Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 38
O’Connell v MOD: an expert’s
approach to evidence and honesty
by Emma Hague, Clyde & Co LLP
The recent High Court decision in O’Connell v
Ministry of Defence [2025] EWHC 2301 (KB) is one
that deserves the attention of both personal injury
lawyers and medico-legal experts alike.
seen using her left arm freely and driving a manual
car, contradicting her earlier claims. Further
evidence revealed that she had attempted to mislead
the court, including presenting false witness
evidence and concealing the replacement of her car.
Not only does it involve the Animals Act 1971, but it
also delivers a clear reminder of how expert evidence
can in昀氀uence 昀椀ndings of fundamental dishonesty.
The judgment - particularly paragraphs 118 to 130 provides valuable insight into how the court assesses
expert contributions when honesty is in question.
Expert evidence - speaking (or staying
silent) matters
All medical experts were invited to comment on the
surveillance footage.
•
The background
The claimant, a gunner in the Royal Horse Artillery,
brought claims in both negligence and under the
Animals Act 1971 after being thrown from a horse
during the course of her employment. She sustained
a serious injury to her left shoulder, speci昀椀cally
a signi昀椀cantly displaced clavicle fracture, which
required open reduction and internal 昀椀xation.
•
The defendant’s orthopaedic expert, Mr Smith,
concluded that the footage showed voluntary
non-use of the arm and that the claimant had
full, normal function.
Both orthopaedic experts agreed that there was
no orthopaedic explanation for her reported
disability.
Dr McDowell maintained that the footage con昀椀rmed
his earlier opinion – that her reported limitations
were inconsistent with objective 昀椀ndings. While
acknowledging that veracity is ultimately a matter
for the court, he provided a clear, well-reasoned
view to assist the judge.
Despite surgical success, she continued to report
severe pain, numbness, and restricted movement,
ultimately claiming substantial damages for
ongoing disability. Her case included assertions of
being 昀椀t for part-time work only, a need for care and
assistance, and even the cost of an automatic vehicle
due to her alleged inability to use her left arm.
The defendant’s case and
surveillance evidence
By contrast, the claimant’s pain expert, Professor
Lalkhen, adjusted his diagnosis after viewing the
footage but did not comment on the claimant’s
honesty. His second report notably lacked any
discussion of “issues of veracity” or “malingering
symptoms”, something the court explicitly noted.
The defence challenged the extent of the claimant’s
reported limitations.
The 昀椀nding
The court found the claimant to be fundamentally
dishonest. In doing so, the judge observed that
silence from an expert can itself be telling – an
inference could be drawn from Professor Lalkhen’s
decision not to engage with the issue of veracity.
Pain expert Dr McDowell observed that neither
he nor the orthopaedic surgeons could identify a
clinical explanation for her ongoing symptoms.
Importantly, he noted an absence of muscle wasting,
which would have been expected if the claimant
truly avoided using her arm.
By contrast, Dr McDowell was praised for the clarity
and balance of his assistance. As the court stated:
In light of these inconsistencies, the defendant
obtained surveillance footage. The claimant was
EXPERT WITNESS JOURNAL
“It was put to Dr McDowell in cross-examination that
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DECEMBER/JANUARY 2025-2026
