Expert witness view rejected due to failure to consider the range of opinions

The High Court has rejected an expert's view due to the failure of the expert to consider the range of opinions on an issue in JBX v Frimley Health NHS Foundation Trust [2026] EWHC 2294.

What happened?

The case was a clinical negligence claim.  Negligence was admitted and the appropriate level of damages to be awarded fell to be decided, including the appropriate sum for future care and accommodation.

The Claimant's neuropsychiatric expert Dr Igboekwu said that the Claimant would be better off living at home supported by carers.  Dr Igboekwu was asked at the trial why his report had not considered the advantages and disadvantages of each of the competing accommodation models, as opposed to simply concluding that living at home was the best option.  His short answer was that he would not consider any option that made the Claimant unwell.  

The Defendant's expert Dr Soppitt considered that the psychological impact of caring for a young person in a minimally conscious state and whose condition was not improving was likely to be significant and "very demanding".  For the carers, it was likely to be a "very stressful scenario" and there would be a "higher risk of carer burn out" so they will need "very close" psychological supervision and containment.

The Judge observed that, “Dr Igboekwu was plainly concerned to do his best by the Claimant but, in my judgment, he did not sufficiently consider the merits and, crucially, the risks posed by the various accommodation options under consideration.  I was concerned by […] his effective refusal to answer properly Ms Toogood's questions about his failure to consider the disadvantages of a home-based setting and the advantages of a residential unit.”  

For that reason, the Court preferred the Defendant's expert evidence to the Claimant's.

Reminder of an expert's duty

Outside the scope of injury claims, experts can sometimes simply state a view which they think is credible and which suits the position of the party they are instructed by, but fail to consider the wider range of opinions.

For example, in a quantum assessment case a paying party's expert might consider that the costs claimed could be cheaper, without considering whether the claimed sums fall within a reasonable range where that is the test in law.  

The Practice Direction to Civil Procedure Rule 35 (Experts) paragraph 3.2 expressly states that “An expert's report must […] where there is a range of opinion on the matters dealt with in the report […] summarise the range of opinions; and […] give reason's for the expert's own opinion.”

It follows that if an expert merely gives his own view of what the remedy should be, without addressing the range of opinions and / or giving his or her reasons, his or her opinion may well be discounted or given little weight by a trial Judge.

So that, for example, in a property damage case where say £2 million is claimed as the remedy, a Defendant's expert who simply says he thinks it could be done for £1 million may find his opinion of little value where he fails to consider whether the claimed sum falls within the wider reasonable range, notwithstanding that ‘it can be cheaper’.  

To the uninitiated, a one sided expert opinion can appear ‘robust’ and ‘supportive’; but as illustrated here it can be quite the contrary.