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A reliable historian? Be prepared to prove it

12 July 2018

This article is taken from July's public matters newsletter. Click here to view more articles from this issue.

As anyone who has handled a personal injury claim will know, the success or otherwise of the claim is heavily dependent upon witness evidence and the weight given to the testimony of that witness, the most influential of which is likely to be the claimant. Accurately describing the sequence of events resulting in the accident or the impact the injuries sustained have had can be difficult. The impact of time upon memory and recall has been summarised in research by Sabbagh (2009), Schachter (2007) and Fernyhough (2013). The fallacy of memory over time means that information given can be distorted or even creative. This is not necessarily related to the honesty, integrity, intelligence or level of education of an individual but rather is a natural response to the passage of time.

It is therefore of the utmost importance to test the recollection of a witness for reliability and accuracy against other sources of information such as medical records or DWP records. The recent case of Ruffell v Lovatt [2018] is a cautionary tale for experts who fail to do so and one which experts and those who instruct them should be aware.

The facts

The claimant sustained injury in a road traffic accident in January 2012. She was a passenger in a car driven by her then boyfriend. He unexplainably lost control of the vehicle, left the road and collided with a tree. Liability was admitted and the case went to trial on the extent and causation of her injuries and quantum. The claimant valued the claim in excess of £1.6 million, alleging she now suffered from Complex Regional Pain Syndrome as a result of the accident. She relied on medical evidence from a variety of experts including a care expert, a pain expert, a psychiatrist and a housing expert, all of whom gave evidence at trial. The judge was unconvinced by much of the evidence, mainly because the claimant was shown to be an unreliable historian who lacked credibility. It was however Dr Jenner, the claimant’s pain expert, whose evidence attracted the judge’s wrath.

The trial

Dr Jenner explained that in his view, neuropathic pain was organic in origin, being pain caused by damage or disease of the somatosensory nervous system. He suggested the claimant displayed evidence of neuropathic pain affecting her right lower limb (CRPS). He suggested a useful definition of pain was ‘pain is whatever the patient says it is’ and concluded the claimant suffered from chronic musculo-skeletal pain and CRPS as a direct result of the accident. Absent the accident, he suggested the claimant would not have had mobility difficulties, would have been capable of work and would have had a relatively normal level of functional ability. He considered the claimant to be a reliable historian and accepted that save for a previous history of neck and back pain she was otherwise fit and well prior to the accident.

The judgment

In a 67 page judgment, a significant amount of which relates to Dr Jenner, the judge found that CRPS is a controversial diagnosis and is subject to debate. There was overwhelming evidence in this case the claimant’s psychological problems were the cause of her CRPS and they pre-dated the index accident. Dr Jenner had failed to properly read and consider the claimant’s entire medical records before reaching his conclusions and “never properly attempted to understand the claimant’s history”. There was evidence of the claimant regularly complaining to her doctors of one sort of psychosomatic illness after another, together with a number of discrete physical ailments.

The claimant was not a reliable historian and because Dr Jenner was obliged to rely on the history she provided, his conclusions were based on unreliable evidence. Had he properly considered the claimant’s pre-accident history, he could not have reached those conclusions. The judge damningly commented “the opinions of an expert doctor, in a case such as this, who has so strikingly demonstrated no real knowledge or proper understanding of the claimant’s extensive and highly relevant pre-accident history are of little or no value.” Dr Jenner’s dismissal of the views of other doctors within his reports was also criticised as “at best off-hand, at worst, rude” and this continued when giving oral evidence which the judge noted to be “inconsistent with the obligation on an expert witness to consider and acknowledge where there is a range of opinions, even if the expert, for his own reasons, rejects them.” The judge was of the view that Dr Jenner’s evidence was combative and that he repeatedly acted as an advocate for the claimant.

The claimant was awarded £12,500 for general damages and £350 for past losses, less than 1% of the pleaded value of her claim.

The lesson

In relation to claims generally this judgment is a good reminder that the fact a claimant complains of certain symptoms after an index accident does not automatically prove that such symptoms were caused by the index accident – the judge reminds us that it would be a “fundamental error” to proceed on the basis that a correlation in time represents causation. It is necessary to analyse the pre-accident history, and find a medical reason to explain causation.

This case also emphasises that experts must ensure that they:

  • read all the relevant papers and respond to the evidence
  • test the reliability of what they are told as sequences of events can be inadvertently misremembered even by the most credible of historians
  • do not act as an advocate for the party instructing them
  • behave with open minded professional courtesy and respect.

If an expert fails to abide by these requirements then this case shows that the credibility of the expert, and therefore his expert opinion, can be seriously undermined to the detriment of the party instructing him.

This case is not just relevant to medical experts, but is applicable to liability experts as well. It also reinforces the need to scrutinise not only the other party’s expert evidence, but also your own.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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