Expert Witness Evidence: Challenge Fairly Or Risk Losing

The reasoned report of a medical expert is critical to the success of any personal injury claim. If the other side fails to challenge your expert’s report, they will probably be on weak ground, as a landmark ruling demonstrates. The specialist injury lawyers at ParrisWhittaker in the Turks and Caicos Islands (TCI) and surrounding area have successfully represented injury clients for many years.

Why have an expert report?

When you file an injury claim against the party at fault, the burden is on you and your lawyers to establish that they were, on balance, responsible for your injuries. To that end, a medical examination carried out by the most suitable expert, and a written report, is crucial to substantiate the extent of your injuries and how they occurred.

Once the report is received and disclosed, the other side can then choose to commission their own expert and, if it goes to trial, cross-examine your witness in court.  If they choose not to, their defence will probably be weakened.

A recent ruling¹ of the UK’s highest court recently ended a tourist’s 10-year battle for compensation from a large provider who criticised his medical expert’s evidence – yet offered no expert of its own. The ruling has important persuasive authority on the TCI courts.

What happened?

Peter Griffiths, the holiday maker, booked an all-inclusive package holiday to Turkey for him and his family from German holiday company TUI. During the holiday, he became very ill with gastric illness. He claimed this was caused by contaminated food and drink in the hotel. His symptoms continued after he returned home.

Following several rulings, the Supreme Court had to decide whether and if so, in what circumstances, the court can evaluate and reject an “uncontroverted” expert’s report. An uncontroverted expert report means a report that is unchallenged or not undermined by the defendant.

Here, the trial judge had rejected the medical expert’s uncontroverted expert report and dismissed Mr Griffith’s claim. The expert was a microbiologist who found Mr Griffith’s illness had been caused by the food and drink consumed at the hotel. TUI had not produced any expert evidence on the issue of causation and had chosen not to challenge the expert report on cross examination, but had still heavily criticised Mr Griffith’s expert’s evidence.

The Supreme Court said the trial judge had been wrong and had denied Mr Griffiths a fair trial. It found on the evidence that Mr Griffith had established that it was more likely than not that the food and drink at the hotel had caused his stomach upset.

General principles

The court helpfully set out the general rules applicable in civil cases in relation to an expert’s evidence. For instance, a party is required to challenge by cross-examination the evidence of any opposition witness – including expert witnesses – on a material point which they wish to submit to the court should not be accepted.

The rule is to ensure the trial is fair; and maintaining fairness includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the case. Cross-examination gives the witness the opportunity to explain or clarify their evidence – which is particularly important when, eg the opposing party intends to accuse the witness of dishonesty.

How can we help?

For expert representation, including the role of expert witnesses and how they can support your case, contact the experienced personal injury litigation solicitors at ParrisWhittaker in TCI as early as possible. You can contact us at info@parriswhittaker.com or +1.242.352.6112

¹Griffiths v TUI [2023] UKSC 48