The Dekagram 23rd January 2023

• Jurisdiction: United States,Federal
• Law Firm: Deka Chambers
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trials & Appeals & Compensation, Personal Injury
• Author: Simon Brindle and Kerry Nicholson
• Published date: 25 January 2023

It's been another busy week at the coalface. The High Court, in Arthern v Ryanair [2023] EWHC 46 (KB), gave further guidance on the interpretation of 'accident' within the meaning of the Montreal Convention, together with an exposition on how the domestic courts are likely to approach the recent decisions of the Court of Justice of the European Union on the subject. The government kicked off another consultation, this time into how a dual or multiple personal injury discount rate might work and what its effects on claimants and defendants might be (Personal Injury Discount Rate: Exploring the option of a dual/multiple rate - GOV.UK (www.gov.uk)). The Department for Transport announced that it intends to introduce legislation to address the dangerous misuse of watercraft such as jet skis, granting the Maritime and Coastguard Agency more powers to prosecute perpetrators of accidents, and ensuring that anyone riding a jet ski recklessly or causing harm to others could face up to two years in prison and an unlimited fine. The CJEU decided that rather than anonymising names of parties by allocating letters to them it will now give them randomly allocated names, prompting the team to ruminate on what unintended consequences may follow. And the REUL Bill (Retained EU Law (Revocation and Reform) Bill 2022-23 (HC Bill 204) | Westlaw UK) passed through the House of Commons with no amendments. The domestic courts and the CJEU have also been busy, as the articles this week demonstrate. As if all that were not enough, on 1^st February Dominique Smith and our friend and colleague Matt Gatenby of Travlaw will be co-presenting a webinar on health tourism, which promises to be of interest to all those undertaking work in this growing field. And who better to learn from than the doyenne of the discipline, whose book on the subject is about to be published? Sign up here: Dekinar: Health Tourism - Implications for Claimants and Defendants - Deka Chambers - Barristers' Chambers

Experts and Factual Evidence: a Short Case Study

The issue

As practitioners doubtless will be aware, CPR32.2 provides that 'the general rule is that any fact which needs to be proved by the evidence of a witness' is to be proved by that witness giving oral evidence at trial or, at any other hearing, 'by their evidence in writing.' CPR32.4 goes on to provide that 'a witness statement' contains the evidence the witness would be allowed to give orally and that the court will order parties to serve witness statements in relation 'to any issue of fact' to be decided at the trial. And, of course, all practitioners will be aware of CPR32.10 and its sanction for failure to serve witness evidence.

So, on its face, the CPR requires any disputed fact to be proven by a witness, in respect of whom a witness statement has been served.

But what about experts? Experts' reports almost always contain factual evidence. Medical experts, for example, will recount what the Claimant told them during their consultations. The CPR anticipates that experts will give factual evidence. This is clear from the statement of truth that must be included in every report, which requires the expert to swear that she has made clear which facts in her report are within her own knowledge and that those facts are true. Whilst it might be thought that the types of facts being referred to in the statement of truth are matters of fact specially cognisable by them, for example the meaning of technical terms or the conditions revealed by an autopsy or on an MRI scan, this is not the case. As the authors of Phipson on Evidence note in para 33-103 of their book, experts may prove ordinary facts, not as experts, but as ordinary witnesses. But how far can an expert go in their report, the primary purpose of which is to provide the Court with opinion evidence on matters on which expertise is required?

This question arose in a case I was instructed in recently, in which the scope and extent of the factual evidence an expert can give was in issue.

The facts of the case

First, some background. The Claimant suffered a head injury in a road traffic accident. As is often the case, the main dispute in the case centred around the extent and severity of any brain injury sustained, and whether his ongoing symptoms were organically or psychiatrically mediated. It was the Claimant's case both that his ongoing symptoms affected the amount of work he could undertake and also created a need for ongoing support. He was a single man, and some of that support was provide by his work colleagues. The Claimant lacked insight into his condition, and so could not give a good account of the support he received. He had, though, served a witness statement from one of those work colleagues in accordance with the Court directions.

Eighteen months passed, and it came time for the care experts to finalise their evidence. The Claimant's circumstances had changed somewhat, with him reducing his hours at work. Wishing to appraise herself of the current situation, the Claimant's care expert took it upon herself to contact the work colleague direct for an update. The expert's report contained an account of what the...