A claim was brought on behalf of a child with cerebral palsy, said to result from clinical negligence at the time of the child’s birth. Each side had permission to call one expert consultant obstetrician but the claimant had sought permission to call a second such expert, saying this was necessary to avoid an inequality of arms in the circumstances of the particular case. Those circumstances were that the two medical witnesses who would be giving evidence of fact in relation to the birth of the claimant were now consultant obstetricians of some note. The application to call an additional expert was refused.
Held: The decision was reversed.
Brooke LJ said: ‘Above all, however, for a case of this importance, high monetary value and complexity the parties will not be on an equal footing if Master Ungley’s order is to stand. The master appreciated that it was inevitable that a witness who happened to be a professional will give evidence of his actions based upon his or her professional expertise, but he thought that it was possible to isolate this evidence from the evidence on the ‘vital question of whether those decisions fell short of the required standard’, on which he was permitting only one expert on each side. In my judgment he was clearly wrong to do this on the facts of this case.
Anybody watching the trial would be bound to be impressed by the fact that there was only one consultant obstetrician giving evidence for the claimant, while there would be three giving evidence for the defendant hospital trust, and those three would cover a much wider spectrum of personal experience than the single expert permitted to the claimant. It is not as if the medical witness of fact for the defendants is a junior hospital doctor.’
Judges:
Brooke LJ
Citations:
[2004] Lloyds Rep Med 90
Jurisdiction:
England and Wales
Cited by:
Cited – Heyward v Plymouth Hospital NHS Trust CA 20-Jun-2005
The claimant appealed an order refusing him permission to rely upon an additional report from a consultant occupational psychologist in supprt of hs claim for damages in negligence after alleging stress at work. The case management conference had . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 10 May 2022; Ref: scu.229650