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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Jamera v Le Feuvre [2020] JRC 030 (18 February 2020) URL: http://www.bailii.org/je/cases/UR/2020/2020_030.html Cite as: [2020] JRC 030, [2020] JRC 30 |
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Before : |
Advocate Matthew John Thompson, Master of the Royal Court. |
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Between |
Barbara Jamera |
Plaintiff |
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And |
Snowden Le Feuvre |
Defendant |
Advocate F. J. Littler for the Plaintiff.
Advocate D. A. Corbel for the Defendant.
CONTENTS
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Paras |
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1. |
Introduction |
1 |
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2. |
Background |
2-10 |
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3. |
The instructions of Mr Jasani |
11-25 |
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4. |
Submissions |
26-43 |
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5. |
Decision |
44-54 |
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6. |
Other |
55 |
judgment
the master:
1. This judgment contains my decision whether to permit the plaintiff to rely on the evidence of an alternative orthopaedic expert in lieu of the evidence of a Mr Jasani. Mr Jasani is a consultant orthopaedic surgeon and it is his expert evidence that to-date the plaintiff has relied upon.
2. The proceedings concern a road traffic accident that took place on 13th February, 2014. Liability was admitted by the defendant's insurers on 10th January, 2017.
3. On 13th January, 2017, shortly before expiry of the relevant limitation period, proceedings were issued. Initially the proceedings were adjourned sine die.
4. The proceedings were placed on the pending list by consent on 15th March, 2019, with an answer being filed on 5th April, 2019. The answer confirmed the admission of liability.
5. In addition to putting the plaintiff to proof, the answer asserts that the plaintiff had a pre-accident history of lower back pain and therefore it is the defendant's case that it is unlikely that the plaintiff's back was injured in the accident. In relation to the plaintiff's right shoulder, it is the defendant's position that the accident brought forward presentation of certain pre-existing symptoms in the plaintiff's right shoulder by a few months only. Any disadvantage in the labour market is also said to have been present pre-accident and would have persisted post-accident in any event. The defendant also argues that the plaintiff is suffering cervical spine degeneration in any event which was simply aggravated by the accident, but was now ongoing. The answer also raises that both of the defendant's experts "noted numerous inconsistencies in the plaintiff's accounts to them of her pre-accident medical history and her description of the accident impact".
6. Directions were issued on 17th June, 2019, with minor variations on 17th September, 2019, and 17th October, 2019, in relation to the timeframe for the provision of schedules of loss. Paragraph 2 of the act of court of 17th June, 2019, named the experts of both parties with Mr Jasani being named as the plaintiff's consultant orthopaedic surgeon and Mr Redfern as the defendant's orthopaedic surgeon. The act of court also named a Dr Chong as the plaintiff's neurological expert and Dr Francis as the defendant's neurological expert.
7. By the time of this act of court, expert evidence had already been exchanged between the parties with Mr Redfern's report being dated 31st July, 2017, and Mr Jasani's report being dated 4th November, 2018. I set out later in this judgment how Dr Jasani came to be instructed. Mr Redfern's report at paragraph 14.19 raised the issue that he did not regard the plaintiff as a straightforward witness.
8. Paragraph 3 of the act of court of 17th June, 2019, therefore provided for expert discussions to take place by 19th July, 2019, with paragraph 7 requiring a joint statement to be produced within 21 days. The joint statement of Dr Jasani and Dr Redfern was produced on 27th July, 2019.
9. I have also been provided with Dr Chong's report dated 7th October, 2018, and correspondence dated 7th January, 2019 and 17th July, 2019. Subsequent to the hearing I was provided with various documents including a joint statement of the neurology experts reports dated 10th July, 2019.
10. Schedules of loss were provided by the plaintiff on 3rd October, 2019, and by the defendant on 21st October, 2019. The defendant's schedule of loss at paragraphs 6 to 8 contains the following summary of the defendant's position:-
"6. In summary the Defendant's case is that the Plaintiff sustained a minor whiplash neck Injury in the accident which would have resolved by approximately six months post accident. The Plaintiff suffered Post Traumatic Headaches as a result of the whiplash injury which exacerbated a pre-existing tendency to migraines for a period of approximately six months post-accident. Any headaches beyond this point are not accident related.
7. A central claim in this case, namely that the Plaintiff sustained a significant right shoulder injury in the accident which has caused extensive ongoing pain and incapacity, is now wholly untenable in the light of the agreed orthopaedic evidence set out in the Joint Statement of the orthopaedic experts. They agree that the Plaintiff has a constitutional shoulder condition which was symptomatic pre-accident and the symptoms of which were accelerated for a short period of time by the accident. Beyond the period of acceleration, the Plaintiff would have suffered right shoulder symptoms leading to surgery In any event, due to the natural history of the condition once it had become symptomatic. Some of the medical treatment which the Plaintiff has received has been of a sub-optimal standard. She has developed medication overuse headaches caused by excessive use of analgesic medication.
8. The Defendant contends in any event that the Plaintiff's complaints of ongoing pain and dysfunction are overstated and there are significant concerns regarding her credibility and reliability as a witness."
11. In this case it is appropriate to set out certain parts of the instructions to Mr Jasani, extracts from his report and certain subsequent correspondence.
12. Initially the plaintiff instructed Mr Patrick Armstrong as her orthopaedic expert. However, Mr Armstrong moved to Jersey and performed surgery on the plaintiff's right shoulder. Accordingly, Mr Armstrong no longer felt able to act as an independent expert which led to Mr Jasani being appointed in place of Mr Armstrong. This is why the report of the defendant's orthopaedic expert Mr Redfern pre-dates the report of Mr Jasani.
13. On 7th August, 2018, Mr Jasani was sent two letters of instruction by Knights Professional Services Limited, English Solicitors ("Knights") acting for the plaintiff. The first letter sought a report on the injuries the plaintiff suffered following the road traffic accident; the letter also contained the following statement:-
"On reviewing Mrs Jamera and her medical records should you find anything that affects her credibility; please contact us urgently."
14. The second letter sought instructions about allegations made by Mr Redfern, that the operation performed by Mr Armstrong was performed negligently. The second letter contained the following statement:-
"I note on your CV you have experience in Clinical Negligence cases and therefore, I would appreciate it if you could provide an initial steer as to whether the allegations of Mr Redfern have any merit?".
15. Mr Jasani's report is dated 4th November, 2018. It followed an examination of the plaintiff on 31st August, 2018.
16. Paragraph 3.1. described the history of the accident and noted that the plaintiff stated that "she had discomfort in the lower part of her back".
17. Paragraph 3.6. of the report referred to a report of an Occupational Therapist dated 3rd July, 2014, which recorded:-
"Road traffic accident on 13th February, 2014 resulted in a whiplash injury to the right side of her body, particularly the neck, right arm and lower back and was referred for physiotherapy. She had physiotherapy for about two to three months and as her shoulder pain worsened, she was referred to an Orthopaedic Surgeon."
18. Mr Jasani's conclusion was set out in paragraph 8.1. of his report as follows:-
"The injuries sustained by Mrs Barbara Jamera are directly attributed to the accident she was involved in on 13th February, 2014. The mechanism of the injuries and subsequent development of symptoms and signs are consistent with Mrs Jamera having sustained:-
1 Moderate whiplash type injury of neck and back of soft tissue nature (sprain of musculoligament complex). Symptoms in the lower back resolved within one year from the time of the index event. (She has a long history of pain in the lower part of the back as mentioned in the past medical history section). She has recovered partially from whiplash type injury of neck. In view of persistence of symptoms and clinical findings, I would strongly recommend that she has an MRI scan of the cervical spine before a final prognosis can be given.
2. She has had, according to the records available, a significant history of pain in the right shoulder on 14th March, 2013. It is my considered opinion that the material accident caused probable aggravation of symptoms from the pre-existing shoulder problem. It is different to give a period of aggravation, but in my view the aggravation has occurred by about 12-18 months from the time of the index event. Any symptoms beyond this period in my view should be considered due to a constitutional problem and not to the material accident."
19. It is right to record that Mr Jasani's opinion of 4th November, 2018, did not mention any issues of credibility or provide any expert opinion about the operation carried out by Mr Armstrong on the plaintiff's right shoulder referred to in the second letter from Knights dated 7th August, 2018. I was informed that Mr Jasani did not raise any issue about credibility. I was also informed that there was no follow up to the instructions given to Mr Jasani even though he had not provided any opinion on the treatment carried out by Mr Armstrong.
20. The agenda for the joint meeting asked both experts to explore the standard care of the treatment carried out to the plaintiff's right shoulder by Mr Fopma and Mr Armstrong; the agenda also asked whether the experts had any concerns about the credibility and reliability of the plaintiff.
21. Paragraph 2.3 of the joint statement contained the following:-
"It is the experience of both experts that in situations where the history varies depending upon to whom it is told, there tends to be a problem with the reliability and credibility of the witness."
22. In relation to the treatment by Mr Fopma and Mr Armstrong of the plaintiff's right shoulder the joint statement at paragraph 6.1 including the following:-
"Mr Jasani has no experience in arthroscopic shoulder surgery and does not feel able to address this question at all."
23. However, at paragraph 6.2 the joint statement recorded:-
"The second part of the question asked whether the outcome has any bearing on the claimant's current symptoms and the answer from both experts is that it is noted that both Dr Chong in his report of 7th October 2018 and Dr Francis in his report of 20th January 2018 found normal power at the right shoulder. For this reason, it is clear to both orthopaedic experts that however deltoid was treated at the time of the operative intervention at the right shoulder, it has had no adverse outcome at all on the claimant's power."
24. The joint statement led to a further letter from Knights to Mr Jasani dated 6th August, 2019 asking the following questions at paragraphs a to d:-
"a. Do you doubt Mrs Jamera's credibility wholesale or in respect of her reporting of the onset of her symptoms pre-accident and post-accident? If so please can you advise why this was not included in your report dated 4 November, 2018?
b. Until the meeting with Mr Redfern; did you doubt Mrs Jamera's credibility? If not why has your position changed?
c. In light of the attached medical record do you now disagree with Mr Redfern that Mrs Jamera did in fact report a lower back injury before 3 June 2015?
d. Can a medical record stating 'whiplash' mean neck and back injuries/symptoms?"
25. Mr Jasani replied as follows:-
"The record of back pain was made on 3m July 2014 (Para 3.6 of my report): Occupational Therapist's records mention she had almost full range of movements. Neck and back symptoms were mentioned. It is very unusual for any patient to complain of pain, in this case back pain, after almost five months after accident. If the back was injured in the material accident she would have definitely complained within at least three to five weeks from the time of the accident, but there has been no mention about back pain until five months after the material accident and this is also difficult to explain if her back was at all injured in the material accident (particularly in view of pre-existing recurrent symptoms of lower part of the back pain almost from 2007 prior to the material accident).
These observations raised the question of credibility. This issue had been discussed in detail with Mr Redfern when the joint statement was being prepared and considering his opinion and following his examination of Mrs Jamera and my interview with her and her records does raise the question of credibility.
b) Until the meeting with Mr Redfern I had in my mind question of credibility issue but this was confirmed further to discussion with Mr Redfern and his observations as well.
c) Occupational Health records of 3rd July 2014 mention about neck and back. It was five months after the material accident and in my opinion, it would be highly unlikely that the back was injured in the material accident. There was no mention of back symptoms anywhere for about five months after the material accident
d) Whiplash can mean both neck and back or only neck and sometimes even only the back."
26. Advocate Littler for the plaintiff contended that the plaintiff had lost confidence in Mr Jasani due to:-
(a) Mr Jasani's failure to raise his concerns about credibility until the joint statement despite the matter being raised in Knights' letter of instruction;
(b) That Mr Jasani felt unable to comment on whether or not the surgery performed by Mr Fopma or Mr Armstrong were negligent or not because such surgeries were outside Mr Jasani's of expertise; and
(c) Mr Jasani changing his mind and no longer being of the view that the plaintiff had suffered a back injury as a result of the road traffic accident.
27. Advocate Littler also criticised the joint statement because it was based on two factual errors. The first of these was when the occupational therapist first saw the plaintiff. The second error was that the medical notes taken at the hospital on 24th February, 2014, only two weeks after the accident recorded the plaintiff as suffering from back pain.
28. Mr Jasani was also criticised as having failed to respond to Mr Redfern's opinion that there was no evidence of any muscle wasting (paragraph 6.4.2. and 6.4.3. of Mr Redfern's report. As Mr Jasani had seen the plaintiff after Mr Redfern's examination and after the defendant's neurological expert had examined the plaintiff, Mr Jasani should have recorded his own conclusions about muscle wasting which he had failed to do.
29. Mr Jasani's conclusions on credibility contained in the joint statement were also material because he may have taken these views into account in reaching a view about whether or not the plaintiff was suffering back pain due to the accident.
30. It was further argued that Mr Jasani could not express an opinion on the effect of the later operations on injuries suffered during the road traffic accident if he did not have expertise to comment on whether the operation themselves were negligent treatment. The plaintiff therefore did not understand how Mr Jasani could express a view that the operations had no adverse outcome on the plaintiff's power (see paragraph6.2. of the joint statement).
31. While whether or not Mr Armstrong had performed this operation in a negligent manner was a separate issue to the present proceedings, the plaintiff also wanted to explore a possible claim against Mr Armstrong and Mr Jasani had failed to advise on this possibility.
32. In relation to the relevant legal principles concerned, Advocate Littler emphasised paragraphs 47 and 48 of my decision in Pallot v Allain [2015] JRC 086 in particular the statement that:-
33. It was also argued that Mr Jasani had reached different conclusions at different times about the plaintiff's back. This point was based on the duty on an expert to raise anything material. As Mr Jasani had not raised the matters referred to in the joint statement in his own report, it was therefore argued that he had changed his mind which justified a second opinion being obtained. Alternatively, his failure to advise was a breach of his duty to set out all the material issues. Advocate Littler also referred me to paragraph 29 of Beck v Ministry of Defence [2005] 1 WR 2206. While an extract from Beck was referred to in Pallot, paragraph 29 was not cited and was relevant. Paragraph 29 is set out later in this judgment.
34. Ultimately, Advocate Littler concluded that the application should be allowed unless I concluded that this was a case of expert shopping. She accepted that the reports of Mr Jasani and the existing joint statement could be used at trial consistent with my decision in Pallot and therefore any new expert permitted by this application could be cross-examined based on that material. The availability of this evidence however meant that there was no basis not to grant the application.
35. Advocate Corbel in response contended that the views expressed in the joint statement were not a change of opinion. Rather they were views not previously expressed. This was not a basis to permit a new report.
36. To the extent that the joint statement contained factual errors in relation to when the plaintiff complained about her back (either shortly after the time of the accident or to the occupational therapist) this issue could be dealt with by these errors being put to both experts and a supplemental joint statement being produced by way of clarification. These errors did not however need a new expert.
37. In relation to credibility this was always an issue. All Mr Jasani had done was to explain a view that he had held but had not previously expressed. The issue of credibility was referred to in the defendant's answer, and it was raised in the joint agenda. It was specifically included in the first draft of the agenda produced by the plaintiff's English Solicitors.
38. It was not clear why the plaintiff's English Solicitors had not followed up with Mr Jasani when he failed to answer the question put about the operation carried out by Mr Armstrong. Had the solicitors sought an answer to this question then the present situation may not have arisen.
39. The question of any alleged negligence by Mr Forpma or Mr Armstrong was not a matter for trial. Mr Jasani had also felt no difficulty in expressing an opinion on the impact of the operations.
40. He had also not changed his view about whether or not the plaintiff had suffered a lack of power. Rather he had simply not expressed an opinion. There was therefore no change or about turn which is why the defendant contested that the application was a case of expert shopping.
41. Allowing the plaintiff's application would cause prejudice to the defendant because it would potentially delay the fixing of trial dates and bringing this matter to a conclusion. If the application were granted, this would mean that a trial would not take place until 2021.
42. Advocate Corbel was also critical of the initial letter of instruction because the inference to be drawn from it was that, if Mr Jasani had indicated at that stage he had concerns about credibility, then another expert would have been instructed. This inference supported the view that what was now occurring was expert shopping.
43. Advocate Littler in her reply in relation to the question of the agenda contended that the issue was raised because Mr Redfern had referred to the issue of credibility, not because there was an acceptance by the plaintiff that there was an issue. She also rejected the submission that the initial letter of instruction to Mr Jasani was instructing that comments on credibility not be included in his written report.
44. The starting point for my decision is Pallot v Allain [2015] JRC 086. The heart of my decision was set out in paragraphs 42 to 45 as follows:-
45. I also agree with Advocate Littler that "some degree of latitude" should be allowed to an assertion that confidence in an expert has been lost, as recognised by paragraph 47 of Pallot. As also noted in paragraph 47, the court's task is to test the assertion that confidence has been lost to see whether there is a basis for it and that it is not just expert shopping.
46. The present case is not the same as Pallot because in Pallot the criticism of the first expert retained was that he had reached potentially different conclusions at different times. In the present case the criticism is rather a failure to advise when asked coupled with a failure to indicate by Mr Jasani that he was not qualified to advise on whether or not the operation carried out by Mr Fopma and Mr Armstrong were performed negligently or not. In relation to this lack of expertise I accept that it has caused the plaintiff a loss of confidence because of the reasonable question as to how Mr Jasani can express a view about the impact of the operations on the shoulder injury suffered in the road traffic accident when he was not able to express a view whether or not how the operations were carried out was negligent. While this conclusion does not mean that Mr Jasani could not provide an opinion on the impact of the operations, the plaintiff's concerns are arguable. When the first operation took place is also relevant because it is at the margin of Mr Jasani's own view as to when that treatment might affect or exacerbate the shoulder injury suffered at the time of the road accident. It is therefore not unreasonable for the plaintiff to seek to explore and contend that the first surgery was due to the accident either in whole or in part.
47. I also accept that there were factual errors in the joint statement because the medical notes at the time of the accident did refer to the plaintiff complaining of back pain. In addition, both the occupational therapist first spoke to the plaintiff and carried out a visit and an assessment on 28th April, 2014, when the plaintiff was reporting pain in her lower back. If these had been the sole issues of concern, then I would refuse the application because these factual errors were made by both experts and could have been put to both of them by way of supplemental questions leading to a supplemental joint statement.
48. However, the problems go beyond the factual errors and extend to Mr Jasani's lack of expertise which I have referred to above. I further accept that he has not commented on whether or not he observed muscle wastage, even though he examined the plaintiff after she had been examined by Mr Redfern and the defendant's neurological expert (Dr Francis). I also accept the plaintiff's criticism of Mr Jasani that he had concerns about the plaintiff's credibility but did not express those concerns despite being asked to do so when initially instructed. Although a challenge can be made to seeking answers to those questions by a call rather than in a report, it should be remembered that initial discussions between a party's legal adviser and an expert are privileged. Asking whether an expert has concerns about credibility and then seeking a second opinion is not improper in itself as recognised in Pallot. It might become improper in a particular case, but in this case it was not improper to raise the question.
49. The conclusion I have reached is therefore that the plaintiff should be given a degree of latitude in expressing concern about Mr Jasani because he did not raise the question of credibility in his own report and only referred to it in the joint statement. Yet credibility was raised in the defendant's answer and Mr Redfern's report.
50. Insofar as Mr Jasani is alleged to have changed his opinion there is potential inconsistency between his conclusion at paragraph 8.1 which refers to "moderate whiplash type of injury of neck and back" and paragraph 1 of 8.1 that "...lower back resolved with one year from the time of the index event" (i.e. the road traffic accident). It is not clear whether this is a referral to a whiplash injury to the back or to a back injury. While I understand the conclusion in the joint statement in response to question 7 to be that the back was not injured in the road traffic accident, there is greater clarity in the joint statement compared to the original report of Mr Jasani which justifies a second opinion being obtained.
51. In reaching my decision I have not ignored the consequence that accepting that grounds are made out for the plaintiff to obtain a report from another expert means that the fixing of trial dates will be delayed. However, this is not application made just before trial leading to the adjournment of any trial dates. I also have to balance fairness to the defendant with fairness to the plaintiff. In my judgment it will be unfair on the plaintiff at this stage to prevent the plaintiff from advancing the case she wishes to advance (assuming that a second opinion can be obtained) which outweighs the importance of bringing this case to a conclusion at this stage. While the court now emphasises routinely the importance of active case management and bringing cases to an orderly conclusion, this is not at the expense of depriving a party of their ability to present their case in court on a reasonable basis. In weighing these competing considerations, the balance in this case comes down on the side of the plaintiff.
52. If I were to hold otherwise the plaintiff would be in the position summarised at paragraph 29 of Beck which states as follows:-
53. However, while I permit the plaintiff to obtain an opinion from a second orthopaedic expert, in my judgment this application could have been avoided for two reasons. Firstly, had the plaintiff's English Solicitors followed up on the failure by Mr Jasani to provide an opinion on the operation carried out by Mr Armstrong, if in August 2018 or shortly thereafter Mr Jasani had expressed the view that he was not able to provide an opinion because it was outside his expertise, then at that stage the plaintiff could have found a different expert and thus the present application could have been avoided. This failure by the plaintiff's English Solicitors has therefore led to the costs of this application being incurred. The defendant will also have to incur additional costs in requiring Mr Redfern to review any further report obtained and to take part in additional joint statements. Secondly, Mr Jasani should have raised his concerns about the plaintiff's credibility, the question having been specifically asked of him, in view of the answer and Mr Redfern's report. Mr Jasani should have appreciated that credibility was a serious issue and therefore should have raised his views in response to the instructions received.
54. The plaintiff should therefore pay any wasted costs incurred by the defendant in relation to considering Mr Jasani's evidence. Furthermore any future costs order against the defendant should not permit recovery of any costs associated with obtaining Mr Jasani's evidence.
55. As in Pallot these costs should be paid on an indemnity basis (see paragraph 52). However, it is right to note that there is a difference between Pallot and the present case. In the present case the reason for an additional opinion is partly due to the failure of the plaintiff's English Solicitors to follow up with Mr Jasani; the application has also arisen because of the failure of Mr Jasani to raise concerns about credibility earlier. While I am satisfied that the defendant should not be out of pocket for wasted costs reasonably incurred, it is a matter between the plaintiff, her English advisers and Mr Jasani as to where the ultimate liability for those costs may fall.
56. It is also right to record in this judgment that during the hearing in respect of other issues I was asked to consider another issue that arose, namely whether Mr Chong was appropriately qualified to provide an opinion on pain management but that this opinion could not be provided at this stage until the plaintiff had undergone further treatment. As it was ultimately agreed that Mr Chong was qualified but an opinion from him had to await the outcome of further treatment, accordingly further directions in relation to expert evidence and pain management and care were leftover. Likewise the need for evidence for a forensic accountant also depended upon the conclusions reached in any medical opinions ultimately relied upon by the plaintiff about the cause of the plaintiff's symptoms and her progress. This issue therefore also leftover.
