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Cosgrove v Dimond, Cardiff County Court, 21 January 2002

22 January 2002
The issues

Application by Claimant to adduce the evidence of their own Orthopaedic Surgeon, pursuant to Daniels -v- Walker, and to adjourn Trial on 8th May.

The facts

RTA – quantum only – pleaded claim of approximately £300,000.00. Approximately £250,000.00 for loss of earnings. The parties previously agreed joint instructions to an Orthopaedic Surgeon. This agreement was reached between VP and the Claimant’s previous Solicitors. The joint expert maintained that the Claimant should have made a full recovery from soft tissue injuries to his neck and lumbar spine within 18 months of the date of the accident. The Claimant was still experiencing significant symptoms 5 years post-accident, such that he had not been able to fully return to his work as a builder. The joint expert could not explain the continuing symptoms, other than the fact that the Claimant appeared to be extremely anxious about his condition.

A report was obtained from a Psychiatrist but there was no diagnosable psychiatric illness. The Claimant’s Solicitors obtained leave to put Part 35 questions to the joint expert, twice, but did not make any headway with him, hence the Application. They obtained an MRI Scan and a report from their own Orthopaedic expert, which, they contended, explained the reason for the Claimant’s continuing symptoms. They contended that the joint expert was discredited and they should have leave to adduce their own evidence.

The decision

1. The District Judge said he was very reluctant to depart from the previous Order, which was by consent, for there to be joint instructions. If the Claimant’s Solicitors were unhappy with the joint instruction then they should have made an Application about this months ago. They had had an opportunity to put Part 35 questions and the expert had replied, notwithstanding the fact that the replies did not support the Claimant’s earnings claim. Leave to adduce the evidence of the Claimant’s own Orthopaedic was refused, as was the Application to adjourn the Trial. Instead, the MRI Scan should be sent to the joint expert for an addendum.

2. The Claimant’s Solicitor (who actually requested leave to appeal the District Judge’s decision even before the DJ had had chance to give the final Order!) commented that the case raised important questions about the Case Management and, accordingly he gave leave to appeal.



Is there to be a retreat from Daniels – particularly in the light of the recent “guidance” (albeit re; non-medical experts) offered by Lord Woolf in Peet?

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