Care and OT claims – you have been warned

January 12, 2023

Brian Muyepa -v- Ministry of Defence [2022] EWHC 2648 (KB)

By Andrew Ward

Andrew Ward represented the Defendant in Muyepa -v- Ministry of Defence [2022] EWHC 2648 (KB). Following a 12-day trial involving oral evidence from 29 lay witnesses and 10 experts, Mr. Justice Cotter dismissed the claim by a former soldier for damages of £2.9 million for Non-Freezing Cold Injuries sustained during a cold exposure on an Army exercise at Sennybridge, Wales, in March 2016 on the ground of Fundamental Dishonesty. Many issues arise that are relevant to personal injury practitioners. This Article is limited to an analysis of Care and OT Expert Evidence.

The final Schedule of Loss advanced a care claim of £1,030,538 (reduced from £1,705,901). The amount the Court would have awarded if the Claimant had not been fundamentally dishonest is zero. The Claimant’s care expert was Ms. Amanda Kerby. Cotter J. says “Ms. Kerby’s experience when giving evidence should stand as a warning” (paragraph 302). The following main concerns arose:

• When Ms. Kerby visited the Claimant at home, he was unable to mobilise without a stick or support from his wife. Ms. Kerby’s care recommendations were framed around this severely disabled presentation. When Ms. Kerby was subsequently shown videos of the Claimant dancing unaided at a BBQ and walking normally at a wedding, she said: “This evidence does not lead me to need to alter my opinion within my report or subsequent joint statement.” As Cotter J. concluded: “This was unrealistic bearing in mind the increased function shown.”
• Kerby maintained under cross-examination that the video evidence did not require her conclusions to be revised. This led to direct cross-examination on the ground she was a pro-Claimant, partisan expert. This hit home. As Cotter J. says: “I doubt…Ms. Kerby…would be anxious to relive…[her] experience of giving evidence. However, I have limited sympathy…[She] acted at times as advocate for the Claimant and…at times presented partisan views to the court…”
• Kerby recorded a typical day as described to her by the Claimant as follows: “At 3am he wakes up. Mrs. Muyepa will sort the children out, take them to school, come back and attend to his breakfast routine. In the holidays, he will get up at 5am and is assisted downstairs to watch TV.” However, Mrs. Muyepa admitted under cross-examination that she had separated from the Claimant in December 2018 and had deceived the experts as to where she was living. She did not provide night-time care at the matrimonial home. She was not there. Ms. Kerby was in Court to hear the evidence of the Claimant and his wife. Cotter J. raises the following concern: “Ms. Kerby entered the witness box not having advised the Court of her revised view after the Claimant and Mrs. Muyepa had given evidence. Ms. Kerby realised that the figures she had set out in her reports were unsustainable in light of the evidence given by the Clamant and his wife but she did not set out any recalculation.”

Cotter J. helpfully summarises the key principles applicable to Care and OT expert evidence as follows:

• A care expert owes a CPR Part 35 duty of independence to the Court. As such: “Experts should constantly remind themselves through the litigation process that they are not part of the Claimant’s or Defendant’s ‘team’ with their role being the securing and maximising, or avoiding or minimising, a claim for damages” (paragraph 284);
• Care experts should set out a range of opinion: “The court should receive a comprehensive, objective analysis; including whether an alternative view to that held by the author is tenable. An expert must not solely pick out pieces of evidence or entries in documents which provide support for the conclusion he / she has reached whilst not addressing material that points, or may point, the other way” (paragraph 290);
• The legal test is as follows: a Claimant is entitled to damages to meet his “reasonable requirements” or “reasonable needs” to put him, so far as possible, in the same position he was in before the injury was sustained: see, e.g.: Wells -v- Wells [1999] 1 AC 345, Sowden -v- Lodge [2004] EWCA Civ 1370 and Whiten -v- St. George’s [2011] EWHC 2066 (QB);
• The recoverability of care and equipment is not simply a question of requirement simpliciter, but of reasonable requirement: “Damages will not be recoverable if the cost is disproportionate to the benefit. The requirement of reasonableness is used to qualify and filter suggested requirements and there is no entitlement to have funding for a wish list of all care and expenditure which could conceivably provide any benefits” (paragraph 295);
• If a reasonable requirement is identified, the Court should consider whether it is likely that the Claimant would have paid for, or had access to, what is being recommended in any event (e.g.: items of everyday expenditure such as lawnmowers and microwaves should not be awarded by way of damages). Cotter J. notes that: “In the present case there were a number of items, such as kitchen equipment, which were recommended by Ms. Kerby apparently without any thought as to whether they were ordinary household items or not” (paragraph 299); and
• The Court should also ask whether as a matter of fact the Claimant will actually use what is being recommended as a reasonable necessity.

The judgment raises a concern about the polarised nature of care and OT expert reports in some high-value claims, particularly when the expert only represents one side to litigation:

“After I asked (her report contained no breakdown) Ms. Kerby revealed that she has been preparing reports solely on behalf of Claimants for nine years. She recognised the understandable concern a Court will have as to the risks that arise when an expert’s workload (and income) is solely for one side to litigation. In my view the risk came to fruition and the reports she prepared contained some partisan views designed to maximise damages for the Claimant rather than recommendations made, as they should have been, after balanced and objective application of the relevant principles” (paragraph 304).

It remains to be seen whether judges who case manage high-value and catastrophic injury claims will heed Cotter J.’s view that single joint experts should be used more regularly: “In my view the common working assumption within these fields of litigation that it is axiomatically the case that each party will have a care expert is misplaced, helps perpetuate polarised expert opinion and often greatly increases the cost of litigation” (paragraph 288).

The author’s own view is that the full range of care and OT needs is more likely to emerge from reports prepared by experts instructed for each party. A further and significant problem is that it is not possible to have a conference with a single joint expert which would greatly hinder the proper preparation of a claim, thereby reducing the likely assistance the Court would derive from the care / OT expert evidence if a single joint expert were ordered.

The decision in Muyepa should act as a reminder of the need for solicitors and counsel to test a care expert’s view in conference prior to the service of a report. It is difficult to see how the reports of Ms. Kerby could have been served in the form that they were served if she had been reminded of the need to comply with her CPR Part 35 duty.

By contrast, the Defendant’s care expert in Muyepa, Mrs. Jill Ferrie, provided an example of CPR Part 35 compliant expert opinion. As Cotter J. says: “Ms. Ferrie was a balanced and helpful expert and I have no hesitation in preferring her analysis…” (paragraph 310).

Andrew Ward is a member of the Personal Injury Team at Exchange Chambers. Whilst he represented the Defendant in Muyepa, he acts both for Claimants and Defendants in a range of high-value and catastrophic injury claims.