Lawyer Monthly - April 2022

do not follow the regulations, and Courts frequently ignore them entirely. I stick to the regulations but repeatedly come across other ‘experts’ (always untrained) who do not. The whole point of the regulations that the hired gun should have been got rid of decades ago. Unfortunately, there are still a lot of defence experts who will write a report along the lines of ‘it was going to happen anyway’ in relation to sequalae to an injury. More unfortunately, the Courts let them do it without sanction. My worst case was an unqualified expert – an orthopaedic surgeon with no occupational health experience or credentials, taken on by a specialist occupational injury solicitor in an occupational health case. His report was inaccurate, with deliberate misquotes from the medical records, incorrect description of his own examination and a fantasy theory of what happened to the claimant between the onset of symptoms and the first medical record (stating he had recovered) – even though later records gave a consistent history over a three-year period, at trial, and he had found abnormalities over two years from onset. He did not examine for the condition that was the working diagnosis but dismissed it; he barely knew what the condition was. It was later proven (prior to trial by further tests). His evidence was preferred. The other one is dishonest claimants, but I need go no further on that one. Howhave you got to grips with this difficulty in your own practice? I try to make my reports as easy to understand as possible – the ‘intelligent 12-year-old’ understanding rule. 92 WWW.LAWYER-MONTHLY.COM | APR 2022 EXPERT WITNESS If a claimant asks me of the risks of actually crossing the threshold of a Court, I advise that from that point it is nothing better than a lottery. The judge may be someone who has never done personal injury before (as in the case above) and although carefully explained to him or her, at the end of the case it may become clear that he has understood very little of it. In almost every case, one of the following will happen: he will split the difference; he will go with the expert (not the evidence) he prefers (usually the elder statesman); he will let the claimant have a bit but not all (try to keep everyone happy), but above all he will do anything not to be appealed. In this area, justice and the Courts are infrequent bedfellows. RSW Medico-Legal Ltd. Being a qualified expert witness (CUEW) is very different from being an NHS consultant.

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