Michael Jones, instructed by Tom Higson of DWF Law LLP, successfully appeared on behalf of the Defendant in the matter of Kirk and Jones (Administrators of the Estate of Neil Jones, Deceased) v Culina Group and Witkos [2024] EWHC 1431 (KB). Judgment was handed down by His Honour Judge Rawlings, sitting as a Judge of the High Court, on 11 June 2024.
The matter proceeded in relation to liability only as the parties had agreed quantum subject to liability. The claim was dismissed due to a failure to prove that the Defendant’s breach of duty was causative of the accident.
The deceased had left the grounds of the Belfry Hotel on foot in the early hours of the morning on 16 December 2017 in an intoxicated state. A heavy goods vehicle driven by the Second Defendant came into collision with the deceased which caused his death.
The court found that the recollections of the Second Defendant – the only lay witness – were honest but unreliable and therefore much of the case turned on the expert evidence in accident reconstruction and accident and emergency medicine.
The Judge accepted the Second Defendant’s evidence that he had not seen the deceased before the collision, however held that this was in breach of his duty of care to the deceased. It was agreed that the Second Defendant would not have been able to brake to avoid the collision in any event, however, on preferring the Defendant’s accident reconstruction evidence, it was found that he also would not have had sufficient time to steer to avoid the collision, even on the times and distances which were most favourable to the Claimants.
At [76], the Judge made the following comments about the accident reconstruction experts:
“Whilst I do not say that, the concerns that I have about: (a) the lack of an objective basis for Mr Boulton's opinions (his lack of calculations and reference to published research papers) and reliance instead on his own views; and (b) what I take to be a lack of care in ensuring the accuracy of his primary report and his parts of the joint report and that their wording properly reflected his opinions, means that I will always prefer the opinion of Dr Ash to that of Mr Boulton, in respect of the matters on which they disagree, I approach those issues bearing those concerns in mind.”
The Claimants’ reconstruction expert included no calculations or references to any research papers in his primary report. He also made errors and had contradictions in his report. It should go without saying that experts’ reports should be precise, accurate, well-reasoned, and properly evidenced in anything from simple small claims to complex High Court trials, however the fact that this case has turned on expert evidence being rejected due to errors serves as a reminder to experts and those instructing them of the importance of high-quality reports on contentious topics.
A further interesting point of note was raised by the judge in relation to the expertise for which permission has been given as compared to the expertise proffered by the experts. The Claimants’ reconstruction expert based his opinion on the time it would take the HGV to steer around the deceased from his own experience as an HGV driver/instructor. The Judge highlighted how permission had been given for accident reconstruction evidence, and not for evidence from experts in driving HGVs. In contrast, the Defendant’s reconstruction expert had provided calculations based on research in reaching her conclusions. Her conclusions were adopted directly by the Judge in part due to the issues with the Claimants’ expert’s experience-based conclusions and their lack of objective verifiability.
Whilst it became of lesser importance in relation to the outcome of the trial, the Judge also preferred the evidence of the Defendant’s expert in accident and emergency medicine as it took a more comprehensive approach in considering wider issues than just the injuries suffered by the deceased. It was also preferred as the Defendant’s expert had considerable experience in pre-hospital accident and emergency care – provided at the scene of the accident – whereas the Claimant’s expert’s expertise was hospital-based. This highlights the importance, for those choosing to instruct an expert, of exploring the expertise of any potential expert and their experience in situations akin to the one they are being asked to opine upon. I witnessed similar reasoning in a 2-day trial I was shadowing during the non-practising period of my pupillage where the Defendant’s expert was preferred due to his direct experience of knee surgery as opposed to the Claimant’s expert whose practice was almost entirely the production of medicolegal reports.
The best experts are those with direct and recent experience and who produce well-reasoned and evidenced reports which are consistent and free from errors. It should not need saying, but cases are lost when this advice is not heeded.
Written by Michael Elders
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