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Professional negligence in dealing with expert reports
21 February 2012

The recent case of Maria Boyle –v- Thompsons Solicitors has highlighted the care that must be taken in selecting an expert and asking all the material questions not just when instructions are first given but when other evidence appears to conflict with that of the chosen expert.

Claim for compensation to the Criminal Injuries Compensation Authority (CICA)

The case against the solicitors arose following their representation of the claimant in a claim for compensation to the Criminal Injuries Compensation Authority (CICA). Mrs Boyle was appealing an award made by CICA on the basis that it was too low and did not take into account that she was suffering from Post Traumatic Stress Disorder (PTSD) which she said was caused solely by the criminal assault she had suffered and was permanent in its effect such that she would never be able to work again.

Under the scheme for compensation the solicitors were obliged to place before CICA all relevant medical evidence whether helpful or not which is a different position to normal civil litigation. The independent psychologist instructed by the solicitors considered that the PTSD was not solely attributable to the assault and was not permanent in nature. This expert opinion differed from Mrs Boyle’s treating psychiatrist whose report said that the PTSD was permanent and was caused by the assault. The solicitors asked the psychologist whether she wished to alter her report in view of the psychiatrist’s report. The psychologist declined to do so and CICA rejected Mrs Boyle’s appeal which, if it had been accepted, would have given rise to a very large award.

Professional negligence claim

Mrs Boyle sued her solicitors claiming they should have done more to try and reconcile the differences of opinion of the experts. By the time of the trial of the claim against the solicitors the psychologist had changed her view to more closely accord with the psychiatrist. In this case the Judge found that the solicitors had acted properly in writing back to the psychologist and asking whether she felt the psychiatrist’s reports affected her previous views. The Judge felt that the solicitors had done enough to discharge their duty and that the problem, if there was one, lay with the psychologist and not the solicitors.

It should be noted that an expert’s duty is to give the court their honest and independent opinion and that this overrides any duty to the party that instructs them. Expert opinion is not a matter of exact science and so the court will be slow to attribute negligence to a solicitor because the expert’s views do not fit the requirements of the client.

For more information about the issues raised in this article or to find out more about how the Dispute Resolution team can help you please contact Mike Robinson on 0118 952 7206 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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