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In Eachus v Leonard4 this point arose. The agreed medical reports contained prognoses indicating when the Claimant would be fit to get back to work. When the trial came about the Claimant gave evidence contrary to the latest back to work date. The trial judge allowed the evidence and the Court of Appeal dismissed the Defendant's appeal. A distinction was drawn between agreed facts and agreed medical reports. The prognoses were simply the experts best informed opinion of the likely future outcome and the trial judge was entitled to take into account the Claimant's evidence when deciding the issue of his fitness to return to work. This view was fortified in Gilson v Howe & Son5 in which Sachs LJ considered that it would be contrary to justice to prevent the Claimant telling the court if his present position even if that was contrary to the agreed medical evidence.
22.10 If the Claimant's medical condition worsens after the agreement of the medical evidence then the Defendant must of course be informed of that and vice versa if the Defendant are going to allege, perhaps due to video evidence, that the Claimant has made a remarkable recovery.6
22.11 Serious cases In more serious cases even if the medical evidence is agreed the trial judge may have a number of questions for the expert and it may be necessary fort he Claimant to call the expert anyway. For instance in Jones v Griffith7 the Court of Appeal provided guidance to practitioners suggesting that medical expert should be called where the head injury is grave or serious.8
22.12 Questions to experts Lawyers need to be careful to ensure that if reports are agreed they contain enough information to allow the trial judge to make the necessary decisions. In Dimmock v Miles9 Sachs LJ said this:
"... we are concerned with yet another case in which a trial judge has been faced with agreed medical reports which, in certain respects, simply did not provide enough information for a satisfactory assessment of damages. ..."
By CPR part 35.14 the experts may ask the court for directions and by CPR 35.6 the parties may ask each other’s experts questions. The latter rule is now used extensively by parties to whiplash litigation. Written questions should be asked