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Successful restriction of expert evidence in RSI case

Walker v W.H Tracey Ltd
Manchester County Court
13 April 2017

Patrick McBrien of DWF's disease team has recently succeeded in restricting the expert evidence to be relied upon by the claimant in an RSI case. Patrick explains the findings at first instance and on appeal and provides a recap of the law concerning the reliance on expert evidence and the factors to be taken into consideration. Walker v W.H. Tracey Ltd (2017)

Background

This is a claim following a repetitive strain back injury arising out of allegedly repetitive and strenuous lifting at work. The claimant disclosed and sought permission to rely on expert evidence in four separate disciplines: orthopaedics, psychiatry, pain management and ergonomics. The defendant sought permission to rely on the evidence of its own orthopaedic surgeon and to put questions to the claimant's psychiatrist but strongly opposed expert evidence being adduced in ergonomics and pain management.

Relevant Legal Test

The starting point is CPR r.35.1. The onus is on the party seeking to rely on expert evidence to obtain the court's permission and "expert evidence shall be restricted to that which is reasonably required to resolve the proceedings." The decision in British Airways Plc v Spencer [2015] EWHC 2477(Ch) confirms that for the purposes of CPR r.35, expert evidence should be admitted if it is necessary to resolve issues and may be admitted in order to assist the court to understand the issues as long as it would be proportionate to do so.

Findings

First instance

We argued that the ergonomic and pain management evidence was unnecessary and disproportionate, such that applying the above criteria, the claimant's application should fail. We argued that the pain management expert did not add anything, or anything significant to the evidence from the orthopaedic surgeons and any additional points could be explored further with them. In the case of the ergonomist, our argument was that the system of work complained of was actually quite straightforward: the expert would simply be looking at the system of work and commenting. He would not be adding anything of significance, such as, for example, objective testing or analysis. Issues around breach of duty could be readily determined by the trial judge by reference to lay evidence only. In respect of both experts, we put forward arguments of proportionality, having regard to the value of the claim and the potential for eight experts to be involved in the case if the defendant obtained permission to obtain its own evidence in each of these disciplines.

The district judge accepted the defendant's arguments and the claimant was refused permission to rely on expert evidence in pain management and ergonomics. The claimant appealed.

Appeal

The appeal was heard by a circuit judge in Manchester. The judge held that whilst he might have exercised his discretion differently in relation to one of the experts, the appeal was not a re-hearing and the district judge's initial decision was within "the generous ambit within which a reasonable disagreement is possible" (the test referred to in Tanfern v Cameron-MacDonald [2000] 1 WLR 1311). The appeal was dismissed and the claimant was ordered to pay the defendant's costs in full.

Comment

There is no automatic right to rely on expert evidence. The onus is on the party wanting to introduce such evidence to establish that it is necessary and proportionate. Limiting the amount of expert evidence can be a useful way of reducing costs and limiting the scope of a claim more generally.

The fact that expert evidence is unilaterally obtained, disclosed and the cost of doing so is incurred does not change the criteria that the court should apply. Defendants should not feel like they are being presented with a fait accompli and should reserve their right to object to expert evidence.

Parties should look at the evidence objectively and ask what, if anything of significance will it add to the trial judge's ability to determine the issues. To give an example from this case, the basis of the claim was that the system of work was repetitive: in the circumstances, it is obvious that task rotation would reduce risk and an (expensive) liability expert was not required to state the obvious. 

Contact

For more information please contact Patrick McBrien, Director on 0161 603 5236.

By Patrick McBrien

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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