This case, the facts of which centre around a tragic and fatal road accident in July 2018, emphasizes the importance of expert witnesses assessing all the facts and evidence around the subject on which they are giving an opinion, and not just those facts which support their own theory on the matter.
The Claimant (R) was riding pillion on a Kawasaki motorbike being driven by Peter Howard (P). The bike was involved in a head-on collision with a Vauxhall Vectra. R was seriously injured and P was killed. The Claimant, R, was blameless but the two drivers involved blamed each other. They both alleged that the other party was on the wrong side of the road at the time of the collision. R sued both the estate of the motorcyclist, P, as First Defendant and the driver of the vehicle as Second Defendant.The case came before His Honour Judge Sephton KC in the High Court and he heard evidence of fact from several witnesses. These were other drivers who were travelling south and north on the A15 at the time of the accident. As none of the witnesses of fact were able to state exactly where the vehicles were situated at the moment of impact, not having actually seen it, the judge had to turn to expert evidence for guidance in determining the relative positioning of the vehicles to ascertain liability.
If you do not expect the unexpected you will not find it, for it is not to be reached by search or trial.”
Heraclitus
The Judge heard from three accident reconstruction experts who were instructed by each of the three parties to the case. He was very critical of the expert witness of the Second Defendant. First because of the nature of his evidence which was “obviously incorrect” and “palpably false” and secondly because of his conduct as an expert witness. This witness appeared to be unaware of his duty to “fairly deal with all the evidence” and not just that evidence which supported his own hypothesis. By way of example, whilst his evidence relied upon marks on the upright part of a Recycling sign, he omitted to draw the Court’s attention to the fact that there were other marks on the upright which were inconsistent with his own argument. When his theory was discredited in cross- examination, he immediately came up with another theory which the Judge considered must have been made up on the spot as it had never been mentioned previously. This expert advanced propositions of physics which were obviously incorrect in trying to support his theory. An expert’s duty is to consider and deal with ALL the evidence available to him in accordance with Court Practice Rules Part 35.
By contrast, the Judge was impressed by the evidence offered by the other two experts. The Claimant’s expert “carefully weighed all the evidence and had presented a persuasive account. The First Defendant’s expert “carefully analysed the evidence and presented a fair…convincing account of the collision in his written and oral evidence. In giving his evidence, he was firm but not inflexible. He was particularly impressed by the First Defendant’s taking of a laser scan of the scene which all the experts recognized was likely to prove the most accurate representation of the accident site.
Attitude is a little thing that makes a big difference.”
Winston Churchill
The Judge’s decision was that the motorcyclist was on the correct side of the road when the collision occurred. He accepted that he was slightly over the speed limit but that this did not indicate a breach of duty or causation. He dismissed the claim against the First Defendant whilst admitting that his conclusions about liability were largely informed by the evidence of the First Defendant’s expert. The Claimant’s claim against the Second Defendant however succeeded.
Link: Rowbottom v The Estate of Peter Howard, Deceased & Anor [2023] EWHC 931 (KB) (25 April 2023)
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