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Mutch v Allen

1 February 2001
The issues

Civil Procedure Rules 35.6 – Medical Experts – Court’s Willingness Or Ability To Edit That Evidence

The facts

The Claimant issued proceedings in respect of personal injuries. He was a passenger in the Defendant’s car. The Claimant suffered severe injuries in a road traffic accident. The Defendant alleged contributory negligence on the basis that the Claimant was not wearing fitted rear belt. In the course of proceedings the Defendant wrote to three of the Claimant’s experts requesting details as to the effects of a failure to wear a seatbelt.

There was no dispute as to the failure to wear the seatbelt.

There was an issue as to whether he had been thrown from the vehicle or trapped in the vehicle. An Order was made which gave the Defendant permission to request that information but debarring the Defendant from adducing further medical evidence after a specified date. The Defendant’s questions resulted in one of the Claimant’s experts stating that if the Claimant had been trapped in the vehicle before release his failure to wear a seatbelt was likely to have been less causative of his injuries than if he had been thrown from the car. The expert was accordingly supplied with a report from the emergency teams and he concluded that the Claimant had been thrown from the vehicle.

Order subsequently made at pre trial hearing that the Defendant was not permitted to rely upon the evidence of the expert that the Appellant was thrown from the vehicle on the grounds that that evidence did not amount to clarification of a medical expert’s opinion pursuant to Civil Procedure Rules 35.6 and on the basis that it was not for the Claimant to prove the Defendant’s case. The expert’s evidence on the point was deemed inadmissible. That part of the earlier order permitting the Defendant to rely upon expert evidence was struck out.

The Defendant appealed.

The decision

It has been clear that the expert had required further information from the emergency teams to determine whether the appellant had been thrown from the car. The essence of the new approach taken by the rules were that in certain circumstances the expert would no longer serve just one party. The effect of one party administering questions to another expert in this way was to render the expert akin to a Court expert. It was appropriate for the Court to order in this case that the expert should give oral evidence to allow him to be cross-examined. The experts conclusions were admissible as part of his evidence. It was for the Trial Judge to give the way he considered appropriate.

Appeal allowed.

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