Spring 2016

This article is going to consider the role of medical experts, in particular orthopaedic experts involved in claims following whiplash injury, and the reason for their reports being an aid or obstacle to the settlement of a claim.

Those instructing medical experts need to bear in mind their training in medicine and their therapeutic rather than forensic approach.

Classical medical training involves learning how to take a history, examine a patient, review pertinent medical records and investigations, provide treatment and follow up. At the heart of this is the need for the doctor and patient to build a trusting relationship with one another.

This is contrasted with the approach needed for providing a reliable and useful medical report. Whilst a history, examination and review of pertinent medical records still takes place there is a difference in the approach required.

When taking a history for therapeutic purposes, which is a vital part of assessment, the symptoms will be described by the patient. Direct questions will be asked which are designed to arrive at a diagnosis. The diagnosis is then used as a tool to reassure the patient and provide a basis for treatment. Throughout the patient is looking for an explanation. There is no reason for the medic concerned to doubt the validity of what they are being told by the patient indeed it is in the patient’s best interest for them to be accurate. As such medics get used to believing and trusting their patients.

When taking a history for the purposes of a forensic report whilst the technique is similar to that adopted for therapeutic purposes the objective is different. Direct questions are still asked but these are designed so as to understand the condition. Further a scepticism of the claimant is required in order to remain objective.

Further a history can be the least important part of the assessment. This is because symptoms may have started many years ago and on being assessed the claimant is likely to have formed a firm opinion which will have been reinforced by many previous consultations with those treating them. As such there is the potential for inaccuracies to be repeated and magnified. The claimant’s account therefore needs to be compared with objective information which will usually take the form of medical records.

Examinations adopted for therapeutic purposes are looking for signs to help arrive at a diagnosis. As such tenderness and pain on movement are important signs. Most signs of injury however settle rapidly and an early examination is the most accurate. The current condition is important in deciding treatment and directing investigations.

Examinations conducted for forensic reports usually occur long after the injury or start of symptoms with signs of injury usually having resolved. It can however still be a useful tool in arriving at a diagnosis. Consistency between examinations can be useful but an examination will not be particularly helpful when considering causation. Forensic examiners will be looking for signs of persistent disability along with inappropriate behaviour and exaggeration.

Objective signs can be identified of mobility and disability when an examination is conducted for forensic purposes. These can include signs of muscle wasting, skin quality and shoe wear or wear on walking stick rubbers.
Following a therapeutic assessment, a patient’s medical records will be pertinent to the injury or condition. Records will show past treatment provided by the same doctor or institution and will often include a GP’s referral letter. However, a copy of the patient’s medical records may not be available to those providing treatment and the past medical history is based on the verbal information which the patient provides and as discussed above their will be no reason to doubt the accuracy of the information provided. As such medical records will not provide an accurate opinion on causation and this will not usually be required at that time.

For medical experts the claimant’s medical records can be the post important part of an assessment. Contemporary medical records provide objective evidence of the extent of the injury and causation. It is a known fact that once legal proceedings commence the reliability of a claimant’s medical records drops.

Later medical records are progressively less reliable on causation. Initial consultation records are useful if made within 48 hours of the injury occurring. After that time the risk of ‘artificial associations’ occurs as attempts are made to explain the symptoms in order to reassure the patient and are the natural product of a normal consultation. Once an association has been established by human nature they will be reinforced at every conversation and the patient will come to ‘truly believe’ it. These associations are unlikely to be challenged in subsequent medical notes as they are irrelevant to the treatment of the patient. Therefore, comments on causation in medical records are often unreliable.

A medical expert will often seek to review early notes as they are the most useful and the first consultation if possible as the patient will usually not have thought about compensation at this point will be able to provide an accurate history without confounding factors and early physical signs are useful in identifying injury. Therefore, later notes are helpful but less reliable when considering causation.

When preparing a medical report, the expert should compare the history as provided by the claimant with the contemporary medical records. The examination should comment on the presence or absence of objective signs of disability and consistency. A full review of past medical records should be undertaken including past medical history and informed comments on causation should be made.

It is known that some experts have a reputation of possible bias. This is very rarely deliberate and not helped by traditional medical teaching which promotes a bias towards the claimant. There is therefore a risk of a good doctor without adequate medico-legal training being biased towards the claimant. Objectivity therefore requires a different approach to that which is traditionally taught.

Those instructing medical experts therefore need to be prepared to challenge their experts on their non-forensic opinion and understand why comments on causation in medical notes can be unreliable.

How Hussain and Dhawan [2008] made diminution un-claimable and why it should not be followed.  Diminution of value is a very simple concept with an abundance of guidance from academics and the judiciary. It is the simple principle that the ‘victim’ should be put back in the position they would have been in had the accident not occurred.

How then is it going so badly for Claimants?

The idea of diminution of value is most often encountered in road traffic accidents. It is common for the vehicle to either be repaired or declared a total loss. Regrettably, we have come to view repairs as a distinct head of loss and not, as it should be viewed, as a rule of thumb guide to putting the victim back in the position they would have been in - resulting in no diminution of value.

Payton v Brooks [1974] 1 Lloyd’s Rep 241

Briefly, this matter concerned a road traffic accident that caused damage to the Plaintiff’s vehicle. The Plaintiff sought the cost of the repairs and, in addition, it was claimed that there should be an award for diminution. This was because the Plaintiff, when he came to sell the car (which he usually did every four years), would not receive the ‘full’ amount he could have received had there been no accident.

In the first instance the Plaintiff was not successful on the diminution point, he did, however, succeed fully on the repairs. Ultimately this was due to the Plaintiff being unable to establish that his vehicle would receive a lower amount when sold.
The matter came before Edmund Davies, Buckley and Roskill LJ who, following clarification, understood the above to be the correct position of the lower court. The appeal was, of course, dismissed.

However their Lordships continued to discuss the point of diminution. The decision is brief and exceptionally clear.

Edmund Davies LJ considered first McGregor on Damages 13th Ed (1972) p638 and noted that:

“the normal measure of damages is the amount by which the value of the goods damaged has been diminished….Darbishire v Warran [1963] 1WLR 1067 where it was said by Harman LJ that ‘it has come to be settled that in general the measure of damage is the cost of repairing the damaged article’”

Which lead his Lordship to the inevitable conclusion that ‘if reduced market value can be proved, despite good repairs, compensation for the reduction can be awarded to an injured plaintiff’, this point was only tempered by the necessity of proof that the saleable value was lowered regardless of the quality of the repairs.
Buckly LJ echoed this view but opined that each case turns on the facts.

Finally, Roskill LJ, agreeing with both judgments that ‘in a case where the evidence justifies this finding, any diminution in value of the damaged goods would be recoverable as a head of damage in addition to the cost of repairs’.  It is accepted that the cost of repairs is prima facie a method of ascertaining the diminution in value.

The matter therefore seems clear; where there is sufficient evidence then repairs and diminution are recoverable.

Roskill LJ only adds a degree of caution and reiterates that appropriate evidence is necessary to prove diminution.

Payton was reaffirmed in the Court of Appeal case of Coles and Others v Hetherton and Others [2013] EWCA Civ 1704, [2014] 3 All ER 377, Aikens LJ: “The ‘reasonable cost of repair’ is, as a rule of thumb, taken as representing the diminution in value of the chattel that has been suffered as a result of the damage caused by the negligence of the defendant. However, it may not always represent the full amount of the diminution in value, as this court made clear in Payton v Brooks.

There the matter should have ended.

Hussain v Dhawan [2008], Newcastle County Court (unreported).
However, there appears to have been a sudden increase in reliance of case of Hussain v Dhawan [2008], Newcastle County Court (unreported). How and why this is so remains a mystery.

The matter was before DJ Alderson and concerned a rather modest claim for repairs and diminution following a road traffic accident. DJ Alderson referred to Payton and the judgement of Roskill LJ and correctly noted that there needs to be a degree of caution in assessing diminution and there needs to be appropriate evidence.

But this is where the case departs from Payton.

The first point of note is that at paragraph 12 DJ Alderson states that the Court of Appeal ‘although saying yes, diminution was a potential claim, was not applicable because the car had been fully and properly repaired’. This point is respectfully disagreed with. This is not what the Court of Appeal was saying. It was found that the plaintiff couldn’t establish that there was a diminution of value post repairs, there were contradictory reports and the question of fact was properly disposed of by the lower courts.

DJ Alderson, para 14, suggests that the Court of Appeal found that only if you can provide something over and above that [referring to proper repairs], something out of the norm that is very specific and can be dealt with by way of evidence, could that be looked upon as diminution’. This idea of something exceptional and out of the norm is again repeated in paragraph 15.

DJ Alderson then formulates the test applied in the present case in paragraph 16 which can be summarised as i) question of what would amount to something outside the norm in any case (objective) and ii) what then is outside of the norm in the present case that allows diminution (subjective)?

On further rumination DJ Alderson considers that diminution can happen to both luxury and normal cars and directs that (paragraph 20) ‘if this had been an accident where there had been damage to the structure or integrity of the car, then quite clearly I would say without any question, we should be looking at the question of diminution’.  But in the present case the damage is not out of the ordinary.

Finally DJ Alderson reflects that there is a range of values to any car. The Judge finally accepts that there is nothing out of the norm, the work was to an acceptable standard and that the Claimant is back in the position in which they began.

The judge finally concludes that the author of a report needs to demonstrate and persuade the court that the case is out of the norm. The Judge dismissed the diminution element.

This case continues to be relied upon as the authority that a test now exists that there must be something ‘out of the norm’ and that where usual repairs are carried out then diminution can’t be claimed.

This, respectfully, is not the test laid down by the Court of Appeal. Indeed no test was laid down. The learned Judge’s comment that there needs to be something structurally wrong is an example where repairs have not or cannot been carried out. Therefore we return to Payton and the principles recited in McGregor. The Claimant would not have been put back in the position they would have been in had the accident occurred.

Secondly the notational test of something out of the ‘norm’ does not mean something exceptional, novel, irreparable or any such thing. The only obligation is to show that the vehicle, post repairs, will not sell for the price it would have done before the accident. The Claimant needs to prove this with appropriate evidence. This is the guidance laid down in Payton.
It is respectfully argued that DJ Alderson in Hussain found that the Claimant had not proved that there had been diminution and nothing more.
In Conclusion, it is the authors opinion that Hussain does not add any test to Payton. The suggestion that it does is manifestly flawed. There does not need to be something out of the norm. There is no test of exceptionality. The nature of the vehicle does not matter. There are only two elements that the Claimant and the Court should be concerned with. Is there a diminution in the value of the vehicle and is there evidence to prove a much.

There the matter should rest.

In Nottingham City Council v LM and Others [2016] EWHC 11 (Fam) the Local Authority issued care proceedings shortly after the birth of the child, believing there to be reasonable grounds that she would be at risk or would suffer significant harm in the care of the parents. The Local Authority were seeking for the child to be placed with foster carers under an interim care order. The parents opposed, whilst the guardian was in support.

The parents sought to challenge the interim threshold and the evidence of the social worker. “Most unfortunately no circuit judge, or district judge or lay bench could accommodate such a fixture until some days later” (para 20). The hospital were unable to accommodate the child for such a length of time.

The court decided that it could not risk placing the child in the care of the parents, therefore granting the interim care order. Reasons were subsequently given at a later date.

In his Judgment, Keehan J was critical of the delay, commenting “I am in no doubt that the parents in this case have been done a great dis-service by this local authority” (para 36). The late nature of the application had caused procedural unfairness to the parents and to the guardian.

“The fact that a hospital is prepared to keep a baby as an in-patient is not a reason to delay making an application for an interim care order” (para 30).  

“Where the pre birth plan provides for an application to be made for the removal of a child at or shortly after birth, it is neither "usual" nor "ideal" practice for an application for an interim care order to be made on the day of the child's birth, rather it is essential and best practice for this to occur”(para 31).

“Once it is determined by a local authority that sufficient evidence is available to make an application for an interim care order, on the basis of the removal of a new born child, the availability of additional evidence from the maternity unit or elsewhere, must not then cause a delay in the issue of care proceedings; the provision of additional evidence may be envisaged in the application and/or provided subsequently” (para 32).

He stated “the message must go out loud and clear that, save in the most exceptional and unusual of circumstances, local authorities must make applications for public law proceedings in respect of new born babies timeously and especially, where the circumstances arguably require the removal of the child from its parent(s), within at most 5 days of the child’s birth” (para 41). The Judge further ordered the Local Authority to pay for the costs of the Respondents for the abortive hearing.