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Dr Bashir Qureshi. Expert Witness in Cultural, Religious & Ethnic issues in Litigation and also in GP Clinical Negligence, London.

Expert Witness Blog

The value of the informed expert

The value of the informed expert

By arboricultural consultant and accredited expert witness Mark Chester of Cedarwood Tree Care.

The role of the expert witness in advising on claims is a key element. Having an informed guide to give counsel on the merits of a case can ensure that wise decisions are taken either to pursue or defend a claim. What may surprise is that arboriculture, my own specialism, is unregulated. During my two decades as an Arboricultural Consultant, I have encountered evidence, sometimes quite limited being given undue merit, as those instructing are unaware of the limitations of the ‘expert’.

When I am instructed to review a case, a starting point is to explore existing evidence and its merit. I have found the term ‘expert’ being applied widely to individuals whose credentials are not thus. In one case, where a tree had broken and cased a road accident, the tree owner strongly defended their situation, and the condition of the tree, based on the opinion of their ‘tree expert’, who suggested inclement...

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Expert Witness News

Expert Witness Legal News

How can the Paralegal Sector help law firms get back on their feet, post Covid-19? By Amanda Hamilton, NALP

How can the Paralegal Sector help law firms get back on their feet, post Covid-19? By Amanda Hamilton, NALP

As we all know, Covid-19 and the subsequent lockdown has affected our lives in many ways and forced many law firms into hardship.

Some practices are in a catch 22, wondering whether or not to invest in remote working facilities when their financial situation is so vulnerable. I’m aware of one commercial business owner that has 300 employees and a massive weekly payroll. She has to make just that decision: should she financially invest in supplying internet, computers and phones for them to work at home when there is little/no income coming in? Furthermore, there is the knowledge that this situation will not last indefinitely.

When the lockdown is fully lifted, and it will lift eventually, law firms will be looking to get back into business and onto an even keel as swiftly as possible. However, they will also probably be looking to cut costs to do so.

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Expert Witness : Building and Property

Downsizing or expanding? Make sure your lease terms are clear

Downsizing or expanding? Make sure your lease terms are clear

Karen Mason is a highly experienced commercial property lawyer and co-founder of Newmanor Law, a specialist real estate law firm. Here she outlines the importance of Heads of Terms in negotiating new commercial leases.

As businesses return to workplaces once again, many occupiers will be looking to either renegotiate lease terms or agree new leases to redefine their situation, given a growing acceptance that remote working will form part of the working week.

The question of space utilisation may lead some businesses to downsize, whilst others looking to space their people apart may ironically need bigger offices, or more locations.

Different requirements will mean new agreements, requiring Heads of Terms to tie down what is being agreed, with the need to secure a good long-term deal critical for businesses in the post-COVID world.

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Expert Witness : Criminal

More psychologists are in court – and that’s a good thing!

More psychologists are in court – and that’s a good thing!

Vulnerable offenders with mental health, alcohol and substance abuse problems are increasingly being diverted from short-term custodial sentences and towards treatment that aims to tackle the causes of their offending.

In the pilot areas – Birmingham, Plymouth, Sefton, Milton Keynes and Northampton – psychologists are working collaboratively with the existing panels of justice and health officials. Together, the professionals ensure that magistrates and judges have the information they need to determine whether an offender should be required to receive treatment for their mental health, alcohol or drug issues.

They help to ensure that Community Sentence Treatment Requirements (CTSRs) are issued to the right people. CSTRs are a joint initiative by the Ministry of Justice, Department of Health and Social Care, NHS England and Public Health England to improve access to treatment programmes for offenders serving community sentences.

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Expert Witness : Medico Legal

Latest MoJ report short on detail, expert complains

Latest MoJ report short on detail, expert complains

In September the Ministry of Justice published the results of a consultation on medical reporting within the package of whiplash and small claims track reforms – due to be implemented in April next year for road traffic cases. The consultation ran for a month in April-May, and the resultant document sets out the government’s policy choices.

It is, however – as seems par for the course in this area – very light on detail. That is the conclusion of Alistair Kinley, director of policy and government affairs at law firm BLM.

“Given that the thrust of the proposals is much as was outlined in the consultation in the spring, it’s regrettable that the MoJ announcement of the measures has come in early September rather than in July as had been originally been expected,” he said. “That delay of a couple of months surely puts further pressure on the timetable to deliver these reforms, given that the April 2020 implementation looks to be inflexible – with 1 April 2020 mentioned in the body of the Ci...

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Expert Witness : Technology

Government to plug mobile phone loophole

Government to plug mobile phone loophole

The government has confirmed it will close a legal loophole which has allowed drivers to escape prosecution for hand-held mobile phone use while behind the wheel.

At present, the law prevents drivers from using a hand-held mobile phone to call or text.

However, people caught filming or taking photos while driving have escaped punishment as lawyers have successfully argued that the activity does not fit into the ‘interactive communication’ currently outlawed by the legislation.

Transport Secretary Grant Shapps has announced that he will urgently take forward a review to tighten up the existing law. The revised legislation will mean any driver caught texting, taking photos, browsing the internet or scrolling through a playlist while behind the wheel will be prosecuted for using a hand-held mobile phone while driving.

Mr Shapps said: “We recognise that staying in touch with the world while travelling is an essential part of modern day life, but we are also committed to making our roads safe. ...

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Expert Witness : Environment

The fundamental right to be protected from the dangers of air pollution

The fundamental right to be protected from the dangers of air pollution

The British Safety Council welcomed the news of the High Court quashing the verdict of the 2014 inquest into the death of nine-year old Ella Kissi-Debrah, who suffered a fatal asthma attack. Her mother Rosamund has since campaigned for a fresh inquest, believing Ella’s death was caused by high levels of air pollution near her home in southeast London. It means that Ella could become the first person in the UK to have air pollution mentioned as a contributory factor on her death certificate.

Lawrence Waterman, Chairman of the British Safety Council, commented: “The ruling of the High Court is proof that since 2014 we have become much better informed about the dangers of air pollution. Air pollution, linked to as many as 36,000 early deaths a year, is now recognised as the biggest environmental risk to public health. Research from King’s College London suggests that more than 9,400 people die prematurely due to poor air quality in London alone.

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Expert Witness : Animal & Farming

Dr WHO? by Dr Debbie Marsden

Dr WHO? by Dr Debbie Marsden

Dr Debbie Marsden, a leading equestrian expert with over 20 years professional experience of expert witness work, offers some advice on selecting the right expert in cases involving animals

In animal related cases, a veterinary surgeon is often the best expert, being generally regarded as an authority on animals and easily recognized by the word 'veterinary' – a protected title – and the letters MRCVS (Member of the Royal College of Veterinary Surgeons) after various degrees.

As with all professions, when seeking an expert it is best to use a specialist; and vets are not allowed to describe themselves as a 'specialist' until they have taken considerable further study and been further examined in a particular area. The letter D or Dip, for Diploma, is the additional qualification to look for in a vet with particular expertise in any area, for instance DSAS – Diploma in Small Animal Surgery (Orthopaedics).

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Parliament, Legislation And Public Sector

Home Office GDPR exemption risks new Windrush, says Law Society

Home Office GDPR exemption risks new Windrush, says Law Society

The Law Society of England and Wales has criticised the decision to exempt the Home Office from data access rules in the new Data Protection Act, which implements the widely-publicised GDPR. The move will inevitably lead to miscarriages of justice, the society has warned.

Law Society president Joe Egan said the immigration exemption in the legislation stripped accountability from Home Office decision making.

“Since legal aid was removed for most immigration cases in 2012, it has become increasingly difficult to challenge immigration decisions – decisions which evidence shows are often incorrect,” he said. “Subject access requests are the final recourse for people trying to deal with a complex, opaque and unaccountable immigration system.

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Expert Witness: Events

Expert witness conference is hailed a success

Expert witness conference is hailed a success

On 8 November Bond Solon held the 25th Bond Solon Expert Witness Conference at Church House in Westminster. Demand for the conference had been particularly high, leading to a fully-booked event. Nearly 500 expert witnesses were in attendance and there were over 50 expert witnesses on the waiting list.

That upsurge in demand for places was in part due to the expert witness guidance issued in May by the Academy of Medical Royal Colleges. The guidance stated that healthcare expert witnesses must undertake formal expert witness training and keep that training up to date with appropriate refresher courses and activities.

Demand was also driven by a number of high-profile cases involving expert witnesses who have had their expert witness evidence deemed inadmissible or criticised. Those cases were reviewed at the conference.

The keynote speech at the conference was delivered by Sir Peter Gross. Sir Peter’s paper addressed the issue of standards in the work of expert witnesses. Sir Peter was fol...

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Pain and trauma: it can be what you make of it

PSYCHOLOGISTS are regularly instructed in personal injury litigation to assess for Post Traumatic Stress Disorder (PTSD) and chronic pain; however, problems are inherent in the assessment of each. Firstly, both are characterised by subjectively reported symptoms, so that careful assessment is required to discern real from factitious PTSD and genuine pain from malingered presentation. Secondly, both are potentially associated with financial gain via litigation or with personal gain, such as sympathy and care from an overinvolved spouse/partner or time away from a disliked job. Again, careful assessment is required. This article highlights typical instructions to psychologists in chronic pain litigation and the key characteristics of PTSD in relation to medicolegal assessments; in both cases the need for a comprehensive assessment is paramount.

Pain defined
Most current thinking concerning chronic pain is based on the premise that it involves a personal, private sensation of hurt which is influenced by a range of personal, cultural and cognitive-emotional factors. The International Association for the Study of Pain defines pain as ‘an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage’. Chronic pain is pain experienced every day for three months or more in the six months prior to the assessment.

Typical instructions to psychologists in chronic pain case It is well documented in the research literature that the association between physical impairment and reports of pain is only moderate. In other words, a range of psychological factors influence pain perception and reporting regardless of whether or not evident organic pathology can be detected. In a medico-legal context a comprehensive psychological assessment with regard to chronic pain will seek to determine the role of psychological factors in relation to the person’s pain complaints and the proportion of their difficulties accounted for by such factors.

There are three main types of personal injury claim involving on-going chronic pain, where instruction of a clinical psychologist may well be appropriate:

  • When there is clear objective evidence (eg X-ray or MRI scan) both that a clear physical injury occurred and also that the tissue damage has healed but the litigant continues complaining of pain.
  • When there is an absence of radiological evidence but a ‘soft tissue’ injury (eg whiplash) is diagnosed with an assumption that symptoms should dissipate within a specified time post accident; however, the litigant continues complaining of pain well beyond that time frame.
  • When there is a medical diagnosis (eg fibromyalgia) based on specific diagnostic criteria but without any clear radiological or other objective evidence. Such conditions are often referred to as functional (ie there is a change in function but not structure), with many researchers arguing that in relation to such conditions psychological factors play a fundamental aetiological role.

Factors influencing pain perception
As noted, a number of factors influence pain perception and careful attention should be paid to those in the context of an assessment. Pain reporting is affected by both emotional factors (anxiety and depression increase pain perception while optimism and relaxation decrease it) and behavioural factors (pain focus and boredom increase pain perception while distraction and involvement in activities decrease it). A history of pain complaints and a family history of such difficulties are also associated with increased pain reporting in response to injury. Personal history is also of importance, with childhood sexual and physical abuse in particular having been demonstrated repeatedly in the research literature to increase the risk of the occurrence of chronic pain syndromes including fibromyalgia, musculoskeletal pain and back pain.

Pain may also be exacerbated and maintained by the way in which the person copes with it (active, purposeful coping is associated with decreased pain perception while passive or negative strategies such as catastrophising exacerbate it) and the extent to which activity is avoided due to fear of pain when such activity is not actually associated with physical risk.

Finally, factors such as secondary gain (eg not having to go to work), excessive sympathy and attention from supportive others, as well as the process of litigation itself, can all serve to increase pain reporting.

PTSD - the traumatic event
As with all mental health problems, PTSD can be diagnosed with regard to either the International Classification of Diseases and Related Problems (now in its 10th edition as ICD10) or the Diagnostic and Statistical Manual of the American Psychiatric Association (now in its 4th edition as DSMIV).

PTSD, unlike any other mental health diagnosis, with the exception of acute stress disorder, requires a specific trigger event to initiate the disorder; the nature of that is quite clearly specified by both ICD10 and DSMIV. The necessary characteristics for the event are regarded as the ‘entry criteria’ for the disorder. In other words, if the event does not meet such criteria then consideration of any symptoms the claimant might report in relation to PTSD is inappropriate.

ICD10 is quite clear that the trigger event must be ‘of an exceptionally threatening or catastrophic nature, which is likely to cause pervasive distress in almost anyone’. Entry criteria according to DSMIV are somewhat more open to interpretation. The two criteria specify that (A) the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and (B) the person’s response involved intense fear, helplessness or horror.

PTSD - the symptom profile
Having decided whether an event is of sufficient magnitude to be considered in relation to PTSD, the next consideration is whether the symptoms reported by the claimant match the profile required for a full diagnosis. As with the entry criteria, the ICD and DSM differ with regard to symptoms required for a diagnosis of PTSD. Indeed, research studies indicate that PTSD is diagnosed twice as often under ICD criteria in comparison with DSM criteria. This is partly because with ICD the symptoms are less precisely stated, but also because the methods of assessment for DSM have become more refined. Structured diagnostic interview schedules have been developed to specifically assess for PTSD according to DSMIV criteria.

The advantages of such schedules are manifold; not only do they allow for the quantification of symptoms according to agreed criteria, hence increasing consistency, they also allow for probing of reported symptoms. It has been argued that assessments not based on reliable diagnostic interview schedules are of insufficient reliability in medico-legal contexts.

As with pain reporting, many factors influence the person’s response to a traumatic event, and again careful assessment of this is required.

The need for a comprehensive assessment
In attempting to understand a claimant’s reported pain and/or their response to a traumatic event, both their reported symptoms and the range of factors likely to influence them require careful scrutiny. With regard to pain there are many occasions when it seems to an observer to be out of proportion to the nature of the material event and the physical injuries sustained. Through behavioural observation, both during the clinical assessment and video surveillance where appropriate, specifically targeted questionnaires – particularly to assess beliefs about pain, fear of pain and pain coping – and a carefully constructed and detailed interview, a full and informative formulation of the claimant’s pain reporting can be established. With regard to PTSD, assessments which do not make use of one of the reliable and valid structured clinical interviews to aid diagnosis are likely to be of limited value.