Commentary

This was one case brought to trial in the multi-claimant non-freezing cold injury (NFCI) litigation. The parties had been assisted by generic experts who were then called as experts in this case. Each was cross-examined on the basis that they displayed a lack of impartiality. But the court was satisfied that each of them understood their duty under Part 35 of the Civil Procedure Rules and sought to comply with it. Given that each had provided generic evidence for one side or the other, the court did not find it surprising that they had continued to be instructed. In itself, that did not prevent them giving objective evidence.

The case illustrates the challenges for experts when the clinical condition in issue is rarely encountered (or at least rarely recognised) in normal NHS practice. It most commonly arises in military personnel. Furthermore, there has been limited high quality, peer-reviewed research in the area of NFCI. Understanding of the condition continues to evolve. The pool of those with expertise in the condition is relatively small. The precise mechanism of injury is not currently known to medical science. Neither of the lead experts had military experience. One was challenged over his lack of clinical experience of NFCI and the other had seen only a few patients with NFCI outside medicolegal reporting. Nevertheless, both were able to assist the court. Significantly, it was apparent that both had kept themselves informed about developments in the field

In many cases where there is conflicting expert evidence, the court has to rely on an impressionistic view that one expert is generally to be preferred to the other and where one expert has been criticised this may be taken into account. However, in this case, notwithstanding the criticisms she made of one of the experts, the court was able to set aside those criticisms and base her judgment on a careful analysis of how the expert opinions fitted with the other evidence in the case.

The detail of this judgment may be of interest only to neurologists and vascular surgeons but makes useful reading for any expert instructed in a case where non-freezing cold injury is in issue. 

What the judgment does not reveal is that the claimant failed to beat the defendant’s Part 36 offer and that there had also been a failed joint settlement meeting in the case.

Learning points:

General

• Although findings of fact are for the court and not for the experts, the court expects experts to take on board what they hear in evidence and to think about whether that alters their opinion in any material way. The main point of an expert medical witness being present while a claimant gives evidence is so that they have heard that evidence first hand and can weigh it in giving their opinion evidence.

• Look carefully not only at the claimant's evidence but also at the histories underpinning the other experts’ opinions and cross-reference contemporaneous records. Reflect sufficiently on any inconsistencies between the history you have obtained and other sources of evidence including the evidence heard at trial.

• Even expert witnesses may find the experience of being cross-examined challenging and different people react in different ways to that.

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