by Professor Hugh Koch, Clinical Psychologist and Visiting Professor to BirminghamCity University
Dr David Mushati and Dr Ken McFadyen, Clinical Psychologists and Associates ofHK Associates. For Expert Witness Journal September 2019 Edition
The aim of this paper is to understand and learn from the cases reported in BAILII or West Law and associated sources how psychological thinking is relevant to the understanding and practice of law. It summarises the main points that have been addressed in “LegalMind Case and Commentary” a new publication published this autumn (Koch, 2019 (a)).
Over the past three years (2016-19) Professor Kochand his associates have published several cases in Tort Law in Personal Injury Brief Update Law Journal(PIBULJ). This model of expert commentary is discussed in this paper, and develops themes set out in Koch, 2019 (b).
Case Law Analysis
Many, if not all, cases have human/psychological/social/cognitive aspects which provide a commentary of the legal activity in any one case. A comprehensive and in-depth perusal of UK Case Law reveals that many aspects of social and cognitive psychology per tain to the cases seen at any level of the court system(
Fig. I)
Figure I. Law and Psychology
There is considerable opportunity in different types of case law for psychological impact to be examined(Fig. II).
Figure II. Opportunity in Law Case for PsychologyInput
Towards the Medico-Legal Commentary
A group of clinical psychologists experienced in conducting medico-legal psychological assessments aspart of civil claims in the UK typically in the area of personal injury and medical negligence litigation have developed a process by which psychological theory and practice can be considered and applied to the understanding of the psychological implications of legal case precedents, authorities and general descriptions of cases. (Koch,2016 a and b).
This pilot study followed earlier publications of psycho-legal issues in 1999 and 2000 (Regina V Turner,1999) when the author published two litigated cases,one criminal (covering somnambulism, the featuresof sleep walking and one civil case (covering chronic pain) (Bishop v Doves PLC (2000)).
The current study of 21 recent Tort Law cases has been based on a process which follows closely with the publication of a legal case, identified key psychological issues that are then discussed with reference to the appropriate research or publications.
2016 -2019 Legal Mind Care and Commentaries
The complete 21 Legal Mind Case and Commentaries which have been researched and written during 2016 – 2019 and were published in Personal Injury Brief Update Law Journal (PIBULJ). They address key legal and medico-legal issues including:
• Effects of sudden shock ‘But for’ test• Reasonableness and logicality of evidence
• Plausibility in causation
• Assessing dishonesty
• Work stress identification
• Regulating Expert Evidence
• Opinion changing• Honesty or Dishonesty
• Truth arbiter – Judge or Expert
• Material Contribution to causation
• Validity of Expert Evidence
• Uncertainty in Judicial decision making•
Joint Statements
• Expert Impartiality
• Post-cyber data breaches
• Operationalising of truthfulness variables
Two specific cases are summarised below in Fig. IIIand IV:
Figure III.
Assessing distress post-cyber breaches[
Koch HCH, Laraway A, Pelser C & Lamswood S2018]
This is the twentieth in a series of Case reports and Commentaries from Dr Koch and colleagues.
Legal Mind Case and Commentary No. 20
Case: A recent case involving data breaches is summarised below and debated.
TLT and others vs. Secretary of State for the Home Department and the Home Office (2016) EWHC2217 (QB)
This case involved the publishing of family return statistics which, by error, included details of applications for asylum or leave to remain. Before the error was discovered, one unknown individual had down loaded and saved the spreadsheet.
One individual (TLT) was notified of this data breach involving his personal and status details.
Areas of legal contention in this case involved whetherTLT was subject to (proof of) distress and whether this crossed a threshold below which damages were not recoverable. The judge correctly took into accountthe assessment of damages in personal injury psychological cases, to ensure appropriate comparison.Although he did not necessarily define operationally what the threshold was, he opined that this approach of differentiation was appropriate in this case. He also took into account the claimant’s loss of control over his private and confidential information.
The background to this case involved TLT, a citizen of Iran, who came to the UK on a visitor’s visa. The judge made a global award taking into account the circumstances and the ‘distress’ which he had experienced.The award was in line with equivalent awards in PI cases for moderate psychological and psychiatric damages. The award was not differentiated into parts.
This summary is in line with the outcome of other cases:
1) Burell v Clifford (016) EWHC (Ch)
2) Vidal-Hall, Hann and Bradshaw v GoogleInc. (2016) EWCH 2217 (QB)
3) Gulati v GMC (2001) UKPC 22 (5.4.01)
In each of these cases, there was debate about how to partial out contributing factors to the ‘distress’ experienced and concluded that one overall award for distress was appropriate
.Commentary
It is likely that during the next four years, the frequency of cyber crimes and breach cases will increase.At present, provided that the assessment of the psychological impact on individuals of the index crime or data breach is comprehensively made by the appropriate expert with experience of these types of cases, then whether the type or types of distress are partialled out and differentiated from each other isof a less concern, at this moment of time. However,currently, what is of most concern is to ensure theknock on effects of data breach in terms of serious andsignificant adverse life events such as unemployment,relationship breakdown and relocation pressure areadequately assessed as well as the more obvious clinicalinjuries of depression and generalised anxiety (1,2, 3).
The number of high-profile data breaches in the lastfew years has increased. The highest profile case thisyear being the Facebook and Cambridge Analyticadata breach which affected up to 87 million people.How are psychological damages cases taken into accountwhen there could be millions of people thatcould come forward in some cases due to the natureof the source the breach came from.
How can causation be proven beyond reasonabledoubt that it has had psychological damages to theperson outside of the current context they were in?e.g. the stress of awaiting an asylum application andright to stay? These questions remain for further explorationand analysis.
Authors
Professor Hugh Koch, Dr Alec Laraway, Dr CaraPelser and Dr Sarah Lamswood, Hugh Koch Associates,Cheltenham, Gloucestershire, UK
.References
1. Koch HCH, Midgley S, Riggs E and Adeleye N (2019).Psychological injury, cybercrime and data breach damages.PIBULJ January (in press)
2. Koch HCH (2016) Legal Mind: Contemporary issues inpsychological injury and law. Expert Witness Publishing
3. Koch HCH (2018) From therapist’s chair to courtroom:Understanding tort law psychology. LCB Publishers
This is the 20th in a series of case reports and commentariesfrom Professor Hugh Koch and his colleagues.
Previous commentaries have covered the following: -
• Stretching an expert’s impartiality
• Expert Opinion Change in Joint Statement
.Figure IV.
To convince or deceive? The analysis of reliable andrealistic evidence[
Koch HCH, Mushati D & Francis A, 2019]
This is the twenty-first in a series of Case reports andCommentaries from Dr Koch and colleagues.
Legal Mind Case and Commentary No. 21
Case: Spencer vs. Ashwell Maintenance Ltd(Leicester County Court, 21/2/2019).
This interesting case was reported by two eminent legal authors (G. Exall and B. Hartley), following aLinked In post provided by barrister A. Mckie.
The claimant was injured working on gas installations,falling four foot down a hole, injuring his ankle.This allegation was withdrawn shortly before the defendant’switness gave evidence. The defendant’s case was that the action should be dismissed because of the claimant’s “fundamental dishonesty”.
The defendant relied on surveillance evidence and the claimant’s appearance in filming for a TV programme,showing the claimant undertaking various DIY activities without difficulty.
The judge in this case made several comments about the evidence presented and the style of its presentationas following: -
1. The evidence was characterised by contradictions throughout
2. The evidence was characterised by hostility to the claimant by the Defendant’s representatives and the medical experts
3. Reliance on witnesses who were not present at theinde x incident
4. Much witness evidence (for the Defendant) actually supported the Claimant’s evidence
5. ‘Bad faith’ defendant witness evidence was inaccurateand unreliable
6. Critical of expert medical evidence in that:
a. Erroneous references to another patient’s notesin report
b. Lack of reasoning provided for errors made
c. L ack of rigour in undertaking a proper analysis of material available for report preparation
d. Contradictions in oral evidence
e. Pejorative assessment of opposing expert’sevidence
7. Contradictions in the claimant’s evidence (e.g. surveillanceevidence; details of holidays)
The judge observed that there were objective signs of physical injury and “acceptable explanations” aboul imitations on the claimant’s working abilities.
The Judge concluded as follows:
1. Not a case of fundamental dishonesty
2. Not outright faking of pain but an element of exaggeration and overstatement of his difficulties
3. The claimant genuinely believed himself to be more significantly disabled by his continuing pain than, objectively, was the case. Exaggeration or embellishmen twith mixed motives of attempting to convince or deceive is not fundamental dishonesty
4. Claimant was capable of putting on a show for the medical experts and it was necessary to consider carefully whether the exaggeration represented an attempt to convince or deceive the medical witnesses –he found the former i.e. attempt of convince
5. His conduct does not amount to justifying dismissal of the claim (in accordance with the principles outlines in the Summers v. Fairclough case).
In conclusion, the judge was not satisfied that the grounds were established for striking out the claim pursuant of section 57. He also found that if the claim were dismissed the claimant would suffer substantial injustice.
Commentary
This carefully articulated and thought-through case raises interesting aspects of how to assess the reliabilityof both the claimant and defendant evidence andmotivations.
Unlike other cases (r13. L ondon Olympic Committees v. Sinfield (2017)) discussed in an earlier Legal Mind Case and Commentary (Koch, Bowe, Strachan and Day (2018) where assessed dishonesty lead to the whole claim being struck out, this case involved the judge criticising aspects of both claimant and defendant evidence (inconsistency; questionable motivation)and style (perjorative language).
The judge focused on aspects of conscious exaggeration (for financial gain) versus unconscious magnification (for convincing others of painful/distressinge xperience), the latter being reinforced by a belief that the claimant was not being believed by the defendant.He found, quite correctly, that during the process of litigation this type of unreliability can be common and needs to be logically understood rather than resulting in a rapid erroneous conclusion of deception.
This case and commentary need to be considered within the wider context of reliability, truthfulness and logicality in the current litigation landscape interms of how a case is examined and presented from the start and how it is dealt with by the court.In an excellent paper by Payne J (2019), the definition of fundamental dishonesty was examined in severalcases:
-Howlett v. Penelope Davis
-Ageas Insurance Ltd (2017) EWCA Civ
.-Molodi v. Cambridge Vibration Maintenance Service.EWHC 1288(QB)
-Gosling v. Hailo (29/4/14)
In the third of these cases above, it was generally held that the claimant should not be deprived of damages if there is dishonesty on collateral issues (i.e. minor,self-contained), rather than at the root of the substantial part of the claim or whole of the claim.
It appears that there is a dimension of unreliable evidence which goes from Fraud to Fundamental Dishonesty to Partial Dishonesty to Unconscious Magnification. The former (stage 1) is for financial gain, the latter (stage 4) is to convince and establish experience of pain, distress and reduced ability (seeFigure 1 below).
This implies that each stage, if evidenced, should be treated differently. In each stage however, evidence will, in all probability, be apparent as the case proceeds.There needs, according to Payne, to be some balancing by the court to analyse the reliability and consistency of the evidence put forward. The court,according to Payne, should not immediately support that a claimant is dishonest unless proven otherwise.
The Way Forward
It is encumbent on practitioners and researchers in the legal field of reliability and honesty adjudication to develop “rules” to guide the Court (judiciary; barristers;lawyers and experts) in how to identify unreliability.These rules will encompass: -
1. Claimant’s knowledge or belief as to the facts
2. Levels of exaggeration when presenting information(medical or otherwise)
3. Attitude and style of action by the defendant which adversely affects claimant motivation.
Current field research is being carried out by the first author to develop and articulate more fully the four stages on this unreliability discussion, and include clear examples of what these stages actually represent behaviourally
This will help lawyers and experts alike both have a better understanding of how and why these stages differ, and how experts can assess and handle these different presentations.
Figure I. Dimension of Evidential Reliability
Authors
Prof. Hugh Koch, Dr David Mushati and Dr Ashley Francis
Professor Koch is visiting professor in Law and Psychology at Birmingham City University(www.cv.hughkoch.com).
References
Case: Spencer Smith v. Ashwell Maintenance Ltd(Leicester County Court, 21/1/19)
Exall G (2019) Civil Litigation Brief.Wordpress.com/2019/02/16
Koch HCH (2018) From the Therapist’s Chair to Courtroom:The Psychology of Tort Law. LCB Publishing.Manchester
Koch (2016) Legal Mind: Contemporary Issues in PsychologicalInjury and Law. Expert Witness Publications.Manchester
Koch HCH, Bowe J, Strachan R and Day S (2018). FundamentalDishonesty: Honest Claimants have nothing toworry about. Legal Mind Case and Commentary No. 18.PIBULJ. 3/18
Payne J (2019) Truth or Lies. PI Focus. 4/19
Previous commentaries have covered
:HCH Koch, Browne G and Medley A (2018). ExpertOpinion Change in Joint Statements. Legal MindCase No. 19. PIBULJ. 10/18
Koch HCH, Laraway A, Pelser C and Lamswood S(2018). Assessing Distress Post-Cyber Breaches. LegalMind Case No. 20. PIBULJ. 10/18
In the examples above, it can be clearly seen how the initial description and summary of the case with judgment from the Judge leads on to a psychological commentary concerning relevant psychological thinking.Reading, analysing and understanding legal reports is a crucial skill for legal professionals.
In our opinion, there are three current areas of contemporary importance in legal case report analysis and interpretation: Expert evidence, evidential reliability and psychological injury. See Fig. V below.
Fig. V Areas of Contemporary Importance in CaseAnalysis
Expert Evidence
Expert Evidence illustrated in cases in BAILII that have implications for Part 35-related issues for expertsi nclude:
• Duty to restrict expert evidence
• General requirement for expert evidence to be given in a written report
• Written questions to experts
• Instruction to a single joint expert
• Contents of report
Typical psychological issues are shown in Figure VITypical psychological issues are shown in Figure VI below.
Fig VI.Evidential Reliability
Case Report analysis could also provide information and court experience of issues such as: -
• Veracity
• Causation and material contribution
• Partial dishonesty
• Total dishonesty
• Specific or cumulative threshold
• Conscious or unconscious reliability
• Estimating level of ‘abuse of process’
• Clarity of allegations of fraud
• Levels of inference of dishonesty
• Inconsistency of dishonesty
• Truthfulness
• Accuracy
• Precision and logicality
• Transparency
• Accountability and Duty
Typical psychological issues are shown in Figure VII below.
Fig. VII
Psychological Injury
Case law should address issues pertaining to Psychological Injury and Law:
• Causation
• Eggshell skull rule
• Duty of care
• Proximity Test (time, space, relationship)
• Presence/absence of physical injury
• Pre-existing
• Novus actus or continuous
• Remoteness of damage
• Mitigation of loss
Typical psychological issues are shown in Figure VIII below.
Fig. VIII
• Causation
• Eggshell skull rule
• Duty of care
• Proximity Test (time, space, relationship)
• Presence/absence of physical injury
• Pre-existing
• Novus actus or continuous
• Remoteness of damage
• Mitigation of loss
• Diagnosis and classification
• Diagnosis and classification
• Relationships between events
• Accuracy of diagnosis
• Causal analysis
Robust opinions need robust reasoning
In the field of Case Report analysis, expert opinion can be operationalised in terms of a number of key postulates called Koch’s medico-legal postulates.These relate to the medico-legal contexts of injury analysis, expert evidence and evidential reliability.Below, in figure IX, is the first ten of these postulates(Koch, 2015).
Figure IX.
Koch’s medico-legal postulates
I. A robust opinion should address diagnosis, causation and attribution, duration and prognosis
.II. A robust opinion will include more than one type of evidence. An opinion based on claimant self-reportonly may still be valid but is a ‘weak’ opinion in medico legal terms.
III. The classification/diagnostic categories given in Diagnostic and Statistical Manual of Mental HealthDisorders (DSM) and the International Classification of Diseases are a part of a formulation of expert’s opinion – this systematic check of relevant criteria must be balanced by wider clinic judgement and contemporaneousrecords, if available.
IV. The expert’s mental state examination should be consistent with the claimant’s description of currently active symptoms – a clear discrepancy reduces the robustness/strength of an opinion.
V. Wherever possible, the claimant’s computerised GP attendance records should be made available to the expert. The subsequent analysis (i.e. evidence of or lack of corroborative data) will increase the strength or reliability of the opinion given.
VI. A therapist who has already treated a claimant cannot provide an impartial or independent expert opinion on issues of diagnosis, causation, or prognosis for that claimant.
VII. A robust opinion should include a history of factors which could, on the balance of probabilities, affect a specific index event reaction.
VIII. A robust opinion should give particular emphasisto the 12-month period prior to and post the index event, but not to the exclusion of earlier or later history.
IX. In any interview where the claimant displays a high level of affect, a differential opinion should be made between understandable presentation at interview when recalling a distressing or frustrating event involving perceived injustice and clinically significant adjustments problems which might require intervention.
X. An expert opinion should incrementally increase in robustness over time with access to more data and discussion with other relevant professionals, both legal and clinical.
It is our intention to develop this approach to case law analysis and understanding over the next few years. This will be carried out via a closer inspection of recent case law and contribute to an expanded application of psychological theory and practice to it. By doing this, we aim to develop further a wider understanding of the interface and overlay between law and psychology, and in particular explore the logicality pertaining to expert evidence, evidential reliability and psychological injury (as it relates to civil claims).
References
Exall G (2019) Civil Litigation Brief.Wordpress.com/2019/02/16
Koch H and Kevan T. Psychological injuries. XPL Press.St Albans. 2005.
Koch H, Browne G and Medley A (2018). Expert Opinion Change in Joint Statement. Legal Mind Case and Commentary No. 19. Personal Injury Brief Update LawJournal, 2018.
Koch HCH (1999) RV Turner. Somnambulism. APIL 9,3, 99.
Koch HCH (2000) Chronic Pain Case Report. Doves v.Bailey. PMILL, 18-19.
Koch HCH (2015) Evidential Reliability: a practical guide for lawyers. Special Report. Solicitors Journal
Koch HCH (2016) (a) Legal Mind: Contemporary Issues in Psychological Injury & Law. Expert Witness Publications,Manchester.
Koch HCH (2016) (b) Medico-legal case commentary: interface between clinical opinion and legal case reporting in personal injury litigation. Mathews Open Access Journal.April 2016.
Koch HCH (2018) From Therapist’s Chair to Courtroom:Understanding Tort Law Psychology. LCB. Manchester.
Koch HCH (2019 (a)) Legal Mind Case and Commentary.LCB Publishing Manchester
Koch HCH (2019 (b)) In case you wondered – how case law informs practice. Expert Witness Journal SingaporeSpecial Edition. September.
Koch HCH, Bowe J, Strachan R and Day S (2018). Fundamental Dishonesty: Honest Claimants have nothing to worry about. Legal Mind Case and Commentary No. 18.PIBULJ. 3/18
Koch HCH, Laraway A, Pelser C and Lamswood S(2018). Assessing distress post-cyber breaches. Legal Mind Case and Commentary No. 20. Personal Injury Brief UpdateLaw Journal, 2018.
Koch HCH, Mushati D and Francis A (2019). To convince or deceive? The analysis of reliable and realistic evidence.Legal Mind Case and Commentary No. 21. Personal InjuryBrief Update Law Journal, 2019.
Payne J (2019) Truth or Lies. PI Focus. 4/19.PIBVLJ (2016 -2019) Legal Mind Care and Commentaries1-21. UK.
Wiki How (2019). How to research Care Law www.wikihow.com.
Wikipedia (2016) Common Law (English).www.wikipedia.org
.Cases
Bishop v. Doves PLC 2000
Burell v. Clifford (016) EWHC (Ch)Gulati v GMC (2001) UKPC 22 (5.4.01)
R.V. Turner (Koch, 1999)
Vidal-Hall, Hann and Bradshaw v Google Inc. (2016)EWCH 2217 (QB)
