Expert Matters - The Podcast

The case was a claim in negligence arising out of complications following bariatric surgery. When he was asked during cross-examination to explain the Bolam test, the Claimant’s expert was not able to demonstrate an accurate understanding of, or ability to explain, the test.

One of the important differences between Ireland and other British Isles jurisdictions is in the procedures followed in personal injury litigation. This case is illustrative. If the plaintiff had brought his case in England or Wales, how would this case have progressed?

Keogh v O'Keeffe [2025] IEHC 26

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The Claimant alleged that an accident five years earlier was the cause of the amputation of his lower leg. The judge criticised the Claimant’s orthopaedic expert, Professor H, for demonstrating at times a rather ‘loose approach’ to his expert evidence and a closed mindedness towards his evidence.

The Claimant’s father and litigation friend alleged that the medical practitioners treating his son were negligent in not promptly carrying out an ultrasound on his head, after he had been admitted to hospital with head injuries. The judge found that the expert for the Claimant was, to an extent, seeking to fight his corner rather than taking a dispassionate approach to the issues raised.

The Annual Sir Michael Davies Lecture for 2025 was held on 15 October at the RAF Club in London. The Right Honourable Lady Simler, Justice of the Supreme Court, delivered an insightful lecture on Enhancing Expert Evidence: Reports, Opinions, and Judicial Perspectives, which was summed up perfectly by EWI Chair Sir Martin Spencer as the blueprint for providing the best written and oral expert evidence.

The Claimants alleged that dust, noise and odour emitted by the defendant’s factory over a prolonged period constituted a legal nuisance. The judge was critical of the Claimants’ experts for departing from the initial common approach when the initial results had been adverse to their clients’ case.

There are some general learning points for all experts but otherwise this is for neurosurgeons. It is another road traffic accident personal injury case in which the court needed the assistance of neurosurgeons, or at least it would have done but for the fact that it made a finding which made it unnecessary to consider the neurosurgical evidence before reaching a judgment. The nature of the injuries sustained by the claimant were not in dispute. What was in dispute, but ultimately irrelevant, was what the child’s injuries would have been if the driver of the vehicle had been driving (non-negligently) at a lower speed than he was. It was on this point that the neurosurgical experts disagreed.

MW v Wilkinson [2025] EWHC 2300 (KB) 

The person insured by the defendant drove his motorcycle into the pursuer’s parked lorry causing the pursuer, who claimed he was standing on the steps of the lorry on one foot and leaning on the cab, to allegedly lose his balance and suffer injuries. The defendant led an expert witness, Mr H, who presented himself as a Forensic Engineer, and the pursuer an Orthopaedic expert, Mr S. 

The Sherrif concluded that he could not afford Mr H’s conclusions more than minimal weight because of a failure of methodology. Mr H had also expressed his conclusions in terms that gave the appearance that he was the decision-maker and made concessions during cross-examination. The Sherrif found Mr S to be a credible and reliable witness overall but noted that he was not clear when describing his fee arrangements. 

This is an important judgment for obstetricians as it shows in precise detail how the court, relying on not just the experts’ evidence but a critical analysis of the literature on which they relied, decided whether the claimant would have avoided developing HELLP had she been advised to take 75 mg aspirin at 12 (or 14) weeks instead of at 23. Twelve publications were put under the microscope and considered also in the light of research concerning the relative value of aggregate data and individual participant data.

Although the issue in this case was the prevention of HELLP, it may be an important judgment to consider in pre-eclampsia cases.

De Francisci v Hampshire Hospitals NHS Foundation Trust (County Court, Basingstoke sitting at Southampton, 9 May 2024) Case No: F16YM828