Is it within the remit of an expert to decide which witness of fact they believe or disbelieve?

 

Commentary

Only days into this year’s compendium of judgments, this seems to be what will be one of the most important judgments of the year. It illustrates how easy it is to miss giving a range of opinion and what the expert should do when there are rival factual scenarios of which one arises from disbelief of the subject’s account of their symptomatology.

As will be apparent, counsel for the defendant submitted that a medical expert can and should form a view as to whether they believe a claimant. The judge did not accept this submission as put. In doing so he set out what the approach of the expert should be in their evaluation of a claimant’s presentation.

But for the fact that the defendant had appealed the decision of the lower court to award damages, the detail of this case would probably not have gone on the public record. It is therefore one of the few cases in which experts can study the court’s examination of the expert’s opinion and although the nuances of this may be of interest only to respiratory medicine experts, the extracts of the expert’s cross-examination and of the judge’s intervention are of general interest.  

Learning points:

• It is entirely outside the remit of an expert to decide which witnesses of fact he believes or disbelieves.

• It is entirely proper for a medical expert to say that the medical records are not consistent with what a person claims were his symptoms.

• Failing to appreciate or deal with the possibility that the account of the symptoms provided by the subject might be true, the expert deprives the Court of what evidence they might have been able to give if the Court accepted the truth of that account.

• If you are present in court, or are provided with transcripts of their evidence, be prepared to modify your opinion having regard to the evidence of witness of fact.

• In a case where there is significant inconsistency, and where the court’s findings will depend on how it resolves the inconsistency, the expert is required to give alternative opinions based on the different factual scenarios. 

• The expert should not express a preference for one factual scenario over another unless it arises from the application of knowledge or experience outside that of the court. But even if doing so, it is necessary to offer an opinion or opinions based on the scenario the expert does not prefer as the court will decide which factual scenario to accept having regard to the totality of the evidence and of which the expert’s evidence for preferring one scenario over another will only be a part and which evidence in any event may not be accepted.

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