Managing care claims inflation with the use of expert evidence

The judgment on Scarliffe v Brampton Valley Group [2023] highlights how a defence and the instruction of the ‘right’ care expert can reduce, significantly, the value of a claim. In this case, the matter was valued at £6.1M but with persuasive care evidence damages were assessed at £272,000.

Scarliffe v Brampton Valley Group [2023] 

This case highlights how a well-prepared defence and the instruction of the ‘right’ care expert can reduce, significantly, the value of a claim.  In this case, the matter was valued at £6.1m but with persuasive care evidence damages were assessed at £272,000. 

Background

The claimant was employed as a tree surgeon. On 22 September 2017 he was working with a colleague who lost control of a section of tree trunk which fell, landing on the claimant’s back. The claimant suffered a number of spinal fractures, but the expectation was he would make a significant recovery within 8 weeks.  However, it was alleged the orthopaedic injury had deteriorated to such an extent he was unable to work for the rest of his life and had significant care needs which included him being unable to care for his 2 severely disabled children. The claim was pleaded at over £6m. 

Issues 

One of the key issues in the case was what would the claimant’s care needs have been in any event, “but for” the accident. The claimant suffered a number of pre – accident orthopaedic aliments including shoulder and low back pain.  The claimant alleged, that despite working full time (70-80 hours per week), he would have provided significant care for his disabled children. The defendant argued the claimant could do more than he was prepared to admit and this was supported by a Child and Family Assessment document which was first disclosed at trial.  This Assessment confirmed the claimant and his wife had requested 1 evening of respite care per month which contradicted the claimant’s evidence. There was also an entry within the hospital records in April 2018 which stated; “not planning to return as tree surgeon – carer for disabled child”.

Expert evidence 

HHJ Cotter was critical of the claimant’s care expert (Ms Lewis) stating at paragraph 167 of the judgment “significant parts of her evidence were unsatisfactory and / or ill thought through”. Ms Lewis was invited to submit an addendum report, at trial, commenting on the Child and Family Assessment. However, despite being granted this opportunity her report “failed to address the statutory assessment in any detail.”   The Judge found Ms Lewis “had not adequately stress tested her analysis of the provision of care and how the household would have functioned. Had she done so she could not have failed to appreciate that what she was suggesting was unrealistic.” 

The defendant’s care expert (Ms Mardar) was, according to the Judge, “far more realistic.”

Judgment 

In relation to the care claim HHJ Cotter found;

• The constitutional low back complaint had been accelerated by 7.5 years.
• The claimant could do more for his children than what he was prepared to admit. The Child and Family Assessment, which confirmed he was seeking modest assistance, supported this.
•  Carer rates should not be paid for menial tasks and what the average person would pay for such services should not be ignored.
• Ms Lewis had costed dog walking for life at £184,000 using full care rates ignoring the fact that one of the dogs had died and the claimant would out live the other dogs. 
• Ms Lewis overvalued the care for the 2 disabled children.
• Damages were assessed at £275,063 allowing £32,936 for past care and £75,000 for future care.
• The costs of the claimant’s care reports were not recoverable due to the Judges criticism of Ms Lewis.

Commentary

Parties should remind themselves that to recover damages the loss;

a)    Must be reasonable and have been caused by the accident;
b)    All relevant factors will be considered when assessing reasonableness; 
c)    Damages cannot be recovered if the loss would have been incurred in any event e.g. buying a new car or chair. 

Defendants should review the claimant’s care evidence carefully ensuring all relevant items are challenged for example;

a)    Dog walking for 2 dogs – one had died and another dog which was 8 was able to exercise itself in a large garden
b)    Grandparents would have provided some childcare in any event.
c)    Consider the provision of statutory care;
d)    Used full care rates for all tasks no matter how menial;
e)    Is there a need for childcare beyond 16 years of age? In this case the claimant’s expert allowed childcare when the eldest child would have been in their late twenties.

Historically, applying a cost benefit analysis to the care claim compared to the costs that would be incurred in proceeding to trial, expensive claims tended to be settled before reaching trial. However, in the current climate of costs inflation and a -0.25 discount rate the potential savings from expensive care regimes has increased significantly.  It may become increasingly common that the economic argument for settlement does not apply and the best way to challenge claims inflation and reduce indemnity spend is by proceeding to trial.

Conclusion

This case highlights the importance of ensuring experts are not mere cheerleaders but they analyse and stress test their own evidence even if that results in the expert being critical of its instructing solicitors position.  The parties must ensure their experts are kept abreast of all developments and any change in circumstances otherwise the expert’s evidence will be open to challenge and possibly criticism at trial.

Along with the judgment from Muyepa v Ministry of Defence [2022] EWHC 2648 (KB) this is another reminder of the obligations and requirements that the courts place on care experts. The instruction of a robust but fair care expert could make all the difference at trial and result in significant savings which in the current climate of claims inflation would be a very welcome development. These decisions are encouraging for defendants because it illustrates the judiciary will not merely accept a care experts’ evidence but will investigate and probe it carefully. With the ‘right’ care expert onboard insurers maybe more willing to proceed to trial and challenge expensive care regimes given the significant savings one can potentially secure.  

Steve Lynch is a member of Clyde & Co’s Care, Statutory Funding and Rehabilitation Subject Matter Group.