AN EXPERT witness is a witness of opinion and not a witness of fact. Our role as expert witnesses is to assist the court through our expertise, having carefully considered all the information available to us.
Fraudulent claims in personal injury cases are an unfortunate fact of life and it is therefore not surprising that insurers and third parties are keen to identify and discredit such claims.
Is there, however, a risk that, in vigorously fighting such claims, common sense may become lost on the way and such cases swamped with increasingly tenuous expert evidence?
In late 2004 I was instructed to prepare a personal injury medical report on a claimant who had been involved in a rear-impact road traffic accident while his vehicle was stationary, and consequently reported a neck injury.
I did not form the opinion that the claimant was exaggerating his symptoms, and he appeared to me to be a plausible and reliable historian. He had good clinical signs consistent with injury; I made a diagnosis of musculoligamentous neck injury and offered a prognosis period of 9-11 months for resolution of his injury.
The third party insurers took the view that this was a low velocity impact injury and decided to make a case that the claim was, in fact, fraudulent.
In order to prove their point, they instructed at various times a motor vehicle assessor, an eminent professor of trauma and orthopaedic surgery and a forensic accident investigator to prepare separate reports regarding the mechanics of the accident and the likely injuries that would have been sustained by the claimant.
They all prepared detailed and extensive reports. The professor’s report and that of the forensic accident investigator were particularly full of scientific data and reference to various scientific studies and concepts.
Their conclusions were unequivocal: they were essentially that the forces involved in the incident would not have resulted in any unusual occupant movement within either party’s vehicle, and that occupant injury was not likely.
The professor’s conclusion was that, on the balance of probabilities, the claimant had not sustained an injury as a result of the index accident.
Their conclusions were particularly impressive when it became apparent that neither of the engineering experts had examined the claimant’s vehicle and the professor had not examined the claimant.
Their reports were based on assessment of the defendant’s vehicle, my original personal injury report, the claimant’s medical records and the statements of the claimant and defendant.
The case was heard in court and the judge concluded that, in view of the fact that the claimant appeared to be an honest and reliable historian, the defendant should be held liable for his injuries and damages were awarded accordingly.
The claimant was awarded £2,000 in damages, and yet the expert evidence alone will have cost more than three times that figure.
My original medical report was not particularly complicated, but was based on a direct assessment of the claimant in my capacity as a medical practitioner. The expert evidence to discredit the claimant was, in my opinion, increasingly detached from hard fact – and from the evidence.
This is probably an extreme case, and, in my opinion, so much emphasis was placed on gaining expert evidence that common sense left the equation.
Faced with an impressive array of scientific evidence from a number of experts, the judge simply concluded that he believed the claimant and therefore would be awarding damages to him. In his summing up he made only the briefest mention of the expert evidence.
The simple conclusion is that a judge will decide whether a claimant is being truthful or not and will award damages accordingly, regardless of the scientific evidence.
Therefore, expert evidence should be kept proportionate to that basic principle.
Spending thousands of pounds on increasingly impressive and occasionally tenuous expert evidence is likely to be very ill-judged and, in simple low-cost civil compensation claims, is unlikely to be money well spent.
In low-cost civil compensation claims, keep the expert evidence simple, keep it proportionate and then allow the judge to decide whether a claim is fraudulent or not.
SUMEET VOHRA is a fully-registered medical practitioner, a member of the Royal College of General Practitioners, and holds a diploma in occupational medicine.
He has been working as a general medical practitioner in and around Sheffield since 1995 and as an expert witness since 1996. Since then he has prepared more than 10,000 personal injury reports.
He has attended training courses run by Bond Solon and attained the Cardiff University Expert Witness Certificate.