Scope of an Expert’s duty
The main action involved a claim for alleged professional negligence on the part of solicitors and/or counsel in undersettling a personal injury action brought by the Claimant arising out of a serious brain injury sustained by him in 1993.
During the course of that action, the Claimant’s solicitor (“Penningtons”) commissioned a report from Gwen Watkins of Jacqueline Webb and Co. to provide an assessment of case management needs and past and future care requirements.
Gwen Watkins provided a report stating, amongst other things, “Mr Warner’s quality of life will have reduced without regular support and funds should be made available as a matter of priority to ensure that a new care regime can be established”.
Gwen Watkins had, in fact, also highlighted the importance of lay witness evidence and of obtaining various medical report and evidence.
Proceedings were issued by Mr Warner against Penningtons who then sought to join Counsel and Jacqueline Webb to the proceedings.
As against Jacqueline Webb, Penningtons alleged that Gwen Watkins:
Failed to advise that a support worker and/or case manager should be employed prior to trial or settlement of the action;
Having met with the Claimant and having considered the medical reports, failed to advise the Defendants to obtain further lay witness statements
Failed to have proper regard to the level of care needed by the Claimant in the future
Failed to take sufficient care in the preparation and provision of her advice
The instant matter and judgment relates solely t o t h e proceeding s between Penningtons and Jacqueline Webb. Jacqueline Webb were seeking summary judgment against Penningtons on the grounds that there was no real prospect of the case against them succeeding and an order striking the claim out on the basis of expert witness immunity. The latter point was stayed pending consideration of the immunity of Expert witnesses by the Supreme Court during 2011.
Did Pennington’s have real prospects of succeeding against Jacqueline Webb?
Overall, the learned Judge said, “no”, there were no real prospects of success. Whilst making it clear that the Expert was required to exercise all proper skill, care, diligence and competence in identifying the Claimant’s needs, in so doing, the Expert is dependent in part on the information provided by her instructing solicitors and in part upon her own observations. It was, apparently, conceded that there was no basis for questioning the assessment made and thus, it seemed to the Judge that Gwen Watkins had therefore made reasonable decisions on the basis of the information. The complaint, effectively, came down to whether she ought to have advised Penningtons that a Case Manager should have been put in place prior to the trial. Overall, the Judge felt is was “unarguable” that Gwen Watkins was not entitled to assume that the Solicitors would take the appropriate steps to appoint a case manager and to expect that to be done prior to the trial. Accordingly, summary judgment was granted.
Clearly, the Expert must use reasonable skill and care in forming their views and even in identifying areas where further evidence should be obtained. However, they are entitled to assume their recommendations will be taken on board and, if necessary, actioned by their instructing solicitors who are tasked with progressing the litigation.