How many experts does it take to deliver a baby? Our round-up of recent cases.
Beaumont v Ministry of Defence  EWHC 1258 (QB)
The usual rule in clinical negligence cases is that only one expert in each discipline should be called and two will only be permitted in exceptional circumstances. This recent case concerned an appeal against an order made at a case management hearing refusing the Claimant (B) permission to adduce expert evidence from a second obstetric expert witness. The Claimant argued that the Defendant’s factual witness was in effect an expert in his own right and therefore, in the interests of justice, the Claimant should also be allowed to call a second expert obstetric witness.
B was born at an RAF Hospital in Germany. The delivery was performed by Mr Forbes (Consultant Obstetrician). It was alleged that his management of the delivery was below the requisite standard and that as a result, the Claimant suffered asphyxia causing cerebral palsy. The allegations were denied by the Defendant. Mr Forbes was a Consultant at the time of B’s birth and was Clinical Director of the department. He had been preparing medico-legal reports since 1987, and had given evidence in criminal and civil courts and before GMC Fitness to Practice Panels. He was also on the AvMA Panel of Experts and was a member of the Medical Protection Society and the Claims Advisory Committee. The Claimant argued that although Mr Forbes would be called to give factual evidence, it was inevitable that he would rely upon and deploy his considerable expertise, and that this expertise would carry weight with the trial judge. Therefore, the Defendant would effectively have the advantage of two obstetric expert witnesses, whereas the Claimant would have only one.
The Claimant sought to rely on the Court of Appeal decision in ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust (2003) EWCA Civ 1284 (where the Claimant was allowed two obstetric witnesses as the Defendant had two experienced Consultants as factual witnesses in addition to their expert). Lord Justice Brooke held in ES that “Anybody watching the trial would be bound to be impressed by the fact that there was only one consultant obstetrician giving evidence for the claimant, whilst there would be three giving evidence for the defendant hospital trust, and those three would cover a much wider spectrum of personal experience than the single expert permitted to the claimant”. He later stated that “Nothing in this judgement must be taken to give any sort of green light to the calling of two experts in a single discipline in any case which does not have exceptional features. On this appeal the presence of three consultants on the defendants’ side constitutes an exceptional feature.”
In the present appeal, Mr Justice Holroyde distinguished the case of ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust and said that the circumstances of the current case were not so exceptional so as to justify a departure from the normal rule. He noted that the prospective imbalance of three obstetricians on the one side against one on the other side was a highly important feature in the ES case. He accepted that Mr Forbes would inevitably display and rely upon his experience and expertise when giving evidence, and that such experience and expertise may carry weight with the trial judge. However, he went on to say that “It seems to me that that will be a commonplace feature of actions for clinical or professional negligence, because if the Judge hearing the evidence forms the view that the professional person accused of negligence appears to be, in general, a professional person of competence, that is inevitably a factor in determining whether or not on the particular occasion that professional person has fallen below the standard of care to be expected of him”. The appeal was dismissed.
The problem with applying ES in anything but exceptional circumstances is that the justice of a case is a relative concept and you cannot do justice to a Claimant by doing injustice to the Defendant. The fear of the Claimant in ES recognised by Brooke LJ was that the collective evidence of the Defendant’s witnesses would be that the lone witness for the Claimant “had a bee in his bonnet” and should not be accepted as representative. The decision has seldom been followed from our experience and it is relatively easy to distinguish on its facts. In one case where it was followed, it was argued by the Claimant at the case management hearing that the Defendant’s consultant was so experienced in his specialist field as to be a world-leader who no single expert could stand against. Once given permission for two experts, the Claimant amended his case to say that the same consultant was not a specialist in his field and should have referred to someone more specialist and senior.
The Court in Beaumont has now made it clear that the ES exception to the usual expert parity will only very rarely be invoked. A case must have “exceptional features” before a Court will depart from the normal rule. The fact that a Defendant’s factual witness is particularly experienced in their field will not make a case “exceptional”. As recognised by the Court in Beaumont, the presence of a Consultant factual witness for the Defence is typical of many clinical negligence actions. If Claimants were allowed to rely on a second expert witness in all such cases, in written reports, expert meetings and at trial, it would be argued that the Defendant’s lone expert “had a bee in his bonnet” and with the risk that the floodgates would open to a series of similar claims, and the whole purpose of the rules limiting expert evidence would be undermined.
The message from the Court is that, in general, the experience of a factual witness will simply be a factor in deciding whether or not that witness’ care fell below the requisite standard. The Court should be trusted not to treat that witness as a further ‘expert’ for the Defendant.
Gray v Thames Trains Ltd  UKHL 33
In this tragic case, the House of Lords has looked again at the defence of ex turpi causa. At its simplest, the defence is based on the principle that an individual cannot claim losses as a result of their own criminal conduct. This case considered whether an individual could recover losses caused as a result of a sentence imposed for such a criminal act.
The Claimant (G) was a passenger in the 1999 Ladbroke Grove rail crash. Although the Claimant’s physical injuries were relatively minor, he went on to suffer severe post traumatic stress disorder. As a result, the Claimant underwent a significant personality change, causing him to become anxious and socially withdrawn and requiring him to take several periods off work. Following a minor road traffic accident on 19 August 2001, the Claimant stabbed a pedestrian to death in a fit of rage. He subsequently pleaded guilty to manslaughter on the grounds of diminished responsibility and was detained in prison and then hospital under the Mental Health Act.
The Defendants admitted liability for the Claimant’s injuries and losses prior to the date of the stabbing. Thereafter, the Claimant sought general damages for his detention, feelings of guilt and remorse, but also loss of earnings caused by his imprisonment. The Defendants contended that there was no liability for any losses sustained after the manslaughter, as the doctrine of ex turpi causa applied.
At first instance, the trial Judge rejected the claim for loss of earnings, finding that the doctrine of ex turpi causa applied to both general and special damages. The Court of Appeal, however, took a different view. It held that the manslaughter conviction did not break the chain of causation as it was clear from the psychiatric evidence that the Claimant would not have committed manslaughter had it not been for the Defendant’s negligence. The ex turpi causa defence did not prevent recovery of special damages, and the claim for loss of earnings after 19 August 2001 was allowed. The Defendant appealed to the House of Lords.
The House of Lords overturned the Court of Appeal’s decision, on the basis that the killing was a “voluntary and deliberate act”, and whilst the Claimant’s PTSD diminished the Claimant’s responsibility, it did not extinguish it. The chain of causation was broken and the ex turpi causa defence applied meaning the Claimant’s claim for special and general damages following the manslaughter failed.
Whilst the House of Lords had sympathy for Gray, they made it clear that public policy considerations have an important part to play. Lord Brown stated that “the law cannot at one and the same time incarcerate someone for his criminality and compensate him civilly for the financial consequences”. The Courts’ approach must be consistent, even if the outcome appears unjust in certain circumstances.
Although the defence is not often invoked in practice, the decision clarifies the applicable test for use in tort actions. There may, however, be further litigation on the point as both Lords Rodger and Phillips reserved their opinion as to whether the situation would have been any different had the offence been trivial as opposed to manslaughter. Watch this space.
Axa Insurance Ltd (formerly known as Winterthur Swiss Insurance Co) v Akther & Darby Solicitors  EWCA Civ 1166 (12 November 2009)
Axa were the assignees of an insurance company (NIG) which provided after-the-event legal expenses insurance (ATE). The Defendants were firms on a panel of solicitors who were responsible for vetting and conducting any claims brought under the ATE policies. Any claims under the scheme had to be worth more than £1,000 and have a prospect of success of at least a 51%. It was alleged that the Defendants were negligent in either failing to properly risk assess the claims at the outset (the ‘vetting’ claim), or in failing to conduct the claims with reasonable care and skill thereafter or by not notifying the insurers when the prospects of success fell below 51% (the ‘conduct’ claim). It was claimed that, as a result of these breaches, NIG incurred losses by having to make payments under the policies that could have been avoided. Some 7,383 of the 26,000 claims brought concerned policies that had been issued more than six years before proceedings were issued. The preliminary question for the Court was when had actual damage been suffered by the Claimant for the purposes of limitation.
At first instance, the Commercial Court held that time started to run for the vetting claims when the policies were issued, and for the conduct claims, either at the point of the failure to notify or when the failure to notify resulted in a material diminution in the prospects of success of the claim. However, it was argued by the Claimant (applying the principles in Law Society v Sephton  2 AC 543) that time started to run later in relation to both claims, when the claim for payment could have been made under the policy, and that NIG’s liability under the policy was no more than an unsecured contingent liability until that occurred. The Claimant appealed.
In its Judgment handed down on 12 November 2009, the Court of Appeal upheld the decision of the Commercial Court. Although it was decided in Sephton that incurring a contingent liability would not cause limitation to start to run, the insurer’s loss in this case was not purely contingent (Sephton distinguished). In relation to the vetting breaches, the insurer carried the risk as soon as the policy was issued and a valuation of the policy at the outset would have reflected that inherent risk. The Court held that exposure to a greater risk constituted an actual loss, and therefore, the insurer should be treated as suffering damage at the time the policies were issued. As far as the conduct breaches were concerned, the same analysis applied. Damage occurred at the time of the failure to notify or the failure to properly progress the case, as from that point, the insurer was exposed to a larger liability than it would have been had the breach not occurred. Many of the claims were therefore out of time.
In cases of professional negligence, Claimants will often argue that they have not actually suffered any loss until years after any advice was given. Although the question of whether actual damage has been suffered will depend on the facts of each case, this decision shows that where a solicitor gives advice in relation to a transaction, the Claimant can suffer loss as soon as they enter into that transaction, even if that loss does not actually materialise until much later. The decision also demonstrates the limits of the House of Lords decision in Sephton by showing that if a Claimant’s loss consists of a contingency, damage will not necessarily be limited to when that contingency crystallises.
For further information please contact: Yasmin Allan