A judge has slammed expert witnesses and turned down a R10m damages claim against the Road Accident Fund (RAF) in which it was claimed a child, who was nine at the time, suffered severe brain injuries after being involved in an accident between a car and a taxi.
The Star reports that the judge said expert medical witnesses are there “to testify on the facts of a case, and should not speculate”, after a neurosurgeon, who was called as the main expert witness, admitted to only virtually consulting the girl, now 17, just once, and using incomplete medical records on which to base his opinion.
He said she had started off with a mild brain injury but that it had now escalated to a serious injury, conceding, however, that he had looked at the incomplete hospital records when the girl was admitted for a day and discharged the next day, and that he’d had one virtual consultation with her and her mother – about eight years after the accident.
Exacerbating matters, said the judge, was that several other expert medical experts based their medical legal reports on that of the neurosurgeon.
The RAF had already conceded the merits of the matter and paid (an undisclosed) amount in general damages towards the child. The only matter that was left for the court to now determine was a R10m claim for loss of earnings.
The court was told that after she was discharged after spending a day in hospital, the girl had been taken to an eye hospital for an examination. But she did not get any further medical attention as it appeared she did not require it.
It was now being claimed, however, that she had suffered such a serious brain injury that it rendered her unable to achieve a university education and thus limited her future earning capacity.
The experts all based their reports on the primary report of the neurosurgeon, who based his report on the hospital records, which he admitted were incomplete – and the one virtual consultation with the child and her mother.
Judge Marcus Senyatsi said that the approach of the courts in considering experts’ reports is that while experts are entitled to make assumptions, they should avoid basing their opinions on conjecture or speculation.
Once they do so, they place their evidence at risk of being disallowed.
“Expert witnesses are required to lay a factual basis for their conclusions and explain their reasoning … The court must satisfy itself as to the correctness of the expert’s reasoning.”
The judge added that he was concerned about the neurosurgeon’s report and evidence in which he conceded hospital records were incomplete.
He said it was difficult to fathom the basis of the expert’s opinion that the child had suffered such a serious brain injury that she wouldn’t be able to study further.
It was surprising, he added, that the expert could reach the conclusions he did based on one virtual consultation, and did not explain why he saw no need for further examination.
The judge rejected his medical report, along with those of the other medical experts who based their findings on the neurosurgeon’s.
The Star PressReader article – R10m claim for brain injuries turned down (Open access)
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Lawyers increasingly ‘call the tune’ with expert witnesses
A world of difference between expert witness and hired gun