The risks of accepting medical opinion at face value were
exposed last year in the West Australian case of Robertson v
Chase [2012 WADC 131] in a judgment which cautions
practitioners against a casual assumption of the integrity of the
medical evidence they put before the court.
Mrs Robertson's claim for damages followed a car accident in
2007 and came before the District Court last year. It illustrates
the need for an evidential basis upon which to offer an expert
how to approach injury claims where the only evidence to
support the claim comes from the claimant.
There was agreement that a collision occurred but its force was
apparently so mild that it failed to produce any objective evidence
of physical trauma. All of the medical evidence was therefore based
upon the claimant's subjective complaints of pain and suffering
and the existence of pre-existing medical conditions.
The treating doctors and independent medical examiners
essentially accepted that she had continuing accident-related
symptoms and their views were never properly challenged. In the
absence of a dispute between the parties on that issue, the court
was effectively compelled to award damages.
However, His Honour made the point that in order for expert
medical evidence to be of reasonable value, the primary evidence on
which the opinions are based (including the plaintiff's own
detailed testimony), should be heard in court. In this case, there
were numerous gaps and inconsistencies in the evidence and
therefore scope to challenge the conclusions drawn from it.
His Honour said that it was "...not uncommon...for
litigants to conduct trials on the basis that what a medical
witness reports of what he or she has been told by the plaintiff
may somehow supplement the plaintiff's evidence of the effects
of the...injuries. Formal objection is rarely taken to medical
evidence of opinions based on the plaintiff's history, even
when the history has not been proved by the plaintiff
On the apparent unquestioning acceptance by a senior orthopaedic
surgeon of the claimant's complaints of unrelenting symptoms,
His Honour commented: "I am not at all persuaded...that the
plaintiff will have symptoms...indefinitely. Moreover, common sense
dictates the contrary".
The duty practitioners owe both to clients and the court in
effect compels them to test and evaluate the evidence they put
before it, including the evidence of fellow professionals.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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