In this article, Ann-Marie Christie, MAPS’ General Counsel, reviews the case of Clark v Skyfire Insurance Company Limited, where the judge described expert evidence as ‘literally unbelievable’. The article highlights the court’s criticism of the experts’ approach and revisits the duties imposed on experts under CPR Part 35 and the Guidance for the Instruction of Experts in Civil Claims. It also outlines key lessons for experts when preparing medico-legal reports.
As an expert, the last thing you want to be told by the Judge is that your evidence is ‘literally unbelievable’. That is exactly what His Honor Judge Gallagher thought in the case of Clark v. Skyfire Insurance Company Limited – read the transcript here.
The facts
The Claimant claimed to have suffered physical and psychiatric injuries as a result of a “minor, a very minor” road traffic accident on 4 March 2021. The accident took place in a supermarket car park in Cranbrooke, Kent. Liability was admitted by the Defendants, but causation was disputed. Experts and lawyers alike will be all too aware of this type of collision which happened at low velocity but was said to have caused more than minor physical injuries along with post-traumatic stress disorder.
It could be seen from the photographs which were placed in the trial bundle that the contact between the two vehicles was very minor and, in the Judge’s words, “was more by way of scuffing”. The Defendants did not seek to argue that the speed of the collision was so slow or so low and the impact so small that there could have been no damage whatsoever. The evidence before the court was that causation was just about made out.
Evidence was called by the Claimant from two experts, and I am using the term “experts” loosely. One was a Counselling Psychologist and the other a Physiotherapist. The Judge said that “this claim fails and, quite frankly, it fails by a long way”. He was not satisfied that there was a finding of fundamental dishonesty on the part of the Claimant and, indeed, the Defendants had not sought such a finding, but he was critical of her solicitors and the preparation and presentation of the Claimant’s case which included the medical evidence that had been obtained on her behalf.
The Judge was concerned about highly important evidence that only came out in the course of cross-examination. The Claimant stated that at no stage did she feel her life was threatened. She did not see the accident happen and nor did she think she had life-threatening injuries. She did not think she might end up in hospital.
In commenting upon the evidence from the Claimant’s Counselling Psychologist, the Judge said:
“Quite frankly, how one can possibly deduce from that and/or diagnose from that post-traumatic disorder is beyond me. I use the word diagnose advisedly because it is abundantly clear that in fact no diagnosis of post-traumatic disorder has been made”.
Whilst the Judge did not find that the Claimant had been fundamentally dishonest, he did think her evidence was unsatisfactory. He had to take what she said in her evidence as her word, but she made a number of errors giving her evidence. She said she was examined by the Counselling Psychologist. The Judge noted that she was not a Clinical Psychologist. The expert stated that she had a doctorate in counselling psychology and that she was a registered counselling psychologist.
At paragraph 16 of his judgment, the Judge said:
“it is quite extraordinary, I have to say, that the psychological symptoms now advanced, and it is difficult to see precisely what they are, because whilst post-traumatic stress disorder is mentioned, the fact is that it does not come under any heading relating to diagnosis”.
The highlighted sections from the transcript below are a must-read for experts:
17. At page 142, under the heading clinical examination are these words, exposure to traumatic events involving actual or threat of death or serious injury and response of intense fear, helplessness or horror, this criterion is met. Well, that certainly does not fit with the evidence given by the claimant and which I have just recited. It could not be more different. And to explain it away, well, it depends on how the claimant views it, I am afraid, just will not do.
18. But, in any event, at the very best, all that is set out there is that that criterion may be met or is met. That does not mean automatically that the person being examined must have suffered post-traumatic stress. I took the perhaps rather extreme example of asking if someone slammed the door and I said that, as a result of that, I felt helpless or horror, would I automatically have post-traumatic stress, and the answer, common sense tells you, is no.
19. But, more importantly, as I have said, that reference to post-traumatic stress disorder comes under the heading of clinical examination. When one moves onto part 12 of the report at page 143, dealing with discussion and opinion, which must be diagnosis, there is a reference under paragraph 12.1.1 as follows, “In my opinion”, says the author of the report, “Miss Clark developed situational anxiety disorder of travel, as classified by DSM 5, and low mood.” That, on any basis, is very, very restrictive.
20. And, I may add, as far as I can see, that condition is not mentioned anywhere else in the report. There is, I may add, no mention at all of post-traumatic stress disorder under the heading discussion and opinion, which, as I have said, must relate to diagnosis.
The Claimant’s psychological symptoms had not been mentioned at all in the claim notification form (CNF) and only first gets a mention in the Physiotherapist’s report in August 2021. It was very clear to the judge that neither of the “so-called” experts produced at trial were registered medical practitioners, leaving the Judge very concerned that a Counselling Psychologist was in a position to diagnose post-traumatic stress or indeed any other psychological symptoms.
The Claimant was open about her pre-existing mental health issues which were complex and long-lasting. There was no explanation by the Counselling Psychologist as to how she arrived at an attribution of accident/pre-existing symptoms of a 50/50 split. The judge felt that was impossible to understand.
In referring to the Physiotherapist’s report, the Judge said at paragraph 46 of his judgment that it was “almost worse than useless” and “to the extent, at times, being positively disingenuous”. She was put in a position where she had to concede her duties under Part 35 of the CPR but it was abundantly clear that she had not properly considered them in the past.
Paragraph 52 states: And then, I have used the word glibly already, because her evidence was glib, quite frankly, she tried to exculpate herself right at the end by saying that she was not, in effect, bound by those reports or she should not be taken to be bound by them, because they appeared after her declaration of truth. That is so disingenuous, or, put another way, disingenuous in the extreme, that I must not hesitate to use the common language word that is used when otherwise we might use disingenuous. By that, I mean, it is dishonest, full stop.
Learning points
- Read the Guidance for the instruction of experts in civil claims here.
- Read Part 35 of the Civil Procedure Rules and remind yourself of the duties imposed on experts here.
- Experts should confine their opinions to matters which are material to the disputes and provide opinions only in relation to matters which lie within their expertise.
- Experts must neither express an opinion outside the scope of their field of expertise, nor accept instructions to do so.
- Properly consider the facts of the case and cross-check this with any documentation provided to you. If necessary, request further documentation such as medical records to assist you.
- A summary of your conclusions in your report is mandatory.
- Remember the court has the power to sanction experts – these are set out from paragraph 89 to 92 in the Guidance for the instruction of experts in civil matters but highlighted below:
89. Solicitors and experts should be aware that sanctions might apply because of a failure to comply with CPR 35, the PD or court orders.
90. Whether or not court proceedings have been commenced a professional instructing an expert, or an expert, may be subject to sanction for misconduct by their professional body/regulator.
91. If proceedings have been started the court has the power under CPR 44 to impose sanctions:
a. cost penalties against those instructing the expert (including a wasted costs order) or the expert (such as disallowance or reduction of the expert’’ fee) (CPR 35.4(4) and CPR 44).
b. that an expert’s report/evidence be inadmissible.
92. Experts should also be aware of other possible sanctions:
a. In more extreme cases, if the court has been misled it may invoke general powers for contempt in the face of the court. The court would then have the power to fine or imprison the wrongdoer.
b. If an expert commits perjury, criminal sanctions may follow.
c. If an expert has been negligent there may be a claim on their professional indemnity insurance.