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Expert Evidence
On matters outside the learning of the court
P S Ranjan & Co
Trial judge applied his own knowledge of hydraulic braking systems in motor vehicles Decision set aside on appeal
Bellamy J
It is an elementary proposition of law, too frequently overlooked with resulting confusion and possible injustice, that cases must be decided on the evidence and that evidence must be such as is relevant and admissible under the Evidence Ordinance, that is, it must be either from admitted documents or the statements of witnesses or be something of which the court can take judicial notice.
Cont.
The mechanical working of the braking system of a motor vehicle, albeit the standard hydraulic brake, and how such a braking system operates or fails to operate under normal conditions are not matters of which the court can take judicial notice under the Evidence Ordinance. These are matters which must be proved as facts.
Examples
Personal injury, including medical malpractice, claims Criminal cases Employment cases Matrimonial, child custody, and child care proceedings Authorisation or withdrawal of medical treatment
Cont.
Whether there was a breach of the duty of care Cause of death or injury Whether a person was of unsound mind Age of accused person or victim of crime Needs of child Fitness for employment
The High Court A coroner (in Malaysia, actually a Magistrate conducting an inquiry into a sudden or suspicious death) A court martial A commission of inquiry The Industrial Court
Differences often exist as regards such matters as jurisdiction, rules of procedure and evidence between one court or tribunal and another
Mode of presentation and the substances of evidence, including expert evidence, would depend on such matters
An early question
Is expert evidence necessary?
Choosing an expert
Experts
The Need for Credibility
Credibility
Instructing an expert
The facts, including relevant witness statements and documents The charge or pleadings The questions to be answered by the expert Advice on the relevant law, including the legal principles applicable to the issues, and the relevant rules of evidence and procedure
Lord Wilberforce in Whitehouse v Jordan [1981]1 WLR 246, at pp 256 & 257
I have to say I feel some concern as to the manner in which part of the expert evidence called for the plaintiff came to be organised.While some degree of consultation between experts and legal advisers is entirely proper, it (is) necessary that 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. To the extent that it is not, the evidence is likely to be not only incorrect but self-defeating.
Andrew Bartlett QC in Counsel, The Journal Of the Bar of England and Wales, October 1993
Lord Wilberforces obiter dictum is incautious.
Andrew Bartlett
In practice, it is impossible to comply with and at the same time properly prepare a case for trial. It is the duty of the lawyers conducting litigation to ensure that the experts reports are suitable both in form and in content for the needs of the litigation. To the extent that a report is not influenced in form and content by the needs of the litigation, it is likely to hinder the due administration of justice and to result in costs being wasted.
Powers and Harris, in para.10.10 An expert may be asked to amend any preliminary report in the light of the issues which it emerges are central to the case and to make other adjustments to his written opinion so as to reflect more closely the weight and tenor of the opinion that he has given in conference. It is commonly the case that a view formed in a first stage reportrequires extensive revision if not an about-turn on the opinion expressed once the expert has considered the matter more fully with the client, other experts and the lawyers.
Where there is compulsory disclosure and exchange between the parties of experts reports before trial
All the more reason that there must be adequate consultation between experts and lawyers before a report is finalised for disclosure and exchange
C.V. Relevant documentary evidence Notes of proceedings Relevant literature Anatomical models and drawings, atlases, etc. Instruments and equipment
Expert sitting in and/or reading notes of proceedings before giving his evidence
Conversely, an experts opinion may be challenged by attacking the factual foundation for the opinion
Rejection of Expert Evidence by the Court must be based on sound grounds - see
Saeng-Un Udom Dr Lo Sook Ling Adela v Au Mei Yin Christina [2002] 1 SLR 408, C.A.
But what about the part played by litigants, lawyers and judges?
Thank You