Hayden v Maidstone & Tunbridge Wells NHS Trust

A default judgment on liability in a personal injury claim establishes that the defendant is liable for the accident and some resulting damage. It does not establish causation or the extent of every injury and loss alleged. The defendant may therefore raise causation issues at the assessment of damages, subject to appropriate procedural directions. Expert opinion is admissible only where it is reasonably required to resolve the proceedings and the witness has a sufficiently reliable body of specialised knowledge. Factual analysis of documents or video recordings is not expert evidence merely because it is prepared by a purported expert. Opinions on the inferences to be drawn from primary material remain matters for the trial judge.

The claimant, an employee of the defendant, claimed damages for a back injury sustained while transferring a patient. Liability had been admitted and judgment in default entered. After the trial date was vacated following an application concerning covert surveillance footage, the defendant sought permission to serve a Defence pleading causation and conscious exaggeration. The claimant sought permission to rely on evidence from Mr Simm concerning the way the surveillance footage had been recorded, edited and disclosed.

The central issues were whether causation could be raised despite the default judgment and whether Mr Simm’s proposed evidence was admissible factual or expert evidence.

1. Default judgment and causation. The defendant was permitted to serve the proposed Defence. A default judgment established that the claimant had been injured in an accident at work caused entirely by the defendant and had suffered some damage. It did not establish that every pleaded injury or item of loss was caused by the accident. Causation and the extent of loss therefore remained issues for the assessment of damages. The defendant’s acceleration case had already been advanced in successive Counter Schedules and caused no procedural ambush.
2. The court agreed with New Century Media v Makhlay and Symes v St George’s Healthcare NHS Trust, although those decisions added little to the applicable legal position. The court was bound by Lunnun v Singh and the related Court of Appeal authorities, including John Turner v PE Toleman. A Defence was permitted because it clarified the relationship between the acceleration case and the allegation of conscious exaggeration. The claimant was not entitled to insist on a Reply or Part 18 request merely because the Defence was served.
3. Expert evidence. Under Civil Evidence Act 1972, section 3, and CPR 35.1, opinion evidence must concern a relevant matter on which the witness is qualified, and must be reasonably required to resolve the proceedings. Following Kennedy v Cordia (Services) LLP and the test in R v Bonython, the court must consider whether expert assistance is necessary and whether the witness belongs to a reliable body of relevant expertise.
4. Mr Simm’s analysis of the surveillance logs and footage was factual analysis which could be placed before the trial judge. His opinions that an investigator had fabricated a log, that selective filming justified particular inferences, and that unexplained time-stamp or tracking matters were suspicious were not admissible expert evidence on the material supplied. Those inferences were for the judge. Properly qualified technical evidence about a recording anomaly might be admissible in an appropriate case.
5. The claimant’s application was rejected. The defendant’s application to serve the Defence was allowed. The claimant could rely on accurate factual schedules within the existing permission for factual evidence, while the proposed opinion evidence was excluded.