Musings on Expert Evidence (no.3) (The Holiday Sickness edition)
Claimants in #holidaysickness claims often put forward the (probably simplistic) analysis that if the Claimant fell ill in the manner alleged, then it was, on balance, bacterial rather than viral or parasitic in origin, and that because bacterial infection is acquired by ingestion it was, on balance, ingested in the form of food or drink. If the Claimant asserts that they only ate food in the resort before falling ill, then it follows (they say) that it must have been contaminated food provided by the resort which made them ill.
Often the original reports are simply inadequate, but since tour operators started challenging the adequacy of the evidence in these cases, some doctors have tended to try to buttress their opinion with an analysis based on excluding alternative causes, whether by way of a discussion in the main report, a “supplementary report” or simply by shoe-horning ex post facto justification into answers to CPR35 questions.
When a Claimant succeeds, transcripts are obtained and circulated in the hope that the reasoning of a judge in one first instance case might somehow persuade a completely different judge, in a completely different case, that they too should find for the Claimant. A throwaway line in an ex tempore judgment is recorded, printed, copied and disseminated as if it is gold dust.
One such case is Howard v Red Sea Holidays which was heard in late 2017. I did not appear. My instructing solicitors in these cases were not involved. I have, of course, seen the judgment, but not the medical report itself, albeit that the author of that report is recorded. The judge, reading that report, was complimentary about how thorough it was. It was, it is said, a ‘model report’. That transcript has been bandied around as confirmation of the validity of the model ever since.
Yesterday, that ‘model’ was tested with the benefit of cross-examination of a doctor from the same medical agency as the report writer in Howard. The report in our case seems (given the comments in Howard) to have adopted an identical methodology and identical wording. Certainly, other reports from other doctors from that medical agency have been noted to use the identical methodology and wording, whoever the avowed author (which is what put us on to the issue in the first place).
That identicality, in part, is because (it was conceded) the analysis method (referred to as an ‘algorithm’) was a communal effort on the part of the doctors at the relevant practice, rather than the sole analysis of the individual producing the end report. Leaving aside the question of whether that communal effort should have been declared on the face of the original report (or the CPR35 answers when it was introduced in our case), the methodology of the ‘algorithm’ has now been considered with the assistance of one of the authors, whose use of the algorithm has given rise to the conclusion that the Claimants have suffered food poisoning, as a result of food provided as part of the package, in each and every case (100%) in which it had been used.
The Court rejected the algorithm as flawed: It fundamentally relies on the history given, and if the history given is not accurate, it is not robust. It does not allow for incubation periods which is a fundamental issue. It does not consider hygiene standards within the kitchens of the resort whilst excluding pathogens from the sea on the grounds of nominal local hygiene standards. The history sought was limited and only ever addressed the matters which tend to support the conclusion of food poisoning. It had not been peer-reviewed.
Of course, the findings of the Court yesterday after hearing cross-examination of the doctor are legally no more persuasive than the findings in Howard where the evidence was provided in writing, but one would not want those relying on Howard to be unaware of the case of Roberts et al v TUI UK Limited in the Newport County Court (transcript awaited), which might serve to undermine their argument that such methodology is a ‘model’ report.