WHY AN EXPERT WITNESS MUST EXAMINE THE OBJECTIVE EVIDENCE: WHY MEDICAL RECORDS ARE NORMALLY THE KEY
There are several short passages in the judgment of HHJ Baucher in Ali v The Home Office  EW Misc 27 (CC) which emphasises the need for expert witnesses to consider the objective evidence before reporting. It also shows the importance of medical records (or the absence of matters in medical records) in relation to the assessment of credibility.
The judge was considering a claim for damages in a case where it was alleged that the claimant had been unlawfully detained. The judge found for the defendant, but gave a judgment on the damages she would have awarded if the claim had succeeded.
THE JUDGMENT ON THE CLAIMANT’S EXPERT EVIDENCE
98. Before turning to the respective heads of loss I need to say something about the expert evidence in this case. I consider there was a significance divergence in the expert evidence. It is perhaps unfortunate that Dr Apostolou was unable to join the hearing by CVP but I do not consider that the presentation of her evidence was affected by the fact that she had to give evidence by speaker phone. I found her to be an extremely hesitant and unimpressive witness. I appreciate that time to reflect on a question can be a virtue and result in a considered response but I found that the hesitancy was caused by the simple fact that she had no answer to the questions which Ms van Overdijk fairly put to her. Dr Apostolou had little or no experience with detainees. I was also unimpressed that without my permission she sought to access further information on her computer when giving her evidence. Her failings in presentation were compounded by her failure to consider the objective evidence when reaching her conclusions. I find that she deliberately prevaricated when she was cross- examined about the absence of any entries in respect of the GP entries in relation to the claimant’s mental health. She accepted that this was a relevant factor but when she was asked whether that made her question the claimant’s credibility she said at the time of her examination it did not. She was then asked whether it now affected her view. The answer, after a very long silence, was ultimately: “that is not my impression.” I find she avoided providing the court with an answer on a fundamental issue.
THE CLAIMANT’S OWN EVIDENCE
The claimant’s evidence was also judged against the absence of entries in the medical records.