ES (by her mother and best friend DS) v Chesterfield and North Derbyshire Royal Hospital NHS Trust

[2003] EWCA Civ 1284 (C.A)

The views of one expert may not be seen as representative of the views of his profession as a whole

Facts

The claimant had cerebral palsy. She alleged clinical negligence on the part of the doctor (then a junior) who delivered her and the consultant who supervised the delivery. The Bolam test was to be applied. The junior doctor (now a consultant) and the supervising consultant were due to give evidence for the defendant.

Issues

Whether the claimant should be allowed to call two obstetrics experts, notwithstanding that she was limited by court order to call only one.

Decision

The claimant argued that even though the two impugned doctors giving evidence for the defendant were strictly witnesses of fact, it was inevitable that they would be asked to give their professional opinion on the procedures they carried out. Thus she ought to be allowed to call two experts, to avoid the danger that the view of one expert alone for the claimant would not be seen as representative of the views of the profession as a whole. The Court of Appeal (Kennedy LJ, Brooke LJ, Holman LJ) agreed, and the claimant was allowed to call two expert witnesses in the same discipline.

Comment

This may at first be viewed as a rather old-fashioned decision with parties matching expert for expert. There appears to be no particular reason why one expert alone for the claimant would not be seen to represent the views of the profession as a whole. However, a close reading of the decision shows that there were compelling reasons for the Court of Appeal’s decision. Significantly, the case was very high value and involved complex issues involving the determination of differing views held by obstetric experts. The key passages are quoted below:

It would be difficult to under-estimate the importance of the case to the parties. To those who are used to handling heavy clinical negligence cases it might appear to be just another cerebral palsy case, but to the claimant and her family on the one hand and to the medical staff of the hospital, whose standard of professional care is being impugned in a matter which resulted in catastrophic consequences, the case is very important indeed. This was not disputed by either counsel.

As I have said, the claim is valued at £1.5 million. This places it, so far as money is concerned, close to the top of the range in heavy multi-track litigation which does not have a commercial ingredient of some kind. So far as personal injury cases are concerned, it is a very large claim.

The issues are complex, not because it may not be relatively easy for the judge to understand the main features of the processes of obstetric care immediately before a baby is born, but because he will be invited to make a judgment on the appropriate standard of care when consultant obstetricians are in disagreement. Both the defendants and the claimant are in receipt of public funds for this litigation, so that there is nothing in CPR 1(2)©(iv) which creates particular difficulties for the procedural judge to consider.

Above all, however, for a case of this importance, high monetary value and complexity the parties will not be on an equal footing if Master Ungley’s order is to stand. The master appreciated that it was inevitable that a witness who happened to be a professional will give evidence of his actions based upon his or her professional expertise, but he thought that it was possible to isolate this evidence from the evidence on the ‘vital question of whether those decisions fell short of the required standard’, on which he was permitting only one expert on each side. In my judgment he was clearly wrong to do this on the facts of this case.

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, while 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. It is not as if the medical witness of fact for the defendants is a junior hospital doctor. We were told something of Mr Downes’ professional history both as a practitioner in a number of hospitals and as a teacher, and his evidence on the reasons why he believed he acted with appropriate care will be supported by two other consultants. Against them there will be a single voice speaking for the claimant, and Mr Wheatley spoke convincingly of the danger that he might appear to a judge to have a ‘bee in his bonnet’ or an overly academic approach to matters of day by day clinical practice.

I do not moreover consider that the extra time and expense that would be introduced into the trial by the calling of a second expert for the claimant would be disproportionate in a case of this monetary value and importance.

For these reasons I would allow this appeal and direct that paragraph 7A of the master's order be varied so as to permit the claimant to call two experts in the field of obstetrics. Whether in due course the defendants should be permitted to call two such experts is not for us to decide on this appeal. After the expert evidence has been exchanged it may be that the defendants will be able to persuade the master that despite the wealth of obstetric expertise already on their side, a further expert is reasonably required. This is for the future. For present purposes it is sufficient to say that in my judgment it is necessary to permit two experts for the claimant in this case for some real purpose (to quote Lord Woolf’s language), and that real purpose is the achievement of justice in accordance with the overriding objective on the particular facts of the present case.

Nothing in this judgment 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 such an exceptional feature.

I would therefore allow the appeal.