In the case of Scarcliffe v Brampton Valley Group Ltd, Mr. Scarcliffe (referred to as 'S'), the Claimant, served as a tree surgeon under the employment of the defendant, Brampton Valley Group Ltd (referred to as 'BVG').
In September 2017, while carrying out his regular duties at a Nature Reserve in Northamptonshire, S experienced an accident. During this incident, a colleague lost control of a solid section of a tree trunk, resulting in it falling onto S's back. This unfortunate event led to S sustaining two transverse process spinal fractures at L2 and L3, ultimately causing chronic back pain.
BVG accepted liability for the accident without contest, and judgment was rendered in favor of S. However, the parties were unable to reach an agreement regarding the actual amount of damages sought by S. The disparity between the two figures was considerable, with S claiming approximately £6 million in damages, while BVG estimated damages to be around £137,000 (excluding those for pain, suffering, and loss of amenity).
One of the primary reasons for this substantial difference was the disagreement between the parties regarding the "but for" scenario – that is, the situation S would have been in had he not experienced the accident – as well as the extent of his pre-existing conditions.
Prior to the accident, Mr. Scarcliffe was already grappling with a degenerative spinal condition. Additionally, his family situation was intricate: his wife, a specialist midwife, suffered from various health issues, including asthma, palindromic rheumatism, and osteoarthritis of the pelvis and hip joints. Moreover, two of Mr. Scarcliffe's three children had profound disabilities, and by the time of the trial, he had welcomed two more children, one of whom was undergoing evaluations for behavioral and developmental concerns. To assist with Mr. Scarcliffe's care and rehabilitation needs, a case manager was appointed, a factor which BVG contended skewed the resulting claim from accurately reflecting reality.
Mr. Scarcliffe's representatives argued that the chronic post-traumatic pain he endured as a consequence of the accident was debilitating and life-altering. They asserted that he would be unable to continue working and would require substantial assistance with household chores and childcare. Moreover, they contended that he himself needed significant daily care.
In contrast, BVG contended that the spinal fractures sustained by Mr. Scarcliffe were stable and not prone to future arthritic changes. They argued that Mr. Scarcliffe would have developed chronic pain even in the absence of the accident due to the progression of his degenerative spinal condition and his psychological vulnerability.
The case came before Mr. Justice Cotter, who was tasked with considering various issues, including whether Mr. Scarcliffe's care claim accurately depicted his disabilities and limitations, whether Mrs. Scarcliffe could manage with the limited level of care provided by Mr. Scarcliffe, whether compensation should be awarded for Mr. Scarcliffe's loss of employment and pension, and whether the claims for past and future care and assistance were reasonable and accurately calculated.
After assessing all the expert reports provided by both parties, the Judge concluded that S and Mrs. S were not credible in their accounts of the situation at home both before and after the accident, rendering the claims for care and loss of earnings "unsustainable." S had embellished his involvement in childcare and household tasks before the accident while exaggerating his disability post-accident and downplaying his physical capabilities. The representation failed to accurately depict the true "but for" scenario. Additionally, certain care claims were excessively inflated. For example, the necessity of professional carers for routine household chores was deemed unnecessary at the inflated rates claimed. The failure to rectify "obvious and significant errors" was noted, such as claims for walking two family dogs, one of which had passed away, and the other being old and having access to a spacious garden. Furthermore, sums claimed for transporting children to and from school were calculated until the Claimant's retirement, when the children would have been in their mid-twenties.
The Judge criticized the approach taken by experts, particularly in cases involving high-value care, citing a lack of attention to detail and forensic analysis. Furthermore, there was a deficiency in critical thought and questioning by the Claimant's legal team when evaluating the significance of the expert evidence. With both parties focusing on settlement rather than trial, reports were not rigorously challenged or scrutinized, making them untenable in court. Mr. Justice Cotter emphasized that a care expert should be capable of fully justifying any proposed care, therapy, or equipment to the court.
https://www.bailii.org/ew/cases/EWHC/KB/2023/1565.pdf
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