HJ v Burton Hospitals NHS Foundation Trust

A single joint expert’s evidence does not automatically bind the court or trump other lay or expert evidence. The court must evaluate it alongside all the evidence and give appropriate reasons for the conclusions reached. Experts should generally remain within their disciplines, but rigid compartmentalisation is inappropriate where areas of expertise overlap. In such crossover areas, experts from different disciplines may express opinions of significant or equal validity. The weight given to competing expert evidence remains a matter for the trial judge, who may prefer one expert’s evidence where the judge has rational grounds for doing so.

The claimant suffered a serious disability following a birth injury. Her clinical negligence claim was compromised at 65% of full value, leaving quantum to be determined at trial. The County Court awarded net damages of £578,276.30.

The defendant appealed on the basis that the Recorder had impermissibly preferred parts of an occupational therapist’s evidence over the written evidence of a jointly instructed orthopaedic and hand surgeon. The central issue was whether the status of the surgeon as a single joint expert precluded reliance on evidence from another expert where the opinions differed.

1. Appeal dismissed. The Recorder’s decision and reasons were unassailable.
2. A single joint expert’s report is ordinarily the evidence on the issues covered by that report where no reason exists for additional evidence. That principle does not mean that the court must accept the expert’s opinion or treat it as a straitjacket.
3. As explained in Coopers Payen Ltd v Southampton Container Terminal Ltd [2004] 1 Lloyd’s Rep 331, the report and any oral evidence form part of the evidence to be weighed with all other evidence. The judge must find the facts by applying the burden of proof to the evidence as a whole, including factual and expert evidence. A joint expert’s evidence should rarely be disregarded, but it must be evaluated and appropriate reasons given.
4. Experts should not stray freely outside their disciplines. Nevertheless, different disciplines may overlap. The extent of the overlap depends on the facts of the case, and experts may have significant or equal authority from different perspectives.
5. In the present case, occupational therapy and orthopaedic expertise overlapped in assessing the claimant’s practical care, activity and equipment needs. The Recorder was entitled to prefer the occupational therapist’s evidence in relevant areas, particularly in light of her hands-on experience, while balancing or preferring the surgeon’s evidence in other areas.
6. The fact that the single joint expert was not called to respond to the occupational therapist’s report did not make his written opinion decisive. The appellate court would not substitute its own assessment of the evidence for that of the trial judge, who had heard the evidence at first hand.

• High Court (Queen’s Bench Division): on appeal from the Sheffield County Court, permission to appeal was granted and the appeal was dismissed.