Order of evidence is important because it ensures that the nature and extent of the claimant’s injuries and their short-term rehabilitation requirements are identified and that the deficits are subsequently forensically analysed to ensure the appropriate damages are recovered.

Every lawyer is different and they will have their own approach. Although this article identifies my own personal views, there will always be different approaches and the particular context of a case may necessitate a different approach too.

An example might be where there is a clear accommodation need at the outset of a case, a lawyer may instruct an architect at an early stage to comment on immediate adaptation works, rather than wait for the totality of the medical framework to come through.

My first approach, generally, is to instruct a consultant in neurological rehabilitation, preferably who is a neurologist by background. If the brain injury did not result in neuro-surgery, this expert may suffice in terms of commenting on the nature and extent of the brain injury and the increased risk of post-traumatic epileptic seizures.

These experts provide an overview of the differing injuries and give an opinion as to the short to medium term rehabilitation needs.

This enables the lawyer to be confident that the rehabilitation that either they or a case manager has put in place is suitable and targeted to meet an injured person’s reasonable individual needs.

If the injured person has had neuro-surgery, there may also be a need to instruct a consultant Neuro-surgeon if there is any dispute about whether surgery was needed or if there are particular issues that may arise in the future as a consequence of the surgery.

These experts tend to have a time-limited role. They can provide very useful evidence on the nature and extent of the injury, whether further neurosurgery may be required in the future, infection risk and other potential complications which may arise.

However, it is rare that neuro-surgery evidence will be heavily contested in the litigation. The contentious element is about the effect of the injury on the injured person’s life.

Once the rehabilitation is in place, the lawyer should focus their efforts on obtaining quality witness of fact evidence which highlights the problems that the injured person has. The witnesses should be varied.

There should be statements from the injured person, their family, their treating team, their employer and their case manager.

A thorough factual matrix should be developed, which enables the experts to prepare their evidence knowing the context; in particular, it enables them to understand what the injured person is like in “real life”, outside of an interview environment with the expert. 

After a period of rehabilitation, the consultant in neurological rehabilitation may want to re-assess to give a clearer view on the prognosis. The other medical experts should then be instructed. This might include neuropsychology, neuropsychiatry and orthopaedics.

There may also be a need to deal with discreet areas at this stage. This may necessitate instructions to a consultant ear, nose and throat surgeon, a maxilla-facial surgeon, a dental surgeon, a general surgeon, a urological surgeon, or a gynaecologist.

Clearly, it depends on the injured person’s injuries and also, more importantly, whether those injuries are likely to cause problems in the future to justify instructing an expert.

If pain is a significant issue in the claim, there may be a need to instruct a consultant in pain medicine. They usually have a background in anaesthetics.

If the other medical experts are unable to give a prognosis, a further period of rehabilitation may be required before they re-assess. If they are able to give a view on the injured person’s final prognosis, the lawyers can proceed to start to quantify the claim.

This includes instructing non-medical experts in specialities such as occupational therapy, physiotherapy, accommodation, speech and language therapy and care. These are the reports which start to put figures to the injured person’s reasonable needs.

There may be some issues to “iron out” after the non-medical experts have assessed. For example, the care expert may indicate in the report that the injured person’s care package should be changed for a particular reason.

There may be some adjustments to the rehabilitation programme. There may be a need for adaptation works to the property or even a new property.

Once the medical framework has been established and the non-medical experts have provided costs, the lawyer can consider settlement of the case. In an ideal world, the rehabilitation is in place and is working the costs can then be projected forwards when seeking to negotiate a settlement or at trial.

In reality, this is difficult to achieve because of a range of factors including access to interim funds, contributory negligence considerations, the injured person being overwhelmed by the recommended care and therapy programme, the adaptation works taking time to be finalised, and early settlement offers by insurers.

It is easy to underestimate the importance of instructing experts at the right time and in the right order. If this is done well, it can make the litigation easier for all stakeholders and more effective for the injured person.

David Withers is a partner and solicitor-advocate at Irwin Mitchell LLP