What medical evidence of injury is required for a compensation claim?

As specialist personal injury solicitors, we know all too well the evidence that will almost always need to be obtained to prove the type of injury that has been sustained in an accident.

Who provides the evidence of an injury?

In almost all cases, the evidence needs to be more than just the injured person’s own account. There should be additional comment from a suitably qualified medical professional.

Instructing a specialist personal injury law firm such as Allan McDougall Solicitors is the best way to ensure the right evidence is obtained about your injury. As personal injury claim experts, we know the best type of evidence to obtain on behalf of our clients to ensure the maximum amount of compensation can be achieved. Typically, the approach can be summarised as follows:

Where an injury has resolved after a short time, usually at most a few weeks, and where the cause of the injury is very clear, a letter from a treating GP can sometimes suffice. The letter will usually be fairly brief and based on the records alone, which is one reason it is not appropriate for cases involving significant injuries.
For an injury which takes a little longer to resolve, say a few months, a report from an independent GP or A&E Consultant can be the appropriate type of evidence to obtain. That expert will arrange to see the injured person and review the relevant records before providing a report.
For injuries which persist in the longer term, a report from an independent consultant in the appropriate field of medicine is obtained. For example, a Consultant Orthopaedic Surgeon will provide an opinion on the types of injuries most commonly suffered.
In more serious cases, reports can be obtained from more than one expert. For example, an accident may cause not just physical injuries but also a psychiatric injury such as PTSD or an anxiety disorder. In such cases, opinions can be sought from both orthopaedic and psychiatric consultants.

Can a treating consultant provide an opinion in an injury compensation claim?

It is permissible for a treating consultant to provide an opinion in a personal injury claim in some circumstances but it is not commonly done. One of the cornerstones of the rules on medical expert evidence is that an expert must be impartial. On occasions when a treating consultant provides an opinion in an injury compensation claim, it is sometimes argued that a treating consultant does not have the necessary impartiality.

What does a medical expert comment on?

The role of a medical expert typically comprises two elements.

To provide an opinion on what has caused an injury. In many cases this will be perfectly obvious as many accidents are sufficiently traumatic to be a very clear cause of an injury. But there are cases in which a person already suffered from pain in the injured area prior to the accident. In those cases, the expert must give an opinion on the role of the pre-existing condition and the degree of injury caused by the accident.
The type of injury and the duration, including prognosis for future resolution. In most cases this is the focus of the expert’s opinion. The views of the medical experts guide the assessment of other categories of compensation such as loss of earnings.

Can claims succeed without any medical report being obtained?

It is very unusual for personal injury compensation claims to be successful without any medical report being obtained, but a recent decision from the Sheriff Appeal Court in Scotland confirmed that this was possible in certain situations. In the case, Marshall v Berkshire Hathaway, 2024, at the original Proof (the civil equivalent of a Trial) the solicitors for the pursuer (the injured person) had in fact provided medical evidence, which was the opinion given by an independent doctor. However, the doctor’s evidence was ruled inadmissible because the arrangements for paying that doctor his fee for providing an opinion in the case raised a question over his impartiality. The lawyers for the insurance company defending the claim argued both at the Proof and at the Appeal Court, that lay people, with no medical qualification or experience, could not determine what had caused any injury. They therefore argued that, having had no evidence from a medical professional, the Sheriff had been wrong to make an award of compensation to the pursuer.

However, the Sheriff Appeal Court upheld the decision of the Sheriff. The Sheriff had heard evidence from the pursuer himself about the nature of the accident, including its significant impact, the effect of the impact on him at the time (the way his body moved following impact) and the description of his pain in the following weeks and months. The Sheriff Appeal Court determined that these were all questions of fact, and the Sheriff had factual evidence (from the pursuer) on each of these elements. The Sheriff was entitled to award compensation in light of that.

While the outcome was undoubtedly a relief for the pursuer, there are important notes of caution to emphasise. Firstly, we would never advise a pursuer to proceed to a hearing of evidence (a Proof) without the benefit of a report from a medical expert. In the Marshall case, the pursuer did provide evidence from a medical expert. It was only when that expert’s evidence was ruled inadmissible that his lawyers were forced to argue that he was entitled to damages anyway even without the medical expert’s evidence. The view of the court could have been very different particularly because one of the issues was that the pursuer had described longer term effects of the accident.

Conclusion

The importance of having the right expert evidence about your injuries has not changed. If you are injured, it is only natural that you will be focusing on the impact on your day-to-day life and on your recovery. In a claim, you need to feel reassured that your solicitor will sort out all the medical evidence needed. That’s what our approachable expert personal injury lawyers are here for. We will guide you through the types of evidence which are needed to ensure the value of your claim comprehensively and fairly reflects the full impact of the accident on your health, time needed off work, loss of earnings as well as your future needs in cases of serious injury.

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