Expert Witness Update: Watson v Edstrom of Sweden Limited

In a case where Jennie Witherington at Keoghs LLP acted for the defendant, Her Honour Judge Hampton’s decision in Watson reminds parties involved in civil litigation that an expert witness has a primary duty to the court to assist on matters within their expertise. This duty overrides any obligation to the person from whom experts have received instructions, or by whom they are paid (CPR 35.3).

The claimant brought a claim for alleged hand-arm vibration syndrome as a result of his employment, between 1998 and 2012, as a carpenter. It was the claimant’s case that during the course of this work he was required to use hand-held vibratory tools in order to fit out vans and mobile workshops. Breach of duty was admitted but causation remained a live issue.

The claimant relied on the medical evidence of Mr Ghosh, who reported the claimant noticing white discolouration at the tips of his fingers, blue blotchy discolouration of the fingers and hands, followed by red discolouration on re-warming.

Associated with the colour change was altered sensation, described as tingling affecting the entirety of both hands. Similar symptoms were reported to the defendant’s medical expert, Mr Collin, who referred to episodes of coldness, pallor, discolouration, numbness, pins and needles in all fingers of both hands, in both thumbs and in both hands on exposure to cold temperatures.

Hand-arm vibration syndrome is categorised according to the Stockholm Workshop scales. This comprises of a rating system for vascular (circulatory system) and sensorineural (touch and sensation) symptoms, which sufferers of the disease can experience. Level 1 on the Stockholm scale is least severe, level 3 is rated as the most severe.

Mr Ghosh was of the view the claimant suffered from hand-arm vibration syndrome as a result of his work. Mr Collin considered that whilst the symptoms were genuine, they could not be diagnosed as hand-arm vibrations but were a normal physiological response to cold.

The respective parties’ medical experts’ opinions could not be swayed at trial.  Ultimately the claimant’s claim was dismissed. In making this finding, Her Honour Judge Hampton highlighted a number of areas of concern with Mr Ghosh’s evidence:

1. When he first reported, Mr Ghosh diagnosed Stockholm grading of 3V and 2SN on the left hand and 3SN on the right. In cross examination, Mr Ghosh accepted there was no vascular component. He also accepted that level 3 of the Stockholm Workshop scale would require severe symptoms affecting all phalanges (digits) on most fingers which was not present in this case.
2. The glossary in Mr Ghosh’s report contained ‘various discrepancies’ which were described as ‘to some extent, inaccurate and potentially misleading …’. The court expressed disappointment the glossary that had been put together in a report for the assistance of the court was then accepted by the claimant’s expert as being not entirely accurate.

The role of the expert witness

Despite criticism of Mr Ghosh, Her Honour Judge Hampton did not formally accept the defendant’s expert evidence. Proving medical causation remains the burden of the claimant and the case highlights the difficulty that a claimant can have in persuading the court to accept one expert over another. In this case and in light of criticism of Mr Ghosh’s evidence, the judge found the claimant’s expert evidence ‘unpersuasive’.

Watson also highlights expert evidence is opinion evidence and the role of the expert is to assist the court in determining a case and must be accurate. Judges rely on experts to assist them in areas which are not necessarily within their expertise and any discrepancies will not be looked on kindly. The overriding duty of the expert is to the court and where appropriate the court can ignore an expert’s evidence in its entirety.

If you would like a copy of the judgment please contact either Steve Gowland or Jennie Witherington.

Steve Gowland
Associate
T: 01204 672325
E: sgowland@keoghs.co.uk

Jennie Witherington
Case Handler
T: 01204 678953
E: jwitherington@keoghs.co.uk