Cautionary Tale: A Timely Reminder about the Importance of Griffiths v TUI UK Ltd [2023] UKSC 48

June 6, 2025

I recently successfully represented a 75 year old Claimant at trial who claimed that she suffered numerous soft tissue injuries, tinnitus and hearing loss due to a road traffic accident (RTA). This case had an expected claim value of up to £30,000 and it was heard by a Circuit Judge. Both parties requested allocation to the multi-track but the court determined that the fast track may have been the most proportionate track.

Due to the complexities of the case, at a subsequent directions hearing, the court granted permission for each party to rely on their expert. A Joint Report was prepared by both experts. There were two key areas of disagreement:

The level of tinnitus – The Claimant’s expert categorised it as moderate while the Defendant’s expert categorised it as mild.
Hearing loss – The Claimant’s expert advanced that cervical whiplash, acoustic shock from airbags deployment and head concussion individually or in combination with each other, were capable of causing audio-vestibular issues/ symptoms i.e. hearing loss and tinnitus in an RTA victim. He determined that the Claimant sustained hearing loss due to the accident.

Contrastingly, the Defendant’s expert concluded that the Claimant did not sustain hearing loss as a result of the accident for the following reasons:

There was no complaint of hearing loss and no reference to her reporting any deterioration in her hearing to those looking after her in the clinical setting.
The Claimant gave a pure tone audiogram at the Defendant expert’s assessment which showed high frequency hearing loss. Most likely some of this will be age-related. The Claimant has high blood pressure, albeit treated, and there is an association with this and sensorineural hearing loss.
An uncomplicated cervical whiplash injury should not produce hearing loss. It is doubtful whether any head injury would have been bad enough. The Claimant did not sustain a fracture of her skull especially the basal part and it is unlikely that she would have had any intracranial bleeding.
The only potential of producing hearing loss would have been airbag detonation but in the Defendant expert’s opinion the audiometric configurations were inconsistent with this.

The Defendant made a successful application for the Claimant’s expert to be cross-examined. The Judge found that this was appropriate due to the inadequacies and challenges with the Claimant’s expert report. However, the Claimant did not apply for the Defendant’s expert to be cross-examined. The Claimant also did not put any Part 35 questions to the Defendant’s expert.

The Judge stated that both experts took a different view on the level of tinnitus. She stated that whether the tinnitus was mild or moderate was a question of fact. However, the disagreement on whether the Claimant suffered from hearing loss was a matter of expert evidence as it was not a question of fact. Given that the Defendant’s expert was not called, the Judge highlighted that it placed the Claimant into difficulties in proving that the hearing loss was due to the accident. The Claimant missed a crucial opportunity to call the Defendant’s expert to be cross-examined. This was further compounded by the Claimant’s failure to put Part 35 questions to the Defendant’s expert.

Although the Claimant was successful at trial, the Judge was unable to make a finding that the Claimant’s hearing loss was as a result of the accident. This impacted upon the amount of damages that the Claimant was able to obtain.

This cautionary tale serves as a timely reminder of the ratio of Griffiths v TUI UK Ltd [2023] UKSC 48. In the absence of a proper challenge of an expert witness through Part 35 questions and if necessary through cross-examination, it would not be fair to criticise the expert’s report in submissions at trial or for the Judge to accept those submissions.

The following circumstances are indicative of where this ratio would not apply:

where the relevant matter was collateral or insignificant and fairness to the witness did not require an opportunity to answer or explain;
where the evidence of fact was manifestly incredible and an opportunity to explain on cross-examination would make no difference, Long v Farrer & Co [2004] EWHC 1774;
where there was a bold assertion of opinion in an expert’s report without any reasoning to support it, although reasoning which appeared inadequate was not the same as a bare assertion;
where there was an obvious mistake on the face of an expert report, Woolley v Essex CC [2006] EWCA Civ 753 applied;
where the witnesses’ evidence of the facts was contrary to the basis on which the expert expressed their view in the expert report;
where the expert had been given a sufficient opportunity to respond to criticism of, or otherwise clarify their report
a failure to comply with CPR PD 35 could be a further exception, but a party seeking to rely on such a failure would be wise to seek the directions of the trial judge, as much would depend upon the seriousness of the failure.

If the above exceptions do not apply, and a party is keen to challenge an expert witness’ evidence, it is vital that Part 35 questions are sent to that expert. If the expert’s responses are deemed questionable and or inadequate, an application should be made to call the expert as a witness at trial.

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