A Practical Guide to the Medico-Legal Process
Advocate Ian Dutton
The South African Medico-Legal Reports
Editor
Introduction
We will focus on specifically personal injury matters, but the process will be similar for any litigation
New and seasoned OTs
Useful to understand the litigation process
Introduction
The South African Medico-Legal Reports Expert Witness Guide
See esp:
Stages of Litigation
Phases of the litigation process:
Definitions
Essential Elements of a Claim:
What needs to be proved in order for the plaintiff to succeed
If so,
The Pleadings Stage
The Trial Preparation Stage
The Expert Report: Opinion and Reasons Therefor
Purpose of a:
See Chapter 3 EWG especially Chapter 3: The Expert Report, The Opinion Section (3.6.11) and The Conclusion (3.6.12)
The meanings of the words ‘summary’ and ‘opinion’, and of the phrase ‘reasons therefor’ were considered by the Appellate Division in Coopers (SA) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH. In regard to ‘summary’ and ‘opinion’ the court adopted as appropriate the meanings given by the Concise Oxford Dictionary: ‘summary’ as a noun means a ‘brief account, abridgement, epitome’; ‘opinion’ means a ‘judgment or belief based on grounds short of proof’ or a ‘formal statement by expert when consulted on what he holds to be the fact’. In regard to the phrase ‘his reasons therefor’, the court held that it means, or at least includes, the facts or data on which the opinion is based.
The Expert Report: The Opinion Section
“3.6.11. The opinion section of the expert report: The expert should set out his or her opinion in respect of each issue in dispute clearly and concisely and briefly explain the main reasons in support of each opinion. Each opinion should be linked to the identification of the issues, the factual basis for the opinion, and the process of reasoning which lead to the conclusion.”
The Opinion Section (3.6.11):
The Expert Report: The Conclusion Section
“3.6.12. The conclusion: A summary of conclusions is extremely helpful in understanding the end results of the expert’s views, and assists counsel and attorneys in planning and assessing the matter.
This is the expert’s final opportunity to make an impact in the report and leave an impression on the reader. In this section, the expert should summarise and re-evaluate everything established in the report.
Experts should also summarise their findings of fact, including the most effective and persuasive factual evidence, reassert their main claims, and end with a clear summary of the argument made in the report.”
The Conclusion:
The Expert Report: Dealing with the Facts
The Expert Report: Dealing with Assessments
“Facts established by the expert (3.6.10.1)
These consist of facts which the expert has observed personally as a result of observations, experiments, or investigations etc. carried out by the expert personally.
This category of facts deals with circumstances in which the expert who is writing the report has personally conducted an examination, test, experiment, calculation, investigation or inspection. It is good practice to give a clear and full explanation of how these facts were obtained, and to explain how they were checked or verified.”
The Expert Report: Dealing with Assessments
“3.6.10.2. Facts which others, acting on the expert’s behalf, have observed or obtained
The expert should set out whether there are any facts relied on in the report which have been obtained by others, such as a statement, examination, measurement, test or experiment. If so, the expert should say who carried out the examination, measurement, test or experiment, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision. Ultimately, the purpose of the expert report and evidence is for the expert to provide the opinion.”
The Expert Report: Purposes of Reports, Addenda and Joint Minutes
Purpose of:
Joint minutes
The essence of the joint minute is to enable experts to exchange views before giving evidence and thus to reach agreement on at least some of the issues, thereby saving costs and the time of the court.
Coopers (SA) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA 352 (A) at 371F
Joint minutes
Tips for Experts: Joint Meeting of Experts (Page 184)
“6. Don’t try to settle the case in the meeting. It is not the job of the expert to settle the matter. The role of the expert is to summarise your positions on the key issues, including indicating where you agree or where there is only narrow disagreement, together with your reasons.”
“8. Where you disagree with the other expert, fully state the issues you disagree on, with reference to any disagreement on the facts and reasoning. Do not simply state your opinion or the fact that you disagree - that is unhelpful. Unless you agree on an issue, you must give your reasons for your views.”
Pre-trial consultation with Advocate & Attorney
Important for Expert to know what the Advocate's strategy is and to understand the overall picture of the case theory.
Also to guide the Advocate to ask the right question in order to get to the essence of expert's report.
Be aware of the difference between evidence in chief (no leading questions allowed) and cross-examination (leading questions are good technique).
Unjustified influencing
(i) in such expert’s own words;
(ii) for the assistance of the court; and
(iii) a statement of truth.”
The post-box role of an expert
Experts are often not included in the bigger process than merely their respective reports, especially prior to trial. In the past, "expert meetings" where Dr, OT, Psychologist, Finance expert etc were involved in round-table discussions, proved very valuable.
These meetings are now neglected, making it difficult for an expert to understand the bigger claim-picture.
The Trial Stage
Preparation
Objectivity & Neutrality
“1.1.2. The function of the expert witness: The expert witness guides the court to a correct decision on questions which fall within that expert's specialised field. To that end, the expert witness has a duty to provide the court with abstract or general knowledge concerning his or her discipline and the criteria necessary to enable the court to form its own independent judgment by the application of the criteria to the facts proved in evidence.
Stacey v Kent 1995 (3) SA 344 (E) at 348 - 349 and the authorities referred to. See also: AM and Another v MEC For Health, Western Cape 2021 (3) SA 337 (SCA) ([2020] ZASCA 89) para 17; JA obo Da v MEC for Health, Eastern Cape 2022 (3) SA 475 (ECB) at [24]. See also:“ ‘Beware the hired gun’ - are expert witnesses unbiased?" Lerm, De Rebus, May 2015:36 [2015]”
See Chapter 3 EWG especially Chapter 1: General Principles, 1.1.2: The Function of the Expert Witness:
Objectivity & Neutrality
“In essence, the expert witness assists the court in reaching a conclusion on matters on which the court itself does not have the necessary knowledge to decide.
JA obo Da v MEC for Health, Eastern Cape 2022 (3) SA 475 (ECB) at [24]; Phipson, Evidence, 11th ed, paras 1280 et seq.; Hoffmann, Evidence, 2nd ed., pp. 78 et seq.; R. v. Nksatlala, 1960 (3) SA 543 (AD) at 546”
Objectivity & Neutrality
“1.2. The relationship between the courts and expert witnesses
1.2.1. The expert witness’s fundamental duty to the courts: At the heart of the trustworthiness of expert evidence lies the notion of the independence of the expert. The duty of experts to help the court on matters within their expertise overrides any obligation to the person from whom experts have received instructions, or by whom they are paid.”
Objectivity & Neutrality
This means that the opinion formed by the expert witness should not be tailored to suit the result which the instructing attorney would like in the case, but should be arrived at uninfluenced by the demands of litigation, the experts’ instructing attorney, or the views of other experts.
“An expert . . . must be made to understand that he is there to assist the Court. If he is to be helpful he must be neutral. The evidence of such a witness is of little value where he, or she, is partisan and consistently asserts the cause of the party who calls him.”
Per Diemont JA in Stock v Stock 1981 (3) SA 1280 (A)
Expert witnesses should therefore provide their independent assistance by way of an objective, unbiased opinion in relation to matters within their expertise, and should never promote one side’s case at the expense of their independence.
Attitude in courtroom
Court etiquette and protocols
Remain within own expertise
“1.7. Experts should restrict themselves to matters within their expertise
1.7.1. General: Experts should only provide opinions in relation to matters which lie within their expertise. However eminent an expert may be in a general field, he or she does not constitute an expert in a particular sphere unless by special study or experience the expert is qualified to express an opinion on that topic.
The expert must either personally have knowledge or experience in the special field on which he or she testifies (whatever general knowledge the expert may also have in pure theory), or the expert must rely on the knowledge or experience of others who themselves are shown to be acceptable experts in that field.”
See Chapter 3 EWG especially Chapter 1: Para 1.7: Experts should restrict themselves to matters within their expertise
The Appeal Stage
Finalising a claim
Specials on The Expert Witness Guide:�
Advocate Ian Dutton
The South African Medico-Legal Reports
Editor
Thank you for your time in participating in:�A Practical Guide to the Medico-Legal Process
Advocate Ian Dutton
The South African Medico-Legal Reports
Editor
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