PI Brief Update

18 May 2007 - PI Practitioner

CONFLICT OF EXPERT EVIDENCE – JUDGE MUST GIVE REASONS FOR DECISION
Smith v. Southampton University Hospital NHS Trust [2007] EWCA Civ 387
The claim related to a surgical operation in which the claimant had suffered injury. There was a conflict of evidence between each party’s experts, and the judge preferred the evidence of one of them. She concluded that the expert represented a responsible body of medical opinion, and therefore found the defendant not to have been negligent. She did not give reasons for preferring that expert.

The Court of Appeal found that the decision was unsustainable. The judge had to explain why she had rejected the evidence of one expert and preferred the evidence of the other; merely saying that the other expert was representative of a responsible body of medical opinion was not sufficient. On the facts, the judge was wrong to prefer that expert, and the Court of Appeal reversed the decision on that point.

ASLEEP AT THE WHEEL – DRIVING IN THE COURSE OF EMPLOYMENT
Eyres v. Atkinsons Kitchens & Bedrooms Ltd [2007] EWCA Civ 385
The Court of Appeal reversed a finding of fact by the trial judge, and substituted the finding that the claimant had fallen asleep while driving his employer’s van, and that this was the cause of an accident in which he was injured. The claimant had been accompanied by his manager, and the claimant’s case was that the defendant had permitted him to drive when it was unsafe for him to do so, because he was too tired.

The Court of Appeal found that, in these circumstances, the defendant was liable to the claimant subject to a 33% deduction for contributory negligence. The claimant had to bear some responsibility for the accident, because there must have been a point before the accident at which he realised he was at risk of falling asleep.