This is the second of two articles explaining how to prove the link between your chronic pain and your accident. See the first article on causation. Whether or not you currently have a solicitor, our team is available to discuss your claim on 01225 462871. Alternatively, you can email them or complete the contact form.
What is ‘evidence’?
Evidence is anything a party to court proceedings is allowed to put before the court which they believe helps to prove one or more issues in their case. Evidence can be presented by:
- calling witnesses;
- producing documents;
- producing things.
With any evidence, you should always consider its:
- admissibility; and
Whatever the nature of the evidence, it must be both relevant and admissible. It is relevant if it logically goes to prove or disprove some fact in issue in the claim. It is admissible if it:
- relates to the facts in issue; or
- to circumstances that make those facts probable or improbable; and
- has been properly obtained.
The weight of the evidence is the reliance that the court can properly place upon it.
Broadly, you can put two types of evidence before the court, expert evidence (also referred to as opinion evidence) and factual evidence.
In a personal injury claim, the most common type of expert evidence is medical evidence, which comprises factual medical records and expert medical opinion.
Your solicitor must obtain and review your full medical records to:
- ascertain whether the records are complete;
- collate them into a logical order (they invariably arrive shuffled!);
- identify any ambiguities or other potential questions (often referred to as ‘red flags’) which may require clarification by you or the person who created the record before others see them;
- decide what types of medical expert are necessary;
- draft a detailed and bespoke letter of instruction to each medical expert, referring to any relevant entries in the records.
A medical expert must satisfy the court that they have sufficient expertise in their particular field to enable them to assist the court with issues in the case relevant to that field. In giving expert opinion evidence, experts must not stray outside of their accepted area of expertise.
A medical expert will produce a medical report based upon their examination of you, taking a detailed history from you, and their review of your medical records and any other evidence sent to them. It should be comprehensive and include:
- a detailed medical history;
- the injuries sustained;
- current symptoms and limitations;
- treatment received;
- recommendations for further treatment; and if possible
- a prognosis.
Your solicitor will discuss with you the types of medical expert required to prove the causal link between the accident and your condition and other relevant issues in the case. Depending upon the nature and effect of your condition, this might include experts in rheumatology, pain medicine, psychiatry, neurology, orthopaedics, and general medicine (for life expectancy).
Generally, each party will instruct their own expert in each field. You may find that once your expert has produced a draft report, your solicitor will suggest arranging a conference with them to clarify any issues arising before the report is finalised. Once medical reports are finalised and disclosed to the other side, each party has an opportunity to put written questions to any or all of the experts. In an attempt to narrow the issues in dispute, the experts will speak to each other and produce a joint document setting out areas where they agree and disagree. Rarely, the experts will have to come to court to present their evidence and to enable the parties and the judge to ask them further questions.
Other types of expert you may require to prove certain issues in your chronic pain compensation claim, include (but are not limited to):
- a forensic accountant;
- a care expert (from a nursing or occupational therapy background);
- a housing expert;
- an employment expert.
As its name suggests, factual evidence is any evidence of a relevant fact or facts in the case which is not expert opinion evidence. Most commonly, it is in the form of documents (receipts, invoices, wage slips, medical records etc) or witness statements from individuals. If the other side does not agree on a witness’s statement, they may have to come to court to give their evidence orally on oath, enabling both parties to put questions to them.
Video surveillance evidence
It would be highly unusual for a claimant in a case involving chronic pain not to be the subject of covert video surveillance, with the operatives returning on multiple occasions. You will inevitably be filmed before and after attending appointments with the defendant’s medical experts and will also be followed to those appointments.
The surveillance operatives are paid handsomely by insurance companies and are often very selective in the footage they take or disclose. It is rare to find them disclosing footage that supports your case. For example, footage may show you walking on the flat but not struggling to climb steps or pausing to rest during your journey. On occasions, we have successfully proved these operatives have misled the court in their witness statements over the extent of the footage taken, or wrongly stating that it is unedited.
Anticipating video surveillance and being ready to deal with it when it’s served is crucial. See Libby Parfitt’s excellent article: They’re watching me: CRPS, Chronic Pain and Surveillance
Social media evidence
The insurance industry quickly realised that social media could open a window into a claimant’s life. The window is typically a tiny one, providing only a restricted view that is open to misinterpretation.
See our article: Social Media: a no-no for personal injury claimants