EWJ Dec 2023 - Journal - Page 45
Expert Witness Work in
Serious Injury Claims: The Basics
For many senior clinicians, working as an expert in civil claims can be rewarding and
intellectually challenging, but the process can seem a mystery to newcomers.
Legal Director Rebecca Hill and paralegal Ellie Falkingham explain what is involved.
A brief overview of civil claims
Individuals injured in an accident or clinical incident
may decide to bring a civil claim for compensation
against the person or body they say caused their
injuries. All such cases are broken down into two
deceptively simple questions:
provide enough information for the expert to
determine whether the issue falls within their area of
expertise. If appropriate, a formal letter of instruction
is then issued outlining in further detail what the
expert is required to do and enclosing any relevant
evidence the expert needs to consider.
(1) has the defendant been negligent, ie have their
actions/omissions caused the claimant’s injuries? If so,
Crucially, all experts must understand that their
involvement is strictly managed by the court, regardless of whether court proceedings have commenced.
Expert evidence must always be independent and impartial, uninfluenced by the pressures of litigation or
any obligation to the instructing party. Any instructed
expert must ensure they provide objective, unbiased
opinions on matters that fall only within their area of
expertise.
(2) how much compensation should be awarded?
These two issues are known as ‘liability’ and
‘quantum’.
The parties will try to resolve these issues by
agreement, but court proceedings will be commenced
if required. The court is the ultimate arbiter of cases,
and the parties will work towards a trial so that a judge
can make a ruling if no agreement is reached. The
court will actively manage the evidence and timetable
in each case to ensure it has everything it needs to
make a ruling, ensuring the costs are proportionate
to the potential compensation awarded. For this reason, even if a case is resolved before going to court,
the way a claim is run is always informed by what a
court might need in terms of evidence.
The expert’s duty to the court is enshrined in Part 35
of the Civil Procedure Rules (CPR). It is common for
early correspondence with an expert to reiterate these
requirements.
What do experts report on?
Generally speaking, experts will be asked to give
an opinion on issues that either relate to liability or
quantum.
Clinical negligence
In clinical negligence cases, a number of medical
experts will be required to advise on liability by reviewing the standard of the claimant’s treatment. This
involves consideration of a number of discrete issues,
such as whether the claimant’s treating team breached
their duties to the claimant by acting in a way that
would not be supported by a substantial body of other
clinicians in that field and whether that breach of duty
caused the claimant’s injuries.
What/who is an expert witness?
Expert witnesses play a vital role in civil claims and
provide key evidence that helps the court make a
ruling.
Experts are individuals with a high level of skill and
experience in their field, an area that is generally
outside the knowledge of the court.
How are experts instructed?
At the beginning of every case, solicitors acting for
each party will consider the issues their client must
prove. For each issue in dispute, they will determine
what documentary, lay witness or expert witness evidence is required to help the parties and the court determine that issue. The other party will invariably
want their own evidence to deal with that issue. Experts can be jointly instructed, but this typically happens in lower-value claims or for less contentious
issues.
This can be extremely complex where treatment is
delivered over a long period, such as where a patient
presents with symptoms multiple times but an overall
diagnosis and treatment is delayed. Experts will also
need to consider whether alternative treatment would
have made a positive difference to the claimant’s outcome, bearing in mind they often have an underlying
illness that may or may not have been receptive to
different treatment.
Personal Injury
In personal injury cases, non-medical experts are
often required to help determine liability. For example, in a road traffic accident claim, accident reconstruction experts analyse the physical evidence to
If expert evidence is required, the instructing solicitor
will make preliminary enquiries with an expert witness to determine whether they are willing and able to
act. It is crucial at this stage to identify any conflicts of
interest that will prevent the expert from advising and
EXPERT WITNESS JOURNAL
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DECEMBER 2023