Giving notice of matters capable of undermining your opinion or your credibility

The Criminal Practice Directions (CPD) have just been amended in relation to expert evidence provided for criminal proceedings.  The requirements of the new Directions are expressly applicable to criminal proceedings but their content is just as applicable to any expert seeking to give unbiased and reliable evidence to any court or tribunal.  To look at that the other way round, the matters to which this Direction relate are all matters which could seriously embarrass an expert and the party by whom the expert is instructed in any proceedings if admitted to for the first time under cross-examination, and the failure to disclose them could lead to serious consequences for the expert, including financial penalty and reference to the appropriate professional body.

CPD 19A.7 gives examples of matters which should be disclosed as potentially undermining the reliability of an expert’s opinion or detracting from the credibility or impartiality of an expert, both in relation to the expert and in relation to any corporation or body for which the expert works.

  1. any fee arrangement under which the amount or payment of the expert’s fees is in any way dependent on the outcome of the case;
  2. any conflict of interest of any kind, other than a potential conflict disclosed in the expert’s report;
  3. adverse judicial comment;
  4. any case in which an appeal has been allowed by reason of a deficiency in the expert’s evidence;
  5. any adverse finding, disciplinary proceedings or other criticism by a professional, regulatory or registration body or authority;
  6. any such adverse finding or disciplinary proceedings against, or other such criticism of, others associated with the corporation or other body with which the expert works which calls into question the quality of that corporation’s or body’s work generally;
  7. conviction of a criminal offence in circumstances that suggest: (i) a lack of respect for, or understanding of, the interests of the criminal justice system (for example, perjury; acts perverting or tending to pervert the course of public justice),  (ii) dishonesty (for example, theft or fraud), or  (iii) a lack of personal integrity (for example, corruption or a sexual offence);
  8. lack of an accreditation or other commitment to prescribed standards where that might be expected;
  9. a history of failure or poor performance in quality or proficiency assessments;
  10. a history of lax or inadequate scientific methods;
  11. a history of failure to observe recognised standards in the expert’s area of expertise;
  12. a history of failure to adhere to the standards expected of an expert witness in the criminal justice system.

CPD 19A.8 states that where there has been adverse comment in the course of a judgment, it would be reasonable to expect those criticised to supply information about the conduct and conclusions of any independent investigation into the incident, and to explain what steps, if any, have been taken to address the criticism.

The potential sanction in criminal proceedings under CPD 19A.9 is ‘a searching examination of the circumstances by the court’ of a failure to disclose, and potentially the exclusion of the expert evidence in the proceedings.  But in any proceedings these would all be matters likely to impact on the reliability of the expert’s evidence and should be raised by the expert with the instructing solicitor if not referred to in the report itself.

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Negligent doctor liable only for losses within the doctor’s “scope of duty”

Medico-legal Minder previously reported on the decision of a judge to award against a doctor, who wrongly reassured a mother who wished to establish if she carried the haemophilia gene, damages in relation to the cost of bringing up a child with haemophilia and autism.  The Court of Appeal has considered the case (Khan v MNX [2018] EWCA Civ 2609) and has ruled that the judge’s decision was wrong.

The purpose of the mother’s consultation with the doctor was to enable her to make an informed decision in respect of any child she conceived who was subsequently found to be carrying the haemophilia gene.  The doctor was liable for the risk of a mother giving birth to a child with haemophilia because there had been no foetal testing and consequent upon it no termination of the pregnancy.  However the mother took the risks of all other potential difficulties of the pregnancy and birth.  The doctor had no duty to prevent the child’s birth and the risks of a child being born with autism was not increased by the doctor’s advice.

In legal terms, the Court of Appeal ruled that the judge had failed to apply the “scope of duty” test set out in South Australia Asset Management Corp v York Montague Ltd [1997] AC 191 but instead had applied the “but for” causation test.  The South Australia case required there to be an adequate link between the breach of duty (the negligent advice) and the particular type of loss claimed, and laid down a 3-stage test: (i) what was the purpose of the advice which was negligently provided? (ii) what is the appropriate apportionment of risk? and (iii) what losses would have been sustained if the correct information had been given?  At the first stage, the purpose was to put the mother in a position to enable her to make an informed decision in respect of any child she conceived who was subsequently found to carry the haemophilia gene.  At the second stage, the doctor was liable for the risk of a mother giving birth to a child with haemophilia because there had been no foetal testing and consequent upon it no termination of the pregnancy.  At the third stage, the loss which would have been sustained if the correct information had been given and appropriate testing performed would have been that the child would have been born with autism, which risk was not increased by the doctor’s advice.

A number of rules limit or define the damages which may be recovered where there is a breach of duty.  This case illustrated (so the Court of Appeal found) the link that there must be between the scope of the duty and the damage sustained (which here limited damages to the issue of haemophilia) whereas the trial judge had, wrongly on the facts of the case, applied the “but for” causation test in awarding damages for the additional costs of an autistic child which costs would not have been incurred “but for” the breach of duty as a result of which the pregnancy had not been terminated.

In Chester v Afshar the misfortune which befell the claimant was the very misfortune that the defendant had a duty to warn against prior to surgery.  The claimant recovered damages for that event arising.  That was not, however, the case here.  In Southern Australia there was discussion of the contrasting facts of the ‘mountaineer’s knee’.  A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering (such as from an avalanche) but has nothing to do with his knee.

The facts of Khan v MNX are more akin to the ‘mountaineer’s knee’ than to the failure to warn of a risk of surgery which in fact occurs.

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