Jersey Unreported Judgments

[2004]JRC206

COURT OF APPEAL

 

                                                            25^th November, 2004.

 

 

 

 

 

Application by the Defendant for an Order: (1) excluding the oral and written evidence of Professor Lightman, on which the Plaintiff/RESPONDENT seeks to rely, as expert evidence; and (2) debarring the Plaintiff from relying on such evidence.

 

 

Advocate D.M. Cadin for the Plaintiff.

Advocate D.J. Benest for the Defendant.

 

 

 

JUDGMENT.

 

THE COMMISSIONER:

1.        The Plaintiff in this action claims damages for professional negligence against the Health and Social Services Committee, although in effect it is a claim against Mr Alwitry, the consultant ophthalmic surgeon at the eye clinic of the Jersey General Hospital.  The case is set down for three days starting on 17^th January 2005.  This pre-trial application challenges the admissibility of expert evidence to be given on the Plaintiff's behalf by Professor Susan Lightman, Consultant Opthalmologist at Moorfields Eye Hospital and Head of the Department of Clinical Opthalmology at University College, London.

2.        The issues at trial, inter alia, will be the question of the date on which the Plaintiff was suffering from acute retinal necrosis, whether Mr Alwitry's treatment was appropriate at various times, whether he should have diagnosed the symptom earlier, when he should have referred the problem to Moorfields and then finally, when the Plaintiff was being dealt with by Moorfields Hospital, whether in fact that treatment was properly handled.

3.        The problem that I have to face is that Professor Lightman was to all intents and purposes the treatment Doctor for this patient at Moorfields Hospital.  Advocate Benest argues forcefully that an expert in a case such as this needs not only to be independent but to appear to be so and, he argues, it is important that Mr Alwitry is entitled to have his treatment assessed by someone whom he can see quite clearly has no potential interest in the outcome.

4.        The argument can be clearly seen in the Defendant's amended answer and I can explain this by looking at just two paragraphs:

22.  "Further, or alternatively such residual changes as the Plaintiff then retained of her condition being amenable to improvement or amelioration were dependent or urgent and intensive optical treatment, time being of the essence."

23.  "Despite the best efforts of Mr Alwitry to obtain her urgent referral to Moorfields, the Plaintiff did not receive and/or failed to obtain, the requisite urgent intensive or optimal treatment."

5.        The allegations are then particularised.  Professor Lightman, however, says in her report that:

"Much earlier diagnosis of this patient's problem was possible and if she had been examined properly and if appropriate treatment had been given earlier it is my belief that many of the complications, including blindness and an unsightly eye she has ended up with could have been avoided".

There was, of course, much correspondence on this point between counsel throughout the year 2003 but it came, apparently, to nothing.

6.        Advocate Benest submitted to me the case of Liverpool Roman Catholic Archdiocese Trustees Incorporated -v- Goldberg (No.2) (2001) 4 All ER 950.  In that judgment Evans-Lombe J said:

"In my judgment where it is demonstrated that there exists a relationship between the proposed expert and the party calling him, which a reasonable observer might think was capable of affecting the views of the expert, so as to make them unduly unfavourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be.  The question is one of fact, namely the extent and nature of the relationship between the proposed witness and the party."

7.        In that case, which involved a complex tax matter, the evidence of another barrister in the same set of chambers as the barrister being sued for professional negligence declared that he had been a friend of the defendant barrister for many years.  The judge, following the grounds of public policy said that the barrister could not then be called as an expert in support of the defendant's case and his evidence was disallowed in the particular circumstances.

8.        Advocate Cadin, for the Plaintiff, referred me to the case of Factortame Ltd and others -v- Secretary of State for the Environment Transport and the Regions (No.2) (2002) 4 All ER 97 - a decision of the Court of Appeal which consisted of the Master of the Rolls and Lord Justices Robert Walker and Clarke.  I feel that I need to quote extensively from that judgment, and in the course of it the Court said this:

"Field -v- Leeds City Council [2000] 1 EGLR 54 concerned a claim by tenants against their local authority landlord, Leeds City Council, in respect of alleged disrepair.  The council wished to call as an expert witness, a surveyor employed by them in their claims investigation section.  It appears that the district judge refused to entertain this evidence on the ground that the expert was not independent and, on appeal, the county court judge upheld this decision.  On appeal to the Court of Appeal Lord Woolf MR held that the fact that the expert was employed by the council did not automatically disqualify him from giving evidence.  Whether or not he was qualified to give such evidence could not be determined without sight of the report that he intended to give and his background and qualifications.

    In concurring Waller LJ said (at 56):

'The question of whether someone should be able to give expert evidence should depend on whether: (i) it can be demonstrated that that person has relevant expertise in an area in issue in the case; and (ii) it can be demonstrated that he or she is aware of their primary duty to the court if they give expert evidence.'

May LJ, also concurring said:

'As to questions of opinion and generally, I entirely agree with my lord, the Master of the Rolls, that there is no overriding objection to a properly qualified person giving opinion evidence because he is employed by one of the parties.  The fact of his employment may affect its weight, but that is another matter.'

This decision is to be contrasted with observations made by Evans-Lombe J in Liverpool Roman Catholic Archdiocese Trustees Inc v Goldberg (No2) [2001] 4 All ER 950, [2001] 1 WLR 2337.  That case involved a claim for professional negligence in relation to advice given by a Queen's Counsel specialising in tax law to the plaintiff about it its tax affairs.  The defendant called to give expert evidence a Queen's Counsel who shared his chambers and was a personal friend of long standing.  The question of whether, in these circumstances, the expert's evidence was admissible was raised at an early stage of the trial. The judge decided not to deal with admissibility at that stage, but to deal with that question in the course of his judgment.  The action then settled, but the judge felt it appropriate to deal with the admissibility of the expert's evidence.  He held that the evidence was inadmissible on the grounds of the public policy that justice should not only be done but should be seen to be done.  He put the matter thus:

'[13] I accept that neither s 3 [of the Civil Evidence Act 1972] nor the authorities under it expressly exclude the expert evidence of a friend of one of the parties.  However, in my judgment, where it is demonstrated that there exists a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be.  The question is one of fact, namely the extent and nature of the relationship between the proposed witness and the party.'

This passage seems to us to be applying to an expert witness the same test of apparent bias that would be applicable to the tribunal.  We do not believe that this approach is correct.  It would inevitably exclude an employee from giving expert evidence on behalf of an employer.  Expert evidence comes in many forms and in relation to many different types of issue.  It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence.  Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the court as soon as possible.  The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management.   

9.        The duties of experts, of course, are well known to this Court and I do not need to summarise them; they are well set out in the case which is known as "The Ikarian Reefer", National Justice Compania Naviera S.A. -v- Prudential Assurance Co Ltd [1993] 2 Lloyd's Law Reports 68, which was approved by the Court of Appeal.  It may well be that Professor Lightman has a professional interest in the Moorfields Eye Hospital but the allegations of negligence in the pleadings, and they are particularised on thirty two grounds, nearly all of which refer to matters that occurred entirely in Jersey before the referral to the Moorfields Hospital. In my view, the fact that Professor Lightman holds the position that she does and that that is known to the Defendant will go to the weight that is eventually given to her evidence. 

10.      The Defendant admits that it has not been instructed to join Moorfields and/or Professor Lightman to the proceedings as a third party and there is apparently no allegation that I could see in the pleadings that accuses Professor Lightman of negligence.  Of course counsel runs a risk in calling her as an expert: the risk is that by reason of the detailed facts which are now known to both sides she may be discredited but it is in my view a question of weight and now is not the time to make a decision to decide on exclusion or not.  This particularly as the hearing is before two Jurats well versed in assessing the value of witness statements. 

11.      I think it is probably necessary for me to set out just two paragraphs in the conclusion of Professor Lightman's report.  What she says is this:

"Had Miss Gildea been diagnosed on 07/09/98 it is likely that the inflammation would have quietened over the next 2-3 months.  She could have had laser treatment to her retina to try and reduce the risk of retinal detachment in the future and it is likely that she would have required tablets for no more than 2 months and drops for 4-5 months.  No affect on her right eye has occurred but the underlying disorder, i.e. - Herpes Simplex infection of the retina can occur at a later date in the second eye.  Although this may occur within the first year it also may occur years later and is a risk for her.  Having been given steroid tablets without antiviral cover could have resulted in greater dissemination of the virus but luckily did not and her right eye has not been affected.  However, this was a risk that was taken with the inappropriate treatment.

Therefore, much earlier diagnosis of this patient's problem was possible if treatment had been given and it is my belief that many of the complications, including blindness and an unsightly eye that she ended up with, could have been avoided.               

12.      I set that out on the basis that Professor Lightman is clearly an expert in her field.  She finishes with what is described as 'the standard paragraph': "I understand my overriding duty is to the Court and that I have complied with that duty. I also believe that the facts I have stated in this report are true and that the opinions I have expressed are correct".  I am not prepared at this stage, in a case which is set down in for 17^th January 2005, to strike out the Defendant's expert opinion and I decline to do so.

Authorities.

Dixon -v- Jefferson Seal and Ors (19^th June 1997) Jersey Unreported; [1997/116]

Whitehouse -v- Jordan [1981] 1 All ER 267 (HL).

Polivitte Ltd -v Commercial Union Assurance Co Plc [1993] 2 Lloyd's Law Reports 379.

Liverpool Roman Catholic Archdiocese Trustees Incorporated -v- Goldberg (No.2) (2001) 4 All ER 950.

Factortame Ltd and others -v- Secretary of State for the Environment Transport and the Regions (No.2) (2002) 4 All ER 97.

National Justice Compania Naviera S.A. -v- Prudential Assurance Co Ltd ("The Ikarian Reefer") [1993] 2 Lloyd's Law Reports 68.

Vernon -v- Bosley (No 1) [1997] 1 All ER 577.

Vernon -v- Bosley (No 2) [1997] 1 All ER 614.

Admiral Management Services Ltd -v- Para-Protect Europe Ltd and Ors [2003] 2 All ER 1017.

Rules of the Supreme Court 1999.

Civil Procedure Rules Part 35 Spring 2001.