The use and potential problems of neuropsychological evidence in Australian tort litigation

Australian lawyers often request psychologists assess plaintiffs for brain injury tort litigation, but it is unknown why they do this and how they use the expert neuropsychological report. It is crucial to know this because international authors argue that the way lawyers use and manage the neuropsychological evidence they commission may introduce unconscious bias into psychologists’ expert opinions. Unconscious bias within such evidence jeopardises the procedural justice of Australian brain injury tort litigation. Therefore, the present study explored how Australian tort litigation lawyers use expert neuropsychological evidence and how plaintiff lawyers advise and prepare their clients for neuropsychological assessments. In Stage One, 10 Western Australian lawyers involved in neuropsychological tort litigation were interviewed and reported that expert neuropsychological evidence primarily assists them to describe a plaintiff’s injury, and to quantify the plaintiff’s level of impairment as caused by the injury. The lawyers also reported that they provide plaintiffs with information about brain injury symptoms and details about the neuropsychological assessment. Stage Two explored whether the Stage One themes were germane to lawyers from other states. Seventy-seven Australian lawyers completed an anonymous web-based survey constructed from the Stage One themes and limited international research literature. The results confirmed the themes applied to lawyers in all Australian legal jurisdictions. The findings suggest that the way Australian lawyers use expert neuropsychological evidence and prepare their clients for neuropsychological assessments may engender unconscious bias within the psychologist’s evidence in favour of the client. The implications of the study’s findings are discussed, emphasising that Australian psychologists must modify their practices to ensure their expert neuropsychological evidence is procedurally fair.

Grantor dc:publisher

Edith Cowan University, Research Online, Perth, Western Australia

Year dc:date

2014

Author dc:creator

• Fagence, Anna

• Expert evidence
• Neuropsychological
• Neuropsychology
• Forensic
• Expert witness
• Tort
• Civil law
• Civil litigation
• Bias
• Lawyer
• Malingering
• Psychologist
• Psychology
• Assessment
• Civil justice
• Torts

Repository record dc:identifier

https://ro.ecu.edu.au/theses/1009

OAI identifier oai:identifier

oai:ro.ecu.edu.au:theses-2010