Supreme Court provides further Guidance for Expert Witnesses

Posted on 30/03/2016 · Posted in Expert Information

A Slippery Slope that has led to additional requirements in the Judgement

The role of an expert witness is a crucial one, as he or she can play a vital part in court proceedings and trial outcomes. Acting as an expert witness involves consideration of all the evidence presented at trial and then advising the court on the areas where liability rests. An expert witness may draw on his or her own experience or expertise, or rely on expert material or research to support their evidence but either way, an expert witness’ testimony can change the shape of a trial, and crucially, the outcome.

Under the 1998 Rules of Civil Procedure (CPR), an expert witness must be independent and must understand his or her duty to the court, but other parameters are subject to debate and evolution.

Perhaps surprisingly, it is the recent case involving a woman who fell on an icy Scottish path (Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland) [2016] UKSC 6) in 2010 that has once again brought into the spotlight the role and scope of the expert witness’ involvement in court proceedings, and resulted in the Supreme Court giving guidance around when expert evidence should be allowed in a civil court.

Observe, record, tabulate, communicate. Use your five senses. Learn to see, learn to hear, learn to feel, learn to smell, and know that by practice alone you can become expert”
William Osler

The case involved a home carer in Glasgow who, on the way to visiting an elderly ill client, slipped and fell to the ground on an icy footpath, injuring her wrist. She claimed she had not received adequate footwear from her employer in order to ensure her safety. The key to the case was the expert witness (with a background in engineering and health and safety, and experience in risk assessment) who concluded that the carer should have been provided with anti-slip footwear attachments by her employer.

While the Lord Ordinary accepted this expert evidence and concluded that the employers were negligent in failing to provide the appellant with such attachments, there was challenge from the Extra Division surrounding the ruling and evidence given by the expert witness, which brought the role and authority of an expert witness into the spotlight.

In summary, the judges highlighted the need for expert evidence to be regulated, and set out guidance over a few key areas:

  1. The admissibility of evidence – this comes down to whether an expert witness’ own personal opinion is admissible, e.g. in the case discussed whether the expert witness’ opinion on whether the appellant would have been less likely to fall if she had been provided with anti-slip attachments for her shoes was admissible. Four considerations should be taken into account here:
    • whether the proposed skilled evidence will assist the court in its task;
    • whether the witness has the necessary knowledge and experience;
    • whether the witness is impartial in his or her presentation and assessment of the evidence; and
    • whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.

    Although the court will decide whether the expert’s evidence is admissible, it should also be the expert witness’ responsibility to ensure that he or she is confident in all four areas.

  2. The responsibility of a party’s legal team to make sure that the expert keeps to his or her role of giving the court useful information – An expert witness must demonstrate that he or she has the relevant factual knowledge and expertise, rather than being based purely on personal experience or observation,
  3. The court’s policing of the performance of the expert’s duties – The court may exclude an expert’s evidence as inadmissible if it is shown not to be independent or impartial,
  4. Economy in litigation – Litigation is often an expensive route to dispute resolution, so the courts can seek to keep expenses to a minimum, including limiting the use of potentially costly expert evidence,

The role of the expert witness is such a crucial one that it will continue to be the subject of debate and discussion from smaller civil proceedings to their larger criminal equivalents, and will no doubt evolve accordingly.

For full details of the case and resulting judgement, see

Link: Kennedy (Appellant) v Cordia (Services) LLP (Respondent)(Scotland)

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Expert Evidence is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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