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The Crucial Role of Expert Witness Testimony in Personal Injury Litigation
- Nov 7, 2024
- Latest Journal
A vital aspect of personal injury litigation is the role of the expert witness. They play a crucial role in establishing key elements of the case providing impartial specialised expertise. The Courts rely on expert witness testimony that can assess technical and specialised evidence that is frequently pivotal in determining the outcome of the case.
Expert witness testimony is governed by a rigorous legal framework under the Civil Procedure Rules (“CPR”) and expert witnesses are only permitted, under Rule 35 section 1, to clarify specialist issues with the clear purpose of assisting the Court to understand legal issues that are essential to the case and directly assists in the resolution of the matter.
Alessandra Paduano, an Associate, commented “the principal expert witnesses who are called upon to provide their expert opinion are medical experts, assessing the extent of physical injuries, potential prognosis and forensic experts and occupational therapists who also play a part in assessing the Claimant’s likelihood of recovery and returning to work or whether they will require extensive care and rehabilitation.” Alessandra further pointed out “the Courts rely on expert witnesses to comprehensively explain in a report, not only the impact of the event on the victim but the factors involved when demonstrating how an accident initially arises and where liability occurs.”
Expert witness testimony can be given in person but more frequently the expert witness written report is submitted. Rule 35 of Civil Procedure Rules outlines what an expert witness report must include:
• the qualifications of the expert witness.
• a statement of truth where the expert witness states that they believe the facts stated in their report are true.
• The reasoning that the expert witness applied to reach the opinion given.
The expert witness has a duty to the Court which supersedes any obligation to the party instructing and paying the expert witness. It is outside the remit of an expert to decide which witnesses of fact they believe or not.
The latter was considered in Allard v Govia Thameslink Railway Ltd [2023] EWHC 2227 (KB), in which the Defendant’s expert simply did not believe the Claimant’s version of events and his symptoms. This was a personal injury claim following the breathing in of a noxious chemical. Despite there being common ground between the Claimant’s and the Defendant’s experts in relation to the duration of the exposure and the concentration of the vapour, the Defendant’s expert simply did not believe the symptoms the Claimant had suffered.
The Court controls the appointment of expert witnesses, controlling the scope of evidence and the number of expert witnesses that can be appointed. The party requesting the assistance of an expert witness must outline the area and issues that the expert witness will be required to examine. The Court has the discretion to appoint a single joint expert (“SJE”) with the agreement of both parties.
Following the submission of the expert witness report a period of 28 days written questions may be submitted to the expert witness who must reply within a reasonable time frame. In the event of there being more than one expert witness the Court can direct them to hold discussions on the points, following which they must issue a joint statement stating the agreed issues and those still in dispute, together with the reasons for disagreement.
An offer to settle a personal injury claim can be made at any stage, before and during the proceedings. Commonly, a Part 36 offer is made which provides the party receiving the offer a period of 21 days to consider the office. If an offer is accepted the party that made the offer pays the other party’s costs. A Part 36 offer cannot be withdrawn or varied without the Court’s permission. It should be noted that Part 36 offers come with costs consequences. If an offer is rejected and a Judge awards at trial a more advantageous settlement than the one offered, the opposing party will have to pay higher costs.
A settlement offer made at an early stage is a risk, in that if the injured party makes a slow recovery there is no opportunity to obtain further compensation. The option to attempt mediation may result in a satisfactory conclusion as the mediator brings an impartial prospective. There is no legally binding obligation to accept the decision of a mediator.
The significant importance of an expert witness in personal injury matters requires the Courts and the parties to have complete confidence in the knowledge and experience of the expert witness. There are a number of training organisations but one, Bond Solon a leading expert witness training company, stands out having been consistently ranked with Chambers & Partners Litigation Support Guide, the independent legal ranking directory, since 1992.
In personal injury matters from the point of view of a Claimant, the importance of outstanding expertise from all professionals involved in a personal injury case cannot be over- emphasised. A Claimant has one opportunity to obtain redress to compensate them for what is often a catastrophic life-changing event and it is essential that all options are available to ensure that they achieve a positive outcome.