The burden of proof and the remit of the Expert
 EWCA Civ 1433 TEDR Volume 13 Issue 1
This case concerned a Claimant who had sustained a hip injury during an accident at work.
The Claimant’s own evidence, and thus her case, was that she continued to suffer pain long after the time that she, according to the orthopaedic evidence, ought to have recovered. She contended that she suffered chronic pain.
The Claimant gave extensive evidence at trial which was inconsistent in many regards. The Judge certainly regarded her as a poor historian.
Expert evidence was received from two Orthopaedic Surgeons (one for each party). A joint statement had been prepared. Neither expert gave live evidence.
The Claimant’s Orthopaedic expert accepted that, clinically, the Claimant was in pain. However, he could not give a diagnosis. He did not believe that a diagnosis was possible.
The Defendant’s orthopaedic expert concluded that the symptoms were unrelated to the injury. His view was that they were caused by a degenerative disease of the spine which had been accelerated by the accident.
Overall, they were able to agree the following:
“2. We are of the opinion that this was a low velocity injury and affected soft tissue.
3. We agree that there is a past history of low back pain in 1997, notably July, August and October of that year.
7. We agree that the diagnosis remains uncertain and that there are features of both hip and spinal origin of her pain and disability”.
At most, the evidence was that, orthopaedically, the Claimant ought to have recovered within a matter of months to one year.
In addition, a further orthopaedic surgeon had examined this Claimant. He too concluded that there was “nothing within the hip itself to explain the patient’s discomfort”.
Accordingly, psychiatric reports (one for each party) were before the Court too.
There was a joint statement which disclosed that there was little between their evidence. Nonetheless, they both gave oral evidence.
Neither of them believed the Claimant to have suffered any psychiatric injury and thus they ruled out what the parties called ““chronic pain syndrome”. They were invited to consider whether the Claimant was malingering. The Claimant’s own expert believed that there were signs against such a conclusion. The Defendant’s expert believed it was a possibility. Both experts agreed that, ultimately, that issue was a matter for the Trial Judge to determine.
Finally, a Clinical Psychologist gave evidence. He rejected the idea of a Pain Syndrome. He also concluded that there were “features suggestive of her concealment of positive aspects of her functioning and the amplification of exaggeration of negative aspects of her functioning”.
In essence, the Judge at first instance had to consider whether, on the balance of probabilities, the Claimant had established that her ongoing pain was caused by the accident.
At first instance, the Judge decided that:
- The Claimant was not lying;
- There was ample evidence, including from medical men that she was suffering pain;
- She was a poor historian given that she denied she had returned to work for a substantial time after the accident when she undoubtedly had and had told her physiotherapist at one point that she was fully recovered;
- It was perfectly plain that she was, however unintentionally, exaggerating her symptoms of pain;
- The pain did coincide with the accident and, save for a period of months early on, it has been fairly continuous;
- However, there was no physical cause for this pain disclosed by the orthopaedic reports;
- The psychiatrists stated that there was no psychiatric illness and there was no psychological cause that they could find for this pain;
- Accordingly, on the balance of probabilities, the pain could not be attributed to the accident for which the Defendant was responsible as opposed to some other cause for which the Defendant may not have been responsible.
In other words (and as the Judge clarified), “In the absence of an identifiable cause, a cause identifiable and attributable to the accident, the case fails”.
The Judge assessed damages on the basis of the identifiable orthopaedic injury being one that ought to have resolved within the year.
Whilst the Judge’s reasoning (or apparent reasoning) was criticised by the Claimant in the Court of Appeal, the appeal was dismissed.
The Court of Appeal held that it was entirely open to the Judge to reach the conclusions he did on the totality of the evidence before him.
This case confirms the importance of Expert evidence in establishing a causal link between an accident and an injury.
The Judge was prepared to accept the Claimant, although exaggerating, was not lying.
He was prepared to accept that, so far as the Claimant was concerned, she had sustained an accident and had been, largely speaking, in pain since.
However, he applied the appropriate test as to whether, on the balance of probabilities, the Claimant had proved a link between the accident and the injury itself. In the absence of any identifiable medical cause, the Claimant failed to do so.
In addition to the above, the case reiterates the importance of an Expert of an appropriate discipline providing the evidence and the fact that the evidence of an Expert is limited to his or her area of expertise.
Lord Justice May, in considering the contents of the Orthopaedic reports, expressed a clear view about Experts and their remit, observing that, in this case, neither Orthopaedic Expert had, in his Lordship’s view, gone beyond their professional expertise:
“They [the orthopaedic experts] found no observable explanation and, accordingly, were unable within the professional discipline to attribute her continuing pain causatively to the accident. I do not read their reports as asserting positively that the continuing pain was attributable to the accident. I rather think that, in the light of the complete absence of observable orthopaedic cause, it would have been beyond their professional competence as orthopaedic surgeons to assert positively that there was a continuing causative link”