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Dickie v Khandani [2012] CSOH 122 - 20 July 2012


This case concerns the determination of solatium based on the extent of injuries and their effect on future employability of the pursuer following admitted liability for personal injury caused to the pursuer by the defender in a road accident in 2009. The condition said to be limiting the pursuer's future employability is experienced by the pursuer as lower back pain which became worse over a period of several months following the accident but for which no organic reason in the form of an injury can be identified by the medical practitioners who have seen her.

The medical expert-witnesses gave evidence that it was not certain that the back pain was linked to the accident and also cast doubt on the veracity of the pursuer's report of being in pain and suggested she may be overstating her symptoms. In this assessment he differed from other professionals whose earlier reports did not suggest this.

In deciding on what weight needs to be given to the expert-witness' opinion, the court referred to Pratt v The Scottish Ministers 2011 CSOH 86. The court finds that Pratt (which in turn follows the authority of the Ikarian Reefer [1993] 2 Lloyd's Rep. 68) establishes inter alia that
1) expert opinion evidence, if intelligible, convincing and tested, becomes a factor for consideration with the rest of the evidence in the case;
2) the court is entitled but not bound to accept such opinion evidence;
3) it is for the court to reach its own conclusions and decide the issue in dispute;
4) the bare ipsi dixit of an expert, however eminent and experienced will normally carry little weight; and
5) what carries weight is the reasoning of the expert or the court and not the conclusion.

Subsequently the court's assessment of solatium attached greater weight to the pursuer's own evidence in preference to that of the expert witness. In doing so the temporary judge refers to the apparently honest and hardworking nature of the pursuer as evidenced by her testimony in court and seems to contrast this with the expert witness who is described as being discourteous to members of the court, lecturing the court, and straying in his evidence beyond his field of expertise.