Stating the ‘bleeding obvious’

It is hard to believe that any court expert signing a statement of truth, in accordance with para 3.3 of the Practice Direction to Part 35 of the Civil Procedure Rules, at the end of their expert report verifying its accuracy, has any real doubt that were the statement found to be false then the expert would be open to proceedings for contempt, and that would put the expert in jeopardy of imprisonment – see for example Liverpool Victoria Insurance v Zafar [2019] EWCA Civ 392.

However, to ensure that the fear of prison runs through every expert as they sign off on a report, the Practice Direction is to be amended as of 1st October 2020 to add, at the end of the existing statement of truth:

“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”

the following sentence:

“I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

Every expert report from 1st October 2020 must have this additional sentence at the end of the statement of truth, to remind the expert that the ‘starting point’ for someone found guilty of contempt is a sentence of imprisonment ‘well in excess of 12 months’, according to Zafar – see my earlier blog Your statement of truth really, really matters!.

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Back to basics -causation of damage

To succeed in a claim for damages for personal injury, and equally in clinical negligence claims, it is necessary for the claimant to prove (on the balance of probabilities):

(i)          that the defendant is in breach of a duty owed to the claimant;

(ii)         that injury, loss or damage has been caused to the claimant (sufficient to form the basis of a claim in law) as a result of the breach of duty; and

(iii)        the nature and extent of the injury, loss or damage sustained.

Under (ii) it is necessary to prove that some (more than minimal) damage has been suffered in order to have a cause of action (a black eye or painful neck or back will be enough).  This is referred to as ‘legal causation’.  Without some (more than minimal) damage there is no claim.

Once it is proved that there has been some damage, it is for the claimant to prove the extent of the damage caused by, or arising from, the breach of duty. This is referred to as ‘factual causation’.

In order to establish that there is some damage and its extent, it is necessary to address what the position would have been ‘but for’ the breach of duty, and to compare this with the position that has occurred and will occur in the future.  Damages will be awarded for this difference – the damage caused by or arising from the breach of duty.

This can frequently be the main battleground between the parties to litigation.  The question therefore is, even if there was a breach of duty – for example negligence – did it make any difference (legal causation), and if so, what difference (factual causation).

There are several ways of expressing the test. Lawyers often refer to causation as the ‘but for’ test:

…”but for”, or “in the absence of”, or “without the act or omission, what was the claimant’s situation likely to have been in any event?”

Then it is necessary to go on to see if the situation as it is now is different, and if so, in what way.  Judges and lawyers alike want to know what injuries, if any, the claimant has actually suffered as a result of the accident. Usually, there is little difficulty in identifying the injury (or injuries) with which the claimant has presented. However, one of the most important purposes of a medical expert report is to distinguish between those injuries, symptoms, effects and consequences that have been caused by the accident (or adverse event) from those that have not. In all injury claims expert medical evidence is crucial in addressing causation.  It may be necessary for a number of experts within different disciplines to address different aspect of the alleged injury.

The crucial point to remember is that a claimant can only recover damages for the consequences arising from the accident and not for anything that would probably have occurred or been suffered in any event. The medical evidence must establish clearly which of the claimant’s complaints and concerns since the accident and which of the concerns in relation to the claimant’s medical health for the future are a consequence of the accident and would not have arisen in the absence of the accident.

A very real difficulty for the medical expert is that in clinical practice the issues of causation and of consequential loss are not generally part of a medical practitioner’s assessment of a patient and are not written about in medical reports to colleagues or in learned articles. For the most part, causation is irrelevant to medical practice. What the patient’s situation would have been if the circumstances were to have been different is of no, or very little, significance.

Having a clear understanding of causation is one of the fundamental components of the medico-legal mind which an expert must develop. So, also, is expressing the opinion on causation in accurate and precise language which the lawyer will immediately understand.

The difficulty in forming opinions on causation is that a claimant may have had some symptoms prior to the accident, on to which the symptoms resulting from the injury have been superimposed. The claimant may have had a pre-existing condition which was likely to have an impact on quality of life in due course in any event.  There may be pre-existing degenerative changes, asymptomatic prior to the accident but contributing to the situation since the accident or which might do so in the future. There may also be some other unrelated disease or condition that will affect the future. All of these issues can make causation a challenging principle to apply.

A further difficulty is that when addressing causation, the medical mind is far more comfortable with giving opinions on the situation as it is now than on giving opinions on what the situation would have been in the absence of (i.e. but for) the accident. The ‘medico-legal mind’ understands that without the second half of the opinion dealing with the ‘but for’ position, the opinion is incomplete and the claim cannot be valued – the medico-legal report is therefore useless!

Learning point:

Every medical expert addressing quantum, and therefore the value of a claim, must have the issues of causation in mind, whether dealing with what may appear to be a simple road traffic claim or a complicated clinical negligence.  Simply taking at face value that the condition of the claimant now is the result of the accident or adverse event concerned is potentially negligent.

Every such medical report must clearly set out the situation as it now is, and will be into the future, and also the situation as it would have been but for the accident or adverse event, and must explain and describe the difference between the two situations.

The topic is dealt with in a great deal more detail in Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), published and sold by Professional Solutions Publishing (www.prosols.co.uk)

[Who or what is medico-legal minder?  Terms and conditions apply]