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Expert witness evidence under scrutiny
  • Oct 23, 2020
  • Latest News

Experts must expect their opinions to be closely scrutinised by the courts and be ready for a robust challenge; those that fail to withstand that scrutiny can expect to be criticised by the judges.

That was the message which came across loud and clear in the case of Farah v Abdullah &Others [2020] EWHC 825 (QB), in the judgement of Mr. Justice Linden.

This was a complex personal injury action in which the claimant had been severely injured when knocked down by one car, thrown onto the bonnet of another car, thrown off the bonnet and then hit again by the first car, sustaining fractures and diffuse axonal injury (“DAI”) as a result.

The judge had to resolve the difficult question of what injury had been sustained at what point in the series of impacts.

To assist on the issue of DAI, there were two consultant neurosurgeons.

In approaching the expert evidence, the judge reminded himself that the assessment of expert evidence should include the following considerations:
whether or not the evidence was tendered in good faith;
whether the expert was responsible, competent and respectable (ie not adopting an extreme position, able to make the necessary concessions, adhering to the spirit as well as the words of the duty to the court;
the expert evidence had to be tested against the whole of the evidence in the case.

One expert advanced a series of theories as to how the DAI could have been sustained; in the judge’s view, none of those theories was sustainable when assessed against their own internal logic or against the rest of the evidence in the case.

The judge rejected that expert’s interpretation of the CCTV evidence and described his use of the literature and available studies as being superficial.
The judge went on to say:

I did not accept [the expert’s] evidence on the key issues in this case, not only because it did not accord with my view of the evidence, and that of the other experts in the case, but also because I found him to be highly unreliable as a witness. For the avoidance of doubt, I am not in a position to comment on his qualities as a doctor and do not do so. But, for reasons which I will explain below, I found his approach as a witness to be careless and partisan in a way which was inconsistent with his role and duties as an expert.

Experts must be rigorous in ensuring that they root their opinions in the evidence, not try to make the evidence fit their opinions. To help equip expert witnesses with the vital skills and awareness to fulfil their duty to the court in complex personal injury actions and to avoid the pitfalls into which it is so easy precipitately to fall, Bond Solon has developed the following half day workshops which will be delivered as live and virtual events:

Personal Injury Essentials Part 1: The law and the expert’s role from instruction to settlement
When: 12th November 2020 between 9.30am and 12.30pm
CPD/CME Points: 3

Personal Injury Essentials Part 2: A practical guide to being a personal injury expert witness
When: 17th November 2020 between 9.30am and 12.30pm
CPD/CME Points: 3

The lead trainer for this course is Jackie Spinks, of Anthony Gold Solicitors, who is recognised as one of the leading personal injury lawyers in England and Wales. Jackie specialises in catastrophic injury cases of the utmost severity, with extensive experience in brain injury, particularly those involving children. The nature of the cases she deals with requires her to build large teams to assist in the litigation, giving her a unique insight into the dynamic of the solicitor/expert relationship.

This article was first published on 21st October 2020