAL
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Harley Street, London. He has regular medico legal clinics in London, Leeds, Birmingham and Bristol.
The presence of immunoglobulin G autoantibodies in the serum of patients with CRPS suggests that autoimmunity may also be important in the development of the condition. This is further supported by the results of a trial where CRPS patients treated with intravenous immunoglobulin showed a significant reduction in pain symptoms compared to those given a placebo (2).
Bibliography 1. Ratti C, Nordio A, Resmini G, Murena L. Post-traumatic complex regional pain syndrome: clinical features and epidemiology. Clin Cases Miner Bone Metab. Italy; 2015;12(Suppl 1):11–6. 2. Goh EL, Chidambaram S, Ma D. Complex regional pain syndrome: a recent update. Burn trauma. England; 2017;5:2.
There may also be a neurological aspect to CRPS. During the acute phase of CRPS, the affected limb shows a reduction in the levels of circulating plasma norepinephrine compared to the unaffected limb. This results in compensatory upregulation of peripheral adrenergic receptors causing supersensitivity to circulating catecholamines. Exposure to catecholamines causes excessive vasoconstriction and sweating, leading to the characteristic cold and blue limb extremity seen during the chronic phase of the condition (2).
3. Haigh R, McCabe C, Shenker N. Re: Complex Regional Pain Syndrome Medicalises Limb Pain [Internet]. BMJ. 2014 [cited 2018 Jun 18]. Available from: https://www.bmj.com/content/348/bmj.g2631/rr/700657 4. Harden RN, Bruehl S, Perez RSGM, Birklein F, Marinus J, Maihofner C, et al. Validation of proposed diagnostic criteria (the “Budapest Criteria”) for Complex Regional Pain Syndrome. Pain. United States; 2010 Aug;150(2):268–74. 5. Bass C. Complex regional pain syndrome medicalises limb pain. BMJ. England; 2014 Apr;348:g2631. 6. Connett RE. Re: Complex Regional Pain Syndrome Medicalises Limb Pain [Internet]. BMJ. 2014 [cited 2018 Jun 18]. Available from:/ www.bmj.com/content/348/bmj.g2631/rr/702609
Some patients undergoing standardised neurological examination, involving light touch, pinprick and vibration sense with eyes closed and then open, have reported referred sensations, which occurred in the body part immediately adjacent to the stimulated site. The sensations disappeared when stimulation ceased, or when a clinical improvement occurred. This suggests that the pain of CRPS is associated with central sensory changes (15). Furthermore, magnetic resonance imaging has demonstrated structural abnormalities of connectivity between brain structures in CRPS and these appear to be different from those seen in other chronic pain conditions (8). Postmortem examination of CRPS patients shows atrophy (wasting) of grey matter of the right insula, right ventromedial prefrontal cortex and right nucleus accumbens and a decrease in fractional anisotropy (measurement of the movement of water molecules) in the left cingulum-callosal bundle, along with re- organization of white matter connectivity, and these changes appear to be related to pain intensity and duration (16).
7. Goebel A, Campbell W, Collett B, Johnson M, Grady K. Re: Complex Regional Pain Syndrome Medicalises Limb Pain [Internet]. BMJ. 2014 [cited 2018 Jun 18]. Available from:/ www.bmj.com/content/348/bmj.g2631/rr/700788 8. Spencer MD, McKechnie S, Munglani R. Re: Complex Regional Pain Syndrome Medicalises Limb Pain [Internet]. BMJ. 2014 [cited 2018 Jun 18]. Available from: https://www.bmj.com/content/348/bmj.g2631/rr/700655 9. Beerthuizen A, Stronks DL, Huygen FJPM, Passchier J, Klein J, Spijker AV. The association between psychological factors and the development of complex regional pain
Finally, there is some evidence of a genetic basis and familial risk in CRPS but a clear pattern of inheritance has not yet been confirmed (1,2,8). Siblings of patients under 50 years old appear to be at three times higher risk of developing the condition. Additionally, genes coding the human leukocyte antigen, involved in immune response, have been found to strongly correlate with the development of CRPS (2). In summary, there is no strong or convincing evidence that CRPS is psychological in origin. Rather, the evidence strongly leads to the opinion that the condition has a pathophysiological cause or causes, with the probable mechanisms involving inflammatory, neurological and autoimmune responses by the body. Dr Chris Jenner is a consultant in pain medicine and expert witness. He can be instructed through Medicolegal Partners Limited on 020 7118 0650 or info@medicolegal-partners.com. His NHS practice is at Imperial NHS Trust London and he is the founder and Clinical Director of the London Pain Clinic in EXPERT WITNESS JOURNAL
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syndrome type 1 (CRPS1)--a prospective multicenter study. Eur J Pain. England; 2011 Oct;15(9):971–5.
Mr Roger Plail
10. Beerthuizen A, van ’t Spijker A, Huygen FJPM, Klein J, de Wit R. Is there an association between psychological factors and the Complex Regional Pain Syndrome type 1 (CRPS1) in adults? A systematic review. Pain. United States; 2009 Sep;145(1–2):52–9.
Consultant Urologist BSc MBBS FRCS MS CUBS Mr Roger Oliver Plail is a Consultant Urologist at the East Sussex Healthcare Trust, Conquest Hospital Hastings, Eastbourne District General Hospital and Spire Sussex Hospital.
11. de Mos M, Huygen FJPM, Dieleman JP, Koopman JSHA, Stricker BHC, Sturkenboom MCJM. Medical history and the onset of complex regional pain syndrome (CRPS). Pain. United States; 2008 Oct;139(2):458–66.
He has extensive general urological experience and surgical practice in both open and laparoscopic procedures. He has particular specialisation in Endoscopic Urology, Urological Oncology, Female Incontinence, Male Erectile Dysfunction and Vasectomy Reversal.
12. Lohnberg JA, Altmaier EM. A review of psychosocial factors in complex regional pain syndrome. J Clin Psychol Med Settings. United States; 2013 Jun;20(2):247–54.
Mr Plail has been in medicolegal practice for approximately 10 years undertaking work for instructing agencies including Premex, UKIM and St Helen’s Law.
13. Parkitny L, McAuley JH, Di Pietro F, Stanton TR, O’Connell NE, Marinus J, et al. Inflammation in complex regional pain syndrome: a systematic review and meta- analysis. Neurology. United States; 2013 Jan;80(1):106–17.
He has undertaken a large number of Personal Injury cases on behalf of the claimant. These are often complex with associated brain injury and significant spinal and pelvic injuries with consequent upper and lower limb neurological damage and associated damage to bladder, bowel and sexual function.
14. de Mos M, Huygen FJPM, Stricker BHC, Dieleman JP, Sturkenboom MCJM. The association between ACE inhibitors and the complex regional pain syndrome: Suggestions for a neuro-inflammatory pathogenesis of CRPS. Pain. United States; 2009 Apr;142(3):218–24.
He also has experience in the criminal court acting for the defendant in cases of allegations of sexual misconduct associated with concomitant alleged sexual dysfunction and has experience in being cross examined.
15. McCabe CS, Haigh RC, Halligan PW, Blake DR. Referred sensations in patients with complex regional pain syndrome type 1. Rheumatology (Oxford). England; 2003 Sep;42(9):1067–73.
Contact Name: Bethany Green Tel: 01424757437/757450 Email: bethany.green@spirehealthcare.com - rogerplail@btinternet.com
16. Geha PY, Baliki MN, Harden RN, Bauer WR, Parrish TB, Apkarian AV. The brain in chronic CRPS pain: abnormal gray-white matter interactions in emotional and autonomic regions. Neuron. United States; 2008 Nov;60(4):570–81.
Spire Sussex Hospital The Ridge, St Leonards on Sea, East Sussex, TN37 7RE Area of Work: Nationwide, Kent, Surrey and Sussex
Need an expert report, call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk
Mr Aruni Sen UK CONSULTANT MBBS, MS, FRCS (ENG & EDIN), FRCEM, DIP.MED.ED
Medico-legal reports for trauma, personal injury & acute emergencies of any nature; medical review for clinical negligence; clinical expert witness for courts, short review reports on minor injury claims. MedCO & CPR part 35 accredited; ICO registered. APIL expert
Mr Jack Lancer
Area of work; Wrexham, North West of England and the Channel Islands Contact, all postal communication to: TY YNYS, 4 Sables D’Or, Les Grandes Rocque Castel, Guernsey, GY5 7FS
My areas of surgical expertise include all aspects of middle ear disease, especially stapedectomy and in facial plastic surgery especially rhinoplasty. I also deal with general adult and paediatric ENT problems. I have issued many medico-legal reports over a 25 year period, with the majority relating to cases of noise induced hearing loss, with the remainder dealing with personal injury and negligence claims within my area of expertise, but including all aspects of general ENT practice.
Consultant Ear, Nose & Throat Surgeon MB, ChB, LRCP, MRCS, FRCS(Otol), DLO
Alternate Address (no posts please): 40 Acton Hall Walks Wrexham, North Wales, LL12 7YJ
Contact: Park Hill Hospital Thorne Road, Doncaster, DN2 5TH Tel: 01777 817 160 Email: jacklancer88@gmail.com Fax:01777 817 158
Tel: 07779 529026 (Mrs. Jacqui Davies, Secretary) Mobile: 07931 542759 - 07839 755001 Email: thesens@msn.com Fax: 01481 258472
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Nationwide Expert Witness provider to defence solicitors, family solicitors, barristers and privately funded clients. At Forensic Defence we specialise in providing expert witnesses in a number of disciplines. We provide experts that can assist in criminal and civil cases and we will always endeavor to provide a wide selection of experts to meet our clients needs. We at Forensic Defence understand the importance of meeting deadlines especially in legal cases, we therefore pride ourselves on an efficient and expedient service. Our experts have years of experience in preparing reports for Court purposes and will provide reports within the time and format required. Our expert witnesses include Psychologists, Psychiatrists, Accountants, DNA experts, Cell site experts, Phone/computer experts, Drug analysis, Facial Mapping, Voice recognition, Handwriting samples and more.
Our services include: CCTV Enchancement Computer & Mobile Forensic Examination DNA Reports Psychology Expert Witnesses Mobile Phone Analysis Firearms Drug Testing and Analysis Accident Reconstruction Reports
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Our staff have worked in the legal industries for over 10 years, they know exactly what solicitors, barrister and clients are looking for. We aim to obtain a quote within 1 working day of receiving instructions, as we know cases can be under time constraint.
Email: info@forensicdefence.co.uk Website: www.forensicdefence.co.uk Tel: 0121 288 3225 Forensic Defence, 71 Foley Road Birmingham, West Midlands, B8 2JT Available Nationwide
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Noise Induced Hearing Loss Claims: Sounding a Note of Engineering Pragmatism by Ed Clarke Managing Director at Clarke Saunders Acoustics presented with the most comprehensive evidence bundle including contemporaneous workplace dosimetry surveys and detailed working hours logs, assumptions and estimates still need to be made. Did the Claimant do exactly the same job as the worker who wore the dosimeter during the survey? Could that single day be taken to be representative of the whole employment period (often decades)? Did processes, plant and tools change over the period of employment?
Feckless vs Fraudulent Despite the risk to hearing of workplace noise exposure having been recognised for over half a century, a vast number of employees have had their hearing damaged unnecessarily by careless, thoughtless or just plain feckless employers. On the other hand, of course, for a while referred to as ‘the new whiplash’, the intangible and somewhat abstract nature of noise as a pollutant makes it an attractive target for exaggerated, perhaps even fraudulent claims.
In most cases recourse also has to be made to experience of similar workplaces, similar plant and machinery or published sources of information to which reference can be made. Imprecise, or conflicting evidence on a host of aspects, including working hours, the provision of hearing protection and the number of other concurrent noisy activities for example, serve to further broaden the range of uncertainty inherent in these assessments.
In the vast majority of cases, appointed as a single joint expert to the Court, the acoustician is freed from any concern they may harbour over the merits of their client’s case, and is simply looking to convert the evidence presented into an estimate of the most likely noise exposure, on the balance of probabilities, to the best of their experience, skill and judgment. We are effectively providing a translation service, translating witness statements written in English to engineering reports in the mystical language of decibels.
And these issues are exacerbated to a greater extent by missing records or fading witness memory, the further back in time the expert needs to cast for recollections, evidence or reliable published data.
The vagaries of an exact science In very, very, very few cases is it possible to establish an individual’s noise exposure exactly. Even when EXPERT WITNESS JOURNAL
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understanding beyond the realm of simple ‘analysis by word association’ and is greatly assisted by having had a direct aural experience of the industry and activity in question.
At home on the range In order to present information which is useful to the Court (or to the parties agreeing not to go to court) we must provide an estimate while being honest and transparent about how precise this information can be assumed to be.
If a Claimant used a lathe, or a hammer, we don’t just look for noise data for ‘lathe’ or ‘hammer’, we need to consider how big a tool it was, used for what purpose, machining (or striking) what material and to what end.
At CSA we have established a methodology that sets out a range of noise exposure values rather than quoting a single figure as the output of any given piece of analysis. The better defined the evidence and data available, the narrower the output range from the analysis is likely to be, and this at least enables us to provide numerical analysis results without implying an inappropriate degree of precision. We have refined this approach following feedback (both informally and in response to Part 35 questions) and in discussion with other practitioners in the field. An experts’ working group and industry best practice guide are long overdue. For now, I have set out a description of our process to enable instructing solicitors to appreciate our workflow, constraints and some of the challenges involved.
One potential for concern with this collegiate approach, that we have turned into a big positive, is consistency. To ensure that each expert is tackling the assessments in the same way, using the same reference sources and materials, we have two dedicated engineers who act as moderators, comparing all of our NIHL output and curating a large (and growing) database of reference materials. These approved references can then be cited in our reports and quickly accessed if required, for example in response to Part 35 questions. Analysis Some of the above data can be established from information in the particulars of claim. Sometimes (but not always) this is then augmented when we are issued with the Claimant’s witness statement. As this generally arrives only a couple of weeks ahead of our reporting deadline we are usually well into the analysis phase by this point, using proxy data that we’ll substitute back for anything more accurate that comes along.
The Instruction At the very outset we need to ensure we have the resources and expertise available to accept. We are fortunate at CSA, having seven highly qualified and experienced experts available, with data on file and experience going back to the early 1970s in a wide range of industries, so there isn’t much we haven’t come across before. We take the timescales very seriously too. Especially those imposed by a Court Order.
We construct a noise exposure model of each episode of the Claimant’s employment, accounting for the working days and hours, including break times, transitions and any peripatetic activity. Due to the nature and order of evidence presentation, we tend to start with the Claimant’s version of events (which is generally the more detailed) and work through this, identifying and flagging any aspects of the Defendant’s evidence which is contradictory, or presents a different version of events in some way. These differences are then either flagged as a potential source of uncertainty (our reports include a chapter entitled ‘uncertainty’, which we feel is very important) or singled out for a specific sensitivity test (see below).
Our experience to date suggests that the timeline around the claim process aligns pretty well with the reporting availability we are able to offer, with an instruction to reporting lag in the order of six months. We deliberately build quite a lot of flexibility into this system, however, to enable us to respond to short notice matters from time to time. This has been happening more often of late, perhaps I shouldn’t have owned up! Research In most cases the evidence submitted leaves us some way short of all the information we would need to estimate noise exposure levels. We can establish an awful lot more with reference to our files, our memories and our textbooks, and talking to each other is one of the most valuable parts of our information gathering phase. Sometimes one of our experts is specified in the instructions by name, sometimes the instruction leaves that up to us. Almost invariably we will want to discuss it with someone older, or wiser, or indeed younger but with more recent experience of the noise source in question.
In some, relatively rare, situations both parties present equally detailed but conflicting versions of events. In these cases, we present the versions alongside one another to show differences clearly and transparently. At all times we are at pains to ensure the evidence presented to us is ‘translated’ as fairly as possible without bias towards either party. There are numerous aspects of these calculations which require assumptions or estimates on the part of the expert which we seek to do reasonably and most importantly do so making clear file notes and references in our calculations. As an example, if a Claimant was exposed to a wide range of noise levels using different tools throughout the day, and says they wore hearing protection for about 10% of the time, the result of the analysis will be very different if we assume that to have been a random 10% throughout the day,
We’ve encountered an awful lot of different types of noisy (and some not very noisy) working environments and read even more descriptions of them from employees often using very specific colloquial references or with fading memories of tool or equipment names. Equating the terms windy gun, windy hammer with the same tool as a pneumatic chipper for example, or indeed a caulking gun in the shipbuilding industry requires knowledge and EXPERT WITNESS JOURNAL
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as opposed to the (much more likely) scenario of using the protection when engaged in the activities that seemed noisiest – which constituted about 10% of the work day. As long as we state our assumptions clearly, if either party has an issue with the view we have taken it is easy for them to raise as a Part 35 question.
Was the defendant negligent? And this is where we have to reel our necks back in ever so slightly. Negligent is one of those words with special powers, nuisance is another. Not in the Harry Potter sense, but in that it would be for others (i.e. the Court) to make that judgment. So, we look for a form of words which sets out the circumstances under which, and the reasons why, based on the results of our analysis, the Court could find the Defendant(s) to have been negligent. We aren’t shirking our responsibility to the Court, we are simply recognising our role in the proceedings.
Sensitivity Tests Sometimes the expert will see two interpretations as equally likely or be responding to a difference or contradiction in the evidence. Where this refers to a single variable in the analysis – for example whether the Claimant worked 2 or 6 hour of overtime per week, we perform a sensitivity test by keeping everything else in the model static and varying only this parameter. This enables us to put this variable into the context of our assessment to show that it makes XdB difference to the result. This has been an especially useful way to address matters which appear to be a significant bone of contention between the parties, but when considered objectively do not make a significant difference to the output of the analysis.
We’ve done an awful lot of these assessments now, and we think the assessment process, reporting format and quality assurance systems we have in place are pretty good. But in the spirit of Continuing Professional Development, every day is a school day and an opportunity to learn and get better – all suggestions gratefully received. And volunteers for that best practice working group? Many thanks to Ed Clarke and all at Clarke Saunders Acoustics.
Report - worth the paper it’s written on? All of the research and analysis is for nought if we can’t get it across in our expert’s report. This needs to be sufficiently detailed to demonstrate how the analysis has been conducted and that all the key evidence has been considered. But not so long and confusing that no-one is able to wade through all the equations and acoustics mumbo jumbo. In fact, as a rule we try to keep algebra out of our reports altogether. We have them ready if you want to ask Part 35 questions about them though!
Contact details are Winchester - Head Office Westgate House, 39 - 41 Romsey Road, Winchester, Hampshire SO22 5BE Tel: +44 (0) 1962 872130, Fax: +44 (0) 1962 872131 Email: mail@clarkesaunders.com Exeter Sowton Business and Technology Centre Capital Court, Bittern Road, Sowton Exeter EX2 7FW Tel: +44 (0) 1392 342978 Email: exeter@clarkesaunders.com
Our reports will set out clearly the assumptions we’ve made in our analysis and the ranges of input noise data we have used for our calcs. There’ll be a chapter on uncertainty, explaining what we don’t know as well as what we do, and any sensitivity tests will be presented in the context of the overall calculations results and conclusions to present this information contextually.
London 103 Gaunt Street, London, SE1 6DP Tel: +44 (0) 20 34797867 london@clarkesaunders.com Website: www.clarkesaunders.com The CSA Centre of Acoustic Excellence Acoustics specialist Clarke Saunders Associates is upholding a family and business tradition with the election of company director Dan Saunders to a key national association role. Dan has been appointed chair of the ANC, the Association of Noise Consultants, which represents the acoustics and noise professions across the UK.
The analysis outcomes will generally be presented as a range of values, both for the daily noise exposure estimates and career noise dose totals, within which we consider the truth to lie, accounting for the uncertainty inherent in the process. Please don’t ask us to choose one particular number within that range as the most likely result, as this rather undermines the purpose of defining a range in the first place – to set the results of our analysis on the context of the precision with which it is possible to make this estimate.
Below, current and past Chairmen of the Association of Noise Consultants (ANC) L to R: Alan Saunders, Daniel Saunders, Ed Clarke
Right at the start of the report we’ll have reproduced our instructions, the evidence we’ve been issued with and the specific questions we have been asked. So, as we write the conclusions we go through these one by one and make sure we’ve answered them. And then there’s the killer question! In your expert opinion… On balance of probabilities… Considering the prevailing guidance and date of knowledge… EXPERT WITNESS JOURNAL
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Mr. George E Murty Consultant Ear, Nose & Throat (ENT) Surgeon MBChB, MD, FRCS, FACS
specialist consultants: acoustics, noise and vibration
Mr George Murty is a Consultant Ear Nose and Throat specialist based in the East Midlands, where he is the Chairman of the Leicester Nuffield Medical Advisory Committee, and senior consultant in he ENT department of University Hospitals Leicester.
ǣɎټɀ ƏǼǼ ǣȇ Ɏǝƺ ȇɖȅƫƺȸɀي 16 specialist engineers 7 NIHL and HAV Experts 3 current/ex chairs of the ANC* 2 forensic acousticians
Mr Murty specialises in the treatment of the whole spectrum of ENT conditions including nose and sinus diseases, voice and swallowing problems, chronic cough, deafness, imbalance, cosmetic & functional rhinoplasty, snoring and children’s ENT. His expertise covers; Balance and smell impairment post accident/injury Whiplash tinnitus Nasal trauma Paediatric ENT Voice and swallowing disorders
WINCHESTER (HEAD OFFICE) +44 (0) 1962 872 130 LONDON +44 (0) 20 3479 7867
His personal chambers are equiped with advanced balance, audiology and smell testing facilities.
EXETER +44 (0) 1392 342 978
Mr Murty undertakes expert witness work within his field of ear, nose and throat diseases. He has extensive experience preparing medicolegal reports for both claimant and defendant, and on joint instruction. He has authored over 6,000 reports and has appeared in courts as an expert witness. His experience covers occupational injury, personal injury, medicolegal negligence and employment tribunal work.
clarkesaunders.com experts@clarkesaunders.com
Contact Mr Murty Tel: 0116 238 8140 Email: camurty@gmail.com - Website: www.georgemurty.co.uk Forest House, Station Road, Kirby Muxloe, Leicestershire, LE9 2EN
*Association of Noise Consultants
Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk
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What I do as a Pharmacist Expert Witness Advising a solicitor about a drink driving case led Graham Mould to become a pharmacist expert witness. Pharmacist Graham Mould regularly appears in court to give expert testimonials on cases involving drink driving, drug overdose and medical negligence.
clinical trials with new and currently available drugs on patients and volunteers. How did you become a pharmacist expert witness? When I was working in the pathology laboratory at RSCH, the head of the department, who was already involved in cases as an expert witness, asked me whether I would advise a solicitor who wanted some advice about a client accused of driving under the influence of alcohol. I accepted the offer and, as a result, I started preparing similar reports for other clients. Soon I was asked to comment on other cases requiring my pharmaceutical expertise, which I found interesting because it involved a wide range of drugs and other compounds. In 2009, I obtained a diploma in the expert witness course organised by Cardiff University, which gave me a good grounding in the skills required to be an expert witness and provided an impetus to continue this work.
What is your professional background? I graduated with an honours degree in pharmacy from the University of London in 1964 and became a member of the then Royal Pharmaceutical Society of Great Britain. I obtained a master’s degree from the University of London in 1972 and a PhD from the same university in 1977, working on aspects of the metabolism of psychoactive drugs while at the London Hospital Medical School. Afterwards, I joined the NHS where I worked in a pathology laboratory at the Royal Surrey County Hospital (RSCH) in Guildford, developing a therapeutic drug monitoring service to be used by hospital clinicians. After 15 years of managing the service, I left and worked for a further seven years in the RSCH, supervising EXPERT WITNESS JOURNAL
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What do you have to do as part of this role? First I am asked whether the case is within my expertise and if I am willing to be involved. Once I am instructed to go ahead, I prepare a report, which has to meet certain standards, setting out the details of the case. This usually involves reading through police reports, witness statements, medical records, hospital notes and any toxicological evidence, such as blood drug concentrations. For example, if the case involves a client accused of shop lifting and the perpetrator is under the influence of a benzodiazepine then I have to assess whether the drug (or other drugs that may have been taken) influenced the actions of the client involved. I then give an unbiased opinion on the results of my assessments and come to a conclusion. Essentially I am advising the court on my opinion, which should not be influenced by whether I am being instructed by the prosecution or defence.
US Food and Drug Administration as a diet supplement because of serious adverse events when taken orally. It has an extremely narrow therapeutic index. Over recent years it has been available over the internet in the UK as a slimming agent. The student had started to take it to lose weight and, tragically, she appeared to have taken too much and died as a result. I was called to give evidence at the inquest and the coroner had some stern words to say regarding the availabilty of this compound.
What is the most difficult thing about being an expert witness? Should the case come to court and I am required to represent the defence or prosecution, I am expected to defend my opinions when I am cross-examined by the opposing barrister. My first time in court was a nightmare because I was not used to the jargon and I misunderstood some of the questions posed. It was this experience that prompted me to go on a course instructing me about being an expert witness. Nevertheless, some of the legal terms are still difficult to get to grips with and being cross-examined is still nerve racking.
What do you enjoy about being an expert witness? It enables me to stay up to date on many different aspects of drug therapy in different age groups. For example, I advise on situations involving infants, such as the absorption of methadone into breast milk; older patients, such as the side effects of oral opioid therapy; and those who take some of the ‘legal highs’ or novel psychoactive substances. Even the most innocuous compound can produce unwanted side effects that can be detrimental to particular individuals.
I also get involved with a number of cases where the client has been convicted with driving under the influence of alcohol. Some of the excuses clients use to explain why their blood alcohol level is above the legal limit for driving a vehicle are amazing – for example, “my pudding contained a lot of alcohol and I didn’t realise”. However, I must not be influenced by my own impressions — I have to consider only the facts.
I rarely meet the person for whom I am writing the report but I do come into contact with many different barristers and travel to many different courts in the UK.
I have recently been involved with medical negligence claims where there may have been a dispensing error, a belated side effect of a drug or interaction between drugs, which requires the analysis of medical notes. In some instances, this can involve four or five files of notes. In others, it may be a CD to download and read. Some of the information is irrelevant but the notes have to be read in their entirety in case they contain useful information for the report.
Mr Tim White
What do you think makes someone a good expert witness? Being good at problem solving is important. My experience of performing research where critical analysis of a problem is required stands me in good stead for making other decisions, such as assessing whether particular drugs are responsible for particular actions. Because of my previous work, I have a range of expertise in different aspects of pharmacy, including dispensing, toxicology, pharmacology and pharmacokinetics. This means I can give comments on formulations and dispensing issues, as well as toxic effects of particular drugs.
Chartered Chemist C Sci, C Chem, FRSC A specialist in risks arising from changes in water quality associated with the ownership or occupancy of premises. Key areas of work: Disinfection management, Corrosion investigation, Biofilm control. Materials impact on stored water (including bottled water). Microbiological control of water quality including Legionella & Pseudomonas aeruginosa. Specialist water treatment provision, for example revers osmosis plant requirements for dialysis support. Waste water issues such as discharge compliance an impacts on water courses. Chemical fate and behaviour relative to water quality issues, for example accidental poisoning and environmental impacts. Personal injury investigation relative to chemical exposure, liquid waste and drinking water quality Contaminated land impacts on water resources. Private water supply management and compliance assessment.
What is the most interesting case you have worked on? One particular case involved the death of a young female medical student who had taken a compound called 2-4 dinitrophenol (DNP). It is used commercially as a dye and insecticide and is highly toxic. It was originally used in the 1930s as an ingredient in weight control medicines before it was banned by the EXPERT WITNESS JOURNAL
Closed system water quality management, for example heating and chiller plant. Albion House, 13 John Street Stratford upon Avon, Warwickshire CV37 6UB Area of work: Nationwide & Global
Tel: 0800 083 4610 or +44 (0)121 288 2386 Mobile: 07740 988 108 Email: tim.white@marquisandlord.com - Web: www.marquisandlord.com
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Thomas Andrew Skerratt has a vast wealth of experience as an expert witness on cases not only in the UK, but also on cases in the USA, France, Australia, South Africa and Ukraine. To cope with the modern business world, the business has multi-lingual skills in Russian, Ukranian, French and Spanish. SPS Consulting (UK) Limited advises on the accommodation needs of disabled people. We provide expert evidence including preparing detailed reports for complicated legal cases around the world. Each report is individually researched and tailored for a client's specific needs. Our understanding of the advances of technology and the requirements of the modern legal system means that the business offers a fresh and incisive approach to provide evidence on cases where the accommodation needs of a disabled person is being considered. Andrew has steadly built a reputation for providing detailed impartial support of the highest quality on the most expensive cases. His hands-on approach and personable nature gives clients teh confidence that they have an expert they can trust, removing problems that can arise from over delegation of tasks which is a common problem with many experts in larger organisations. This means Andrew can produce evidence quickly and accurately, no matter what the timescale. Andrew’s full involvement on cases means that the Court can be sure that he is in touch with teh details of a case form start to finish, whether it be for the Claimant or Defendant, or as a Joint expert. Typical matters dealt with by SPS Consulting As an expert witness on personal injury cases, Andrew is asked to consider how to provide the ideal home environment for a disabled person. This can be by adapting an existing home , purchasing an alternative property or renting a property, which could be for the short-term or long-term. In addition, he can be asked to prepare proposals to adapt a property while also providing estimates of costs for changes required. Andrew also provides further detailed cost information on other aspects of the claim. for each case, Andrew is thorough in his approach to provide high quality evidence that clients and the Courts in the country expect from him. The business is equipped to provide professional services of the highest order. Andrew’s background in quantity surveying, project management and legal support services within the best organisations in the UK means that he produces a high quality service. Andrew throughly understand the need to adhere to legal protocols and the practices on pre-action protocol. His reports also meet the requirements of the Royal Institution of Chartered Surveyors, as written in the RICS practice statement ‘Surveyors actings as expert witnesses’. Dependable expert witness services Having appeared as an expert witness for over 850 cases world wide, Andrew Skerratt has a level of experience that is hard to find in this sector. He has shown from his many
appearances in Court as well as in Conference with Counsel that he can be relied upon when supporting his written evidence in person. If you require expert witness testimony from a highly qualified and seasoned practitioner, speak to SPS Consulting (UK) Limited. Andrew and his close knit support team can respond to instant demands of modern legal systems. The advancement of technology means that Andrew can respond to needs without undue delay. We believe we offer the service of the future, which provides hands-on service that can also work internationally. Our successful involvement on cases in the USA, France, Spain, South Africa, Australia and Ukraine, means that you can be confident that Andrew and the business will meet your needs. "I have worked with Andrew Skerratt for close to a decade. I find him very approachable, reactive and attentive. He produces high quality reports often within very short time frames. He is an excellent team player and I would have no hesitation to recommend him." Diane Rostron, Addies Solicitors “I have worked with Andrew for a number of years now and have always found his reports very well written and sensible. He is extremely responsive and good at communicating which is important to any instructing solicitor. I know I can always depend on him to provide sensible options in his report. I hope to continue working with Andrew for a number of years to come” Gemma Osgood of Clarke Willmott LLP “I have instructed Andrew over several years and he has always produced well considered reports, made himself available for meetings and responded quickly to requests to prepare an addendum or attend a conference call. He will always consider questions put to him and alternative scenarios rather than hold an entrenched position.” Dave Young, Partner at DWF LLP I have worked with Andrew for a number of years on several medico-legal cases and have found him to be very responsive to queries, with good timescales for reporting and who has an approachable nature which is very important for my clients who have often been through a traumatic life experience. I would recommend him to others. Emma Rush of Irwin Mitchell
Call Andrew on: +44 (0)1903 538 196 or +44 (0)7779 398 819 Email: andrew.skerratt@spsukltd.co.uk - Website: www.www.spsukltd.co.uk SPS Consulting UK Ltd, 12 Apsley Way, Worthing, West Sussex, United Kingdom, BN13 3RE
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The Importance of Good Design in Disabled Adapations by Alex French of Alex French Associates Ltd When considering the design for disabled accommodation, a building surveyor acting as an Expert Witness should have a good understanding of Approved Document M of the Building Regulations (Document M), which covers ‘access to and use of’ domestic, public and commercial dwellings for disabled people. They should also have a good understanding of BS8300, which is a British Code of Practice that sets out how buildings should be designed, constructed and maintained to create an accessible and inclusive environment for disabled people.
The following examples illustrate how, in certain circumstances, the experience of the designer, whether that’s a building surveyor or an architect, can play an important part in overcoming the limitations in the official guidelines:-
Document M works in tandem with BS8300 to give practical guidance on how its requirements can be incorporated into the built environment. In combination, they both set out the minimum standards that are required to adhere to the Equality Act, which was introduced on 1st October 2010 to replace the slightly older Disability Discrimination Act.
Ramp Access for existing buildings Ramp access is obviously a primary concern when evaluating the needs of a wheelchair user. As previously stated above, Document M only applies to newbuild properties, however, M4(1) does include a statement about ‘material alteration’ and could therefore be applied to an adaptation.
However, although it is generally assumed that complying with the requirements set out in Document M and BS 8300 would be enough to meet the requirements of the Equality Act, neither of these documents actually apply to carrying out adaptation work to an existing building.
The guidelines in M4(1) allow for a gradient between 1:12 and 1:15, however, due to space restrictions, which are commonplace in existing buildings, ramps are generally constructed to a 1:12 gradient. The problem is that many electric wheelchairs these days have their battery pack located on the back of the wheelchair, which changes the centre of gravity and due to the redistribution of weight it is possible for a wheelchair to tip backwards on a 1:12 ramp. We know of one instance when this happened and although, fortunately, the wheelchair user was not seriously hurt the implications are obvious. Even with manual wheelchairs that don’t have a battery pack, the user may find it difficult to negotiate a 1:12 gradient, particularly if they have diminished upper body strength or dexterity.
Approved Document M of the Building Regulations is only applicable to newly erected dwellings and dwellings undergoing material alteration. However, where the dwelling is subject to material alteration, only Section M4(1) is applicable and only to the extent that any work carried out should be no less compliant than it was prior to the building work taking place. BS8300 guidelines require you to consider every aspect of a building and its surroundings and how it impacts on a user’s accessibility, however, it only applies to non-domestic buildings. In addition, both of these documents are simply guidance and as such they should be treated as a minimum requirement and not best practice.
It is not enough to simply follow the guidelines when considering ramp access. The designer needs to consider the physical constraints of the wheelchair user and the available space before making a recommendation. In my opinion, whenever possible, the gradient of the ramp should not be less than 1:15 and preferably 1:20. However, if there is a space restriction and there is only room for 1:12 there is a way to get around this restriction by changing the design completely and installing a small platform lift.
Therefore, if there is no regulation that applies to carrying out adaptation work to existing buildings, where does that leave the Accommodation Expert when preparing a report for the Court? A good accommodation expert will combine his or her experience and knowledge of building pathology with the information provided by the Occupational Therapist’s report to provide a well-designed adaptation that will maximise the available space and meet the long-term needs of the client. Document M should not be disregarded but should only be used as base-line and with an understanding of its limitations, particularly with reference to older properties, which may throw up their own unique challenges. EXPERT WITNESS JOURNAL
Turning Circles in kitchens Section 3.32b of Document M4(3) (Kitchen and eating areas for new build properties) states that there should be ‘a minimum clear access zone 1500mm wide in front of, and between, all kitchen units and appliances.’
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However, there are many different types and sizes of manual and electric wheelchairs, some of which will require more turning space than 1500mm, for example those with reclining backrests or elevating legrests and some that will require considerably less.
Pocket doors Making the most effective use of the available space requires not only a knowledge of construction but knowledge of the latest products and technology that may be used to overcome obstacles or limitations within an existing building. A good example of this is the use of pocket doors, which are not specified in any guidelines. Internal pocket doors glide into a cavity in the adjacent wall and should be specified where space is limited, or where a hinged door would impede access.
The guidance in Document M is based on a ‘one-size fits all’ approach and whilst it’s always preferable to have as much turning space as possible, this minimum guidance shouldn’t prevent a highly mobile, electric or manual wheelchair user from living with a smaller, more bespoke kitchen if that is all the space that is available.
Installing a pocket door rather than a hinged door can add an average of ten square feet of floor space, however, you do need to plan ahead and build an encasing wall wide enough to take the door.
Kitchen Design Document M4(3) contains guidance for the layout of a disabled kitchen, however, it should be noted that the layout (in Diagram 3.8) is poorly designed and would not be recommended as good practice e.g. the oven should be positioned at a right angle to the worktop to allow easy transfer of dishes from the oven and there are an inadequate number of storage units for a family. Also, there is no accommodation for a tumble dryer, which is fairly essential for wheelchair users or apartment dwellers. It is a generic design catering for a range of disabilities and a good Accommodation Expert, working closely with the Occupational Therapist, should be allowed to adapt the kitchen for each individual depending upon their specific needs.
In the absence of official regulations for existing buildings the Court, Solicitors, Accommodation Experts and Occupational Therapists all usually rely on Document M and Document BS 8300 to provide general guidelines. However, as demonstrated, these should not be viewed as a set of ‘rules’ and all relevant parties should ultimately rely on the experience of the accommodation expert and their understanding of how the client’s needs may be translated into effective design of the available space. Article by Alex French of Alex French Associates Ltd Alex French is an elected member of the Institute of Expert Witnesses and provides Expert Witness Reports on the accommodation needs of disabled people with catastrophic injuries, seeking compensation and damages.
Ramps and Aco Drains Although Document M4(3) gives quite specific guidelines on the approach to a principal entrance with regard to ramps, there is no thought given to the consequences of breaching the damp proof course (DPC) at the entrance.
He acts as Single Joint Expert for both Claimants and Defendants and prepares accommodation reports for clients across the UK. He also acts as an Expert Witness in cases involving negligent building construction and design.
The DPC is positioned at floor level. For a ramp to provide level access, the platform at the top of the ramp needs to also be at floor level. Subsequently, driving rain is automatically at the same level as the DPC and, therefore, may easily breach it. To avoid this we always recommend that an Aco Drain (a channel drain used to remove surface water away from a selected area) is incorporated into the ramp design at the point where the ramp platform meets the door threshold.
Above- Freedom Kitchen by Symphony
Below - Pocket Door by Klug Intelligent Solutions
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Digging a Little Deeper… In this article, Jackie Dean, Clinical Director at N-Able Services and with over 30 years of experience in preparing Occupational Therapy and Care Reports considers the need for the Care Expert to be actively working in their area of expertise in order to advise the Court adequately. She also considers the need to explore corroborating evidence in the context of daily life and bias within the injured party and those examining them. She notes that whilst there remains the need to consider exaggeration and malingering, there should be equal consideration of understatement and subtle problems that are not immediately obvious in order to avoid under-compensation. Recently, during a meeting of Care Experts, my counterpart disputed the level of gratuitous care that I had allowed for emotional support provided by the family to a brain injured teenager. Their view was that this should be considered as part of family life, and that the level of prompting and support that I had allowed for him to complete his everyday tasks was excessive. Needless to say, this Expert had no experience of working in community rehabilitation, nor of brain injury, having worked in acute care at a high level for many years. I was reminded of the need to ensure that the appointed Expert has ‘lived’ experience of the area in which they are commenting and the need for the Solicitors appointing such Experts to have an understanding of the complexities that their client presents. The complexity of the need for support can often arise from the sum of all parts being greater than the individual advice that other Experts provide and the person must be considered in a bio-psycho-social model that explores them within their environment, within their own life, and within their own pre-morbid disposition. Consideration must be given to the individual family system and support mechanisms, the individual’s wishes and aspirations. How else can the Expert advise the Court of the support required to place the individual back to the life they would have had but for the accident? As others have voiced – it is not the injury that matters, but the head in which it has occurred.
changes or the person is disinhibited without adequate analysis and consideration. It is often the issues surrounding insight and awareness that instigate the greatest intervention from Case Managers in the community over time (Clark Wilson, Muir Giles et al, 2016) and that pose the greatest challenges for families and are linked to poor outcomes, and with increased risk of secondary mental health problems and even suicide. Subtle and neuro-behavioural difficulties are often missed, and there remains limited understanding of the long-term issues arising from minor traumatic brain injury. Whilst symptoms in such cases generally resolve within a relatively short time period, there are individuals who exhibit longer term physical, emotional, social, marital and vocational dysfunction. Valid assessment by Experts is essential in ensuring that there is accurate diagnosis, that treatment is optimally provided and in a timely manner, that impairments and disabilities are not inadvertently reinforced and ultimately that accurate damages can be determined. Although there are studies focussing on exaggeration of impairments there are fewer surrounding minimisation of deficits and ‘response bias’ in those examining. (Zasler, Martelli. 2003) Compensation can be an important factor impacting on presentation. Currently we see a focus on deliberate exaggeration of difficulty, such as symptom magnification or malingering but in reality Zasler notes that there is a continuum that exists. This extends from “(1) denial or unawareness of impairments through (2) symptom minimisation, (3) normal or average symptom presentation, (4) sensitisation to subtle or benign symptoms or problems, (5) exaggeration or symptom magnification, and up to (6) frank malingering.” This is again an oversimplification of a complex presentation, but can provide a framework for consideration at assessment, and can also be applied to consideration of assumptions made by Experts.
Any clinician working in the community with people with brain injury will affirm that much of community based neuro-rehabilitation involves work in assisting people through emotional crises of survivors and their relatives and that focus is not predominantly on the basis of neurological presentation but due to lack of insight, development of mood problems, chemical dependency or family disintegration. The journey from the accident and emergency department to acceptance and adjustment following a life changing injury or illness is a long one; both for the injured party and for their family.
Difficulties with awareness and denial can lead to an understatement or minimisation of cognitive dysfunction, and emotional responses may be repressed during structured assessments and examination. It is important that assessments should consider exaggeration but we should be just as concerned in identifying where symptoms and issues are understated leading to individuals becoming
It has been noted for many years that behavioural and personality changes are less understood and less researched. There is also longstanding evidence that the stresses on families increase over time. In my experience, I note that often care and therapy assessments will refer to the person’s cognitive and physical needs in detail but merely define that there are personality
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under-compensated. Sometimes subtle difficulties can be missed and the Expert should pay particular attention, therefore, to performance in functional life areas and consider the individual in their daily environment as a whole. Assessments conducted in a quiet, comfortable, stress-free home or office are not always sensitive to the issues facing the person within the real world. The Expert must seek out corroborative or contradictory evidence, witness reports and consider the normal expectations of the family and pre-morbid presentation. Alternative explanations should be considered. The Care Expert must maintain their objectivity and avoid joining the legal team. They must remember that their duty is to be independent and inform the Court. They should arrive at opinions only after considering a review of all available evidence, and should not be afraid to change their opinion as further information is provided. They should be able to critique opinions from both sides and consider the arguments presented. Information should come from a variety of sources in order to prevent bias of opinion. Assessment of care, rehabilitation and support needs is fraught with complications, opportunities for assumption and bias. Legal teams should ensure that they choose a professional that has an understanding of the many complications and variables that will impact on presenting a true picture to the Court. Experts should seek out the range of opinions that are available, and lay witness statements, treating therapist and case management records with support worker notes may provide a more longitudinal and holistic picture than the presentation at assessment.
view of the available relevant documentation. The team are supported by an excellent administrative team who understand that communication is paramount for the smooth running and progress of claims and ensuring the efficient delivery of the service.
How can N-Able Services Assist? N-Able Services Ltd was formed in October 2002 by the Directors, Margaret Edwards, Business Director, and Jackie Dean, Clinical Director, who have a wealth of knowledge and experience in the field of litigation work that the company undertakes. We have consistently provided Expert reports for many of the leading solicitor firms throughout the UK and have forged excellent working relationships with these companies. N-Able Services are aware that the organisation is only as good as those that work within it and, as such, recruitment of high calibre employees is key to our success.
Case Management Services Across a range of catastrophic injuries and conditions, N-Able Services has a bespoke Children and Young People’s team and Adult team to ensure we provide the best possible service to these client groups, who have differing needs and challenges. Clients are appointed a Case Manager with the skills and personality that fits them, to work with the individual to ensure the best outcome is achieved following their injury. We are aware that relationships are paramount in rehabilitation and ensure that the Client has choice by allowing them to meet and get to know the suggested Case Manager before work starts. We also ensure that they meet other members of the team in order that we can provide continuity should their appointed Case Manager be unavailable for any reason.
Litigation: Occupational Therapy and Care Expert Reports N-Able Services have a consultancy of highly experienced Occupational Therapists throughout the UK who are able to prepare Expert Occupational Therapy and Care Reports for the Courts. We provide Expert reports on clients following accidents, through work or road collisions, or as a result of medical negligence. Our Expert reports are Part 35 compliant and our Experts continue to work within their field of expertise to ensure that they remain up to date with their practice, knowledge and skill base. They are experienced at responding to questions, undertaking Joint Discussion, attending Barrister’s conferences and attending Court, and many have undertaken Bond Solon Expert Witness courses.
Our comprehensive Case Management report details the likely areas of input, recommendations and actions, along with a guide to the potential cost, of this input. In line with the Client and their family, along with treating therapists, we produce a goal focused rehabilitation plan. We act as an advocate for the Client ensuring that they always have a voice in their rehabilitation journey. N-Able Services endeavour to provide the highest standard of support to its Clients and always keep the individual and their family as the key focus of all that we do.
Our Experts provide a detailed report based on their assessment of the client as well as a comprehensive reEXPERT WITNESS JOURNAL
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In addition to Case Management services and Expert Witness reports, N-Able also provide: • Immediate Needs Assessments • Housing/Accommodation Reports • Occupational Therapy assessment and treatment • Training – including Manual Handling, Acquired Brain Injury, Medication and Safeguarding If you would like to find out more about how N-Able Services can assist your clients, get in touch on 0151 334 6066, or contact us at info@nableservices.co.uk References: Zasler, ND, Martelli, MF. Mild traumatic brain injury: Impairment and disability assessment caveats. Neuropsychological Rehabilitation, 2003, 13 (1/2), 31-41 Clark-Wilson J, Muir Giles G, Seymour S, Tasker R, Baxter DM and Holloway M (2016): Factors influencing community case management and care hours for clients with traumatic brain injury living in the UK, Brain Injury
Need an expert fast any area of expertise call our free searchline on 0161 834 0017 or visit
GOOD NEURORADIOLOGY Dr Catriona Good MBChB, FFRad(D), FRCR, PhD Dr Catriona Good is Consultant in Neuroradiology and Honorary Senior Lecturer at Brighton and Sussex Medical School. Dr Good is suitably qualified to provide expert opinions on all aspects of brain and spinal neuroimaging. Including: all aspects of diagnostic brain and spine imaging, brain and spinal trauma, brain haemorrhage and stroke, neurodegeneration including dementia, movement disorders, skull base, orbital and ENT imaging, TMJ imaging and Peripheral nerve imaging. Dr Good has been undertaking medicolegal work for the past 16 years and is a vetted expert for Academy of Experts, Faculty of Experts and APIL (1st tier) She has also obtained the Cardiff University CUBS qualification. Cases include personal injury, clinical negligence, criminal cases and GMC and Irish Medical Council fitness to practice proceedings. She undertakes both Claimant and Defendant work, has civil court experience including hot tubbing and has been instructed as a Single Joint expert. Dr Good has attended Coroner’s Court on four occasions and an Irish Medical Council hearing. Medical Report turnaround time is usually 2 -3 weeks but she can provide reports in 5 working days in urgent situations. Dr Good can also supply Screening Reports.
Tel: 01444 441881 ext 5718 Email: catriona.good@btinternet.com Web:www.goodneuroradiology.com Area of work Nationwide
www.expertwitness.co.uk
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Residential Rehabilitation for Amputees - What a Difference a Week Makes by David Hills and Mary Tebb of the Dorset Orthopaedic Company Over the years, we have seen huge advances in both surgical techniques and prosthetic technology and we work closely with a number of eminent surgeons and designers to ensure our patients receive the best treatment to suit their needs.
Introduction Intense periods of prosthetic intervention with one-on-one physiotherapy have been proven to be extremely beneficial in optimising an amputee’s ability potential, most notably in the UK through the rehabilitation services offered in recent years by the Ministry of Defence at Headley Court.
We are now regularly caring for amputees who have undergone Osseointegration surgery, which allow us to attach some of the most advanced bionic technology directly to their skeletons.
I work as a prosthetist with my colleague and co-author Mary Tebb, who is a physiotherapist for Dorset Orthopaedic, at its Southern clinic in Ringwood, on the edge of the New Forest.
But one of the most successful services added over the past couple of years is a multidisciplinary Residential Rehabilitation service at both our Southern clinic in Ringwood and our Midlands clinic in Burton-on-Trent.
Dorset Orthopaedic celebrates its 30th birthday this year and is pleased to continue to lead the way with provision of private Prosthetics and Orthotics throughout the UK.
These packages of care are tailored to suit each amputee’s individual needs and can vary between a week and several months, depending on the level of complexity.
In addition to our everyday clinical work, both Mary and I act as expert witnesses, either individually or on occasions, together, which we find works extremely well with some of the more complex cases we see come into clinic.
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Sharon’s week began with a physiotherapy and prosthetic review whereby both subjective and objective outcome measures were taken (See ‘Summary of Outcome Measures’ below) and minor adjustments were made to the lining of the socket. She was then put through a circuit session of 3 x one-minute stations, which comprised a variety of balance, lower and upper limb exercises.
popular request of both solicitors and case managers who are keen to see their client back on their feet (as such), as soon as possible. Many of our patients have suffered life changing catastrophic injuries and our goal is to try to bring some normality back to their lives with a combination of amputee specific physiotherapy and improved prosthetics.
That afternoon, she was able to abandon her crutch to walk around a local garden centre, including in and out of summer houses, discussing how one of these could work as a therapy room at home as Sharon did not want to be a regular gym user.
We are in the very fortunate position where we can offer support through a programme specifically designed to help them return to some of their previous activities, often by finding alternative and innovative ways to achieve their goals. Below is a case study of an example of one such client.
The last half hour was spent working on using the stair function of the Genium knee – Sharon had to learn to slide the foot back and quickly place it on the stair, enabling her to walk up the stairs in a normal step over step manner. This clearly identified the need for stronger hip extensor muscles but also demonstrated to her that relatively normal stair function could be achieved.
Background Sharon (not her real name), a 55 year old female, had been a transfemoral amputee for nine months when she was referred to us through her case manager. Her amputation was elective and resulted from failed knee replacement surgery over a number of operations.
Day two was spent outdoors as Sharon had previously enjoyed spending time in the open air and wanted to reclaim her confidence outdoors either on her own, with her dog or with friends. In the morning, she was taken into the New Forest to try out a variety of accessible bikes under the care of a local bike hire company and she had a one-to-one session with an instructor, which allowed Sharon to try a number of different accessible bikes.
She had done well through her local NHS centre who had provided her with a standard prescription microprocessor knee, enabling her to walk with a stick for around half a mile. She had other difficulties to contend with, such as the results of a gastric bypass, and she lived alone with only occasional family support. Her home town was fairly rural and she had a large dog which needed regular walks. Sharon was keen to return to work and was studying for a degree via the Open University.
She tried a tricycle initially, then a side-by-side recumbent bike and went on to manage a single recumbent bike as shown below. Her Genium knee can be quickly and remotely changed from walking to cycling mode and this showed Sharon how cycling could be achieved independently, probably with a pedal-assist bike to aid her up steeper slopes.
Our policy at Dorset Orthopaedic is to conduct a joint initial consultation with all new clients. Attending this consultation would normally be the client, their case manager and/or a family member or friend, one of our prosthetists and a physiotherapist. This enables us to fully assess the client and discuss their aspirations both in the near and distant future.
That afternoon, Sharon was taken to a local beach to work on a skill all amputees have to learn, descending slopes. Sensors located in the Genium knee quickly sense changes in activity and with a slope, the knee gradually yields under load while the heel strikes the ground. Body weight is then transferred over the foot as the line of gravity passes over the midfoot and then off the toes. Microprocessor knees such as the Genium are superb for descending slopes and stairs as they allow a pre-set controlled yield, promoting safety during a controlled descent.
We are able to offer either a full expert witness report, initial needs assessment or consultation with brief letter of recommendations, depending on the request of the solicitor or case manager. When we first met Sharon in the autumn of 2018, we prepared an initial needs assessment report for her solicitor, with suggestions on how to make improvements both to her prosthetics and also ideas how to support her in returning to some of the activities she had previously enjoyed.
So, in addition to the zig-zag slopes to the beach promenade, Sharon also had a go at walking on the sand and covered a 1.25-mile course.
Her prosthetist suggested she trialled a more advanced microprocessor controlled knee, namely the Ottobock Genium knee over a two-week loan period, in conjunction with several hours of amputee specific gait re-education and confidence building with her Physiotherapist.
Walking on sand and gravel is a particular challenge for amputees as a prosthetic foot does not fully adapt to this type of terrain in the way that a human foot does. A human foot will literally “mould” to the ground by virtue of its skeletal structure and the long and short muscles which control this action. The ligaments, tendons and muscles then give feedback to the brain which relays corrective actions back to the foot, constantly ensuring balance and stability.
Sharon was immediately astounded by her new leg – both the Genium and the socket fit resulted in her feeling that “I’ve got my leg back”. She was able to purchase one with an interim payment via her solicitor and Sharon was also offered a week’s rehabilitation, which commenced the following month. EXPERT WITNESS JOURNAL
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and egress the pool safely and independently. She left her prosthesis behind in her locker and using crutches walked to the poolside. After some coaching, she was also able to exit from the side ladder of the pool. The main problem however was managing to carry her clothes and prosthetic leg to the locker while using crutches. This made us realise a water activity leg would be advantageous here, even if she decided not to take it into the water itself.
Most prosthetic feet will allow a small amount of movement at the ankle and a little side-to-side for stability. However, the perception of this is transmitted up through the mechanics of the prosthesis and absorbed in the soft tissues of the stump, effectively massively decreasing feedback to the brain. With practise, over time, other sensory feedback loops can accommodate and safety on uneven terrain can be improved. We find many patients appreciate the support and time we can give them to master this type of activity.
Throughout the week, Sharon worked with her physiotherapist on improving the quality of her gait pattern and on the morning of day four, she specifically did a variety of gait and balance challenges out in the car park — changing speed, stride length, direction, carrying a weight and resisted walking. This was followed by a relaxation half hour with guided imagery and contract-relax sessions to see what might work best for her. As amputees have considerably increased energy demands when walking, learning successful relaxation methods can be helpful to practise during the day.
From a prosthetic perspective, it’s important that the microprocessor controlled knee remains safe at times like this and more advanced versions, such as the Genium, are programmed in such a way to constantly monitor a user’s gait and prevent falls or stumbles. On day three of Sharon’s programme, a longer walk in the New Forest was planned. This was largely in drizzly rain but Sharon managed a challenging twomile loop with inclines, mud and small streams to step over. Her Genium knee is shower proof but following this trip she began considering a waterproof version for future outings.
In the afternoon of day four, Sharon was taken to a busy shopping centre to practise being in crowds, around a multi-storey car park and repeated use of escalators. She soon found ascending escalators was possible, but stepping onto a descending escalator was much more of a challenge. Sharon had a number of attempts at this and became more confident as time went on.
On returning to the clinic, Sharon wanted to spend some time on working on how she would enter a consultant’s office the following week for an appointment – a consultant who had told her she would not be able to walk again if she chose to have her leg electively amputated. She had some fun with role-playing this event and it gave her a chance to perfect walking through the door, where she would have to take a step or two backwards to open it. More advanced microprocessor knees have in-built accelerometers which make them aware of directional change. This ensures the knee does not collapse when walking backwards or sideward.
On the final day, Sharon went through a variety of gym ball exercises with her physiotherapist and then a home exercise programme featuring strength training two to three days a week, balance activities most days and and cardio-vascular activities, which we felt she could do independently. All outcome measures were repeated and a prosthetic review was also undertaken.
The afternoon featured swimming at a local pool. Sharon wanted to see if she could manage to access
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Summary of Outcome Measures TEST
DAY 1
DAY 5
6 Minute Walking test
186m
247m
Video analysis
Leaning to the right Requiring a stick. Not using stance yield.
Improved symmetry. Can walk without stick, transitioning off stick with use of a pole as an interim.
Strength testing (prosthesis on)
Right hip flexion 4/5 Right hip extension 2/5 Right hip abduction 3/5 Right hip adduction 3/5 Left hip flexion 4/5 Left hip extension 3/5 Left hip abduction 3+/5 Left hip adduction 4/5 Left knee flexion 5/5 Left knee extension 4/5
4/5 3/5 3/5 3+/5 5/5 4/5 3+/5 4/5 5/5 4/5
Pain – stump
30/100
20/100
Pain – back
40/100
50/100
Satisfaction rating
81/100
86/100
Socket comfort
60/100
90/100
EQ5D*
75
85
PLUS M**
46
69
ABC-UK***
38
71
advanced microprocessor knees such as the Genium or Genium X3. Hence if Sharon continued to walk in the manner she has now learnt, she would likely fall. An alternative would be a prosthetic leg with a fully locked knee. However, a locked knee would result in a different and unnatural walking pattern, which would have adverse effects on Sharon’s musculoskeletal system.
Discussion It is interesting to note these improvements over just five days. Improvements in confidence and gaining skills by focused repetition seem to have made some of the difference in Sharon’s case. We feel this is due to a combination of a better prosthetic knee, an improvement in socket comfort and the intensity of a weeklong programme of physical activities, which are all normal to everyday life.
Following provision of a water activity leg, Sharon expressed a desire to return to our facility to try various water activities, such as kayaking, water-based exercises and going to the beach over a second intensive week.
Following a programme of residential rehabilitation such as this, our normal practise is to update the client’s case manager or solicitor and make recommendations for future care.
Conclusion Intensive rehabilitation at Dorset Orthopaedic is a service which has been offered to our clients for several years now. Initially these programmes have been for a week or two but, for some, they have returned on a number of occasions to assist in their re-integration back into society and the activities which they have previously enjoyed. Most have made significant gains both physically and psychologically feeling more confident and able to undertake activities they enjoyed pre-amputation.
In Sharon’s case, we recommended provision of a water activity leg, which she would use for beach walking and paddling with her dog and using in or around a swimming pool. We felt justified in recommending an Ottobock Genium X3, which is fully waterproof and has the same characteristics as Sharon’s Genium everyday knee. This would mean both prosthetic legs would feel identical in use, when walking on slopes and when ascending or descending stairs.
For more information on how Dorset Orthopaedic can assist with the Rehabilitation of your clients and with the preparation of Prosthetic and Physiotherapy
If a non-microprocessor knee were provided, safety would be compromised as these knees do not have the yielding and anti-stumble functions provided by EXPERT WITNESS JOURNAL
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Expert Witness reports, Initial assessment reports or non-compliant assessments please contact; enquiries@dorset-ortho.com 01425 481743 or 01283 227893 Additional notes About Mary Tebb: Mary Tebb is a Senior Physiotherapist with more than 25 years’ experience, including in the USA and New Zealand. With Dorset Orthopaedic, much of her role sees her getting out of the clinic and into the wider community to help patients feel more confident in their day-to-day activities. About David Hills: David Hills is a Prosthetist who has worked with Dorset Orthopaedic for over 20 years and undertaken expert witness work for slightly longer. Working out of clinics located in Ringwood Hampshire, Harley Street London and Exmouth in Devon, David has experience fitting all levels of upper and lower level amputees with a special interest in complex multiple limb loss cases, Bionic technology and Paediatrics. Pictures opposite, top Mary Tebb, bpttom, David Hills.
Need an expert fast call our free searchline on 0161 834 0017 Email: admin@expertwitness.co.uk or visit www.expertwitness.co.uk
Dr Linda Monaci Consultant Clinical Neuropsychologist Medico-legal assessments for suspected or known brain injury and/or brain dysfunction in Personal Injury and Medical Negligence claims • Acquired brain injury
• Post-concussion syndrome
• Stroke
• Anoxia
• Epilepsy
• Dementia
• Alcohol and drug abuse
• Neuropsychiatric conditions
• Mental capacity assessments Medico-legal services: Instructions from Claimants, Defendants and as a Single Joint Expert. Appointments usually within 2 to 4 weeks, and reports produced in a further 2 to 4 weeks. Assessments can also be carried out in Italian. Dr Monaci has a good knowledge of the Swedish language and has experience of working through interpreters. Clinical services: neurorehabilitation services are also available Dr Monaci has completed the Cardiff University Bond Solon Expert Witness Certificates (Civil and Criminal Law). Contact: linda@monaciconsultancy.com for an initial enquiry. Main consulting rooms (nationwide locations): Several locations in the UK are available. Domiciliary visits can be arranged when clinically appropriate Ten Harley Street London W1G 9PF Tel. 020 8942 3148
Borough Chambers Keats House 24-26 St Thomas London SE1 9RS
Aston Clinic 26 Kingston Road Surrey KT3 3LS Tel. 020 8942 3148
Correspondence address: Aston Clinic, 26 Kingston Road, Surrey KT3 3LS Tel. 020 8942 3148
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Outcome Measures: Assessing the Impact of Rehabilitation by Andy Shaw at Higgs & Sons - www.higgsandsons.co.uk Lawyers must adopt a pro-active approach in their on-going support of seriously injured clients, taking ownership of assessing the impact of rehabilitation.
available. Guidance on how to select the most appropriate measure is provided by statutory healthcare policies and their associated outcome measure requirements. For example, the UK National Service Framework for Long-term Neurological Conditions has an online dataset that distinguishes between measures required for different settings eg neurology clinic or ward, neurosurgery, inpatient neuro-rehabilitation, community rehabilitation, vocational rehabilitation or palliative care.
Andy Shaw, of Higgs & Sons, says: “By taking this action approach, the lawyer will ensure that everyone engaged in the client’s rehabilitation can show that the support and treatment provided has best met the client’s needs to maximise the rehabilitation outcomes.” Patient reported outcome measures, or PROMS, are an essential requirement in all areas of healthcare in determining the impact of treatment. These measures are routinely used in treating those with longterm neurological conditions, such as stroke and traumatic brain injury.
In addition, several UK rehabilitation organisations have produced specific recommendations regarding outcome measures. The British Society for Rehabilitation Medicine publish a ‘basket’ of recommended outcome measures for rehabilitation. They recommend that services select measures from this basket according to whether impairment, activity or participation is being evaluated, the condition treated, the treatment setting and purpose of measurement eg clinical or research.
A Partner at the West Midlands’ firm, Andy added: “Lawyers who support seriously injured clients need to ensure that case managers and therapists providing treatment for clients use outcome measures to demonstrate the value added by the treatment. Those measures should supplement SMART goals aligned to the client’s rehabilitation objectives.”
The UK Rehabilitation Outcomes Collaborative has also developed a national clinical database for rehabilitation to evaluate rehabilitation inputs provided to meet needs and outcomes of specialist inpatient rehabilitation services. UKROC recommends that in addition to the psychometric requirements of good reliability, validity and scaling, outcome measures must be easy to use and interpret, sensitive to changes over time and differences between clients.
What is an outcome measure? An outcome measure is a test that objectively determines the baseline function of a patient at the beginning of treatment and, once treatment has begun, that same test is used again to determine progress and the treatment’s efficacy. An example is the Bergs Balance Scale (BBS) which measures static and dynamic balance among older adults. The BBS is a qualitative measure that assesses balance by how a person performs functional activities such as reaching, bending, transferring, and standing. Each item is scored along a point scale ranging from 0 to 4 with zero indicating the lowest level of function and 4 the highest level of function.
Finally, there are also condition-specific recommendations for outcome measures to be considered.
Why use outcome measures? Using outcome measures facilitates comparisons of healthcare performance across countries and services. Within the UK, the National Health Service Outcomes Framework measures NHS performance and supports quality improvement throughout the NHS.
“There is of course a danger in using outcome measures exclusively to determine whether treatment should continue to be funded. Considerations such as the risk of regression need to be taken into account when deciding whether treatment frequency will be reduced or completely withdrawn.
For patients who are receiving private treatment funded by an insurer under the Rehabilitation Code 2015 following an accident, it is essential that outcome measures are used to demonstrate the value of the services being provided. Without such measures, a Defendant and ultimately the Court may determine that the treatment provided was excessive. While ordinarily the Defendant insurer carries the risk of paying the cost of excessive or unnecessary treatment
Andy concluded: “Lawyers must be alive to the need of ensuring that a client is receiving appropriate treatment. It is simply not enough to engage a case manager to manage treating therapists.
Added Andy: “Having selected the appropriate measures, the second challenge is how to gather data that is meaningful for evaluating a service and monitoring individual patient progress with the patient, family and rehabilitation staff.
“The lawyers should look to identify when outcome measures should be used in conjunction with SMART goals and be prepared to ask the case manager to ensure that treatment providers use appropriate PROMS when preparing the initial and subsequent assessments.” Email: law@higgsandsons.co.uk Call Us: 0345 111 5050
The difficulty with outcome measures One of the main challenges with using outcome measures is the sheer number of outcome measures EXPERT WITNESS JOURNAL
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Whether you talk to us about expert witness or consulting services, we’ll talk to you from a deeply informed point of view. Our combination of ser vices makes us unique, and a leading provider to clients in legal, financial and insurance, food and drink, leisurre, manuf u acturing, energ y and waste sectors. At over 25 years old, our reputation is stronger than ever. In that time we have built a legacy of trust and confidence — our clients value the depth and qualit y of our insight and we take great pride in delivering intelligence and results that they have real faith in. They tell us that this reassurance is priceless.
We work in partnership with clients to deliver a range of exp x ert witness services, including: Structural & Civil Engineering Asbestos Digital Forensics Hand Arm Vibration Mechanical & Electrical Engineering Noise Induced Hearing Loss Occupational Health Regulatory Investigations Restoration & Reinstatement
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Reflections of a Care Expert – From Houseboats to Manor Houses by Deanne Barrow Dip RCOT My Professional Background I qualified as an occupational therapist (OT) in 1985 and have worked extensively in the NHS and Social Services since that time. Over the years I have been an integral part of various multi-disciplinary teams, working alongside doctors, nurses, physiotherapists, speech and language therapists, dieticians, social workers and architects amongst others. Since 2007, I have worked in the private sector for Tania Brown Ltd Case Management and Expert Witness Services. During this period, I have gained experience of working as a case manager in addition to undertaking my ongoing clinical role as an OT. Since 2008, I have also worked as an expert witness. In the thirty-four years since I qualified, I have gained a wealth of experience of undertaking functional assessments of people with a wide range of physical, cognitive and psychological issues. Assessing people from all backgrounds and in a wide variety of home environments from houseboats and caravans to grand manor houses and all things in between. How Does My Experience Qualify Me to Comment on Care? Extensive experience of undertaking functional assessments in clients’ home settings has provided me with a broad knowledge base which I am able to draw upon when preparing care reports for Court. I view my role as painting a picture for the Court of what life was like for the client before the index event, what has changed and what needs to be addressed to improve that person’s quality of life and increase their independence wherever possible.
Whilst training to be an occupational therapist, the importance of a holistic approach was emphasised repeatedly so that it became second nature to me and this has served me well. I now realise that our training back in the 1980’s was ahead of its’ time in many ways as we learned how important it is for physical and mental health/wellbeing to be meaningfully occupied, to have goals and aspirations and to feel that you are making a contribution to society. Within the budgetary and time constraints of working within statutory services, it has been challenging to adhere to the principle of holistic assessment and treatment at times but within the private sector and particularly whilst working as an expert witness, the ability to look at all aspects of an individual’s life has come into its own. What is The Role of the OT Expert Witness? The role of the occupational therapy expert witness is to provide information, clarification, opinion and impartial advice to the Court to enable them to come up with a fair and reasonable conclusion to all parties involved in a case.
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Most cases that an occupational therapy expert witness participates in are ones of personal injury claims or medical neglect. The OT expert witness is often instructed on by a client's solicitor but they may also be instructed by the defendant’s insurer.
may involve the provision of care, specialist equipment, adapting the environment or adapting the way a task is carried out. Every claimant is different and therefore this often results in researching a wide range of topics from fishing equipment for people with the use of one hand only to snow-boarding for amputees to running for the visually impaired, amongst many other interesting topics.
Many of the cases arise from road traffic accidents or work-related accidents and involve a wide range of injuries including traumatic brain injuries, spinal injuries and orthopaedic injuries. Needless to say, every case is different and in addition to the physical effects of the index accident, there may be many other factors such as psychological sequalae which are impacting upon the Claimant’s daily life.
I have found that attention to detail is key. A good report should clearly evoke a real sense of the Claimant’s personality, their lifestyle, the issues posed by their injuries, their interests and what is important to them. The narrative needs to be clear and the reasons for making my recommendations need to be set out logically so that anyone reading the report can easily follow and understand it.
The job of the OT expert is to contrast the pre and post-accident situation. Was the Claimant independent in all areas of life before or did they have any preexisting conditions that might have affected their functional ability in the future in any event? Were they in employment and what career plans did they have? Were they responsible for child care tasks, solely or shared with a partner? Did they undertake the household cleaning, laundry, shopping etc? What did they do in their spare time, hobbies and interests? Did they drive or use public transport? The list goes on but in summary the care report needs to contain detailed information about the Claimant’s lifestyle, the tasks they undertook, what was important to them before the accident and what is important to them now. The occupation therapist is asked to supply expert opinions to assist the court on the claimant's functional situation and to help quantify the financial compensation.
In order to produce a good report, it is often necessary to write and re-write it and only send the report out when I am entirely happy with the contents. It is always uppermost in my mind that one day, I may have to stand in court and answer questions. Even if the case does not culminate in a Court appearance, I will almost certainly be questioned on my report by Counsel at a case conference and by the opposing care expert. When mentoring other OT expert witnesses, I always emphasise the need to ensure that the opinions within a report tie up with the analysis and the evidence, to keep focussed on the original instructions from the solicitor and not to go off at a tangent. In addition, the OT expert witness needs to make to remember the difference between fact, opinion and allegations.
Usually a solicitor will instruct an occupational therapy expert witness to provide a report to assist the Court by undertaking and documenting a comprehensive assessment of the Claimant’s functional status. In addition, the OT will quantify the needs arising from any temporary or permanent impairment of function and consequent loss of independence.
The Litigation Process The OT expert witness must be prepared to meet deadlines imposed by the Court throughout the lifetime of each case in which they are instructed. In some cases, this time commitment may span over many years and the expert needs to be prepared to commit to the longevity of the case. Once costs have been submitted and accepted by the instructing solicitor and the instruction is agreed, the named occupational therapist will be treated as an expert witness and will be subject to the obligations set out in the Civil Procedure Rules (CPR).
The loss incurred is then given a monetary value or ‘quantum’ to reflect the costs of rehabilitation, care, equipment and services required by the Claimant to mitigate their losses. Occupational therapy expert witnesses have various areas of expertise, including: • Care: mainly commenting on past and future care costs. • Equipment: commenting on equipment and adaptation needs • Rehabilitation: commenting on past and future therapy needs. • Vocational/functional capacity: commenting on work-related skills and abilities • Loss of service: commenting on ability/support requirements in order for the claimant to resume roles and responsibilities.
Once instructed, the OT expert witness will then be sent related and relevant documentation to read, usually referred to as a ‘bundle’. The bundle may include medical notes and reports from other experts, and statements from witnesses of fact and other professionals involved in the care of the Claimant. It is most common for expert witnesses to be asked to: • Read the bundle and make note of salient issues. • Visit the Claimant to undertake a comprehensive assessment of occupational performance • Provide a full and detailed report on the lifelong needs arising from the Claimant’s injuries, cross-referencing other information provided in the bundle as required.
It is the broad range and depth of knowledge required which makes the task of writing a care report particularly challenging and interesting. In addition to commenting upon the issue of care, my experience as an OT enables me to comment on equipment and adaptations reasonably required as a result of the index event. My role requires me to put people back in as far as possible to their pre-accident position. This EXPERT WITNESS JOURNAL
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• Revisiting the Claimant and providing an update report. • Attending case conferences with the instructing party, either in person or by telephone. The conference may also include Counsel, other medical experts and the client. • Taking part in a meeting between Claimantinstructed and Defendant-instructed care experts, usually by telephone. The aim is to provide a joint statement highlighting areas of agreement and disagreement between the care experts. • Responding formally to questions from either party concerning their report. • Attending Court and giving oral evidence.
lating corresponding costs. If the expert makes recommendations that are unreasonably extravagant, or indeed parsimonious, their credibility, objectivity and impartiality could be questioned by the Judge. Proportionality. The issue of proportionality is relevant to all experts in practice as they need to be aware of the relationship between the cost of producing their evidence and the cost of the case. If a Court considers that the overall cost involved in establishing or defending the case is disproportionate to the amount involved, the costs will be cut regardless of whether it was reasonable to incur such. Final Thoughts I am regularly approached by OT colleagues who are interested in becoming an expert witness. I always advise that in addition to the obvious requirement of extensive clinical experience, they need to be passionate about report writing because the reports can be very lengthy and arduous at times. Dogged determination is needed to present a thorough, well-reasoned report, taking into account all of the available medical/psychiatric/psychological evidence. A love of presenting an argument on paper and orally is essential. If you have those qualities, I would highly recommend working as a care expert.
Avoidance of Conflict of Interests As with all expert witnesses, the occupational therapist’s role is to provide impartial, professional advice, clarification, opinion and information to assist the Court to reach a fair and reasonable conclusion. To avoid potential or actual conflict, the expert witness should not have had any previous clinical or other contact with the Claimant, or act as the Claimant’s treating professional or clinical case manager during the litigation. If they do, it is likely that their evidence will not be accepted as they will not be considered an independent (and impartial) expert. Very occasionally an occupational therapist working clinically with a Claimant may also become the expert witness, where it is agreed that the practitioner is the only individual who could usefully fulfil both roles. However, this situation would be very unusual. There may be exceptional circumstances where this is unavoidable, in which case the Court, through the instructing solicitor, must be notified of a potential conflict and clear guidance must be sought.
Deanne Barrow Dip RCOT Deanne qualified as an occupational therapist in 1985. Since that time she has worked extensively in acute hospital and community settings taking sole responsibility for the management of a significant number of complex cases. E:deannebarrow@taniabrown.com W: www.taniabrown.com
An occupational therapist who has undertaken an expert role is free to take on any clinical or case management role once this litigation has been settled. Over Arching Principles Restitution. The principles that govern the assessment of damages are well established. The purpose of an award of damages in personal injury claims is, so far as is possible, to put the Claimant in the position they would have been in had they not been injured. This is summarised in Heil v Rankin et al [2001] 2 QB 272. Lord Woolf MR, giving the judgment of the Court of Appeal, said as follows at paragraphs 22, 23 and 27: … the aim of an award of damages for personal injuries is to provide compensation. The principle is that ‘full compensation’ should be provided… the compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the Defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable. Reasonableness. Although the issue of ‘reasonableness’ in determining quantum is ultimately a matter for the presiding Judge, an expert should understand and appreciate this basic principle of damages when making recommendations to meet needs and calcuEXPERT WITNESS JOURNAL
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Psychological Injury in Clinical Negligence Cases: What Needs Consideration? Hugh Koch, Clinical Psychologist and Visiting Professor in Law and Psychology to Birmingham City University (BCU), Emma Solomon, Eleanor Sutton, both Clinical Psychologists with Hugh Koch Associates, and Jill Molloy, lecturer in Law (BCU). Clinical negligence claims arising out of a misdiagnosis or incorrect diagnosis, incorrect treatment or poor patient care continue and appear on the rise. The insurance industry bears the brunt of the significant pay outs, with cancer by far the most common reason, accounting for 53% of claims (Webb, 2018) including breast, lung, bowel and rectal cancers. It has been reported in the media that delays in diagnosis are more likely to occur if you are poorer, reflecting issues of differential access to care and capacity to recognise symptoms of concern and attend their GP. Delays are also more prevalent in certain geographical areas, reflecting socio-economic issues.
This social and health awareness relates to both physical health implications, obviously, but also the psychological injuries, direct or indirect, and also the patient care and service implications of a medical incident. Added to these consequences, the actual bringing of a claim for clinical negligence is, in itself, a very stressful circumstance. As such, as Webb clearly and succinctly concluded, these claims, whether for claimant or defendant are about much more than a strict understanding of Bolam v Friend Hospital Management Committee (1957) 2 ALL ER 118, or the strict letter of the law. This article will focus on the steps taken to assess the psychological injuries incurred when a clinical negligent act or episode occurs. We clearly delineate how the decision-making process for psychological diagnosis occurs.
The role played by the media about the possibilities of litigation mean that people are far more aware of their rights and opportunities for redress when there is an ‘object’, person or persons to blame.
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to consider the issues below which relate to psychological causation, diagnosis and prognosis:
Reviewing the medical records and witness evidence As in all personal injury and clinical negligence cases, it is crucial to investigate the presence or absence of contemporaneous GP (or hospital) attendance as illustrated, usually reliably, in the computerised GP records. There should be careful examination of the number of visits reporting material symptoms, both physical and psychological, the time frame between visits, and timing of ongoing referrals. It is essential to prepare a medical chronology and detailed examination of these records to ensure the expert reviewing them has a complete and easily analysable set of records. This saves significant time and effort at a later stage reducing the likelihood of accidentally missed attendances.
Causation & attribution - Reason for original intervention/procedure - Satisfaction with associated effects - Effect of previous psychological symptoms/disorder (e.g. body dysmorphia, low self-esteem etc.) - Personality factors such as resilience/non-resilience, history of depression and/or anxiety Diagnosis & symptom definition Range of diagnostic opinion will include depression, PTSD, generalised or social anxiety disorder, pain disorders and psychosexual disorder. - Social anxiety post-surgery - Response from surgeon - Stress of process and procedure - Satisfaction with outcome, removal of, further surgery - Effect of anger with whole circumstance
It is crucial to obtain a detailed witness statement at the earliest stage, preferably by face-to-face interview. This ensures a comprehensive and reliable account of what occurred is recorded. It enables the lawyer to more efficiently instruct an expert who can be provided with a copy of these self-report statements saving time. This is essential for the lawyer and Court in its own right and much more efficient when instructing an expert, who can be provided with this self-report statement, saving time and ensuring a comprehensive and reliable account of what occurred.
Prognosis & treatment - Response/support from partner (if any) - Need for psychological treatment - Need for follow up Decision making in psychological diagnosis following a clinical negligence incident will involve ascertaining what, if any, psychological disorder (using DSM V or ICD-10 classifications) is appropriate and how or what to extent it can be argued to be due partly or wholly to the negligence event(s).
Psychological assessment and the issues At any stage in a clinical negligence claim, it may become evident that there are psychological issues which need to be assessed (Koch, 2018). These may be inextricably linked to the medical negligence itself e.g. cosmetic social anxiety following implant removal. A specific example, the psychological turmoil of breast implant removal and reduction was discussed by the first author and colleagues in 2012 in relation to vulnerability factors, and the negative consequences of post-implant removal surgery (Koch et al 2012).
An example of this decision-making tree is shown on the next page (Furst et al 1995): -
Hugh Koch Associates, established in 1993, provides a comprehensive and independent psychological and orthopaedic assessments service plus access to a psychological treatment service, throughout the UK.
Psychological assessments will include careful investigation of many issues relating to the claimant’s past, current and future emotional health including:
Hugh Koch Associates offer expert witness services including psychological, neuropsychological, orthopaedic, and pain Assessments. We offer a rapid assessment of specialists and experts throughout the UK who have been involved in one of the following situations: Personal Injury Types of situation: Road Traffic accidents (car, bike, lorry, pedestrian) Train Accidents (driver, passenger) Work Accidents Medical Accidents Assaults Emotional, Physical and Sexual Abuse Natural Disaster Accidents Refugee and Asylum Seeker Mental Health Problems Brain Injuries Work place stress (bullying, harassment, relationship conflict and workload-related) Health Issues (physical and psychological) including anxiety, depression, drug misuse and chronic pain
• History of prior personal injury and/or clinical negligence claims. • Level of symptomatology (physical and psychological) just prior to the clinical negligence event and its likely course, irrespective of any negligence. • History of pre-incident psychological symptomology and its ‘But For’ implications. • Relevance of post-index incident embitterment. • Validation of patient self-report via GP, hospital and/or occupational records. • Predictable relevance of litigation closure on resolution of psychological distress.
In addition, we also provide psychological therapy carried out by experienced therapists using up to date treatment techniques such as Cognitive Behavioural Therapy. Telephone: 01242 263715 - Fax: 01242 528299 Email: enquiries@hughkochassociates.co.uk - Web: www.hughkochassociates.co.uk Head Office: Hugh Koch Associates LLP Ground Floor, Festival House, Jessop Avenue, Cheltenham, GL50 3SH
When considering the psychological injuries resulting from clinical negligence incidents, it is important EXPERT WITNESS JOURNAL
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Decision making in a psychological diagnosis following negligent incident Symptoms
Condition
Anxiety about being embarrassed in social situations, especially if comments made about appearance
YES
Social phobia
Anxiety about sexual or intimate activity with partners or friends. Undressing anxiety.
YES
Psychosexual disorder
Anxiety associated with recent rumination about appearance
YES
Social phobia
Chronic worry about many aspects of everyday life (six months plus)
YES
Generalised anxiety disorder
Anxiety or low mood linked to specific stressful events related to surgical complications
YES
Adjustment disorder
Low mood, ongoing disruptive about health and appearance
YES
Depressive episode/ disorder or dysthymic disorder
Disturbance in sleep due to recent incident related thoughts
YES
Primary insomnia
Anxiety being in places, e.g. shops, crowds, where she feels embarrassed and wants to stay away
YES
Agoraphobia
Pain/discomfort significantly exacerbated by psychological factors. Post-surgery complications
YES
Pain disorder
Anxiety or worry about an imagined defect in size/ shape/appearance
YES
Body dysmorphic disorder
Anxiety about several physical/pain symptoms
YES
Somatization disorder
Mild depression or worry, not disruptive or in need of treatment
YES
Mild distress but no recognised psychological disorder
NO
NO
NO
NO
NO
NO
NO
NO
NO
NO
NO
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Stress of bringing a clinical negligence claim The reason claimants start the legal process are complex, but according to Malsher (2018), there is a relationship between the response of the health provider to the adverse events and the litigation. Many people who investigate the possibility of the claim have had no proper investigation of events, or explanations of outcome.
References Webb B. (2018) A practical guide to claims arising from delay in diagnosing cancer. LBP publishing. Somerset. Koch HCH (2018) From Therapist’s Chair to Court Room: Understanding Tort Law Psychology. LCB Publishing Koch HCH, Beesley H, Formby C and Fraser F (2017). Civil claimant embitterment: five case studies exploring clinical presentation and management. Medical Care Reports. 3, 3:29, 1-5
It is widely acknowledged that an individual bringing a claim for a clinical negligence-related incident(s) will find the whole process very stressful. Especially so, as the legal process requires the claimant to describe and discuss on several separate occasions, the incident and surrounding events. Alongside the stress and distress this causes, some individuals will feel frustrated and angry about the original circumstance plus the above stressful litigation process. This embitterment has been well documented (Koch et al 2017).
Koch HCH and Associates (2012) More than skin deep. New Law Journal 27/1/12 Furst MB, Frances A, Pinccus HA (1995) DSM-IV Handbook of Differential Diagnoses. APA Press. Washington Masher A (2018) The complex reasons why a claimant takes legal action. The Personal Injury Brief Update Law Journal 15/2/19
Conclusion It is important that in any clinical negligence claim, the psychological injuries that may have occurred are carefully assessed. Irrespective of the negligent behaviour involved, experts, both psychological and psychiatric, are routinely instructed to assess the level of distress and anxiety, and disruption which are sequelae of the physical symptoms occurring in these adverse medical incidents.
Further details on this topic can be obtained from Professor Hugh Koch (hugh@hughkochassociates.co.uk). Other relevant cases worthy of inspection are: Shaw V Leigh Day (2017) EWHC825 (QB) YAH V. Medway NHS Foundation Trust (2018) EWHC2964 (QB)
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All correspondence to:- Clinical Partners, Lister House, 11 Wimpole Street, London, W1G 9ST Contact Name; Caroline Scott Head of Triage Tel no 0203 962 2238 Email:- help@clinical-partners.co.uk - caroline@clinical-partners.co.uk Website: www.clinical-partners.co.uk Consulting rooms in: Birmingham - Bournemouth - Brighton - Bristol - Cambridge - Cardiff - Edinburgh - Exeter - Farnham - Glasgow Leeds - Leicester - Liverpool - London - Manchester - Newcastle - Nottingham - Oxford - Plymouth - Sheffield - Southampton
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Mental Capacity – The Devil is in the Detail I suspect I am not alone in acknowledging that the issue of mental capacity can be devilishly challenging. However, I am strongly of the opinion that all professionals working in the field of capacity carry a grave responsibility, in the interests of justice and of human rights, when seeking to protect some of the most vulnerable in our society. 5. Before an action is taken or a decision made, regard must be had as to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action Mental capacity assessments made under the Mental Capacity Act of 2005 will ascertain whether a person can: understand the information they are given; retain that information for long enough to make a decision; weigh up the information; communicate their decision – and mental capacity is decision-specific. The mental capacity test has two stages: firstly, there must be proof of an illness or injury that affects the way the person’s brain or mind works. Secondly, it must be demonstrated that the proven disorder of the mind renders the person unable to make a specific decision at a specific time, although this second stage applies only if the person has been given enough support to try to make the decision themselves. Clearly this is not a straightforward area – necessarily our work largely involves dealing with the shades of grey in which lawyers thrive. My very first catastrophic brain injury case, which involved Robin de Wilde QC of Masterman-Lister fame, was partly concerned with capacity. Of course, in many brain injury claims, lifetime COP costs amount to very substantial sums, and as a consequence tend to be highly contentious and this case was no exception. My client’s first barrister – who, interestingly, was later successfully sued for negligent under-settlement under similar circumstances – advised my client, who was in his 20’s, to accept an offer of £50,000 damages. At that time, the claim was based upon the opinion of a then pre-eminent consultant in neurorehabilitation whose view was that my client should be encouraged to think more positively about his situation: “His prognosis is good, and I do not believe that he needs any professional support.” In advising my client to sack the barrister and the expert I was acting on gut feeling, really. Having appointed Robin de Wilde QC, and continuing as a litigation friend, we succeeded in a claim for COP costs and achieved a an approved settlement of £1.1 million. I regularly cite this case as I still find it extremely instructive.
In this article, I will seek to consider fundamental points, share case studies and recollections from my 25-year career specialising in ‘walking wounded’ frontal lobe brain injury claims, and pick up on some points of importance from a couple of recent COP cases. I see myself as something of an old war horse; my vintage can be judged by reference to the fact that during my articles of clerkship, as it then was, my supervising partner was involved in the renowned Masterman-Lister (Masterman-Lister v Brutton and co [2002] EWCA) litigation, which involved a Hampshire law firm. The case featured an attempt to reopen a ten-year old personal injury claim, citing incapacity on the part of the claimant – the Court of Appeal decided that the key question was whether a person has capacity to make a relevant decision at the relevant time. Over the years cases such as this have demonstrated that failing to get to grips with capacity can have perilous consequences. This case is still cited in the Civil Procedure Rules as important in the context of interpretation of the Mental Capacity Act 2005. More recently, I conducted a personal injury claim that was later reported as the Court of Protection case of Watt v ABC [2016] EWCOP in which Mr Justice Charles provided guidance as to the approach that should be taken when considering whether a fund of compensation should be managed within the Court of Protection or through a protective trust fund. The Mental Capacity Act of 2005 sets out five principles designed not only to protect people who lack capacity to make particular decisions but also to maximise their ability to make decisions: 1. A person must be assumed to have capacity unless it is established that he or she lacks capacity 2. A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success 3. A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision 4. An action taken or decision made under this Act for, or on behalf of, a person who lacks capacity must be in his or her best interests
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For instance, close friends might explain that a client will unquestioningly do anything he is asked by one of his trusted friends; a case manager might report that the client has said that his problem is not his brain injury but his solicitor. If I attempt to advise and seek instruction from a client who is thought to lack litigation capacity, I know in advance that I will need to keep a very careful note. If I am taking a client through a funding agreement, for example, I will give them a short succinct summary of the key points, including the fact that if they lose their case, they will pay nothing. If I am met by a look of utter confusion or a blank stare, which is not uncommon, this can be an early clue to all not being well. If I am unsure, I tend to enter into the funding agreement with the injured person in their own right and also through their litigation friend, depending upon the eventual determination of capacity. The case of Blankley (Blankley v Central Manchester...NHS Trust [2015] EWCA) provides important protection to a lawyer in that first meeting situation: a funding agreement entered into with someone who is later determined to lack capacity remains valid – although, in law, a contract can be declared void upon clear evidence of incapacity at the time it was entered into.
Fundamentally, assessing mental capacity comes down to gaining an understanding of a person’s thought processes. While capacity is decision-specific, it is very important to test out how a client’s mind is working, how they think things through, how they seek support, and how they act on that support to enable the making of a sound decision at whatever level, upon whatever subject. In this case, despite offers of help my client insisted on organising his own move to a rented flat. It transpired that he spent his first night in his new place, in the dark, with no services, no furniture, laying on the floor in his sleeping bag, surrounded by lit candles. It was unsurprising, therefore, that we were subsequently able to establish incapacity. This client, who was not in the habit of asking for help anyway, did not understand his vulnerability nor realise he was in need of assistance. He struggled to rationalise, to weigh and balance information. He lacked insight. He gave the outward appearance of being fine, which is not uncommon. However, he clearly did have the capacity to decide where to live – in Southsea, Hampshire – and to choose wisely with whom to spend his time, as evidenced by the his support ‘buddy’ who worked with him for around 20 hours each week and who ended up providing enabling support for many years. This capacity, that of deciding where and with whom to live, is very important in the context of health and welfare decisions, of which more later in this article. I have always thought it fundamental to capacity to consider whether a client understands the concept of friend versus foe. For instance, if a claimant is considering whether to accept a compensation offer of £50,000 yet are more interested in what their mates have to say about it than in listening to their lawyer’s opinion, then something might be amiss. A few years ago, an injured client of mine was absolutely furious with me for advising him, as a litigation friend, not to accept a £75,000 settlement. He said: “My mates tell me that I’m fine and my case needs sorting out ... Take the money!” He regularly phoned the defence solicitor to make threats against me and called me in person most weeks, ranting down the phone at me – he saw me as a block, or barrier, between him and his money. However, it became clear in the final body of evidence that he was by reason of his brain injury (neuro cognitive, organic behavioural and personality disorder) fixated on me as ‘the enemy’. It was therefore impossible to reason with him, stuck as he was in his mind that all he wanted was his money. His litigation friend, a family member, was in an unenviable position and quite understandably did not feel comfortable challenging him. He simply would not listen. Applying the 2005 Mental Capacity Act, he could not weigh information in order to arrive at the decision and he could not be supported in the decision making process. We eventually succeeded in a securing a substantial seven-figure settlement that included long-term COP provision.
As for considering protected beneficiary status – determining whether a Court of Protection deputy should be appointed – in these cases I seek to test out whether the injured client understands the fundamentals of ensuring a fund to meet lifetime needs. For instance, if I were advising my client about a fund to provide paid enabling support to ensure a good quality of life and my client were to say: “When I get my money, I won’t t spend it straight away, I’ll save it for when I am older,” that probably raises at least as many alarm bells as the client who says: “I’ll buy a Porsche and then jet off with my mates to blow some money in Las Vegas!” I recently had a lively debate with an eminent consultant neuropsychiatrist about the Mental Capacity Act 2005 fundamental of ensuring sufficient support is in place to enable a decision to be made. If, with support, the person can understand and weigh and balance the relevant information, then make and communicate a decision, that is fine. However, in practice I have found it wise to ask whose decision it is: is this my client’s decision or are they merely articulating the opinion of someone they trust? In my experience, if a client engages rationally in a conversation and asks good questions, that is a positive sign. I am mindful that in the domain of health and welfare matters, such as where a person will live and with whom or whether they will be deprived of their liberty, healthcare and legal professionals should be particularly cautious, especially when considering a client’s human rights. For instance, a brain-injured young man may be inclined to display impulsive or irrational behaviour, struggle to deal with day-to-day situations, or be unable to think their way through a
Taking very detailed, focussed and analytical witness statements is, I have found, of vital importance as they can provide a window into the injured person’s mind. EXPERT WITNESS JOURNAL
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The case of Southend-on-Sea BC v Meyers [2019] EWHC (Hayden J) considered the decision-making capacity of a vulnerable father in an ‘unhealthily’ close relationship with his son. The judge held: “The admirable features of Mr Meyers’ personality have become confused and distorted in a relationship in which the two men have become so enmeshed that the autonomy of each has been compromised. In reality, KF exerts an influence over his father which is malign in its effect if not its intention. The consequence is to disable Mr Meyers from making a truly informed decision, which imparts directly on his health and survival.” It is worth focussing on the words “truly informed” – we often ask ourselves whether, even if someone does not follow advice, they ‘get it’. Of course, individuals are entitled to make what may turn out to be a foolhardy decision but they must be able to understand, rationalise, and at least be capable of seeing another’s point of view, even in a simplistic way.
financial or legal conundrum, yet at the same time they could be perfectly capable of knowing their own mind and making rational choices when it comes to the fundamentals of life. Psychiatrists and rehabilitation case managers ignore at their peril a client who says: “I am not going into a unit, I don’t want to be shut away, I want to be working, doing stuff, feeling good about myself, with my girlfriend and my family, and with my support worker who is a top man.” Finally, I would like to consider a few points from recent cases. In Re A (Capacity: Social Media and Internet Use: Best Interests [2019] EWCOP2 and Re B (Capacity: Social Media: Care and Contact [2019] EWCOP3 (Cobb J), the court considered the need to focus on ‘salient’ factors when looking at the ‘relevant information’ that must be understood, used and weighed by the claimant in order to arrive at a decision about internet and social media use. These were held by Cobb J to include: “If you place rude or offensive material or images on social media, or share those images, other people might be upset or offended.” Although the capacity point was quite niche, this case provided an example of clear judicial thinking about the thought processes and level of understanding that underpin a sound decision. In Re B (above), Cobb J offered the following general observation: “I have reminded myself of the importance of establishing the causative nexus between the impairment of mind and the inability to make decisions.” This is a founding principle of the 2005 Mental Capacity Act.
As an eminent QC once said to me; “It is all about understanding the thought processes.” Paul Fretwell is a solicitor and Head of Personal Injury at George Ide LLP, Chichester. He is an APIL-accredited senior litigator and brain injury specialist and has been a member of the Law Society’s personal injury panel since 1994.
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Cultural, Religious and Ethnic Factors in Gun and Knife Crimes Worldwide; How to prevent? by Dr Bashir Qureshi FRCGP, FRCPCH, AFOM-RCP, Hon FFSRH-RCOG, Hon FRSPH, Hon MAPHA-USA. • Expert Witness Cultural, Religious & Ethnic issues in Litigation. • Expert Witness in GP Clinical Negligence. • Author, Transcultural Medicine; dealing with patients from different Cultures. the kitchen knife but its user who is responsible for correct use or misuse.
Gun and knife crimes are increasing, mostly among male school leavers worldwide e.g. in the USA, UK, New Zealand, Brazil, Middle East and so on. It is often a population problem and it is directly related to Public Health education in Schools worldwide.
• Religiously, setting fire to burn a person, house or shop is common in India. It is an old custom of Hindu religion to burn the widow in a "Sati" ceremony, when her husband dies, for her to live with him in next life. Cremation is the religious custom and not a burial. Hindus also believe in reincarnation. Religions always aim for good action with noble intentions.
Prevention by teaching students, better communication skills in a situation of disagreement between opponents, would achieve better results than just ceasing guns or knives. In fact, weapons would damage both parties. Another reality to consider is that Guns and knives would always be available with or without license, in every country. Obviously, hiding weapons is not the only solution. We need to realise that teachers and police can both reduce these crimes and they should be supported nationally.
• Sikh Religion requires every follower man to carry a knife, named as KIRPAN, with him. In some countries, e.g. United Kingdom, the knife has to be kept hidden under one’s clothes. In other countries e.g. India, Kirpan has to be carried visibly so as to deter any possible attacker.
Multicultural, Multireligious and Multi-ethnic aspects in this trend: The majority of people in all Cultures, Religions and Ethnic circles are peace loving and have mutual respect. Using weapon in wars to bring peace is considered justified. However, some young men may become angry, emotionally upset or mentally unwell and commit these crimes. They may use mobile phones so much in excess that they lose verbal communication skills. Social media, as with a kitchen knife, can be used or misused by them. In these circumstances, some Cultural, Religious and Ethnic (racial) factors should be considered in addition to policing and legal actions. I mention some factors below:
• Every Cultural, Religious and Ethnic community aims to prevent crime but plead for self-defence. The necessity is to keep a weapon in safe hands for selfdefence and also to prevent any criminal attack. The solution to this global fatal trend is by Public Health Education in schools: • The aim should be to keep guns and knives in safe hands and secure places but to avoid the misuse by all criminals, especially young men; single or member of a gang. The solution should be as follows: 1) To teach school adolescents, in special sessions and workshops, to communicate with each other face to face, in addition to using mobile phones and emails by computer. Practice makes a man perfect. Students would remember this practice.
• Culturally and Ethnically, Gun Crime is more common in the USA, South America and Europe; guns are easily available and adolescents can learn to use them effectively. Guns and cannons were invented in and used by the armies from European countries, for centuries. Weapons are essential to use for an attack, defence and deterring any attack. It is the misuse which needs to be stopped.
2) To tolerate criticism; positive or negative. Criticism is good for progress in Politics and Science. To control anger when facing a negative comment from someone. 3) In a situation of disagreement, to use verbal expressions of disagreement or anger than harming or killing someone. Later on, a compromise may be possible.
• Culturally and Ethnically, Knife Crime is more common in Africa, Asia and China; knives are always available and easy to use by male adolescents. Guns are not easily accessible and training is not at hand. Kitchen knives and axes are commonly used. It is not EXPERT WITNESS JOURNAL
4) To emphasise that if one is nice to a friend, he/she would become a better friend; if one is nice to an
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enemy, he/she would become less enemy. This could end in a win-win situation.
Dr Bashir Qureshi
5) To assess if the adolescent has a mental illness such as undue stress, anxiety, depression or Schizophrenia which usually begins in teenage years. If so an urgent referral to their GP or Urgent Care Clinic in a local hospital should be arranged.
FRCGP, FRCPCH, Hon. FFRSH, RCOG, AFOM-RCP, MICGP, DCH, DHMSA, DPMSA, FRIPH, Hon.FRSH, Hon.MAPHA-USA
Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. Expert Witness in GP Clinical Negligence.
6) Politics, economics and law are as important in patient care as medicine. To save money in these days of austerity, national cuts are essential. In these difficult circumstances, it is wise to have enough numbers of school teachers and police. The nation needs them to prevent and deal with crimes. A stitch in time saves nine.
As a specialist in Cultures, Religions and Ethnicities, since 1992, I have written reports, given advice, and evidence in tribunals or courts. In cases of medical negligence, discrimination in employments, personal injuries, accidents, murder inquiries by police, family or marital disputes, child abuse, sexual abuse, immigration, asylum and other litigation cases.
In conclusion Most common causes of Gun and Knife crime are; religious conflicts, racial prejudices, cultural misunderstandings, personal disputes, gang frictions, drug addiction lack of payments and attacker’s mental illness.
Languages spoken: English, Urdu, Hindi, Punjabi. Author of ‘TRANSCULTURAL MEDICINE’ Dealing with Patients from different Cultures, Religions & Ethnicities.
It is not possible to eliminate these crimes only by banning guns and knives but these can be much reduced by asking teachers to educate their pupils to control anger and communicate verbally in confronting an opponent and to use mediation where possible. Police role is vital in prevention by screening suspected persons and also in dealing with those who have committed crimes. Courts and Jury would see that justice is done and seen to be done.
Contact: Tel: 0208 570 4008 Fax: 0208 570 4008 Mob: 07710 402 276 Email: drbashirqureshi@hotmail.com Web: www.drbashirqureshi.com 32 Legrace Avenue, Hounslow West, Middlesex TW4 7RS
Teachers and police number should be adequate to meet demand, reasonable salary and their own protection should be sufficient and guaranteed. Indeed, this is an investment which can definitely pay dividend to the tax payer society.
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Capacity to Use the Internet This is a guest article from Keri Tayler. Keri is a barrister specialising in Court of Protection work. She tweets as @keri_tayler. Cobb J first had to decide whether the use of the internet and social media is a sub-set of decisions involving care and contact with other persons, or whether they are free-standing decisions. He decided that they are in fact distinct decisions. This was because he considered that there is a risk that if it was considered in the contact of general care and contact decisions “it would lead to the inappropriate removal or reduction of personal autonomy in an area which I recognise is extremely important to those with disabilities”.
Two recent judgments in the Court of Protection sparked the usual inaccurate headlines suggesting that the court had ridden roughshod over the rights of adults with learning difficulties to access the internet, and more specifically social media. In particular this one from The Times stood out: Social workers can stop vulnerable people using social media. But is this what the court decided? Those readers with a working knowledge of the Mental Capacity Act 2005 (“MCA”) will know that the court can only make decisions on behalf of adults where they are assessed as lacking the capacity to make decisions for themselves. Whilst the lack of capacity to make a decision can of course make a person vulnerable, not all vulnerable people lack the capacity to make the relevant decisions.
Having decided that they are specific decisions in their own right, and he could therefore not rely on the existing law relating to contact and care, he had to formulate what the relevant information is to the decisions in questions in order to be able to decide whether A and B had the relevant capacity.
The two cases in question are Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2 and Re B (Capacity; Social Media; Care and Contact) [2019] EWCOP 3. Both were decided by Mr Justice Cobb (Cobb J).
With what he acknowledged was significant assistance from counsel he formulated the relevant information as follows (para 28):
In Re A, Cobb J begins by specifically acknowledging the importance of the internet and social media for people who have disabilities:
i) Information and images (including videos) which you share on the internet or through social media could be shared more widely, including with people you don’t know , without you knowing or being able to stop it;
The internet and associated social media networks are particularly important for people who have disabilities, and/or social communication problems. They enable ready access to information and recreation, and create communities for those who are otherwise restricted in leaving their homes. The internet and social media networks have generally served over the years to promote social inclusion, rather than exclusion; they offer disabled users opportunities and enhanced autonomy, they provide a means to express social identity, and they enable the learning of new skills, and the development of careers. The importance of creating and maintaining ready access for the disabled to electronic and digital technology is well-recognised, and needs no amplification in this judgment; it is indeed identified as a right within the United Nations Convention on the Rights of Persons with Disability (‘UNCRPD’)
ii) It is possible to limit the sharing of personal information or images (and videos) by using ‘privacy and location settings’ on some internet and social media sites; [see paragraph below]; iii) If you place material or images (including videos) on social media sites which are rude or offensive, or share those images, other people might be upset or offended; [see paragraph below]; iv) Some people you meet or communicate with (‘talk to’) online, who you don’t otherwise know, may not be who they say they are (‘they may disguise, or lie about, themselves’); someone who calls themselves a ‘friend’ on social media may not be friendly; v) Some people you meet or communicate with (‘talk to’) on the internet or through social media, who you don’t otherwise know, may pose a risk to you; they may lie to you, or exploit or take advantage of you sexually, financially, emotionally and/or physically; they may want to cause you harm;
He goes on to identify the risks associated with such access, which apply to us all. They were categorised in this way: content risk (receipt of mass-distributed content which may be harmful or distressing), conduct risk (where the user participates in an interactive situation, with risks emanating from the over-sharing of information or becoming a victim of bullying) and contact risk (where the user becomes a victim of interactive situations). EXPERT WITNESS JOURNAL
vi)If you look at or share extremely rude or offensive images, messages or videos online you may get into trouble with the police, because you may have committed a crime; 84
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difficulty, suffers from epilepsy and has considerable social care needs. She is described as being “wedded to her mobile phone and uses it to communicate via social media”. Concerns arose in relation to Miss B when it was found that she was sending intimate photographs of herself to male strangers, and sharing personal information. She was also using the internet to search for a boyfriend. Her online relationship with a Mr D was a particular concern.
He went on to provide some additional points of guidance before being very careful to make the observation that whether understanding that accessing the internet raises the potential for psychological harm was not part of the list of of relevant information precisely because many capacitous internet users do not specifically consider the risk, or if they do, they are indifferent to it. So how did he apply this formulation of the law to A and B?
In relation to Miss B, whilst Cobb J found that she lacked capacity as at the date of the hearing to make decision about her use of the internet, he considered that steps could and should still be take to enable her to acquire capacity, and in that context only made interim declarations whilst those steps are carried out. If she did not acquire capacity he rightly foresaw that significant issues would arise in assessing her best interests and balancing her exercise of her freedoms to use the internet with the need to ensure that she was not exposed to unacceptable levels of risk.
A is a 21 year old man with impairments in his adaptive social functioning and executive functioning. He lives in independent supported living and receives extensive personal care support. He also identifies as a gay male, and it was the sharing of intimate photographs with other males on the internet which first alerted those who care for him to concerns with his use of social media. He was also found to search compulsively for pornography and had begin to develop an interest in sites whose content would be illegal, yet could not read or understand the warnings about content and safety.
So far from designing a tool to enable social workers to stop vulnerable adults using the internet, what Cobb J has in fact created is a careful road map to assessing capacity to use the internet and social media and then adopted a measured approach where such capacity was found to be lacking. Those of us who practice in this area expected nothing less, it’s the media narrative that remains out of kilter.
Cobb J found that A lacked capacity to make decisions about his access to the internet (paras 30 and 31) and, in terms of best interests, approved the local authority’s care plan which allowed A access to the internet and his mobile telephone – but with appropriate levels of supervision and safeguards.
This article first appeared on the Transparency Project blog www.transparencyproject.org.uk
Miss B (whose age isn’t immediately apparent on the face of the judgment but from the overall content must be assumed to be a young adult) has a learning
Dr David Nathaniel-James Consultant Clinical Neuropsychologist HCPC Registered Clinical Psychologist, Chartered Scientist BA, MSc, PhD, DClinPsy, CPsychol, CSci, AFBPsS
Specialising in the assessment and treatment of neuropsychological and emotional changes resulting from acquired brain/head injury, neurological disease, learning disability and psychiatric illness. Dr David Nathaniel-James holds Doctorates in both Neuropsychology and Clinical Psychology. He has extensive experience in neuropsychological assessment and treatment. On average he prepares 65 medico-legal reports a year which includes people who have suffered a brain injury arising from a road traffic accident, medical negligence, or an industrial accident. Additionally he has provided reports for employment tribunals and in high profile cases. Rare specialist expertise in: Vocational Assessment and intervention. Consulting rooms in Harley St. London and Rodney Street Liverpool. Contact: 10 Harley Street, London W1G 9PF Tel: 020 7467 8476 Fax: 020 3609 6788 Mob: 07930 608 158 Email: dnjdrdr@gmail.com EXPERT WITNESS JOURNAL
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Children’s Play It is often assumed that a children’s play area is a safe haven where no one will ever be hurt, but actually they are areas where children learn, grow and develop new skills in an area where the risk can, to some extent be managed, but never completely eliminated. Individual children develop differently, make unrealistic assessments and will at times be over confident. Child Development How a child becomes able to undertake more complex things as they get older. Development is different than growth. Growth only refers to the child getting bigger in size. When we talk about normal development, we are talking about developing skills like:
Social skills: Interacting with others, having relationships with family, friends, and teachers, cooperating, and responding to the feelings of others. Risk & Challenge - A Matter of Understanding As children grow, they need to explore their abilities and take on new challenges or indeed repeat a challenge they have undertaken previously. Unfortunately, by participating in this growing up process they do make mistakes and sometimes they get hurt. It is not uncommon for children to fall from equipment, falls account for approximately 50% of all accidents in playgrounds.
Gross motor skills: The control of movements that include the whole body or large groups of muscles. This results in large movements and control of large joints. Fine motor skills: The control of movements that include activity in small or few groups of muscles. This results in more advanced movements and require a high degree of precision and timing.
There is a tremendous amount of discussion concerning Risk Assessment in many areas and none more so than in children's playground environments (including skate parks and multi-use games areas); and there is often a cry that the equipment is too high, or too dangerous or just too risky. However, we must not get the positives of risk confused and instead perhaps we should look at challenge and hazard.
Language skills: Speaking, using body language and gestures, communicating, and understanding what others say. Cognitive skills: Thinking skills such as learning, understanding, problem solving, reasoning, and remembering. EXPERT WITNESS JOURNAL
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any items in a playground that are likely to cause a serious, disabling, or fatal injury during the course of a year’s work.
Challenge is very positive and in its association with playground equipment becomes a very desirable attribute that encourages children to explore their limitations and develop new skills. A challenge can be an item of equipment or a number of items of equipment that encourages users to try and learn new ways of doing things.
In today’s society, it is important to understand that owning or operating a play area comes with certain responsibilities in order to protect yourself and your organisation against claims and litigation. There is no specific legal responsibility to provide inspection & maintenance programmes for children’s play areas; however, the British Standards Institute, Health & Safety Executive, Insurers and major Safety Organisations recommend such procedures.
A skate park, or wheeled sports park offers a very high degree of challenge, we all recognise (and seem to accept) that users of skate parks will have mishaps and possibly this will result in a few broken bones. This does not infer for one moment that the park is high risk or that there are problems associated with the design of the equipment, but rather that in participating in the challenge a skate park offers we can reasonably expect that the users will try new tricks and exceed their limitations.
The Health & Safety at Work Act 1974, along with The Management of Health & Safety at Work Regulations 1992 and the Occupiers Liability Act 1957 & 1984 provide a framework to which all owners and operators of play areas should work. Under these Statute Laws there is a legal responsibility placed upon the playground operator to ensure the health and safety of all visitors to the playground.
A hazard is a negative influence in a playground and is usually associated with something being wrong with the equipment, the safer surfacing, or the surrounding environment and is likely to cause harm to the user or a visitor to the playground. The hazard can take many forms; from a missing fixing that causes the equipment to fail; to poor design of the area which could result in collisions between users or between users and equipment.
Playground Managers have a legal and moral responsibility duty of care to children using the site and at the same time need to meet the expectations of the courts. In our experience, meeting or resisting injury claims has very often turned on the quality of the inspections, subsequent maintenance and the quality of the retained documentation.
The key here is that with a hazard the users of the park or playground do not expect the hazard (e.g. the swing seat collapses because the fixings have ' worked loose, or the chain has worn through) and because it is not foreseeable an accident results.
Inspections There should be a three-tier inspection regime in place for the playground;
It is important that we provide play facilities that offer users a degree of challenge that is suitable for the intended user group. Challenge is a very positive aspect of play and it is important that our parks are sufficiently stimulating to bring children back time and time again. However, all of the challenges provided in a park should be foreseeable by the children using the park.
Routine Visual Inspection Looking at the equipment’s basic condition, especially faults due to recent vandalism, breakages and also cleanliness of the playground. These inspections can be carried out by the manager or his/her staff and should be recorded. Dependant on usage, these inspections should be carried out weekly as a minimum. Operational Inspection Looking in more detail at the condition of the equipment, providing a quality control check on the more regular inspections and identifying wear and tear on the equipment. Such inspections should be carried out by an appropriately trained member of staff, or alternatively by a suitably qualified specialist and should be recorded. These inspections should be carried out at least on a quarterly basis.
We must not confuse the risk associated with hazard with the risk associated with challenge. Challenge is a very positive thing, providing children with opportunities to grow and explore their own abilities. A hazard is an unexpected danger that we could not reasonably expect the users to see and which could cause them injury. Owners/operators of parks have a duty of care to remove unforeseeable hazards that may cause injury and demonstrate that they have acted diligently in the process of operating the park. This is why we have the inspections of each of the parks both those undertaken by the owners and the independent Annual Inspections.
Annual Inspection To be carried out by a specialist not connected with the playground operator or manager. Essentially looking at vandalism, wear and tear, long-term structural problems, Standards compliance and design, along with risk assessment etc. This report essentially covers the overall safety of the playground. British & European Standards
While all of this discussion is going on, we should not get over excited by risk in playgrounds; statistically they are very safe places for our children to be. It is unlikely that a competent inspector will find many if EXPERT WITNESS JOURNAL
The standard (BS EN 1176) for playground equipment is safety standard, the intention is to be able to offer the children using the areas the chance to en87
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counter acceptable risks as part of a stimulating environment. The standard itself is made up of a number of different parts for swings, slides etc. The introduction to Part 1 sets out the intention of the standard and makes interesting reading; one sentence says ‘children need to learn to cope with risk and this may lead to bumps and bruises and even occasionally a broken limb’.
Summary Playground operators have a responsibility for the health and safety of all visitors to the site and must ensure that all reasonable and practical steps have been taken to achieve this goal. In general terms this will mean having a good robust inspection and maintenance regime in place to ensure the upkeep and continued safe use of the area.
‘The aim of the standard is first and foremost to prevent accidents with a disabling or fatal consequence, and secondly to lessen serious consequences caused by the occasional mishap that inevitably will occur in children's pursuit of expanding their level of competence, be it socially, intellectually or physically’.
It is also important that people undertaking the task in hand are competent; this is not always necessarily about qualifications, it is about having sufficient knowledge and training. The Register of Play Inspectors (RPII) was established in 1999 to provide training for Routine and Operational Inspectors, and accredit inspectors at all levels. playinspectors.com
Playground Surfacing One important myth to expel is that the impact attenuating surfacing installed around playground equipment is an injury prevention surface; quite simply the only reason impact attenuating surfaces are installed around playground equipment is to prevent serious head injuries e.g. skull fractures or brain damage.
Keith Dalton Managing Director – The Play Inspection Company Chairman - RPII (Register of Play Inspectors) www.playinspectors.com www.playinspections.co.uk
There are may types of impact attenuating surfaces used throughout the UK, these can range from grass, sand, bark or wood chippings, to specialised synthetic surfaces.
FOR EX XPERT ADVICEE ON TIMBEER, TRUST BM TRADA TO DELLIVER
www.bmtradda.com
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Expert Witnesses – The Good, The Bad and The Guns for Hire The use of land and property experts to inform legal proceedings is nothing new. The ancient Romans, for example, occasionally used land surveyors as legal experts. Judicial proceedings have evolved a great deal, and it is apparent that the model we recognise today whereby technical experts testify in Court and provide opinion evidence to inform the Judge’s final decision is very different to Roman times. Even so, the current model for making use of expert witness evidence is not as modern as you might think. The prototype expert witness can be traced back to 1772. In the case of Folkes v. Chadd, John Smeaton, a civil engineer, was instructed to provide testimony about technical issues concerning the development of a harbour at Wells-Next-The-Sea in Norfolk. The decision to use Smeaton’s opinion evidence to inform its substantive decision, was a starting point for a continuous expansion of expert testimony in Court and other proceedings. Traditionally, any person who has possession of knowledge and/or experience of a subject, over and above that of a layman, could be held out as an expert and called upon to give evidence as an expert witness. For a long time, just being manifestly proficient in a subject area, has been all the qualification a surveyor needs to be an expert witness in Court or other proceedings. Experts were able to perform their duty without fear of being sued in negligence.
However, in more recent times, the skills required of expert witnesses have become far more wide-ranging, to the extent that being a credible subject-matter expert is no longer enough. Following the Supreme Court Judgment in Jones v Kaney in 2011 expert witnesses can now be sued for being careless or inattentive. The reality now is that being a technical expert does not necessarily make someone a good expert witness. To be both a dependable expert witness and avoid getting into difficulties with instructing parties and Courts alike, experts are required to be competent in a wide range of other skills too. Expert’s today must be fully conversant with, and comply with, increasingly intricate legal and procedural formalities that have become attached to the role. They must understand, and be able to carry out, the function in accordance with applicable rules and Court directions, which can sometimes be complex. However, there is one straightforward principle that all expert witnesses are required to follow. They must be consistent in their primary duty to assist the Court and remember always that they are not employed to promote the case of either party. In recent times, there has been increasing criticism voiced by the judiciary of expert witnesses who enter into inappropriate fee arrangements with clients, and of a few who are unashamedly "guns for hire". Judges have been drawing the attention of societies and professional institutions, of which many expert witnesses are attached, to these problems and encouraging them to improve the way they regulate their members who act as experts. Where an expert witness works under an arrangement where the amount the expert earns in fees is dependent on the extent of the instructing party’s success in the proceedings, there is a risk the expert will be pressured into being an advocate. Even if an expert is immune to such pressure, the mere existence of a fee arrangement will give rise to a perception that they are primarily concerned to support the instructing party’s position.
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Barristers for instructing parties will often coax expert witnesses into providing accurate and admissible evidence that will support their client’s cases. They must not, however, put the expert into the witness box if they believe the expert is unable to remain within their area of expertise and be open and honest, even if it harms the instructing party’s case.
a mandatory RICS professional practice statement. RICS publishes guidance and encourages its members to undertake training and attain an RICS Expert Witness Certificate. All of this is intended to give confidence to instructing parties and Courts that they can depend on RICS members to know how to discharge the role of expert witness to a high standard. Poor conduct by experts may not only create problems for them, it will often reflect on their peers. Judicial criticism of expert witnesses is currently happening and could soon escalate. If it does, it will inevitably throw a spotlight on the individual expert. It can also give rise to wider concerns about the behaviour of other professionals, especially those who work as expert witnesses. In these days, experts who are chartered surveyors, lawyers, doctors, etc. must strive even harder to demonstrate professional and ethical behaviours that are expected from people who are members of their relevant professional bodies, and ensure the role of expert witness endures for a long time to come.
Barristers for the other side will interrogate experts robustly, often with the objective to undermine their credibility and challenging their opinions. It is clear that a simple way to undermine an expert’s credibility in front of a judge is to demonstrate that they have a commercial imperative to see that their instructing party is successful. There is no legal duty for expert witnesses to be trained in how to present evidence and to understand, and comply with, their duties to the Court. Many experts are members of professional regulatory bodies. These bodies must take responsibility for ensuring their members act professionally and undertake the role of expert witness in accordance with the appropriate rules.
Martin Burns RICS, Head of ADR Research and Development 25 March 2019
I work for the Royal Institution of Chartered Surveyors (RICS). Members of RICS who act as experts in Court or other proceedings must not only comply with legal requirements for expert witnesses, but also
Eur Ing Dr. Robert Brown Electrical, Electronic and Control Engineer Providing consulting and expert witness services to the legal, industrial sectors. media and private individuals. An expert witness in the fields of electrical, electronic and control engineering. A renowned expert in the operation and design of electrical fuses, circuit breakers and other electrical fault protection systems, specialising in how these devices operate in domestic and industrial systems with relevance to the faults generated by domestic appliances and industrial equipment. Robert’s expertise also includes the design and operation of electrical and electronic control systems for domestic and industrial environments including cable wiring, electrical current switching, electrical power generation and utilisation, automatic (computer) control of domestic and industrial process, sensory and sensor systems including parameter data capture and accurate data ‘representation’. Robert has provided expert and legal representation, acting as a single joint expert in numerous cases, having also acted as an expert working directly with private individuals, solicitors, barristers and other legal professionals. He has extensive court experience ranging from International Courts to County Courts. Robert also has media experience having appeared on national television for the BBC, giving advice and evidence for the consumer protection series of programs ‘Don’t get done get DOM’ and XRay, BBC Wales version of ‘the popular primetime BBC program ‘Watchdog’ Robert undertakes instructions nationwide Telephone: +44 (0) 1709 739228 - Mobile: +44 (0) 7976250624 Email: robertbrown@robertbrown.uk.com - Web: www.robertbrown.uk.com The Technology Centre, Advanced Manufacturing Park, Brunel Way, Catcliffe, Rotherham, South Yorkshire, S60 5WG
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To find out more: t 024 7686 8584 w rics.org/expertwitnesscertificate e drstraining@rics.org
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Timing Is Everything: How Early Retention of Expert Consultants Can Make Or Break Your Construction Claim by Whitney Judson - Kilpatrick Townsend and Stockton LLP Resolution of construction disputes oftentimes involves the unravelling of complex issues, and requires the analyses and opinions of expert witnesses in various industries related to the project. For these reasons, retaining an expert consultant as soon as litigation is imminent can truly be a difference-maker in a party’s pursuit or defense of construction litigation claims.
credibly advantageous to a potential party to a construction dispute because the consultant has the unique ability and knowledge to assist attorneys very early on in formulating pointed written discovery requests and deposition questions and topics that will most effectively support the party’s claims and defenses. If the construction dispute advances to mediation, a party with a consulting expert already on hand is again at an advantage because the consultant can assist the legal team in presenting strong evidence at mediation that most accurately quantifies and assesses damages, and that most effectively attacks the claims of the opposing party. This added layer of expertise, accuracy, and credibility at such an early stage in the dispute may very well motivate the opposing party to actively pursue settlement, which saves all parties involved time and expense. If the construction dispute moves into the litigation process, a non-testifying expert consultant can assist the legal team in selecting an expert witness who will testify at hearings on behalf on the party. The consultant, as an expert in the field and as someone who has been analyzing the
Early retention of a non-testifying expert can be invaluable to a potential party to a construction dispute. Instead of offering testimony in any hearings connected to the dispute, an expert consultant will essentially join the party’s litigation team to assist in preparing and shaping the party’s claims and defenses. As soon as a party anticipates litigation— whether it is after receiving a letter from an attorney threatening litigation, or immediately following the rejection of a claim—a consulting expert can begin reviewing relevant documents and forming conclusions regarding causation, fault, and damages related to the dispute. As facts and issues continue to develop on the project, the consulting expert will be on hand to analyze and form opinions in real time. This is in-
Chartered Surveyors, Valuers and Expert Witness
Mr. David Grantham
Tim Davies is a Chartered Building Surveyor, and the practice principle and founder of T R Davies Limited, (established in 1998). An established independent practice providing property related services throughout South Wales and Nationwide.
Environmental Management Consultant/Expert Witness BEng(Hons) CEng CEnv FCIWEM CWEM MCIWM CWM PIEMA MAE
Tim has over 30 years experience. Tim is a fully qualified Chartered Building Surveyor, a RICS Accredited Valuer and Expert Witness. Tim has the Cardiff University Bond Solon Certificate in both Civil and Criminal Expert Witness Practice. Tim is a registered property expert with the National Crime Agency, working with police and trading standards, principally dealing with rogue traders.
David is water and waste management consultant expert witness with more than 30 years experience including more than 20 years as a director leading technical consultancy and waste management companies.
His extensive experience and expertise covers; Expert Advisor/Expert Witness Work – Civil Expert Advisor/Expert Witness Work – Criminal Residential Surveys and Valuations Building Defect Pathology (defect analysis/investigation) Domestic Workmanship Standards Domestic Building Disputes and Quantification Surveyor Professional Negligence Building Related Insurance Claims Party Wall Matters Building Conservation/Period Buildings Structural Surveys Dilapidations Insurance Claims Landlord and Tenant issues
He has developed an in-depth working knowledge of water and waste management methods, legislation and guidance, including as the technically competent manager of hazardous waste treatment sites. David has led award winning water and waste management improvement programmes in a wide range of industries including environmental leadership of nationally significant infrastructure projects. Environmental Management Consultants Ltd The Terrace, Grantham Street, Lincoln, LN2 1BD Tel: 01522 520888 - Mobile: 07502264034 Email: david@environmental.uk.net Alternate Email: lincoln@environmental.uk.net Website: http://environmental.uk.net Area of Work Nationwide and International
EXPERT WITNESS JOURNAL
Contact Details - Mr. Tim Davies Chartered Building Surveyor, Valuer and RICS Accredited Expert Witness BSc (Hons), MRICS, MAE, Cert EW (Civil and Criminal) Windsor House, 107 Talbot Road, Talbot Green CF72 8AE Tel: 01443 229576 Email: info@trdavies.co.uk - Website: www.trdavies.co.uk
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ally, however, the anticipated litigation date is the date where the parties to the dispute become aware that litigation may be imminent. It is not necessary that a lawsuit be filed for parties to reasonably anticipate litigation. However, anticipation of litigation can occur when an actual or a potential claim on the project presents itself, so that the hiring of a consultant may be fairly regarded as the party’s anticipation of, and preparation for, possible litigation.[5] Speaking with legal counsel experienced in construction litigation matters, including the hiring of expert witnesses and consultants, is helpful to any party who wishes to successfully prove claims or assert defenses in a construction dispute.
issues and disputes on the project since the moment litigation was anticipated, is well-positioned to assist the attorneys in reviewing the work and vetting the credentials of potential testifying expert witnesses. Once an expert witness is chosen, the legal team may have the consultant use his or her expertise and longterm knowledge of the project to inspect the expert witness’s analyses, conclusions, and opinions for accuracy and reliability. Many jurisdictions across the U.S. offer a qualified privilege for the thoughts and opinions of non-testifying expert consultants retained specifically in anticipation of litigation, unless the party seeking discovery can demonstrate “extraordinary circumstances” that make it impractical for the seeking party to discover facts or opinions on the same subject by other means.[1] If all requirements of the qualified privilege are met, a potential party to a possible construction dispute will likely not be required to produce the studies, analyses, opinions, or even the identity of its non-testifying expert consultant.[2] Preserving this qualified privilege is highly important because the consultant’s findings and opinions may possibly prove to be unfavorable to the legal positions taken by the party that hired the consultant. If the privilege does not apply, a party may be required to produce all of the consultant’s opinions and analyses to the opposing party—even those that may possibly prejudice the hiring party’s claims.[3]
References [1] See Higher One, Inc. v. TouchNet Information Systems, Inc., 298 F.R.D. 82, 87 (W.D.N.Y. 2014); Sandy Point Farms, Inc. v. Sandy Point Village, LLC, 200 A.3d 659, 663 (2019); In re Detention of West, 171 Wash. 2d 383, 404 (2011); Ex parte Mobile Gas Service Corp., 123 So. 3d 499, 515 (2013); Juedeman v. Montana Deaconess Medical Center, 223 Mont. 311 (1986). [2] Liverperson, Inc. v. 24/7 Customer, Inc., No. 14 Civ 1559 (S.D.N.Y. July 29, 2015) (protecting a nontestifying expert’s identity from discovery unless exceptional circumstances are shown). [3] In re Asbestos Products Liability Litigation (No. VI), 256 F.R.D. 151, 156 (E.D. Penn. February 25, 2009) (“Where there is no evidence of the scope and nature of the expert’s services as pertaining to the litigation or work done unrelated to litigation, an individual will likely not be considered a non-testifying litigation consultant and the consulting expert privilege will not attach”).
To best utilize the leverage and advantages that a non-testifying consultant can offer, a party should retain legal counsel who is keenly aware of the role timing plays in expert retention. While it is certainly advantageous to hire a non-testifying expert at the earliest moment possible in the construction litigation process, the expert’s opinions likely will not be privileged if the expert’s retention precedes the date of anticipated litigation.[4] Jurisdictions across the country may differ on which facts and circumstances trigger a dispute’s “anticipation of litigation” date, so it is important to consult legal counsel on the specifics of your jurisdiction before hiring a consultant. Gener-
[4] Id (“The party resisting discovery…has the burden of demonstrating that the expert was retained in anticipation of litigation”). [5] Id.
the hampden consultancy CONSULTING ENGINEERS - EXPERT WITNESS - MECHANICAL & ELECTRICAL SERVICES Since 1993 we have specialised in assisting clients in resolving technical and contractual problems with respect to mechanical & electrical engineering services that can (and often do!) occur on many construction projects, whether during the pre-contract or construction phases, or indeed post-contract. As such we have been retained either as expert advisers, party-appointed experts or as single joint experts in respect to disputes between building owners/end-users & their contractors or between contractors & their sub-contractors concerning technical and/or contractual aspects related to mechanical & electrical engineering services. We have also acted for clients in issues involving professional negligence of M&E consulting engineers.
Please call Bob Swayne EngTech AMIHEEM for an initial discussion without obligation on 01494 868 868 or 07768 497 005 or visit our website on www.thehampdenconsultancy.com for more details
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Rogue Traders – Expert Evidence in Rogue Trader Criminal Prosections My name is Tim Davies. I am a Chartered Building Surveyor, Valuer and Expert Witness with over 30 years’ experience in the property and construction profession. For the past 20 years, I have been Principal/Director of my own independent chartered surveying practice (website www.trdavies.co.uk). In addition to my civil expert witness work, I have over the years, assisted various Police forces and Trading Standards Departments throughout the UK with rogue trader investigations (I am a registered Property Expert with the NCA – National Crime Agency), specifically in relation to property matters, which usually necessitate my professional advice to determine:-
1. An elderly widow in the Swansea area had been targeted for over 10 years by a rogue trader, with the victim herself having been charged nearly £220,000 for supposed “improvement and repair work” to her small semi detached bungalow for which the work I subsequently valued at being less than £4,000. The victim herself had kept relatively detailed records of all cheque and cash payments made to the trader, who was subsequently arrested and tried in Swansea Crown Court. He was convicted on all charges and subsequently jailed for a 5 year term (www.walesonline.co.uk/news/local-news/conman-stole-more160000-pensioner-13975887).
1. Whether works purportedly completed by rogue traders have actually been carried out. 2. Whether such works that were completed was carried out to an industry acceptable standard.
2. In 2014 a rogue trader by the name of Ronnie Connors targeted an elderly widow in the affluent North Cardiff suburb of Rhiwbina. Over an 18 month period he took, in total, over £167,000 from this vulnerable lady, for work that I valued at less than £6,000. He was brought to trial and sentenced to 3 years in jail. He was subsequently released on licence and was then recently again caught targeting an elderly vulnerable female in the Gwent area, and faced a further prosecution. Again, he was convicted and sentenced to a further three years custody for virtually an identical offence. This was widely reported in the press and media in December 2018 (www.bbc.co.uk/news/uk-wales-south-east-wales31937730) (www.bbc.co.uk/news/uk-wales-46559689)
3. Whether the consumer/victim has been charged a fair and reasonable price for any works satisfactorily completed. In my experience, largely, the answer is normally a resounding “no” to one or all of the above. The inspections and subsequent detailed reports I provide are used to assist the instructing party in criminal prosecutions and subsequent trials and are fully CPRc19 compliant. Recent successful prosecutions I have provided written evidential reports for and given oral evidence include the following:EXPERT WITNESS JOURNAL
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3. In 2016 I was instructed by Powys Trading Standards to provide several individual inspection reports throughout Wales, in respect of a rogue trader by the name of Alan Coutts, who was prolific in undertaking tarmac resurfacing (tar and chip) work throughout the UK. In total over an 18 month period, he had accumulated in excess of £1.5 million from many unsuspecting victims. He would often target rural, isolated dwellings offering to resurface driveways and farm tracks with his “MO” suggesting that he was working for the Highways Agency (his vehicles were badged in Highways transfers and orange flashing lights) stating that he had surplus materials that he could use on their driveways. At Merthyr Crown Court in April 2018 he was tried and I provided expert testimony on behalf of the Crown as lead Expert Witness. Alan Coutts was found guilty by a unanimous jury verdict and sentenced to 5 ½ years in custody. Again this was widely reported in the press and media (www.bbc.co.uk/news/uk-wales-45360333).
language (to a lay person), together with good photographs is an invaluable form of information to convey the cost, extent and standard of work that is the subject of the prosecution. The expert evidence I have provided in report format is not often challenged, and on many occasions I have been informed that the evidence I have produced has been a critical element in the trader/traders entering an early guilty plea, based on the content of the report, therefore not necessitating costly trials or our court attendance. The most recent case in Swansea Crown Court in December 2018 illustrates this fact where two rogue traders were given custodial sentences for their crimes, with a guilty plea entered late on the morning of the trial, just after the Jury were sworn in (www.walesonline.co.uk/news/wales-news/cruel-conmen-scammed-vulnerable-couple-15629014). When I have been called to provide expert evidence, in all cases I have attended, my evidence has been instrumental in securing successful prosecutions, for Council Trading Standards Departments in respect of fraud related charges and also in respect of contravention of the provisions of the Consumer Protection From Unfair Trading Act 2008.
Unfortunately the above cases are not uncommon, I produce more and more of these reports each year. My reports are robust, detailed and supplemented with photographs and diagrams that assist the Judge and jury in gaining a full understanding of the expert evidence. A clear, well constructed, detailed report written in unambiguous and understandable
Above, cavity inspection in substandard conservatory build
Above, defective render by rogue trader
Above, inadequate, non-compliant structural opening by rogue trader.
Above, fiberglass flat roof by rogue trader
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I have provided many CPRc19 and CPR35 compliant reports over the past 12 years for instructing parties.
The early instruction of an expert in such cases often provides invaluable assistance with prosecutions. I am based on South Wales, but often work throughout the UK on specific cases where requested to do so.
I have previously passed the Cardiff University/Bond Solon Diploma in both Civil and Criminal Expert Witness Practice 2009 and 2016 (the training and assessment for which has been of considerable assistance with my expert witness work).
It can be challenging and emotive work, but also very rewarding and satisfying when a conviction is secured against rogue traders and criminals working in this illegal area.
I am one of the few Chartered Surveyors registered as a Property Expert on the National Crime Agency database, to which national police forces have access in a search for an appropriate expert in a specific case.
Tim Davies BSc (Hons) MRICS MAE Cert EW (Civil & Criminal) Chartered Building Surveyor, RICS Accredited Valuer & Expert Witness
The Expert Witness database, of which I have been a member for several years is also a very useful point of reference for obtaining the details of such professionals and an invaluable resource for solicitors, police and trading standards officers involved in this area of work.
Telephone: 01443 229576 Email Address: info@trdavies.co.uk Web Site: www.trdavies.co.uk
Above, ‘Tar and Chip’ driveway work by Alan Coutts - Below, defective damp proofing works by rogue trader.
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Arbitrating Multi-party and Multi-contract Disputes Partner Ioannis Alexopoulos and Associate Ryan Cable examine the significance of selecting particular arbitration rules in instances where there may be multiple parties or multiple contracts in dispute, in the November 2018 edition of the Journal of International Banking and Financial Law. These rules tend to follow each other, rarely distinguishing themselves significantly.
Key points: l Whilst it may be difficult to predict what types of dispute are more likely to arise under a contract, when drafting a dispute resolution clause, it can be useful to consider the most appropriate dispute resolution mechanism for achieving a timely and cost-efficient resolution of a dispute particularly where multiple parties or multiple contracts are likely to be involved.
Despite the apparent commonality of institutional rules, there are some nuances which may assist banks, financial institutions and their clients in avoiding the need to conduct multiple proceedings relating to the same issues and the costs associated with commencing and conducting several arbitrations. For instance, some rules arguably provide a more efficient and cost-effective management of multi-party and multicontract disputes whereas others can be better suited to achieving a result in relatively less complex disputes such as debt claims.
l Arbitration rules differ slightly. Having consideration for the most likely type(s) of dispute which may arise under a contract can be helpful when drafting a dispute resolution clause. l Contracts involving multiple parties which refer
What is a multi-party arbitration? In arbitration, the phrase “multi-party” relates to the situation in which there are more than two parties to a contract. In such situations, the key issue which arises is the need to ensure that each of the parties, regardless of how many there are, receive equal treatment in the formation of the tribunal and throughout the arbitration. This issue of equal treatment can be critical during the enforcement of an award where the unsuccessful party (i.e. the losing party) may look to raise that the award is incapable of enforcement due to the unfairness of the tribunal appointment process. The leading arbitral institutions have attempted to address this issue by setting in place a ‘fair’ appointment process in instances where the parties cannot reach consensus on the appointment process. This issue is discussed further below.
disputes to arbitration can cause issues with respect to the mechanism for appointment of the arbitral tribunal. Similarly, disputes concerning multiple, related contracts (which is common with facility agreements) will require consolidation if the parties wish to avoid multiple proceedings which can lead to potentially varied results. Introduction In this article we explore the significance of selecting particular arbitration rules in instances where there may be multiple parties or multiple contracts in dispute. The difference between the leading institutional arbitration rules is explored with the article concluding with some guidance on how best to draft arbitration clauses. The significance of arbitration rules Arbitration is a consensual dispute resolution mechanism whereby the parties are free to agree the process which will be applied to resolve a dispute between them. Arbitration can be agreed between the parties upon a dispute arising or before a dispute arises by being selected as the dispute resolution mechanism contained within a contract entered into by the parties. The parties can elect to have the arbitration conducted under a set of institutional arbitration rules. These institutional rules include the “household names” such as the London Court of International Arbitration (“LCIA“), the International Commercial Court (“ICC“), the Singapore International Arbitration Court (“SIAC“) and the Hong Kong International Arbitration Court (“HKIAC“). EXPERT WITNESS JOURNAL
The term ‘multi-party’ may also arise in claims against parties who are not a party to a contract in relation to the same or similar subject-matter. The issue of joining such third-parties to an arbitration is known as ‘joinder’ and is generally permitted provided that all parties (and the tribunal, if already appointed) agree. It is generally common for two or more parties in a multi-party arbitration to have aligned interests (i.e., they both alleged a breach by the other party or parties is the cause of the loss they have suffered). Where this arises, those parties with a common interest (i.e., recovery of damages from the party in breach) may wish to “team up” and appoint an arbitrator. Where there is no clear-cut divide between 97
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The London Chamber of Commerce and Industry, London’s largest independent networking and business support organisation, has recently launched a new arbitration service; the London Chamber of Arbitration (“LCA“). In what is the most recent arbitration rules in the market, the issue of appointing arbitrators in multi-party situations has been addressed. Art 13(4) of the LCA Rules follows the leading institutions in allowing the parties to agree between them who is to fall within the “Claimant camp” and who is in the “Respondent camp” with each group to appoint an arbitrator. If agreement cannot be reached, the Board of the LCA will appoint the tribunal.
the various parties, it may not be possible to break into “claimant” and “respondent” camps. What is a multi-contract arbitration? It is possible for disputes to arise which, although connected in some form due to their subject-matter, are in fact disputes under two or more separate arbitration agreements. “Multi-contract” arbitration relates to instances where there are a number of contracts, potentially between different parties, which all have an interest or connection with the issues in dispute. For instance, where there is a chain of contracts (i.e., contracts entered into one after the other such as in insurance or the sale of goods). In the banking and finance realm, a common example of a multi-contract scenario is a facility agreement where loans may have been advanced under several essentially identical contracts.
With respect to the issue of “joinder” (i.e., the adding of a party to existing proceedings), slightly different approaches are taken with respect to joining to the proceedings a party who is not subject to the arbitration agreement. For instance, Art 22.1(viii) of the LCIA Rules 2014 provides that joinder may be granted by the tribunal upon consent by the applicant party and the third party even over an objection by one of the existing parties to the arbitration. The ICC Rules 2017 differ in that Art 7 provides that joinder may only take place before the tribunal has been constituted, unless all parties (including the third party) agree otherwise. The ICC’s ‘consent by all parties’ approach is more common across arbitral rules, reflecting the consensual nature of arbitration.
The central issue where there are several disputes relating to the same subject matter is ensuring that there is a consistent approach taken with respect to the mechanism for dispute resolution. For instance, if some of the contracts provide for disputes to be resolved by litigation in a particular national court whilst others provide for arbitration, unless the various parties agree otherwise, multiple proceedings may be commenced with the risk of inconsistent judgments/awards being handed down. Differences between the leading institutional rules By selecting a certain set of arbitration rules in a dispute resolution clause, the parties essentially agree in advance to the tribunal having the power to, amongst other things, make certain decisions concerning the consolidation of disputes between the same parties. Similarly, some rules give the tribunal (or the arbitral institution if a tribunal has yet to be formed) the power to order that third parties be joined to the arbitration.
Multi-contract disputes Arbitral institutions have considered the likelihood of parties wishing to consolidate proceedings in order to enjoy the costs and time efficiencies which can be lost in conducting several proceedings under multiple contracts. The ICC Rules (Art 10) provide that at the request of a party, the ICC Court may consolidate two or more pending arbitrations where any of three conditions are met: (i) the parties have agreed to consolidation; (ii) all of the claims in the arbitrations are made under the same arbitration agreement; or (iii) where the claims are made under more than one arbitration agreement, the same parties are involved with the disputes arising in connection with the same legal relationship and the ICC Court finds that the arbitration agreements are compatible.
Multi-party disputes As mentioned above, given the significance with respect to the enforcement of an award, several institutional rules deal with the issue of addressing equal treatment concerning the appointment of the arbitral tribunal in multi-party disputes. For instance, the ICC Rules 2017 (Art 12) and the LCIA Rules 2014 (Art 8) both provide for situations where usually each party is entitled to nominate an arbitrator but there are more than two parties. In such instances, the ICC and LCIA rules both provide that if the parties cannot agree to a method for appointing the partynominated tribunal members, the respective institution may appoint the tribunal, including the president of the tribunal.
Similarly, the LCIA Rules (Art 22.1 (ix; x)) permit the LCIA Court to approve the consolidation of arbitrations provided they are commenced under the same or a compatible arbitration agreement between the same parties and no tribunal has yet been appointed or, if a tribunal has been appointed, it is composed of the same arbitrators. The position is largely identical under the SIAC Rules (Rule 8) and HKIAC Rules (Art 28.1).
Other rules follow the same approach by permitting the parties, if they are able to agree, to nominate a member of the tribunal. However, if agreement cannot be reached, the relevant arbitral institution has the power to appoint the tribunal: e.g., SIAC Rules 2016 (Art 9) and HKIAC Rules 2013 (Art 8(2)). EXPERT WITNESS JOURNAL
The recent rules released by the LCA also contain a consolidation procedure. Under Art 11, if the parties are already involved in an arbitration under the LCA Rules, the LCA Board may, at the request of a party, decide to consolidate the new claims with the 98
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to the ICC Rules that may prolong an arbitration. For instance, the ICC Rules require the parties at an early stage to draft and agree “Terms of Reference” which establish the scope of the issues and the procedural timetable. This can be a time and costs intensive process. At the closing end of the process, the ICC Rules require the award to be “scrutinised” by the ICC Court prior to its release to the parties. In any event, Art 31 of the ICC Rules requires the award to be issued within six-months of the hearing. In contrast, the LCIA Rules do not require scrutiny of awards by the LCIA Court. However, whilst the LCIA Rules do not place a deadline for issuing an award, Art 15.10 provides that LCIA tribunals are to seek to make their final award “as soon as reasonably possible following the last submission from the parties” and in accordance with any timetable notified to the parties and the LCIA Registrar.
pending proceedings. The Board may only do so after consulting with the parties and the tribunal appointed in the pending proceedings. Where the parties and issues are otherwise identical, a streamlined procedure is available under some institutional rules whereby a single request for arbitration can be filed, effectively acting as an application for consolidation. Single requests for arbitration are permitted under the ICC Rules (Art 9), SIAC Rules (Art 6) and the Stockholm Chamber of Commerce (SCC) Rules (Art 14). The LCIA Rules do not provide for this procedure and can therefore make LCIA arbitration a potentially more expensive process in instances where related disputes under multiple contracts may arise. In such circumstances, a claimant will be exposed to the LCIA’s £1,750 filing fee for each request, in addition to administration fees and legal costs associated with drafting individual requests, followed by the costs associated with an application which would need to be made to the Tribunal to consolidate the proceedings. This interpretation of the LCIA Rules was confirmed by the English Commercial Court in December 2017 in the case of A v B [2017] EWHC 3417 (Comm) (“A v B“).
It is important to note that if you are unable to get each of the potential parties to a dispute to agree a uniform arbitration clause (or at least compatible arbitration clauses), there will be a risk that parallel arbitration proceedings (or litigation) will arise which could lead to different results being reached in each separate proceedings.
The 2017 case of A v B concerned the sale of two consignments of crude oil under two separate contracts entered into in September and October 2015, both of which contained an LCIA arbitration clause. The seller claimed that the buyer failed to pay the price due under both contracts and commenced LCIA proceedings in September 2016 by filing a single Request for Arbitration and a single registration fee. In response, the buyer, among other things, challenged the validity of the seller’s Request for Arbitration under section 30 of the Arbitration Act 1996 and Art 23 of the LCIA Rules 2014 on the grounds that the Request for Arbitration failed to identify the particular dispute and the particular arbitration agreement to which the dispute related. The tribunal rejected the buyer’s challenge on the grounds that it was brought too late in the proceedings. The buyer commenced proceedings in the Commercial Court where it was held that the single Request for Arbitration made in connection with two separate contracts was invalid under the LCIA Rules 2014 and that the buyer had not lost the right to bring the challenge to the validity of the Request for Arbitration.
An additional factor relevant to banks and financial institutions is the availability of summary procedures under some arbitral rules. Depending on the types of contracts being entered, and therefore the potential disputes which may arise, banks and financial institutions could be said to traditionally prefer litigation due to the availability of obtaining summary judgment in the event that there is a claim (or defence) which is manifestly without legal merit. Summary judgment thereby presents an opportunity to “knock the dispute on the head” at an early stage without incurring the costs and time of proceeding through the whole dispute resolution process. Summary procedures are presently only available under the SIAC Rules (r 29.1a) and the SCC Rules (Art 39) though are likely to be introduced by further institutions in future rule revisions. For instance, in December 2017, the ICC published a revised practice note providing guidance on the procedure for determining applications for summary dismissal of unmeritorious claims and defences under the ICC Rules to address the present absence of a summary dismissal process under its current 2017 rules.
So, which rules are best? For banks and finance parties, it really is a question of “horses for courses” having consideration for the type(s) of dispute(s) that could arise under the agreement, the number of parties that could be involved in a dispute and the likelihood of multiple contracts being in dispute. However, the difficulty is that it is not always possible to predict what disputes may arise in the future.
Drafting arbitration clauses As discussed above, most arbitral rules contain provisions dealing with the issues surrounding multi-party and multi-contract disputes. However, where such disputes are likely to arise, the best course of action to achieve the most timely and cost-effective arbitration possible is to ensure that the dispute resolution clause within the contract is drafted appropriately (i.e., it provides a clear, consistent and workable dispute resolution mechanism).
For instance, if the most likely dispute is a claim for debt recovery, the LCIA Rules may be preferred over the ICC Rules due to the procedural steps particular
Where multi-party or multi-contract disputes are likely to arise, a concise dispute resolution clause may
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be difficult to achieve. For instance, the parties may agree arbitration clauses which permit all related disputes arising between them to be heard together in one arbitration. Alternatively, the parties may agree to having disputes dealt with in separate arbitration proceedings with the option to agree to consolidate those proceedings or to conduct concurrent hearings. Most institutional rules provide for “joinder” but none provide for “intervention”. If parties wish to allow consolidation where the rules they have selected do not contain the option, it needs to be drafted into the arbitration agreement.
Where possible, an arbitration clause in related contracts should be identical, or at least similar or compatible. An alternative is to put in place an umbrella arbitration agreement whereby an overarching agreement provides an arbitration process for disputes arising out of subordinate agreements. This can reduce the difficulties of having parties agree to consolidate proceedings once a dispute has arisen or proceedings have been commenced. However, it should be kept in mind that an umbrella agreement may later work against a party where they would prefer to avoid being pulled into multi-party proceedings.
The central issue with such arbitration clauses is being sufficiently clear as to who will have the power to determine whether a dispute is related to another. It is common for parties to grant this power to the tribunal (if one is already appointed). Alternatively, one party may be given the power or agreement by the parties must be reached, failing which, the disputes will be dealt with in separate arbitrations.
Ioannis and Ryan’s article was first published in the November 2018 edition of LexisNexis Butterworths Journal of International Banking and Financial Law. www.lexisnexis.com/uk/legal/results/tocBrowseNodeClick.do?rand=0.7859736640554845&tocCSI=2 80100&clickedNode=TAABAABAABAAF
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