EWCA Civ 66
Relevance of Expert Evidence to Limitation
In September 2001 the claimant sustained an accident at work when he fell into a 2 feet deep hole. His foot became trapped and he suffered a wrenching injury to the right knee. He had some previous history of a problem with his right knee. At 17 he had had a motorcycle accident. In 1994 his knee was investigated and a diagnosis was made of damage to the anterior cruciate ligament.
The claimant was referred to Mr Anthony Banks, a consultant orthopaedic surgeon at what was then the Bolton Royal Infirmary. His knee problems subsided, but they recurred in 2001. The claimant’s GP referred him back to Mr Banks and an appointment was made for 9 October 2001.
However, on 25 September 2001 the claimant had his accident at work. He attended the hospital. The initial diagnosis was of a soft-tissue injury to the right knee. He was treated and told to keep his appointment, already made, with Mr Banks as a follow-up. On 9 October 2001 the claimant saw Mr Banks. An MRI scan was ordered; that was available in late November 2001. Mr Banks advised an operation to reconstruct the anterior cruciate ligament. The operation took place on 8 May 2002. The claimant developed MRSA - a virulent infection. He had extensive treatment, but eventually in 2003, he had to submit to an above-knee amputation of the right leg.
The claimant commenced proceedings in respect of the accident at work. Liability was not in issue - but an important issue arose as to whether or not the need for the operation which resulted in the development of MRSA was necessitated by the accident or whether the claimant would have undergone the operation even if he had not had the accident at work. That issue plainly would make a great deal of difference to the damages to be recovered.
The claimant initially obtained medical reports from an orthopaedic surgeon named Mr David Markham, but he has not sought to rely upon those. He also obtained medical reports from Mr Banks. The gist of these was that, had it not been for the accident at work, the claimant would not have had surgery in May 2002, although it was Mr Banks’ view that he might have needed surgery in due course, say in about three to five years’ time. Mr Banks also expressed the view that MRSA was an extremely rare complication in this kind of knee surgery. The accident at work had led to the surgery taking place when it did; that had led to the infection, which led to the amputation.
The claimant sued for damages.
The Expert Evidence
The claimant obtained medical reports from an orthopaedic surgeon but did not seeks to rely upon them. He also obtained medical reports from Mr Banks. The gist of these was that, had it not been for the accident at work, the claimant would not have had surgery in May 2002, although it was Mr Banks’ view that he might have needed surgery in due course, say in about three to five years’ time. Mr Banks also expressed the view that MRSA was an extremely rare complication in this kind of knee surgery. The accident at work had led to the surgery taking place when it did; that had led to the infection, which led to the amputation.
The claimant’s solicitor also obtained an expert report from another orthopaedic surgeon, Mr Peter Kay. He referred quite extensively to Mr Banks’ report and concluded that, absent the accident at work, it was likely that the claimant would have soldiered on without an operation for some further time and might never have needed one at all. As MRSA is a very rare complication, its occurrence would have been unlikely if the operation had taken place at any other time.
The defendant’s medical expert, Mr Parkinson, was of the view that the claimant’s knee had deteriorated to such an extent before September 2001 that, even absent the accident at work, he would probably have had an operation in March 2002 with the same consequences as had in fact occurred.
Arising from the joint meeting of experts, Mr Kay and Mr Parkinson became much closer in their opinions. Their joint review was that the claimant’s underlying condition made surgery almost inevitable, but the accident brought forward the need for it to take place by about three months.
Following one statement of Mr. Banks being excluded by a district judge as containing expert evidence, a revised statement was drafted for Mr Banks, dated 7 October 2005. However, the defendant did not agree that it contained only evidence of fact and the matter went back to the district judge. The defendant objected to the following passage in the statement:
"I have been asked whether I would have advised Mr Kirkman to undergo surgery following his referral to me in 2001 in the absence of the September 2001 accident. I would not have advised the surgery which Mr Kirkman in fact underwent in the absence of the accident in September 2001."
Mr Banks had also said in the following paragraph:
"I have been asked by the solicitors acting for Mr Kirkman not to give reasoning for the advice I would have given in the absence of the accident of September 2001 in order to avoid giving opinion evidence. I am fully willing to give my reasons if asked."
The district judge ruled that Mr Banks should be permitted to attend court to give evidence and that it should be left to the trial judge to decide if his evidence contained expert opinion or not.
The defendant was unhappy with this ruling and appealed it to the circuit judge. That judge, HHJ Warnock, upheld the appeal on the basis that the statement contained expert opinion evidence and held the statement to be inadmissible.
The leading judgment was given by Lady Justice Smith in which she said:
"14. .The problem that has arisen in this case seems to me to stem from the rigid application of the aspirational objective within the Civil Procedure Rules that the parties to litigation should operate under equality of arms. This objective has been interpreted to mean that it is desirable for each party to have permission to deploy similar resources. Each party will, in general, be limited to instructing the same number of experts; the number will depend upon what is proportionate, bearing in mind the importance and complexities of the issues in the case. However, the desirability for equality of arms was not intended to result in an absolute rule that, in every case, the parties must be limited to calling the same number of experts. There may be circumstances in which that general rule should give way for the sake of achieving the overriding objective of dealing with the case justly." (see ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust  EWCA CIV 1284 as an example)
The following passages are highly instructive as to how to discern the difference between expert evidence and evidence of fact in such cases. Lady Justice Smith said:
"16. The kernel of Mr Banks’ proposed evidence, as re-drafted, is the statement that if the claimant had presented himself in October 2001 and had not recently had an accident he, Mr Banks, would not have advised the claimant to undergo a ligament reconstruction. In my view, that is clearly a statement of fact. He is there saying what he would have done in a set of circumstances which did not in fact happen. True, in saying that, Mr Banks is relying upon his knowledge and his experience as a professional person. But he is not expressing an expert opinion.
17. I can see that the distinction may not be immediately obvious. I suggest that the distinction can be seen by applying the following tests. One is to consider the difference between the positions between Mr Kay and Mr Parkinson on the one hand and Mr Banks on the other hand in the present case. Mr Kay and Mr Parkinson have no personal knowledge of the facts; they bring their expertise to bear upon their understanding of the claimant’s chronic condition, absent the accident. They express a view as to what most competent surgeons would advise; or, put another way, what it is probable that an unidentified surgeon on whom the claimant attended would have advised. In giving their opinions they are advising as to their understanding of received medical wisdom applicable to the circumstances of this case.
18. Mr Banks’ position is quite different. He is the doctor who would in fact have advised the claimant. He is saying what he would have advised the claimant to do. He is not saying that that advice would have been correct, or that most competent surgeons would have given that advice, or that an unidentified surgeon to whom the claimant presented would have given similar advice. He is speaking only for himself. He might, if asked in cross-examination, be able to justify his advice as good and correct. In doing so he would almost certainly have to express expert opinion. On the other hand, it might be possible for the defendant to attack his advice as bad or incorrect, but the correctness of his advice or whether it accorded with received medical wisdom is not in issue; the only issue is what he would have advised. His evidence as to that might be challenged, at least theoretically, on the basis that it is not true, or more realistically on the basis that it is not reliable, but if it was sought to challenge his evidence on the basis that no other orthopaedic surgeon would have advised as he had done, his answer could quite properly be: "Well, that may be so, but right or wrong that’s what I would in fact have advised".
19. The other way in which one can be satisfied that this is evidence of fact is to compare it, as Mr Limb invited us to do, with the evidence of the employer, who states that if his employee (the claimant) had not been injured, he (the employer) would have promoted him to a more senior position within, say, two years. No-one would suggest that such evidence is inadmissible; no-one would suggest that it is expert evidence, although it is founded upon the witness’s knowledge, experience and expertise. The usefulness of the employer’s statement is that he has sufficient knowledge of the claimant’s qualities and the needs of his own business to be able to give a credible statement as to what would have happened if the claimant had not been injured. But although the evidence depends upon a degree of expertise, it is not expert evidence. I can see no essential difference between the evidence of the employer and the evidence of Mr Banks."
So the Court of Appeal held this to be evidence of fact and allowed the same to be provided but also made the cogent point that even if it had been in part expert evidence, it ought probably to have been allowed in the exercise of judicial discretion in this case.
An important decision on the difference between expert and factual evidence and also the flexibility of the overall approach of their being equality of numbers of experts on opposing sides and that it does not amount to a rigid rule. It also is an example of considerable costs being thrown away through an overly rigid application of CPR by one party and a failure to look at a case proportionately and in the round. It is important to remember that expert witnesses may occasionally be called as witnesses purely of fact. The irony is that they may then be asked questions in court (sometimes by counsel and sometimes by the judge) seeking to elicit expert views and this is whether or not they are being paid as experts. I suppose technically such a witness may say that he or she is there to give evidence of fact and hence would decline to provide any expert opinion evidence (no doubt appreciating that he or she would not be being paid a professional fee to provide such expert opinion evidence). However, in reality most experts giving factual evidence will be well advised to comply with the wishes of the judge. Those wishes may not necessarily be assumed however and an expert who is giving evidence of fact but is being asked to stray into areas of expert opinion, may well wish to clarify at the time of giving his or her evidence what the judge wishes him or her to deal with in testimony.