Expert evidence

Expert evidence in compensation cases

Only experts can give opinion in a compensation case, and the opinion must be limited to the field of expertise.

A medical expert is the usual expert, but again the medical expert must keep to their own area of expertise. Accident compensation cases sometimes need the help of an accident reconstruction expert, an engineer, an occupational or employment expert, or an accountant. Wherever the Court needs expertise to assist in coming to a decision you will be allowed to instruct an expert. The Courts can be restrictive, and have the power to limit the evidence to the evidence necessary to prove the case. The lower the value of the likely compensation, the less likely you are to be able to rely on experts.

The role of the expert is to provide a report to the Court. That is the first and foremost duty of the expert. Even though your solicitor may instruct and pay the expert, the expert is not “yours.” This was designed to get over the old problem of each side using an expert they will know supports them, and the trial of the case being a decision between the two opinions. The duty to the Court was introduced to prevent the expert feeling obliged to please the party paying them, the worst examples being referred to as ‘hired guns.’

The Court manages the use of experts to ensure legal costs are not increased unnecessarily. The Court may impose a single joint expert. This will reduce costs, but solicitors still like the opportunity to instruct an expert they see as theirs, in the hope the expert will support their case.

When a client is going to see a medical expert, I am often asked how should the client behave. The answer is always the same. Treat the examination as you would any medical examination. Answer questions honestly and openly, and do not be embarrassed to explain the problems the injury has caused. We are often too British when we are asked about problems, as we feel we should not complain. Once the examination is over it is a bit late to complain no mention is made of a problem.

If you have had similar injury, or problems in the past, volunteer that information. Otherwise, once discovered, you will look as though you are hiding relevant history. Your medical records are usually available to a medical expert. That means all of your medical records. If you are bringing an action saying someone has injured you, there is a right to see your medical history to ensure there is no other cause. That is fair enough, and with the exception of problems of the highest sensitivity, your medical records have to be available to an expert, and to all parties to a case.

Experts can be asked questions. If there is more than one expert in a case, they will usually be ordered to undertake a discussion with other experts, the aim being to advise the Court where they are in agreement, and where they are not. The Court can then decide what evidence it needs to hear to decide the case. The process saves time and cost.

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Author: Mark Thompson

Personal injury and accident specialist solicitor

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