The claimant stumbled over a raised manhole cover. The defendants admitted liability pre-issue. Post issue they successfully applied to withdraw their admission as they argued there were several different possible causes of the accident recorded in medical records and the expert’s report. However, the admission was limited so the defendants were only able to put the claimant to proof as to the circumstances of the accident.
They were not entitled to raise contributory negligence because they had not previously reserved their position in respect of contributory negligence. At trial, the defendant’s counsel accepted that the judge could draw an inference that our client stumbled over a raised manhole if he accepted our client’s evidence regarding the circumstances surrounding the accident; furthermore the client did not need to say exactly where she fell.
The Judge accepted the client’s account despite the fact that she was not a precise historian and that “lots of words spilled out” accounting for the varying descriptions of the accident.
Penn -v- Gedling Borough Council. Chesterfield County Court 9 August 2006
Expert witnesses: conflict must be disclosed quickly
This was a claim for nervous shock and psychiatric injury. One of the arguments by the claimant to the Court of Appeal was that there was evidence that one of the experts was a member of the Cases Committee of the Medical Defence Union, who acted for one of the defendants, and this raised an undisclosed conflict of interest between the expert’s duty of objectivity as an expert and his interest in assisting in the defence of a member of the MDU.
The court held that the presence of a conflict of interest did not automatically disqualify an expert. The key question was whether the expert’s opinion was independent. The need for an expert to give an independent opinion flowed from his duty under CPR Rule 35.3 to assist the court in relation to matters that fell within his expertise. However, where an expert had a material or significant conflict of interest, the court was likely to decline to act on his evidence or indeed to give permission for his evidence to be adduced.
Thus it was important that a party who wished to call an expert with a potential conflict of interest should disclose details of that conflict at as early a stage in the proceedings as possible. This should be when the report of the expert was first served on the other parties. If, however, the conflict only arose after that time, the appropriate time for disclosure was the first practicable date afterwards. The expert should produce his CV when sending his report and this should give details of any employment or activity that raised a possible conflict of interest.
In this particular case the information should have been made available. But in view of the practice of the committee to exclude any committee member who was an expert in a case for deliberations in relation to that case, and the fact that the expert was not serving on the committee at the time of the case, even if the conflict of interest had been a disqualifying interest, it became immaterial.
Toth -v- Jarman. Court of Appeal 19 July 2006. Times Law Reports.