Commentary

A common issue in personal injury orthopaedic cases is whether the damage of which the claimant complains is degenerative or traumatic in origin or a combination. This case illustrates for specialists in neurosurgery, orthopaedics, pain medicine and radiology how the court resolved conflicting expert evidence. It also illustrates the risks of reliance on the claimant’s self-reported history, especially if they have taken it upon themselves to research into areas of medical and legal expertise.

The case is interesting in that the accounts of the plaintiff’s history elicited by the two psychiatrists were different. It is not clear when, or indeed if at all, they both saw each other’s reports. If they had seen each other’s reports, held an experts’ discussion and produced a joint statement, the psychiatric chapter of the trial might have been much shorter and perhaps even their oral testimony unnecessary.  

For the general learning points, it is not necessary to read the summary of the judgment.

Learning points:

General   

• If you are instructed part of the way through a trial, ascertain what evidence has already been given and, if it appears relevant to your opinion, ask for access to it, whether it be a written transcript or, as in this case, video surveillance evidence.

• Beware the subject who takes it upon himself or herself to research into areas of medical and legal expertise.  

• Be aware that advising a trial of treatment will be regarded as evidence of speculation (rather than an opinion on the balance of probabilities).

Neurosurgical / Orthopaedic / Pain

• Assist the court with the cost of treatment, which, in the case of medical equipment, means advising as to the capital cost, maintenance and frequency of replacement.

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