Commentary

This case concerns the treatment of an ankle injury. Although the orthopaedic experts expressed fundamentally opposing views concerning the appropriate management of the injury and the court did have to resolve some issues by deciding whose evidence to accept, an unusual feature of this case was the significance of the fact that the evidence of the defendant orthopaedic surgeon evolved and developed during the course of the forensic process leading the court to the irresistible conclusion that the defendant's witness statement and his account at trial were almost certainly an amalgam of what the defendant thought and his expert’s opinion of which parts were found to have been copied and pasted into his witness statement. So, the court found that the defendant's account of his reasoning and recollection had been, no doubt unwittingly, influenced by expert opinion.

Learning points:

General

• Do not make assumptions.

• Assumptions in favour of the instructing party will be viewed with particular suspicion.

• Do not ‘cherry pick’ from the literature; the adverse party’s counsel and expert are likely to have read the whole paper.

• Do not allow your respect for the defendant to cloud your judgement.

Orthopaedic

• Be sure to review the radiological images and do not rely on the radiologist’s report.

• Do not allow your enthusiasm for the procedure in question to cloud your judgement.

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