Related Sector: Expert Witness
If you attended our 2022 Expert Witness Conference on Friday 4 November, you will have heard from some of our esteemed subject matter experts on the various learnings on conduct, duty, and procedure that you as expert witnesses can garner from case law.
Our content development team are regularly scanning and reporting on relevant judgments and any other news stories that might assist you in your practice. And the key themes/principles form part of our comprehensive two-day Civil Law and Procedure courses.
Since the courts reopened after the summer break, there have been an array of cases involving experts and a handful where duty, conduct and/or procedure have been referred to directly in the judgment. We’ve put together a mini case law update, providing a summary of these cases and the key principles that you should be aware of for your practice.
Eaton v Auto-Cycle Union Ltd & Ors  EWHC 2642 (KB)
The claimant suffered an accident in October 2017 during a motorcycle race, which caused him serious injury. He brought proceedings against several defendants involved in the track and organisation of the motorcycle race, alleging that the injury could have been avoided if straw bales had been placed on the corner.
For context, a decision had been made in 2016 to ban straw bales from racetracks from 2018. There were, however, ‘’loose’’ tyres on the corner to cushion incidents.
The judge found that there was no duty to provide straw bales, so the claimant’s claim failed.
The claimant’s expert described himself as a ‘’rider, driver, team manager, owner, and commentator in many fields of motor sport’’. Whereas the defendants’ expert was a qualified engineer with experience in accident reconstruction and the examination of safety fence systems following collision.
The disparity in their experience became evident during the case, with Mr Justice Turner finding that the claimant’s expert ‘’lacked the necessary expertise to substantiate and justify his conclusions’’.
The claimant’s case was founded upon the assertion that the straw bales should never have been removed because they were safer than tyre barriers. The defendant’s expert countered this assertion with laboratory tests, which demonstrated that straw bales are significantly stiffer than a tyre ball. However, the claimant’s expert rebuttal was ‘’entirely devoid of scientific foundation or logical analysis.’’
This case demonstrates how courts are likely to prioritise scientific, empirical expert evidence over anecdotal expert evidence. But perhaps more crucially it emphasises the need for experts to ensure that they possess the requisite skills, qualifications, and experience to provide an opinion on a case before accepting instructions.
Gulf View Medical Centre Ltd v Tesheira  UKPC 38
This is an appeal of a 2005 negligence claim issued in the High Court of Trinidad and Tobago.
The original claim was made by a widow (and executrix) on behalf of her late husband’s estate after he died following an operation.
In March 2015 Kokaram J, found negligence on the part of two of the defendants, the Gulf View Medical Centre (GVMC) and the deceased’s anaesthetist. The claim against the third defendant (the deceased’s surgeon) was settled out of court.
Both the GVMC and the deceased’s anaesthetist appealed to the Court of Appeal, but this appeal was dismissed (although a number of findings were reversed).
The appellants were granted conditional leave to appeal to the Judicial Committee in December 2017 and final leave in June 2018.
All seven grounds of appeal were dismissed by the Judicial Committee.
During the first instance trial, the evidence given by the claimant’s two experts comprised the entirety of the medical evidence before the judge.
However, the defendants raised several ‘’significant problems’’ with the expert evidence, such as:
- The experts had been approached directly by the claimant rather than through her lawyers.
- Neither expert had reviewed the deceased’s pre-2004 medical records.
- The experts sent their reports to other experts for comments before they had been finalised.
- The experts witness statements, which were supplementary to their medical reports had been prepared in conjunction with the claimant’s lawyers.
- Neither of the experts had any knowledge of the Bolam test for medical negligence at the time of writing their reports.
These criticisms were subsequently dismissed by the trial judge. For example, he stated that both experts “sought to provide independent assistance to the court by way of an objective unbiased opinion” and that they held “no brief” for the claimant with whom they had “no personal relationship.” In addition, he was satisfied that the witness statements merely elaborated on what was contained in the reports. There was nothing on the face of it objectionable to the experts being assisted by an attorney in the preparation of their witness statements.
The judge went on to state that it was for him to determine what weight should to be attached to the experts’ reports - taking into consideration the objections made by the appellants versus the ‘’cogency and relevance’’ of the reports. Having conducted this analysis, he accepted the evidence.
The Judicial Committee observed all the ‘’significant problems’’ presented by the defendants but found no merit in this challenge. Regarding the Bolam test criticism, they observed that the experts are medical experts and not legal experts. Regarding all the other criticisms, they were satisfied that the trial judge gave them proper consideration and weight. Furthermore, he had the opportunity to assess the experts as they were challenged by rigorous cross examination that their evidence was tainted.
This case reiterates the role of an expert in a case, such as the type of conduct/communication permitted by an expert but also what is not expected of them (i.e., certain legal knowledge).
University of Manchester v John McAslan and Partners Ltd  EWHC 2750 (TCC)
This was a breach of contract claim against several construction companies.
The claimant had obtained and disclosed reports from three experts, which addressed alleged defects in the building works carried out by the defendants.
The claimant then decided that they no longer wished to call evidence from those experts. So, lodged an application under CPR 35.4(1) seeking permission to adduce expert evidence from another expert.
This application was challenged by the defendants who stated that this new expert’s view was more favourable to the claimant than the original experts, so their wish to replace the original evidence amounted to “expert shopping”. They submitted that the application should only be granted if the claimant discloses 1) any report, letter, email, note or other document produced by G, C and CB, other than the reports already provided, in which they expressed opinions on the remedial works; and (2) any attendance notes or other documents produced by the claimant's solicitors evidencing the original experts' opinions on the remedial work.
The application was granted by the court.
The court took into consideration several principles, including that:
- The court would usually permit a party to rely on a replacement expert only on condition that the first expert’s report was disclosed.
- The court would require strong evidence of expert shopping before requiring a party to disclose documents other than the report of a previous expert (such as attendance notes and memoranda made by a party’s solicitor of their discussions with that expert).
- Where a party sought to change its expert, the court could require disclosure of the first expert’s report even if it would otherwise be privileged.
While this case does not report on expert duty or conduct, it serves as a more informative piece, illustrating the circumstances in which a party can replace its expert and what this is likely to mean for the original expert report (and indeed and other documents highlighting communication between the original expert and the instructing solicitors).
Author: Meera Shah - Content Manager
This article was first published on 28 November 2022