A High Court judge has reminded expert witnesses of their duties to the court after criticising two experts for their bias towards a claimant they were assessing.
Anthony Metzer QC, sitting as a deputy High Court judge in Palmer v Mantas & Anor, singled out the experts for their unbalanced approach towards a woman claiming for injuries following a road traffic accident.
The woman, who was 26 at the time of the accident, sought £2.2m in damages whereas the defendant’s insurer was prepared initially to concede only £5,407.
The judge said the assistance from six of the medical legal experts called live was of an ‘extremely high standard’, but he raised concerns about two defence experts and their approach to assessing the claimant.
With regard to one expert, the judge agreed that her first report was ‘littered with judgemental and rather scathing comments’. The expert had made references to the claimant being ‘self-pitying’ and ‘histrionic’ and accepted in oral evidence she would not have used this language to describe a man.
The judge said this report ‘went beyond language which is appropriate for an expert to employ and suggests a level of unconscious bias’, which made it difficult to rely on.
A second expert, the judge said, had accepted in court that he had been ‘over-zealous’ in his language, and admitted upon re-reading his report that he ‘winced and thought I could have been a little bit more reflective and kinder’.
Metzer added: ‘The duty of medico-legal experts under CPR 35 and the relevant practice direction cannot be over-emphasised. It is essential that they understand that their duty is to assist the court by providing their objective, unbiased opinion upon consideration of all material facts, including those which might detract from their opinion and are not in their best interests of the party who has instructed them.’
In his ruling, following a 12-day trial in November last year, the judge rejected the defendants’ allegation of fundamental dishonesty by the claimant. The insurer had employed covert surveillance to monitor the claimant’s condition and also cited social media posts showing her on holiday and tending to be positive and upbeat. The judge noted that a ‘level of caution’ should be placed on social media posts and agreed that social media tended to ‘paint a glossy picture of the poster’s life’.
The judge also noted that the defendants had tried to argue that the claimant was ‘dishonest by omission’ in her interview with medical legal experts. He added this was not a fair approach and there was no cited finding of fundamental dishonesty where a claimant had failed to volunteer information not asked of them. The claimant was awarded £1.68m in total.