Summary

This successful appeal against a Family Court judgment which led to the removal of two children from the care of their parents turned primarily on the fact that the judge was found to have acted as her own expert and conducted her own analysis of the medical research material making findings that were not supported by evidence. But there are important lessons here for experts, not just judges. It is part of the expert’s duty to consider any literature which may be available in their field, and not to draw conclusions merely on the basis of their own experience. Then the expert must be prepared for an analysis in court of the literature on which they have relied. Counsel, the judge and other experts will have familiarised themselves with the literature quoted. This judgment is rich in examples of how lawyers analyse medical literature in order to form a view as to its relevance and its reliability.

For paediatricians, radiologists, neurosurgeons and ophthalmologists this is highly recommend reading about the courts’ analysis of expert evidence relating to abusive head trauma and low level falls.    

Learning points

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