Summary
The claimant was involved in a minor road traffic accident while she was the passenger in a car driven by her partner, who was the defendant’s insured. She claimed compensation for whiplash and psychological symptoms. The judge described the report of the physiotherapist expert witness who acted for the claimant as almost worse than useless and aspects of her evidence as literally unbelievable
Learning points
Learning point for people interested in becoming expert witnesses
Learning points for medicolegal experts
-
Particularly if the condition is ongoing, whether the claimant sought medical and/or psychological attention is likely to be material.
-
Do not use ambiguous or misleading terms to describe your occupation or expertise. For example, do not simply describe yourself as a “doctor” if you are referring to the fact you hold a doctorate and not that you are a medical practitioner.
-
Be aware of the limitations of remote consultations and note any applicable limitations in your report.
Learning points for all experts
-
Every case has the potential to go to trial, and you could face cross-examination on any expert report you write.
-
Listen carefully to the questions put and answer them. Do not try to evade the questions or answer the questions you wish had been asked instead.
-
Not being reminded is not an excuse for not responding to Part 35 questions.
-
Do not permit AI or another software platform to add references to your report. Add these yourself with an understanding of why they are relevant and how you have relied on them.
-
The statement of truth applies to the entire contents of your report and any Part 35 questions that you answer.
Learning points for instructing parties
-
Ensure that you clearly describe the occupation and expertise of the experts you instruct.
-
Check to ensure that the experts you instruct understand the role and duties of an expert witness. A good way to assess this is to confirm that they have undertaken expert witness training with a reputable provider.
The case
The claimant was involved in a minor road traffic accident while she was the passenger in a car driven by her partner, who was the defendant’s insured. She claimed compensation for whiplash and psychological symptoms.
Expert witnesses
The claimant relied on expert evidence from Ms K, a physiotherapist, and Dr A, a counselling psychologist.
Dr A
Dr A is a counselling psychologist. The judge emphasised that she is not a clinician or a clinical psychologist. He noted that the list of the activities that a counselling psychologist might engage in appeared to be a long way from the issues in the case.
The claimant said she had a psychological history, with mental health issues, broadly depression, since the age of 12. She had had significant involvement with clinicians and had been medicated, including with antidepressants. In contrast to the account in Dr A’s report, the claimant conceded that she was taking medication before the accident. The judge found it beyond comprehension that Dr A did not deal with the claimant’s long psychologic, and maybe psychiatric, history.
The claimant maintained that she told Dr A that, while the vehicle was written off, the damage caused by the accident was light. Dr A’s report merely reported that the vehicle was “written off”, which the judge considered implied that there was a substantial collision. If the claimant’s account was correct, and Dr A failed to record this information, it weakened the credibility of Dr A.
The judge found the psychological symptoms advanced by Dr A to be quite extraordinary, although it was difficult to see precisely what they were because they did not come under any heading relating to diagnosis. In her report, under the heading ‘clinical examination’ were the words “exposure to traumatic events involving actual or threat of death or serious injury and response of intense fear, helplessness or horror, this criterion is met.” The judge noted that this could not be more different than the evidence given by the claimant. It was not, he noted, appropriate to explain this away by suggesting that this was how the claimant felt.
Under the heading ‘discussion and opinion’, which the judge took to mean ‘diagnosis’, Dr A had stated that “In my opinion... Miss Clark developed situational anxiety disorder of travel, as classified by DSM 5, and low mood.” The judge noted that this was very, very restrictive. There was no mention of post-traumatic stress under this heading, which presumably set out Dr A’s diagnosis.
Miss K
Miss K had a 20 minute interview with the claimant via a WhatsApp video call over her mobile phone, just over five months after the accident.
The judge found Miss K’s report to be “almost worse than useless… [t]o the extent, at times, of being positively disingenuous.” The judge noted that it was abundantly clear that Miss K had not considered her duties under CPR Part 35 properly in the past. Worse, when she was asked about having information about referrals, she was very defensive and hesitant, and refused to answer the question put. Instead, she tried, in an evasive way, to answer the questions she wanted to answer, and tried to qualify or clause her answers.
She had to concede that she had used a misleading expression. The judge also found her refusal to answer the Part 35 questions to be disingenuous. He did not accept her explanation that she might have answered the questions if she had been followed up. The judge concluded that Miss K would have done anything to avoid answering anything that put her on the spot.
Despite the claimant’s significant psychological history, Miss K stated in her report that “there is no significant history of relevant musculoskeletal or psychological problems.” The judge noted that “[i]t is difficult in the extreme to see how the claimant’s previous psychological problems could not have been and were not relevant. If they were not relevant, I would have expected to see it explained, in black and white, as to why they were not relevant.”
The judge also criticised Miss K’s remote consultation, noting that:
“I found it literally unbelievable that over a 20 minute consultation over a handheld telephone with a camera on it she was able to assess a left shoulder movement as being 80 to 89 per cent of normal. She was given the chance to correct that by counsel for the defendant by suggesting it might be 80 to 90. No. She stuck rigidly to that. That is unbelievable at any level, quite frankly. It is spectacularly unbelievable when it comes to, as I have said, a 15 minute consultation over a telephone with a video recording on it. Particularly as she made no notes, on her own account, and has not notes, of what was said. On her account, she was typing in the answers given as they were given. That, of itself, indicates that she must have had difficulty concentrating on the fine detail.”
The judge found particularly concerning the refences, set out in Miss K’s report, on which she had relied. Miss K said these were added automatically as references at the end of the form by the software she used. However, she did not say that until cross-examined on them. When she was taken through these, Miss K accepted that she had not read them. The judge noted that at no point, until she was cross-examined, did Miss K seek to qualify or explain the fact that she had not looked at those reports and, the judge stated “quite frankly, were just added much like an artificial intelligence report might, added for effect.” Then, having conceded that she had not read them, which the Judge noted in itself would destroy the credibility of the report, she tried to justify it by saying the two references to psychological reports had absolutely nothing to do with the duties she had in producing the report.
After observing that Miss K's evidence was glib, he noted that she tried to exculpate herself right at the end by saying that she was not, in effect, bound by those reports because they appeared after her declaration of truth. The judge stated that “[t]hat is so disingenuous, or, put another way, disingenuous in the extreme, that I must not hesitate to use the common language word that is used when otherwise we might use disingenuous. By that, I mean, it is dishonest, full stop.”
The judge concluded that “it is something that I have little doubt that Miss K’s professional body should have drawn to their attention. What they do with it is then a matter for them.”
The judge’s decision
The judge found that the "claim fails and, quite frankly, it fails by a long way”, noting that the claimant had not been well served by those acting for her, particularly her solicitors.