ACCforum: Gmc V Meadow & A-g [2006] Ewca Civ 1390 - ACCforum

Jump to content

Page 1 of 1
  • You cannot start a new topic
  • You cannot reply to this topic

Gmc V Meadow & A-g [2006] Ewca Civ 1390 Role of expert witnesses

#1 User is offline   MG 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 503
  • Joined: 05-February 04

Posted 31 October 2006 - 10:53 AM

GMC v Meadow & A-G [2006] EWCA Civ 1390
26 October 2006
Sir Anthony Clarke MR
20. The role and responsibilities of the expert witness
21. In paragraph 20 of his judgment the judge quoted what are now well-known principles identified by Cresswell J in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68, 81-82. Those principles were approved by Otton LJ in Stanton v Callaghan and are now accepted and understood throughout what may be called the expert witness community. Cresswell J put them thus:
"The duties and responsibilities of expert witnesses in civil cases include the following: 1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan [1981] 1 WLR 246, 256, per Lord Wilberforce). 2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v Commercial Union Assurance Co plc [1987] 1 Lloyd's Rep 379, 386, per Garland J and In re J [1990] FCR 193, per Cazalet J). An expert witness in the High Court should never assume the role of an advocate. 3. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (In re J). 4. An expert witness should make it clear when a particular question or issue falls outside his expertise. 5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (In re J). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report (Derby & Co Ltd v Weldon The Times, 9 November 1990, per Staughton LJ). 6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court. 7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports (see 15.5 of the Guide to Commercial Court Practice)."
The judge added at the end of that quotation that in addition to those considerations, the expert witness will know that he must give evidence honestly and in good faith and must not deliberately mislead the court. He will not expect to receive protection if he is dishonest or malicious or deliberately misleading.
Auld LJ:
206. In criminal or civil proceedings, it is for the parties' legal representatives and ultimately the judge, to identify before and at trial what evidence, lay or expert, is admissible and what is not. In the case of expert evidence, involving, as it often does, opinion evidence as to causation, it is critical that the legal representatives of the party proposing to rely on such evidence should ensure that the witness's written and oral evidence is confined to his expertise and is relevant and admissible to the important issues in the case on which he has been asked to assist. Equally, it is incumbent on the legal representatives on the other side not to encourage, in the form of cross-examination or otherwise, an expert to give opinion evidence which is irrelevant to those issues and/or outside his expertise, and, therefore, inadmissible. And, throughout, it is for the judge, as the final arbiter of relevance and admissibility, to ensure that an expert is assisted or encouraged to keep within the limits of his expertise and does so relevantly to the issues in the case on which he is there to assist.
207. All of this is not to absolve the expert of responsibility from professional or forensic impropriety in the presentation and form of his evidence. As a medical expert, he should know his limits. In most instances, his knowledge and instincts in his particular field should alert him to confining his evidence to those limits and the true issues identified for the court by the legal representatives of the parties. However, the forensic process, in preparation and in action at trial, is not always as ordered and considered as it should be. The issues may not always be sufficiently carefully defined, or the evidence, lay and expert, adequately prepared and tailored in advance, to deal with them. The trial process itself can be unpredictable in direction. From time to time the questioners and the questioned can lose sight of the essential issues in exploring or "trying out for size" areas of evidence that, on careful examination, have no bearing on the case. The line and pace of the questioning may leave little time for calm analysis by an expert witness called to deal with a variety of issues on one or more of which he is required to express an opinion that is, or he knows is, to be, challenged. The same may be said for those questioning him and, indeed for the Judge who is trying to keep up with the evidence as it is given. In that, sometimes, fevered process, mistakes can be made, ill-considered assertions volunteered or analogies drawn by the most seasoned court performers, whatever their role
0

#2 User is offline   Alan Thomas 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 10813
  • Joined: 10-June 06

Posted 31 October 2006 - 12:39 PM

Thank you for that MG I will be using that material in a District Court Hearing in the not too distant future. The ACC had relied upon assumptions made by various members of the public who were casual observers. For example one observer thought I was working at a computer while another observer states that I was mainly reading material from the Internet, learning how to use various programs and other such activity on the computer that has nothing to do with work and also advised that I was not able to type and therefore could not be productive.

Not only did the ACC not seek expert advice as to work capacity they were selective with their witnesses so as to make a biased presentation. They also continue to fail to provide the notes of the witnesses that said exactly the opposite to their selected witnesses.

For this reason expert witnesses are important issue as the ACC has a historical track record of relying upon nonexperts and selective information when claiming to have information to form the basis of decisions that involved a reduction of their liabilities.

MG I would be grateful if you could post more information of this type.
0

#3 User is offline   MG 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 503
  • Joined: 05-February 04

Posted 31 October 2006 - 01:34 PM

Unfortunately (or fortunately for ACC) I will be taking a break from this site for a while as I'm branching off into a new chapter of my life. I hope to keep an eye on ACC law, and post on interesting legal and political matters next year, but I won't be doing much advocacy work in future. I'll post again on Friday (my last day here at work).
0

#4 User is offline   Alan Thomas 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 10813
  • Joined: 10-June 06

Posted 31 October 2006 - 03:54 PM

MG
I'm sure I express the thoughts of many of us on the site our feelings of sorry to see you go. Your contributions have been of immense value to many. I trust that you will look in on us from time to time.
0

#5 User is offline   greg 

  • Advanced Member
  • PipPipPip
  • Group: Members
  • Posts: 1159
  • Joined: 15-September 03

Posted 02 November 2006 - 11:28 AM

A big [size=7]THANKS
0

Share this topic:


Page 1 of 1
  • You cannot start a new topic
  • You cannot reply to this topic

1 User(s) are reading this topic
0 members, 1 guests, 0 anonymous users