Watt v Tucker

The claimant was injured in a car accident on 27^th January 2001. She was sitting in a stationary car waiting to turn right when she was hit from behind by the defendant. She suffered whiplash injuries. Judgment on liability was entered on 26^th February 2004. The assessment of damages was all that remained to be tried. That assessment was tried by His Honour Judge Darlow and by a judgment handed down on 30^th November 2004 he gave judgment for the claimant in the sum of £372,909, of which £358,251 was damages for past and future loss of earnings and interest thereon. The defendant appeals against that judgment with permission from Longmore LJ.

The claimant is a fully qualified optometrist of about 33 years of age. The key issue on the assessment of damages was the extent to which the injury, caused to the claimant, had prevented her practising optometry in the way as she had practised the same prior to the accident. Her case was that she had had to give up her private practice of practising optometry in what may be termed the conventional way, well known to those who have had their eyes tested by the high street optometrists. She said that she could now only work using laser treatment and (of more importance) that for only three days of the week rather than her previous four. It is on that issue that the judge found in favour of the claimant. The appellant challenges the judge’s finding, but the challenge is limited. It is not in issue that the injury to the appellant caused her to have to change her practice from conventional optometry to that using laser, but it is said that on the evidence of the reports of the joint expert orthopaedic surgeon, Mr Mackay, it was not open to the judge to conclude that the claimant’s injury had caused her to be fit for three days work and unfit for four.

Mr Mackay had been originally instructed on behalf of the claimant and seen the claimant on 4^th February 2002, and then later on 13^th November 2003. In that capacity he produced various reports and answered various points raised by the claimant. The most important passage of the first report of 4^th February 2002 was as follows:-

“11.1

This lady was involved in a road traffic accident on the stated date, 27 January 2000. As a consequence of accidents of this type one sees forces generated. These forces transmitted into the axial skeleton produce damage to the soft tissue structures in the upper thoracic and cervical regions by allowing excess movement in flexion, extension to stretch these tissues past their normal elastic limit. The damage produces a Whiplash Associated Disorder.

11.2

The natural history of a Whiplash Associated Disorder is to see a resolution of all symptoms within the cervical spine within a period of one year in the majority. A minority have symptoms after one year. Twelve to twenty percent of people who suffer the injury have symptoms at two years and if this be so those symptoms will tend to continue in the long-term but will improve until four years from injury at which time a plateau state is reached.

11.3

In this lady’s case it is now two years from accident. I saw no evidence of inappropriate response to clinical examination or symptomatic exaggeration. There are two particular poor prognostic features. The first is that the claimant is of the female gender and secondly there is evidence of what I consider a depressive state previous to the index accident. These are poor prognostic features and tend to be a factor in prolonged and protracted recovery from whiplash associated disorders.”

He advised that she should have a specific form of physiotherapy. He commented in paragraph 11.5:-

“Occupational activities: Ms Stone was away from her work for the period of several weeks immediately after the accident and this is compatible with the accident. What is unusual is the history we see from then that in September she reduced her working period having worked for eight months up until that point in time, reducing again in October and then again the following year; this is not the pattern we see in normal circumstances. One would expect the converse, one would expect a return to work in a light capacity and gradually increase the capacity as the years go by. We must therefore look to a causation in this matter and I believe a significant factor is the underlying psychological state.”

The claimant then raised various points with Mr Mackay by letter dated 3^rd April 2002. She commented about her working regime in the following terms:-

“4.1

on page 3. Clarifying my current working regime: Due to the ongoing symptoms which are at their worst for conventional optometry, I now only do this type of work for one day per week. I work as an optometrist for a laser surgery company two days per week which aggravates the back symptoms to a lesser extent. I work in total three days per week though am considering stopping conventional optometry altogether. I am experiencing a loss of earnings as the laser job is not as well paid as conventional optometry.”

She also explained the reduction in her workload:-

“11.5

on page 8. I felt I should explain why I have gradually decreased my workload which Mr Mackay highlighted. Immediately following the period during which I was signed off work I returned to my prearranged commitments. I experienced worsening symptoms which made me more and more uncomfortable at work over the following six months. I reduced my workload to what I could cope with but still found the symptoms aggravated by practicing conventional optometry and reduced the hours again. I sought careers advice regarding my hours to only one day of normal practice and now do two days per week of work for a laser company which involves less leaning. I am considering discontinuing normal optometric practice if the unacceptable aggravation of symptoms does not resolve. This may not be the usual pattern seen in whiplash injuries but may be explained by me soldiering on in order to honour work and financial commitments in the early stages.”

Mr Mackay by letter dated 2^nd July 2002 answered the above points in the following terms:-

“ Page 3 paragraph 4.1: I am happy to accept the views expressed by Mrs Watt that her altered occupation was as a consequence of the symptoms which were described.

Page 8 paragraph 11.5: I have addressed this matter, I believe, already in reply to paragraph 4.1. The problem of backache can affect one’s ability to carry on working at a particular type of work and I accept it can be necessary to alter one’s working practices to avoid aggravating factors; it was proper for me to draw to the attention of the Courts the matters of my paragraph 11.5.”

The claimant saw a Mr Nelson an orthopaedic consultant in July 2002 who confirmed a period of physiotherapy would be helpful. She had the physiotherapy recommended by Mr Mackay and Mr Nelson from September 2002 to December 2002 which did not produce any benefit; she was then advised to see Mr Richard Bicknell and had six treatments from January 2003 (see Mr Mackay’s report of 4^th December 2003 paragraph 4). She saw psychiatrists instructed on her behalf and on behalf of the defendant. They agreed in broad terms that she did suffer some limited psychiatric injury from the accident but were not precisely in agreement as to degree or as to when full recovery would take place, but they did agree so far as material to the issue on the appeal that:-

“. . her vocational capacity at the date of our examination had not been significantly impaired by psychiatric symptoms due to the accident (in January 2003 and November 2003) and we do not believe significant impairment due to the accident will arise in the future. We defer to the opinions of the orthopaedic surgeons about the impact of her physical symptoms upon her vocational capacity.”

In his second report of 13^th November 2003 Mr Mackay gave the following as his views:-

“44.

Having said the above she has symptoms in the upper thoracic spine, which I believe are genuine consequent upon the index accident and would not be suffered should she not have had the index accident. This young lady has complied with all the advice given.

45.

She will not develop post-traumatic arthrosis in the neck or thoracic region as a consequence of the index accident.

46.

Mrs Watt I believe is capable of a gainful occupation. Taking into account the aforesaid paragraphs, I believe reasonably that she has readjusted her work style and I believe that she would be capable of returning to the hours she was doing prior to the index accident in laser optometry but if she gets discomfort to take analgesics to allow her to continue the 32 hour week. I believe she is capable of doing so but appreciate there may well be aggravation of symptoms.

47.

Of course the final judge of this is the patient and she must decide how much she is able to cope in terms of discomfort.

48.

I believe that from a purely orthopaedic point of view she is capable of a 32-hour week.

49.

The lady should be advised that she should continue to be active despite getting discomfort and I believe she is capable of the activities she was doing prior to the index accident, albeit on a limited capacity. Again it is for the patient to decide and this is a sensible patient, well motivated now I believe of how much she can do and how much discomfort she is prepared to accept.”

Directions for trial were first given on 3^rd March 2004 although many of the directions seem to relate to dates prior to March 2004. The relevance of these directions is that they contemplate the putting of Part 35 questions by both parties to Mr Mackay, and there being a deadline for the defendant to file his counter schedule to the case pleaded by the claimant in her schedule. No questions were put in accordance with those directions, and it seems the defendant was late with his counter schedule.

At the pre-trial review held before His Honour Judge Bursell QC on 5^th May 2004 those representing the defendant in explaining the lateness of the schedule stated that the defendant wished to put certain questions to Mr Mackay who they wished should now be the joint expert. By order dated 5^th May 2004 HHJ Bursell gave further directions for the trial of damages. These included a direction that Mr Mackay should be the joint expert orthopaedic surgeon. The directions also gave the defendant permission to put questions by 19^th May to be answered by 2^nd June 2004.

By a request dated 19^th May 2004 those acting for the claimant posed certain Part 35 questions for Mr Mackay. The document referred Mr Mackay to his reports, and drew his attention to what they suggested was further material “about the difficulties her residual symptoms cause her, specifically with regard to her laser optometry work.” It posed the following questions:-

“1.

From your perspective as the Court’s medico-legal witness, did you find Mrs Watt in any way to be an unreliable patient, either in the reporting of her medical history, reported symptoms, their resulting disabling effect on her or in any other way? If you answer is ‘yes’, please accompany the answer with a full explanation.

2.

Has the material mentioned given you a more useful insight into the postural requirements of an optometrist to that which you had when you prepared your report in December?

3.

In response to your observation about taking analgesics to control the pain Mrs Watt says that her problems are at their most acute when she is adopting the posture of leaning forward with her arms held out. The intense exacerbation of her underlying symptoms this posture provokes is resistant to analgesics. The level of pain suffered whilst waiting for clients to make a selection between 2 lenses held out in front of their eyes (for example) can bring tears of pain to Mrs Watts’ eyes. Is it your orthopaedic view that the Court can rely on the veracity of these observations from Mrs Watt?

4.

Mrs Watt’s position is that she can earn more working 3 days per week as an optometrist working for Ultralase and resting her vulnerable spine in the days in between that she could earn working 5 days a week in an alternative sedentary job. Taking into account all the new material brought to your attention in these Questions and their exhibits, would you consider, form an orthopaedic viewpoint, that she is acting unreasonably by restricting her working week to 3 days of laser optometry spread out over each working week?”

On behalf of the defendant there had in the meanwhile been obtained certain videos purporting to depict how conventional optometry would be practised. Those acting for the defendant wished to show Mr Mackay these videos for him to consider certain Part 35 questions from his side. The videos purported to depict two kinds of conventional optometry one a typical “high street” optometrist eye examination in which the optometrist performs all the tasks manually, including the selection of the trial lenses (the Lueck video); the other a typical “automated” optometrist eye examination using a phoropter which may save the optometrist having to reach for different trial lenses (the Boots video).

Those acting for the claimant objected to the late production of these videos and to them being shown to Mr Mackay at this stage. That objection was taken in the context of the fact that it was already known Mr Mackay would not be available for the trial. An application was made to HHJ Bursell on 8^th June. On 16^th June HHJ Bursell ruled that the Lueck video could be introduced in evidence, but that the Boots video should not be admitted as presently constituted. In the result a further Boots video was made with the claimant’s assistance and it was that video together with the Lueck video by reference to which Mr Mackay answered the Part 35 questions posed on behalf of the defendant.

Mr Mackay was apparently sent the claimant’s detailed comments on the videos which were contained in her third and fourth witness statements (see paragraph 11 of Mr Grant’s skeleton). Those statements drew attention to those aspects of the optometrist’s work that the claimant found uncomfortable, not fully clear from the video, and the reasons for that, and drew attention to the fact that although work with the automated phoropters was easier, locum work of that nature was difficult to guarantee because chains of opticians that used that technique were likely to employ their own optometrists.

What was of particular discomfort to the claimant was the holding out of her arms; something also stressed by the question which the claimant wished Mr Mackay to address. But Mr Mackay did not address the questions posed by the claimant, and in his answers to the questions posed by the defendant he made no reference to having read the statements of the claimant. He produced, as he was about to go on holiday, two unsigned letters dated 21^st July, the first dealing with the part 35 questions posed on behalf of the defendant. That stated in paragraph 1 and 2 as follows:-

“I have seen videos WDA1 and WDA3. It was not my view that I saw anything within the two videos which would be contra-indicated in this lady’s case. I am not convinced on any of the activities seen that they would be contra-indicated in t his case; indeed, my report will address the matter of rehabilitation and the fact that people should continue working despite discomfort, being reassured that discomfort does not produce deterioration.

I am not convinced from an orthopaedic point of view that she was orthopaedically incapable of working at her job as an Optometrist – either laser or standard. I have made the point in my report that there are factors which are non-orthopaedic which are not for me to comment upon – significantly, the psychological response. Of course, it must be appreciated that people’s conception and perception of disability can be significantly altered by any psychological upsets and, whilst from a purely orthopaedic point of view one knows that it is proper to advise to continue with any activity, and that by doing such an activity even though there is discomfort it does not mean there is a deterioration – indeed the converse is so – it can be the psychological factor that is significant in altering people’s conception of what they can or cannot do.”

The second said this:-

“Having reviewed these videos and seen the work of an optometrist, of course I was not aware of the precise activities which are undertaken by an Optometrist and I assume that we are dealing here with the work which would have been undertaken by Mrs Watt at the time of the index accident, as an Optometrist working 32 hours a week. I was not convinced on reviewing these two videos allowed to me that the type of work undertaken, or the positions undertaken, which are not held for any prolonged period of time, were such that they would have been a significant factor in the development of neck pain to the point which would prevent her working in that condition. That which I saw was that there are many different positions held by the neck and in between which movement was allowed; this differs significantly from the type of work which is done by a typist or a person doing VDU work when the neck is held in one position, in which situation discomfort is felt, but when mobility is allowed one can continue working.

I was therefore not convinced on seeing these videos and it would not be clear to me how a change of direction to laser optometry could be any different from the type of work she is doing, or would have been doing, seen on the two videos.

Certainly, from an orthopaedic point of view I do not see any reason why she should not have continued undertaking the work she was doing at the time of the index accident, accepting that she will get occasional discomfort in the neck, but this, of course, will happen in the population as a whole during their lifetime with not unusual symptoms.”

If these comments accorded with Mr Mackay’s true views, the claimant was entitled to say, as those acting on her behalf did, that Mr Mackay had shifted somewhat from the views that he had expressed in the November 2003 report quoted in paragraph 9 above. In particular he was giving no credit for the claimant being well motivated, and a patient whose decision as to how much discomfort she could take should be respected. Furthermore by comparing the discomfort of the claimant in her “neck” with that of a typist, the claimant could not feel any confidence that Mr Mackay still had in mind what the claimant’s problems were.

Furthermore although Mr Mackay commented on the claimant’s change of direction to “laser optometry”, it could not be clear how he had any real concept of what was involved in that type of practice since the videos did not portray that type of practice. Mr Mackay did not answer or deal with any of the claimant’s Part 35 questions.

Those acting for the claimant applied to adjourn the trial “to afford the claimant a reasonable opportunity to respond to the late evidence and to include the opportunity to call Mr Mackay . . . to attend the trial to give evidence.” That application was resisted on behalf of the defendant. In a statement from Mr Guy he said:-

“2.

Attached to this statement and marked MG1 is a letter from my firm to Fennemores detailing my concern about the nature of the Claimant’s questions to Mr McKay.

. . . . . .

6.

On the day of Mr McKay’s departure and following a prompt from me to his secretary, he produced the letter dated 21^st July and another document of the same date entitled “video review” Self-evidently Mr McKay cannot now be asked to clarify his opinion any further before the Trial as he is away on holiday. It is my submission that whether or not he has specifically answered the questions put by the Claimant, he has dealt with the substantive point which is whether from an orthopaedic point of view the Claimant can undertake the type of work demonstrated in the two types of eye test shown in the videos provided to him.

. . . . . .

9.

As to the first point of the Claimant’s Application therefore the Defendant’s view is that, subject to any further explanations from Mr McKay’s secretary, Mr McKay has dealt with the outstanding questions, particularly in respect of the predominant purpose of his further opinion being sought, namely to comment from a clinical point of view on the capability of the Claimant to undertake standard optometric eye tests. It is my submission that it is for the Trial Judge to consider whether the Claimant is “genuine” and whether her decision to change her work was “reasonable”, not the orthopaedic expert.”

He appended a letter which his firm had sent to those acting for the claimant relating to the questions posed by the claimant to Mr Mackay which contained the basis for submitting that those questions were not permissible:-

“ an Orthopaedic Surgeon has carried out an examination and found little by way of physical signs, it is not appropriate for him/her to express opinions about the genuineness of a patient. Questions of reliability which relate to credibility and reasonableness are questions for the Judge having heard all of the evidence. We must therefore object to the questions 1, 3 and 4 because the premise upon which these questions have been put relies entirely upon the self-reporting evidence and expression of symptoms of the claimant which are unverifiable by objective analysis or testing by any expert.”

Two days before the trial was due to start, HHJ Bursell ruled on 29^th July that the case should not be adjourned. We have an agreed note of his reasons. In summary the reasons were that so far as the questions posed by the claimant was concerned:-

“Questions 1 and 4 are inappropriate questions. The second question adds nothing. The third question is most important but may be trespassing into the function of the trial judge. The real question is whether the Claimant herself is telling the truth.”

So far as admitting into evidence the letters of 21^st July, the argument put forward by Mr Hoskins then acting for the claimant was that, in referring to the claimant’s neck, Mr Mackay had made a slip, and was thus not dealing with the injury of the claimant which was in essence to her upper thoracic spine. Thus he argued the letters should not be admitted. The judge held that Mr Hoskins was right in suggesting that the letters referred to the neck whereas Mr Mackay’s reports related to the thoracic spine, but he said that that might produce a forensic advantage for the claimant and thus there was no real prejudice and the trial should continue.

Although the claimant gave evidence, Mr Mackay did not do so. But at the trial the thrust of the argument on behalf of the defendant changed somewhat. The argument on behalf of the defendant was that the judge was bound by the view of Mr Mackay that the claimant was orthopaedically fit to do the same work as she had done prior to the accident. The submission was not (as had been submitted to HHJ Bursell) that the real issue in the case was whether the judge found the claimant credible or reliable.

There was no challenge to the honesty of the claimant, but it was said the judge was bound to conclude on the reports of Mr Mackay, ultimately confirmed by his letters of 21^st July, that the claimant was capable of working 4 days and on the work she had previously been doing. It was (it was submitted) the claimant’s choice that she had chosen to change her type of employment and had chosen only to work three days. Reliance was placed on Post House Hotels Ltd v Brown (Robert David) CA 14/10/99 (unreported). In that case the recorder had held that the plaintiff had acted “reasonably” in the light of his injuries in retiring as a school master. The Court of Appeal held the recorder was applying the wrong test – the correct test was not whether he acted reasonably but was “whether the consequences of the physical injuries in 1992 rendered the respondent unfit or unable to do his work”.

In powerful written closing submissions (of which we have a copy) Mr Mackay’s reference to “neck” in the letters by reference was defended by reference to the fact that in his reports themselves he had in fact previously referred to her “cervical spine” as well as her upper thoracic spine; a point which Mr Chippindall again demonstrated to us. The submissions also suggested that the criticism that the videos did not show accurately the features of the work which the claimant found uncomfortable was not a complaint which the claimant could make for the first time from the witness box since she had been involved in the making of the second Boots video.

It was submitted that this was a case where the court could not properly reject the opinion of Mr Mackay. The submission was that the claimant’s evidence was no more than her subjective opinion that the pain/discomfort was something she was not prepared to tolerate. Reference was also made to the fact that although the claimant had tried one type of painkiller (ibuprofen), as suggested by Mr Mackay, when that did not work she did not try any other, being nervous of its effects on her ability to concentrate. At the very least “it was submitted” if she were to persuade Mr Mackay (and therefore the court) that his opinion as to her fitness to work was incorrect, then she would have to show that she tried alternative medication.”

The submissions on the part of the claimant were that the defendant’s stance was different at trial from that taken before HHJ Bursell, and that the judge should try the case on the basis which the defendant had previously espoused, i.e. by reference to whether the claimant was a credible and reliable witness. The submission was that she was a credible and reliable witness, and in particular it was submitted that her evidence as to her difficulties should be accepted and that the videos were not representative. The Post House case was distinguished on the basis that that was an unremarkable decision not seeking to lay down any new principle. In contrast to Mr Brown (it was submitted) the claimant had been forced to change her type of work and the length of hours she worked.

The judge in his judgment was not prepared to place any reliance on Mr Mackay’s letters of 21^st July. He gave the following reasons – 1. the reference to neck rather than upper back; 2. the failure to answer the claimant’s questions; 3. the fact that although Mr Mackay saw the videos, he had not seen the important observations of the claimant on which as he found “no serious challenge was mounted in cross examination”; and 4. because the basis on which HJJ Bursell had refused to vacate the date of the trial was that the issue at trial would be the claimant’s truthfulness whereas now it was said the evidence of the expert was central. He referred to a “sea change” in Mr Mackay’s views and how, if that change was to take place, it was important for the expert to have a full and fair picture.

He found that since this was not a case in which the expert had had an opportunity to consider all the evidence it was not a case where the court’s hands were tied by that evidence. Who could say said the judge “what the position might have been if the court had been presented with the views of Mr Mackay, fully informed and tested in cross examination?”

He found that the claimant was an impressive witness who gave her evidence in a moderate and measured way; he found her fastidiously reliable and honest in her description of her injuries and the effect they have had on her and her working and private life. He found that “the adjustments she has made to her working life are those that have been forced upon her by her continuing symptoms of which she complains as exacerbated by the specific movements of both conventional and laser optometry within her working day”. It was on that basis which he found that her past loss of earnings should be assessed as £61,657 with interest assessed at £8,946, and that her future loss of earnings should be assessed at £287,648. No criticism is made of the calculation. The challenge is to the judge’s finding that her change in working practice, at least to the extent which she said she was confined to three days as opposed to four, was caused by the accident.

The submissions on behalf of the appellant mirror to a great extent the closing submissions at the trial to which I have referred. It was submitted that on the evidence of Mr Mackay the court was bound to conclude that the claimant was fit to work four days. Orthopaedically it was submitted she was fit and it was submitted that it was clear from the reports other than the letters of 21st July that that was so. It was submitted that the judge’s reasons for discounting the letters of 21^st July were unfair. The reference to neck was a reference to “cervical spine” of which there were many references in the previous reports; the questions posed by the claimant were inadmissible; the videos were accurate in what they portrayed; it was unfair to talk in terms of a “sea change” in Mr Mackay’s opinions. The 21^st July letters were, in any event, simply confirmatory of what Mr Mackay had been saying up until then.

The submission of Mr Grant for the claimant was that the judge was entitled to give little weight to the letters of 21st July. The reference to neck, when taken with comparing the claimant with a typist, fully supported the view that Mr Mackay may not have had fully in mind the symptoms of the claimant. It was submitted that the claimant’s questions were not inadmissible, but in any event if question 3 was inadmissible on the grounds that it was a matter for the court, that demonstrated that expert evidence in this case could not be determinative. There was a shift in Mr Mackay’s views and it was unfair that the defendant could resist Mr Mackay’s being there and then suggest that it was his view which was determinative without Mr Mackay having all the material facts and without Mr Mackay being available to give evidence.

The claimant was an impressive witness and the defendant’s advisers had wished to fight the case on the basis that her evidence was the critical aspect. The judge had treated her evidence as critical, and it was open to him to find as he did that her change of working practice was forced on her.

It seems to me that the way in which the 21^st July letters from Mr Mackay came into existence was, to say the least, unsatisfactory. If they were to be relied on the claimant should have been entitled to examine Mr Mackay and put to him those aspects of the video which the claimant was suggesting were not clear in demonstrating the problems she had had and to ask him whether he intended any shift from his previous views. Indeed it was scarcely satisfactory in a case of this sort not to have Mr Mackay present to deal with any points which the claimant made in her evidence and on which the judge might wish assistance. If the evidence from Mr Mackay had been limited to what he said in his reports prior to the letters of 21st July it does not seem to me that, once the claimant had given evidence, the court would be bound to accept that the expert evidence could lead to only one conclusion i.e. that the claimant had not established causation. The reports themselves are not clear about that saying, as the second report does, that although it is Mr Mackay’s opinion (1) that she had “reasonably adjusted her work style” (presumably to laser optometry), but (2) was capable of returning to a 32 hour week, but there again (3) “the final judge of this is the patient and she must decide how much she is able to cope in terms of discomfort” (paras 46 and 47).

Whether the claimant’s injury caused her changing working practice was ultimately a question of fact for the court on the basis of all the evidence that it heard. So far as expert evidence is concerned Clarke LJ (as he then was) put it this way in Coopers Payen Limited v Southampton Container Terminal Ltd [2003] EWCA Civ 1223.

“All depends upon the circumstances of the particular case. For example, the joint expert may be the only witness on a particular topic, as for instance where the facts on which he expresses an opinion are agreed. In such circumstances it is difficult to envisage a case in which it would be appropriate to decide this case on the basis that the expert’s opinion was wrong. More often, however, the expert’s opinion will only be part of the evidence in the case. For example, the assumptions upon which the expert gave his opinion may prove to be incorrect by the time the judge has heard all the evidence of fact. In that event the opinion of the expert may no longer be relevant, although it is to be hoped that all relevant assumptions of fact will be put to the expert because the court will or may otherwise be left without expert evidence on what may be a significant question in the case. However, at the end of the trial the duty of the court is to apply the burden of proof and to find the facts having regard to all the evidence in the case, which will or may include both evidence of fact and evidence of opinion which may interrelate.”

The position in this case seems to me to be stronger than in a case where the expert actually gives evidence. The defendant, or those representing him, chose to conduct this case on the basis that Mr Mackay should not be present, being aware when they so insisted that the claimant would give evidence, and would wish to challenge any conclusion being drawn from Mr Mackay’s evidence, that she was simply exercising a choice as to her working practice. The court was persuaded that the defendant was entitled to take that position on the basis that it was the claimant’s evidence which would be determinative and that it was unnecessary to have Mr Mackay there to deal with any points the claimant might wish to make. Once that stance had been successfully taken, it could not in fairness be open to the defendant to suggest that the court was bound by Mr Mackay’s reports alone to draw the conclusion that the claimant was simply exercising a choice.

It follows that the argument, that the judge was bound by expert opinion to hold that the claimant was simply exercising a choice, must fail. The judge had then to assess the evidence, including that of the claimant. It was, in my view, open to the judge on all the evidence to find as he did that the claimant had her working practices forced upon her by the accident.

I would dismiss the appeal.

I agree

I also agree