This case once again emphasises the requirement for expert witnesses, in whatever field, to be impartial and to remember that they are providing balanced factual information to the judge and jury. The consequences of not adhering to these rules can be disastrous for their client as this case illustrates. It is referred to as a watershed case for expert witnesses in all fields.
Brian Muyepa (BM) was a British soldier in the Royal Artillery. Taking part in military exercises in 2016 and 2017 was part of his job but led to a claim by him against the Ministry of Defence (MOD) for personal injury and consequential losses. BM was first sent to Wales in March 2016 where he was required to spend time in a tunnel filled with cold water, and a further 5½ hours after that in soaked boots. He was later diagnosed with a Non-Freezing Cold Injury (NFCI) commonly known as ‘trench foot’. This causes discomfort in the body’s extremities, generally the hands and feet, and oversensitivity to cold. Following this diagnosis BM was told to avoid cold conditions. However in early 2017 he was sent to the Salisbury Plains where he spent much of his time outside working on vehicles. His condition worsened leading to his being medically discharged from the Army in January 2018.
BM decided to bring a case against the MOD alleging that they were in breach of both their statutory and common law duty of care towards him. These breaches had led to him suffering this condition and to his debilitating ongoing symptoms which had left him severely disabled and he claimed damages for personal injury. BM claimed that the NFCI left him needing a stick to walk, suffering constant pain in his hands and feet, unable to undertake basic personal or domestic tasks, unable to get in and out of his car without help, unable to help with the care of his disabled daughter and incapable of future employment. His lawyers prepared a Schedule of Loss claiming around £3.7 million which was the largest amount ever claimed for NFCI. The record claim was however reduced to £2.9 million after it was admitted that BM’s wife had fabricated the extent of care her husband required.
If you tell the truth, you don’t have to remember anything.”
Mark Twain
The case was heard in the Royal Courts of Justice in June and July 2022 before Mr Justice Cotter. The defendant, MOD, argued that BM ‘created, or consciously and significantly exaggerated, NFCI symptoms to such an extent that he has been fundamentally dishonest.’ The defence produced considerable video surveillance and other investigative evidence including that found on social media in support of their claims. Film showed BM dancing at a barbeque, walking unaided, shopping, getting in and out of his car and driving it unaided. The court found that, whilst BM had suffered a minor injury, the claim for damages had been greatly exaggerated and that BM had been fundamentally dishonest. BM’s case was actually assessed to be some £97,000. The enormous difference between this sum and that originally claimed by BM (3% of the claim) meant that the whole claim could be dismissed so long as the court found that there was no substantial injustice.
In dismissing the case, Mr Justice Cotter not only severely criticised the care and employment experts but took the opportunity to reiterate the duties and responsibilities of all expert witnesses and experts. Experts should not act as advocates and are not part of a claimant’s or defendant’s team. The Civil Procedure Rules Part 35 require an expert to consider all material facts including those which might detract from their own opinions. Expert witnesses should give objective and unbiased evidence so that significant reliance can be placed upon the opinions they give. They should remember that their overriding duty is to help the Court on matters within their expertise, even though they always owe a duty to exercise reasonable care and skill to those instructing them, and must comply with the relevant procedural rules. They should not be partisan nor act as advocate for them- the importance of genuine neutrality and independence in expert witness testimony cannot be emphasized strongly enough. The judge found that the claimant’s experts, particularly those in the care and employment field, were strongly partisan and that this behaviour was compounded by the fact that they had only ever been claimant-instructed.
Link: Muyepa v Ministry of Defence [2022] EWHC 2648 (KB)
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