The judgment in Radia v Marks is essential reading for those who instruct experts in litigation. It contains an application of the principles set out in Khan v Meadows concerning the scope of a duty of care owed by expert witnesses to litigants.
The factual background is lengthy. The Claimant worked for the global investment banking firm Jeffries between 2007 and 2015. In 2009, he was diagnosed with Acute Myeloid Leukaemia (‘AML’), which resulted in a long-term admission to hospital for treatment. Following hospital discharge, he returned to work on a phased return basis in 2010.
In May 2015, the Claimant commenced proceedings in the Employment Tribunal alleging disability discrimination due to his AML pertaining to his phased return to work. The Claimant claimed disability discrimination in ten respects which were all disputed by Jeffries, whose overture that the Claimant had only raised the allegations whilst negotiating severance reflected the “opportunistic”, unmeritorious nature of the claim (para 13).
In late 2015, the Defendant a consultant in haematology accepted instructions to provide a medical report “relating to the impact of my AML” (para 14). After being reminded of his duty as an expert to the court the Defendant was asked to provide a report addressing the nature, seriousness, and progression of the Claimant’s AML from the condition’s onset, an explanation of the treatment undergone by the Claimant and associated side effects, and questions relating to the Claimant’s medical condition between August and May 2011, specifically whether the claimant was in May 2011 dealing with mental or physical fatigue as a consequence of his AML.
Following consultation on the 22nd of March 2016 the Defendant made a handwritten note recording “weight loss”: “95kg > 50kg white hair, looked 60 years. Not depressed” (para 21). This note informed his medical report that by the conclusion of his treatment the Claimant had lost nearly 50% of his body weight. Accepting as a corollary that extensive weight loss is “always associated with fatigue” the Defendant concluded the Claimant was suffering from fatigue related to the chemotherapy (para 21).
In a detailed reserved judgment handed down on 3rd February 2017, the claim was comprehensively dismissed. The Tribunal found the Claimant had acted unreasonably by telling lies that were “deliberate, serious and central to the case”. These deceptions included substantial reference on the divergence between the Claimant’s alleged post-treatment weight (50-60kg), with the hospital discharge records (81.5kg), the fabricated evidence that the Claimant missed his holiday due to work, an exaggeration of the length of his absence from work due to his knee injury and a persistent evasiveness whilst under cross (para 31).
Following the liability decision, Jeffries brought an application for costs which was granted. The Tribunal referred to its findings of fact in the initial hearing, pointedly referencing the deception concerning the Claimant’s weight post-treatment and holiday claims.
Further, to the Tribunal’s liability decision in which the Claimant had acted “cynically” in delaying raising allegations of discrimination, the costs Tribunal asserted the Claimant acted unreasonably in commencing and pursuing his claim given he knew the “complaints had no prospect of success from the start” (paras 32, 43). This lack of prospects and general unreasonableness prompted the Tribunal to find a whole costs order should be made.
This costs ruling was unsuccessfully appealed to the Employment Appeal Tribunal by HHJ Auerbach. Subsequently, the Claimant sought permission to appeal from the Court of Appeal, however, Lord Justice Bean found no “arguable error of law” with the findings of fact being tantamount to “findings of dishonesty” (para 43). Lord Justice Bean found both the liability and costs decisions contained unimpeachable findings of fact justifying the Tribunal making an award of costs in Jeffries favour.
The Claimant’s present case alleges that the Defendant owed both a tortious and contractual duty by way of implied terms to exercise all reasonable care and skill to be expected of an experienced, skilled, and competent expert witness.
The particulars can be distilled into four criticisms (para 45):
(i) A failure to accurately record what he was told by the Claimant during the consultation. The Claimant weighted 50kg at his lowest, not at the end of treatment.
(ii) The Defendant did not properly cross-check the medical records to validate the information included in his expert report.
(iii) The Defendant breached his duty of care by providing oral evidence to the Tribunal at odds with the contents of his report, in that, if he accepted the weight on discharge had been different it would alter his analysis of the claimant’s fatigue level.
(iv) The Claimant alleges that the Defendant was in breach by “leaving the Employment Tribunal with the impression following the defendant’s oral evidence that the claimant had sought to deliberately mislead the defendant” and “causing the Employment Tribunal to find that the claimant was dishonest”.
Conversely, the Defendant disputed that his admitted mistake in failing to notice the weight discrepancy constitutes breach of duty. The Defendant asserts that weight was only one of the relevant factors which he had to consider when advising on the effect of the AML, further even if the discrepancy had been noticed it wouldn’t have materially altered his clinical opinion that a 10kg decrease in weight was significant.
The Judge started by observing that the claim fell outside established categories of negligence, Justice Lambert narrowed his focus to consider “not whether the defendant owed the claimant a duty of care but whether the harm or loss claimed falls within the scope of that duty” (para 59).
The key legal issue was whether the ‘harm’ was within the scope of the duty of care – an issue which had not been addressed by either counsel in their submissions, but which was highlighted in the Supreme Court decision of Khan v Meadows (our summary is available here). In identifying the nature of the loss or harm the judge agreed with the Defendant’s counsel that the alleged harm was the Tribunal’s finding that the Claimant was a “dishonest witness” (para 60). As a corollary, the central issue, therefore, was whether the scope of the Defendant’s duty to the Claimant extended to the protection from the risk of an adverse credibility finding.
Justice Lambert was clear that it did not. In coming to this conclusion, Justice Lambert held it was not the purpose of the Defendant’s retainer by either party to advise or assist on issues concerning the credibility of the Claimant. Further, it was not possible for a medio-legal expert to give evidence about the Claimant’s credibility; an expert’s opinion being admissible only to the extent it addresses issues within his or her expertise. In turn, whilst conceding that a side-effect of an expert’s evidence “may be to highlight an oddity or inconsistency” in evidence which may “inform a Tribunal’s judgment on matters of credibility”, this side-effect does not extend the scope of the duty to protection from the “risk of adverse credibility findings” (para 61). To do so would create a conflict between the expert’s overriding duty to the court and his or her duty to the party.
As such, the harm did not fall within the Defendant’s duty of care, disposing of the claim in tort.
Both parties called experts on breach, however, Justice Lambert clarified that the issues were not matters within the expertise of a medical expert. Justice Lambert rejected the Claimant’s assertion that the Defendant was informed he weighed 50kg at the nadir of his illness rather than upon discharge from hospital. The assertion was contradicted by contemporaneously written notes corroborated by the Claimant’s witness statement, and further cemented by the Claimant’s failure to “pick up on the mistake” when he read through the report or seize a “golden opportunity” to set the record straight at the Employment Tribunal. (para 69).
Regarding the Defendant’s failure to notice the weight discrepancy, the judge rejected this failure was tantamount to breach. The unwieldy, unorganised records provided belatedly supported the judge in accepting the Defendant’s evidence that he reviewed the records as studiously as feasibly possible within the deadlines set. Any failure to search for the records after his conclusion did not constitute breach.
The Claimant also failed to prove causation; that but for the Defendant’s failure to record accurately what the Claimant had told him and/or his failure to check the medical records, the Tribunal would not have found the Claimant dishonest and made the adverse costs order (para 78). Justice Lambert stated that the finding that the Claimant was dishonest was based on a plurality of factors, extending past his account about his weight. These factors included an “evasive[ness] in answering questions” and discord between the “relative reliability of the evidence of the Claimant on one hand and Jeffries’ witnesses on the other” (para 79).
In any event, the Claimant had an additional problem in that the costs order did not solely from its credibility findings, instead, the costs order was made because “the multiple claims taken individually and as a whole had no reasonable prospect of success” (para 81).
The claim, therefore, was dismissed in both tort and contract with judgment entered for the Defendant.
Sarah Crowther QC, a barrister in our Clinical Negligence team commented on the case as follows:
This is an early and useful application of the principles expressed in the Supreme Court in Meadows v Khan: whilst it is not new law to ask whether the harm complained of fell within the scope of the alleged duty of care, the decision has re-emphasised the need to analyse exactly what harm is alleged.
The decision will also present some cause for relief in expert witnesses, as the court was keen to emphasise that it appreciated the practical difficulties under which the expert evidence was given in this case. It does, however, highlight the obligation on instructing parties to ensure factual accuracy in reports when cross-referenced to contemporaneous documents.
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