Summary

The medico-legal expert in this personal injury claim was urged by the judge to seek further training after he made all of the three most common compliance errors which the EWI sees in expert reports: not including details of instructions, not dealing with the range of opinion, and not giving details of the literature or other material relied upon.

Learning points

• Make sure that in your report you:

  • Include a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based,

  • Where there is a range of opinion on matters dealt with in the report, summarise the range of opinions and give reasons for your own opinion, and

  • Give details of any literature or other material which you have relied on in making the report.

• These three fundamental mistakes, all of which were made by the expert in this case, are the most common failures in compliance which the EWI sees in expert reports.  

• Read the statement of truth and declaration carefully before you sign it and make sure that your report complies. A report checklist, such as this one, is a good way to ensure your report is compliant.

• Make sure you obtain appropriate training from the EWI, or another provider we recognise, in report writing and meeting your duties under the relevant procedural rules, practice directions and guidance.

The Case

The claimant brought an action for damages against the Ministry of Justice (‘MoJ’) for personal injuries he allegedly suffered after a fall from the bunk bed in his prison cell. The MoJ admitted liability subject to medical causation. In order to deal with causation and whether the claim was fundamentally dishonest, the judge heard from the claimant and a medicolegal expert, Mr John Dabis a consultant orthopaedic surgeon.

The expert evidence of Mr Dabis

The claimant relied on a report from Mr Dabis based on an examination that took place 3 years after the incident. Mr Dabis concluded that the claimant suffered injuries to the shoulder, lower back and ankle that would have restricted his activities for two weeks following and incident and would return to pre-accident status four months after the initiation of treatment. Mr Dabis’s report included a signed declaration that he was aware of the requirements of CPR Part 35 and practice direction 35.

In responding to Part 35 questions, Mr Dabis appeared to contradict the opinion set out in this report on the period in which the injuries would affect the claimant.

Under cross-examination, Mr Dabis accepted that the only evidence of the incident came from the claimant himself and that there was no evidence of any injury to the claimant ‘s shoulder or lower back, or contemporaneous complaint to medical staff, other than the claimant’s subsequent self-reporting. He had not mentioned in this report that there had not been any immediate complaint about pain to the shoulder and lower back and he did not provide any explanation in his report as to the reason for the delay in any reporting.

Mr Dabis told the court that there was literature which supported his opinion on delayed presentation of injuries of this type and that there was a range of opinion as to the impact of the type of injuries suffered by the claimant.

Judgment on the expert evidence

The judge noted that Mr Dabis had failed to comply with the requirements of CPR Part 35 and practice direction 35 because he had failed to:

• Provide a copy of his instructions (CPR 35.10(3)),

• Provide details of the range of opinion (35PD.3.2(6)), and

• Provide details of any literature relied upon (35PD.3.2(2)).

The judge stated that:

“These are serious failings and it was clear from Mr Dabis’ evidence that he did not have an understanding of the requirements of Part 35, despite signing a declaration on 7 May 2021 that he was aware of the requirements of part 35 and practice direction 35… it is not sufficient for an expert giving an opinion upon which a court may rely, to simply state what his/her opinion is without justification for that opinion beyond that it is the expert’s opinion that ‘…’ on the balance of probabilities.”

She concluded “that his was a very weak report which failed to comply with the requirements of an expert report” noting that “I would urge Mr Dabis to undertake some further training in expert medico-legal report writing to ensure that he fully understands the obligations of part 35 and his duties to the court.”