Mr Scarcliffe (‘S‘), the Claimant, was a tree surgeon employed by the defendant (‘BVG‘). In September 2017 working in a Nature Reserve in Northamptonshire, and during the course of his normal duties, he had an accident. A colleague lost control of a solid section of the tree trunk which fell on S’s back. This resulted in two transverse process spinal fractures at L2 and L3 leading to chronic pain in his back. BVG admitted liability without argument and judgment was entered in favour of S. However the parties could not agree on the actual quantum of damages claimed by S. The discrepancy between the two figures was enormous with S claiming around £6 million and BVG assessing damages to be around £137,000 (excluding those for pain, suffering and loss of amenity). One of the main reasons for this wide margin was that the parties disagreed on the “but for” position i.e. the situation S would have been in had he never had this accident, and the extent of his pre-existing conditions.
Before the accident, S was already suffering from a degenerative condition in his spine. His family situation was complex: his wife, a specialist midwife, also had health issues including asthma, palindromic rheumatism and osteoarthritis of the pelvis and hip joints. Two of his three children were profoundly disabled, and by the time the case came to trial he had had two more children one of whom was undergoing investigations into his behaviour and development. A case manager was appointed to help with S’s care and rehabilitation needs resulting in a claim which BVG argued did not reflect reality. S’s representatives claimed that the chronic post traumatic pain S suffered as a result of the accident was disabling and lifechanging. He would be unable to continue to work and wouldn’t be able to help with household chores or childcare. It was claimed that he also needed considerable care on a daily basis himself.
BVG argued that the spinal fractures were stable and not at risk of arthritic changes in the future. They asserted that S would have developed chronic pain even without the accident due to the progression of his degenerative spine and his psychological vulnerability.
The case was heard before Mr. Justice Cotter, and the issues to be considered were whether S’s care claim accurately reflected his disabilities and limitations, whether Mrs. S could cope with the limited level of care provided by S, whether S’s loss of employment and pension should be compensated and whether the past and future care and assistance claims were reasonable and accurately calculated.
To thine own self be true, and it must follow, as the night the day, thou canst not then be false to any man.”
William Shakespeare
After considering all the expert reports from both sides, the Judge concluded that S and Mrs. S were not credible with regard to their evidence about the pre and post- accident situation at home which meant that the claims for care and loss of earnings were “unsustainable“. S had exaggerated his contribution to care of the children and housework pre-accident. He had overplayed his post-accident disability and underplayed his physical capability. There was a failure to reflect the true “but for” situation. Further some of the care claims made were highly inflated. For instance, professional carers (with the accompanying high rates) were not necessary for menial household work. There was a failure to correct “obvious and significant errors” – amounts claimed to walk two family dogs were no longer relevant when one dog had died, and the other was old and already had access to a large garden. Sums claimed to transport children to and from school were found to have been calculated until the Claimant retired when the children in question would have been in their mid-twenties! The Judge criticized the approach taken by experts, particularly those in high value care cases, where there was a lack of attention to detail. Moreover, there was a lack of forensic analysis, critical thought and questioning on the part of the Claimant’s legal team when assessing the expert evidence and its significance. With both sides’ eyes being on settlement rather than trial, reports have not been strongly challenged or tested, and often therefore cannot be sustained at trial. Mr. Justice Cotter stated “A care expert should be able to fully justify any aspect of care, therapy or equipment which the court is being advised should be provided“.
Experts, both medical and non-medical, came under general criticism for failing to fully understand their role. They should not think of themselves as part of the “team” of one side or the other, but realise that they are independent and objective and owe their loyalty to the court in accordance with Part 35 of the Court Practice Rules. Experts should be aware of both the strengths and weaknesses of the case and not merely consider those arguments which strengthen the case for their instructing solicitors’ client. They should also be prepared to adapt and alter their views if new evidence comes to light.
Link: Scarcliffe v Brampton Valley Group Ltd [2023] EWHC 1565 (KB)
Expert Evidence prides itself on assisting throughout the legal process where required and is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.
Ask a question about Expert Witness services. We are here to help!
Disclaimer: The above case summary is derived from publicly available information and is not intended to be anything more than a statement of the author’s views on the salient factors of the case. It is not intended and should not be understood to be legal advice of any sort. All views are solely those of the author and no use of the summary should be made without statements being checked against the source of information. Expert Evidence Limited takes no responsibility for the views expressed. The copyright of the summary is owned by Expert Evidence Limited but may be used with written permission which may be forthcoming on application through the contact us page. This news item is not intended to imply or suggest that Expert Evidence Limited was involved in the case, only that it is considered an interesting legal development.
