688

Admissibility of Opinion Evidence*

the existence of a distinction between fact and
opinion has been doubted. The distinction, as-
suming it to exist, has proved difficult to draw,
and nas been tne
J. J. DOYLE Q.C. subject of recent judicial
o *· ·. ^ ,* r, .4. * . ,· consideration. 3
Solicitor General for South Australia
___ One cannot help being cautious in approach-
ing a rule of evidence the subject of so much
recent comment yet subject to uncertainty as to
Abstract ^ 0 - I 1 ^8 existence and subject-matter.
The law relating to the admissibility of opinion The rules and case-law relating to the admissi-
evidence, and particularly expert opinion evidence, b i l i t o f o p i n i o n evidence, and expert evidence
continues to be expressed as an exclusionary rule . ¿arúcuiaTi h a v e been closely examined i n
subject to exceptions. Recent writings have doubted tf s*
the rule and the distinction between fact and opinion. r e c e n i m e ·
The rule and the exceptions are considered in terms of I do not propose to cover the same ground i n
their efficacy in the trial process. It is suggested that any detail. A summary of the relevant principles
the law is, by and large, sensibly based. The real should suffice. M y object is the limited one of
problem lies in testing, assessing and evaluating such providing a framework w i t h i n w h i c h the cross-
evidence once admitted. examination of experts and the assessment and
use to be made of their evidence can be con-
Background sidered.
It is said that as a general rule evidence . T h f e s f e i ? s t o . b e no widespread call for a
consisting of an opinion is not admissible. Early significant relaxation of the rules relating to the
¿.u \ c -A χ A L admissibility of opinion evidence. Nor, I think,
writers on the law of evidence asserted as much . t .h e r e a s t r. n c a
1S
r Iu 1
in no uncertain terms. In his Digest Of The Law , ° S ^ . / o r expressing the rules
Of Evidence: Sir James Fitzjames Stephen relating to admissibility more strictly. When
stated· examined, they seem reasonable in terms ot
their effect. The controls which they impose
"The fact that any person is of opinion that a generally make sense. Nor does the question of
fact in issue, or relevant or deemed to be admissibility in practice give rise to too many
relevant to the issue, does or does not exist is p r o b l e m s . A clear and concise statement of the
deemed to be irrelevant to the existence of r u l e s is
difficult, but by and large judges and
such fact, except in the cases specified in this c o u n s e i are able to apply them satisfactorily,
chapter."
There followed six articles comprising the ex­
ceptions to this rule. Apart from expert opinion, The Use of Expert Evidence
the exceptions are of limited scope. More recent
T h e
authorities support the continued existence of problem lies much more in the area of the
the rule, but indicate that there are significant attitude to, and use made of, opinion evidence,
exceptions to it. particularly when admitted as expert opinion.
However, a reading of the burgeoning writing The cases and textbooks abound in
on the topic fills one with doubt. The rule disparaging and cautionary remarks about ex-
excluding opinion evidence, it is suggested, may pert opinion evidence. One of the standard texts
be a rule that does not exist. 2 Worse than that, of the last century was A Treatise on the Law of

* Paper presented at 24th Australian Legal Convention,

Perth, 1987. * R. v . Perry (No. 4) (1982) 28 S.A.S.R. 119.
1
(9th ed., 1914), art. 48. «See Cross On Evidence (3rd Aust. ed.), Ch. 15;
2
See Report No. 26 of the Law Reform Commission Gillies, "Opinion Evidence" (1986) 60 A.L.J. 597; ALRC,
(Commonwealth) Evidence (1985), Vol. 1, par. 346. Vol. I 1 pars 155-161, Vol. 1, Ch. 33, Vol. 2, Chs 7 and
(Hereafter referred to as "ALRC".) 14.
November, 1987
Evidence by Taylor, where the author states, in
5
terms characteristic of his and later times:
"Perhaps the testimony which least deserves
credit with a jury is that of skilled witnesses.
These gentlemen are usually required to
speak, not to facts but to opinions; and when
this is the case, it is often quite surprising to
see with what facility, and to what an extent,
their views can be made to correspond with
the wishes or the interests of the parties who
call them."
In Lord Abinger v. Ashton' Sir George
Iessel M R said·
J
. . .
" . . . in matters of opinion I very much
distrust expert evidence, for several reasons."
One reason was the difficulty of indicting an
expert for perjury, "because it is only evidence
as to a matter of opinion". Another was the bias
arising from the payment made to the expert.
Modern writers are more circumspect, but the
same caution is there.
These days there is frequent consideration of
the role of the expert witness in litigation,
marked by frequent comments on the need for a
change of approach to such evidence. Various
changes are suggested as to the manner in
which experts should be used in the trial pro-
cess. 7 Regular suggestions include requiring full
disclosure of experts' materials and reports
before trial (already provided for in civil trials in
a number of jurisdictions); ensuring that the
limits of an expert's expertise and the scope of
evidence given are understood by the court;
removing the partisan tag by educating experts
in their proper role as witnesses; altering the
role of the expert and removing him from the
arena by creating panels of court approved and
appointed experts, or by having expert testi-
mony called by the judge or by having an expert
' 'assessor" sit with and advise the judge.
It is beyond the scope of this paper to deal
with the attitude of counsel and judges towards
expert opinion evidence, likewise with the need
for change in treatment of such evidence.
s( 3 r d e d 1 8 5 g , 6 9
6
7
(1873) L.R. 17 Eq. Cas. 358 at 373.
See, e.g., Basten, "The Court Expert In Civil Trials —
AΈComparative Appraisal" (1977) 40 M.L.R. 174; Mason,
, * Ρ € * ^ΪΙ^Λ^Ϊ adversarial System of Criininal
Justice 1986 26 Med. Sci. Law 8; Samuels, Expert
Forensic Evidence" (1974) 14 Med. Sei. Law 17; Kenny,
"The Expert In Court" (1983) 99 L.Q.R. 197.
Admissibility of Opinion Evidence 689
What is surprising is that despite the sceptical
attitude of some, the restraints on admissibility
and the frequent questioning of the proper role
o f t h e ex
p e r t , expert evidence is used so much,
Q
n e might think that these apparent barriers to
t h e u s e a n d
acceptance of expert evidence
w o u
i d ensure that, when used, expert evidence
w o u
i d be given little weight. We know, how-
e v e f i t h a t i n f a c t a
disturbing feature of expert
evidence is, to the contrary, the real danger of
j u d g e s and juries giving too much credence to
such evidence, despite the supposedly sceptical
attitude rf the legal system
° n e O D V l o u s danger is that of the trial becom-
. ^ a s e a r c u ^ n o t for proof of relevant facts but
for the more impressive expert opinion.
Another danger is that reasonable doubt will be
overlooked when an apparently reliable opinion
i s expressed. There is the problem of compre-
hension in technical scientific matters. Finally,
t h e problem which has emerged, particularly in
recent years, of trials overwhelmed by a mass of
conflicting expert evidence, often in areas of
doubtful expertise or, at best, areas of knowl-
edge peripheral to recognised bodies of expert
knowledge.
Suffice it to say that the case-law contains
regular reminders of the dangers (as well as the
advantages) of the use of expert opinion evi-
dence.
For that reason the rules relating to the
admissibility of such evidence should not be
seen as an area of interesting but harmless
debate. The rules can, and should, assist courts
to receive opinion evidence when appropriate,
but likewise to confine its reception. More
difficult is the testing, use and assessment of the
evidence once admitted. That is beyond the
scope of the paper and relatively unregulated by
the law of evidence.
Thus, the focus of this paper is on those rules
which control what material gets before the
court and their practical justification.
_ . . Oninion
^
Fundamental to the issue is the distinction
between fact and opinion. It is said that it is for
witnesses to depose to facts and for the judge or
jury to draw inferences or form opinions from
those facts.
A moment's reflection will disclose, however,
that at times the distinction is far from clear.
T h χ ^ d e l y a c c e p t e d view is that an
. . . . / , r
u A
opinion is an inference drawn from observed
data. But even simple propositions, such as that
690 The Australian Law Journal — Volume 61
the day is hot, a man is unusually tall, or a
motor car was travelling very fast, contain
elements of opinion. They are not simply
statements of fact.
In R. v. Perry6 Cox J. took a different view.
His Honour approved of the following
proposition:
"The essential idea of opinion seems to be
that it is a matter about which doubt can
reasonably exist, as to which two persons can,
without absurdity, think differently."
Whatever the problems of distinguishing fact
and opinion, it is, with respect, doubtful
whether this approach will lessen the problems
in this area.
In truth, as others have said, the distinction
bet ween fact and opinion is one of degree. By
and large judges are able to draw the distinc-
tion. As long as the elusive nature of the
distinction is remembered, it should be un-
necessary to pursue it further for present pur-
Poses·
Opinions By Non-experts
. .
Opinion evidence is not the sole province of
the expert. I have suggested above that apparent
factual statements may contain elements of
opinion. Quite apart from the difficulty at times
in distinguishing fact and opinion, it seems that
the courts in practice admit opinion evidence
from non-experts when it is not possible to
separate opinion from fact and the witness's
opinion is as to a relevant matter, for example,
evidence that a motor car was travelling at a fast
speed. On the other hand if the primary facts
can reasonably be expected to be stated separ-
ately, the witness will be confined to them
because then his opinion is of no assistance to
the court and presumably for that reason) not
admissible. If the opinion assumes a degree of
precision, some degree of experience or exper-
tise may be required. Thus, an estimate of the
speed of a car as distinct from the use of terms
such as fast or very fast , may not be
admitted unless the witness has some experi-
enee in making such estimates.
In truth there is an extensive area of non-
expert opinion or judgment evidence which
courts accommodate without difficulty.
— Cooper v. Bech (No. 2) (1975) 12 S.A.S.R. 151 at 153.
8 12
Supra, n. 3, at 126.
9
From G. C. Lewis, Infìuence of Authority in Matters
of Opinion (1849), p. 1.
November, 1987
Expert Opinion Evidence
I t s n 0 u l d be evident from the above that the
admission of opinion evidence from experts is
n o t a s exceptional as sometimes suggested. It
a l s o m u s t b e r e m e m b e r e d that for much of his
evidence an expert will be giving evidence of
facts to provide a basis for the opinion which he
is to express.
It may be that the focus of discussion has been
too much on the exceptional nature of the
receipt of opinion evidence. It is suggested that
it would make little difference if the rules, to
which I now turn, were seen simply as deter-
mining when a witness is qualified to give a
particular type of opinion (one requiring exper-
tise) a n d what restraints there are upon the
admissibility of the opinion (other than rei-
e vanee) apart from the fact of it being opinion
and not fact,
Field of Expertise
The first requirement for the admission of
expert evidence is that a relevant field of exper-
tise should exist.
A field of expertise has been described as an
10
o r g a n i s e d branch of knowledge. In the end
t h i s is a ques t i o n of fact. In cases requiring
evidence outside recognised fields of expertise,
s u c h a s m e dicine, accounting, engineering, the
w i t n e s s w i l l himself have to establish the exist-
e nce of the field of expertise,
whether a field of expertise will be recognised
i f i t - s n o t t h e s u b j e c t o f r e l a t ively formal and
a n i s e d study remains unclear. This becomes
i n f p o r t a n t w h e ' n o p m i o n evidence is sought to
b / i v e n b a s e d o n extensive practical experi-
e M * of a m a t t e r n o t itself t h e s u b j e c t of f o r m a l
stud or anal i s . I n clark Vm Ryanu the m e m .
b e r / o f t h e H i h C o u r t expressed themselves in
t e r m s s u f f i c i e n t l y v a r i e d for one to be able to
find s u p p o r t e r s f o r t h e relatively generous view
t h a t s p ^ c i a i i s e d knowledge acquired by experi-
e n œ ^ o u l d s u f f i c e f o r a field o f e x p e r t i s e a n d
a l s o for t h e v i e w t h a t s o m e t h i n g akin to an
12
a c a d e m i c field of expertise was required. In
WeaJ y Bottom« evidence was given by
witnesses experienced in driving semi-
articulated vehicles that in certain circum-
10
11
(I960) 103 C.L.R. 486.
See, e.g., Dixon C J . at 491; contrast Menzies J.
at 502.
« (1966) 40 A.L.J.R. 436.
November, 1987 Admissibility of Opinion Evidence 691

stances such a vehicle had a tendency to swing being stated and explained with a reasonable
out when rounding a curve. The evidence was degree of precision.
held admissible as evidence of fact, not opinion. W i t h the expansion of human knowledge the
The majority view was expressed by number of fields of expertise must also expand.
couMbe C iven * ^ ^ ^ * ^ eVÌdenCe
In the end the requirement of a field of
° expertise is a salutary one. Inevitably it focuses
" . . . by an expert properly so-called, that is to attention not just on the witness's qualifications
and
say, by a person who by study and instruction knowledge and experience. It directs the
in some relevant scientific or specialised field court's attention to a quite separate matter -
was able to express an opinion, founded on the subject-matter of his evidence. Applied
scientific or specialised knowledge thus sensibly it should ensure that admitted experts
do not
acquired But it could also be established g i v e pseudo-expert evidence. Not only
by the evidence of a person who had had should it confine the expert to his particular
field
actual experience of or had observed such < 'lt should also help to exclude what is, in
t h e end
behaviour In truth the evidence of such a < n o m o r e t h a n opinion based on in-
person is not the expression of an opinion nor tuition, personal experience, unscientific
is he strictly within the category of an expert, reasoning or insufficiently established theories,
though there is a tendency to refer to such
evidence compendiously as expert evidence." _ Ä
Expert Qualifications
Although the judgment is expressed in terms of Not o m m u s t a field o f expertise exist, the
expertise of the witness rather than of fields of w i t n e s s m u s t b e a d e q u a t e l y qualified in it. The
expense, it does suggest that purely practical o b v i o u s q u a iifi C ations are formal academic or
knowledge cannot be the subject of a field of p r o f e s s i o n a i qualifications. But assuming that a
expertise. Some organised system of study or field o f r t i s e i s established, it should not
knowledge is required. m a t t e r i n p r i n c i p l e h o w t h e w i t n e s s acquires his
It is suggested, however, that the distinction is expertise in it. In practice, that seems to be the
slight, if not illusory. The evidence was admit- C ase. 16 The immediately preceding discussion
ted. It was not given simply as everyday experi- suggests some caution, however. The judgment
enee within the competence of any witness. It 0 f Barwick C J . could be used to support an
was, in effect, an opinion as to the possible argument that formal training or qualifications
behaviour of the vehicle on the occasion in w e r e required before expert evidence could be
question, the opinion being based on experience given.
of the behaviour of similar vehicles in similar „,,. . . r .u · · „ n i «„^«„nn ; P
.... rr,i ., · r χ . x This requirement for the giving of evidence is
situations. The evidence was in fact given not as u . , A ° Λ ° ~ ™ ^ + ™ u„
ö
., , .,. . . ,r ^ an obvious one and needs no comment on its
evidence of specific past experiences and facts .....
(leaving it to the jury to draw an inference), but ^'
as evidence of what would be likely to happen
under the relevant circumstances, of the tend- F a c t u a | B a s i s o f Opinion
ency of such vehicles under such circum-
stances. It was on that very ground that The object in calling an expert is usually to
MenziesJ. dissented. 15 This was not evidence have him express an opinion.
" . . . by reference to some organised branch of I n part, that opinion will be based on facts
knowledge". The " . . . expert knowledge — ascertained by him or put before him as a basis
such as it was — was not scientific . . .". for his opinion. Normally, he will disclose those
Thus, there remains some uncertainty as to facts before being permitted to express his
the nature of a field of expertise. opinion. Those facts must be proved by the
It is clear that, subject to this, a field of party who calls him by admissible evidence,
expertise requires a field or area of knowledge Otherwise, the opinion must be excluded or
in which are applied established or accepted rejected, unless the variance between the
principles or methods or knowledge, capable of posited facts and the facts ultimately proved
does not deprive the opinion of its basis, or does
14
Ibid., at 438.
15 16
See, ibid., at 443-446. See Gillies, op. cit., at 603; ALRC, Vol. 2, par. 98.
692 The Australian Law Journal — Volume 61
no more than weaken the force or weight of the
opinion.17
The opinion will also, in all probability, be
based upon the application of principles or data
or tables which are commonly used in the
relevant field of expertise. Much of this material
the expert himself could not verify. This clearly
does not render his opinion inadmissible.
The opinion may also be based in part on a
kind of "general knowledge" acquired by
mixing with and talking with professional col-
leagues and reading what they have established
or ascertained. In principle this material also
may be used although not capable of verifi-
cation by the expert. Expertise is not confined to
what is written down. Caution must be
exercised, however. There will come a point at
which the expert is using hearsay or unproved
assertions of fact as distinct from knowledge
part of and accepted within his expertise.
Inevitably questions of degree arise. In R. v.
Abadon- the charge was robbery. The Crown
case rested on evidence that the fragments of
glass found on the clothing of the accused came
from a broken window at the site of the rob-
bery. An expert witness gave evidence that glass
from the window and the fragments had an
identical refractive index. The same witness
gave evidence that he had consulted statistics
compiled by the Home Office Central Research
Establishment and had found that the particular
refractive index occurred in only 4 per cent of
all glass samples investigated. He expressed the
opinion that there was a very strong likelihood
that the glass from the clothing originated from
the window. On appeal, it was argued that the
opinion expressed on the basis of the statistics
was hearsay because the expert witness had not
personal knowledge of the analysis upon which
the statistics were based.
This contention was rejected. The Court of
A , ., J ^ ^ ^WUIi vjL
PP
" . . . when an expert has to consider the
likelihood or unlikelihood of some occurrence
or factual association in reaching his con-
elusion, . . . the statistical results of the works
of others in the same field must inevitably
form an important ingredient in the cogency
17
See Parie v. John Holland [1984] 2 N.S.W.L.R. 505;
(1985) 59 A.L.J.R. 844.
18
[1983] 1 All E.R. 364 at 367b and 368h.
November, 1987
or probative value of his own conclusion in
the particular case, . . . .
° n c e . 0 ^ P e n a r y facts on which their
opinion is based have been proved by admiss-
ible evidence, they are entitled to draw on the
w o r k of ot ers a s
^ fart o f J h e P r o c e s ^ o f
arriving at their conclusion However, where
t h e
^ h a v e done so they should refer to this
material in their evidence so that the cogency
and probative value of their conclusion can be
tested and evaluated by reference to it."
Great care by the court is required here,
Views might easily differ on the correctness of
the decision in R. v. Abadon. But once again the
rules as to admissibility have a sound practical
basis. No expert can verify all of the principles
of his field of expertise. But once he moves from
applying accepted knowledge and principles
and practices to using what are (at least at the
time) individual views or assertions, a signifi-
cant line h
r f been crossed. Efficiency requires
^ e u s e o f t h e f o r m e r « ^ r i a l . Its status within
t h e ex ertls e
P r gjyes ? sufficient (not absolute)
p r a n c e of reliability to permit its use Indi-
v
^ u a l knowledge not part of the accepted body
?f k n °wledge lacks that assurance and so should
be proved; likewise specific facts (and especially
contested facts) not part of the body of expert
knowledge.
Difficult cases will arise, but the principles
a r e
sound,
C o m m o n Knowledge
Expert opinion evidence is admitted, it is said,
to
"furnish the court with scientific information
which is likely to be outside the experience or
knowledge of a judge or jury' '. 19
Tx r n ,. . -r .u u- ±. ,, ·
j t f 0 i i o w s t n a t jf t n e subject-matter is one on
which the average man is capable of forming an
opinion unaided by expert evidence, then the
expert evidence is inadmissible. In the area of
common knowledge there are no degrees of
expertise. The test seems to be, not whether the
opinion of the expert would assist, but whether
the judge or jury is capable of forming an
opinion.20
« R. v. Turner [1975] 1 Q.B. 834 at 841 p e r
Lawton L J .
20 Cf. R. v. Wright [1980] V.R. 593 at 606.
November, 1987
The cases on this point are not easy to
reconcile. 21 It might be said that once one moves
into the area of common knowledge one must
have left the field of expertise. There is clearly
an element of truth in that. In part, it must be a
question of whether a recognised field of exper-
tise has been made out. Some of the cases may
be explicable in terms of a refusal to accept the
existence of a field of expertise, for example, the
behaviour of a normal man when provoked, the
behaviour of an ordinary man under police
questioning. 22 Yet is it not odd that a
psychiatrist will readily be accepted on the
workings of the abnormal mind, but not on the
workings of the normal mind? How can one
analyse the former but by first having a full
understanding of the latter? But some cases do
proceed on the basis that within the area of
common knowledge, on matters within the
province of the jury, even seemingly admissible
opinion will be excluded simply because the
jury is competent to decide. There is clearly
some such rule.
It may be that in this area the rules are too
restrictive. But on the other hand, might it not
be that the acknowledged dangers of expert
evidence warrant its use only when essential
and its exclusion when not essential, albeit of
some value? To allow expert opinion evidence
on matters of common knowledge, either on the
basis that such evidence would assist the trier of
fact or on the basis that without it a fully
informed decision would not be reached, is
likely to result in an excess of evidence of
limited weight. I incline to the view that a
restrictive approach is preferable, but that a
rigid exclusion of expert evidence on matters
falling within the area of common knowledge is
too restrictive.
The Ultimate Issue
T . ., , ,^ . L
It is widely accepted that a witness may not
testify as to the very question or fact which the
court must determine. There is no logical reason
why this should be so.
The justifications for the rule are pragmatic.
The usual one is that to allow the witness to do
so is to allow him to usurp the role of the trier of
fact. As a statement of fact, this is wrong. The
justification would seem rather to be the danger
21
See Cross, op. cit., pp. 708-709; ALRC, V o l . 2 ,
par. 102.
22
R. v. O'Callaghan [1976] V.R. 441.
Admissibility of Opinion Evidence 6 9 3
of the trier of fact abdicating in favour of the
expert. But surely judges are capable of
avoiding that pitfall in directing themselves or
juries?
T h e exceptions to the rule cast doubt on the
r a t i o n a i e . There is not space here to analyse the
C ases In Samuels v. Flavel23 Bray CJ.
s u m m a r i s e d the position as follows:
"Such evidence is probably still strictly inad-
missible though it is, in fact, often admitted
without objection and there may be cases
where it must be admitted, such as cases of
insanity within the M'Naghten Rules, be-
c a u s e i t i s i m p o S sible for the opinion of the
expert to be conveyed in any other form."
A commentator has suggested that the true
position is that such evidence will be admitted:
>>_ where the evidence of the witness will
obviously be incomplete or useless in a situ-
ation where the witness, because of his or her
knowledge of facts which cannot adequately
be proven in court, or his or her expertise, is
i n a position to express an opinion which
genuinely adds something of value to the
evidential materials available to the tribunal
of facts." 24
Thus, a witness who has experience in dealing
with drunks will be permitted not only to
describe what he observed but to express an
opinion on the sobriety of the accused, although
the charge (and ultimate fact) is drunkenness,
On a plea of insanity, it seems that the courts do
allow psychiatrists to express an opinion in
terms of the M'Naghten Rules or indis-
tinguishably close to them.
The suggested limitation is of uncertain ex-
tent. The concept of an ultimate fact or ultimate
facts is unclear. At times it seems to embrace
^ m a i n m a t t e r s t Q b e decided. At other times
t Q b e ^ . ^ t Q t h e trul u l t i m a t e factual ques-
..
The limitation leads to distinctions almost
without a difference. In a medical negligence
case a doctor may not opine that the defendant
was negligent, but may say that he omitted to
follow procedures observed by competent mem-
bers of the profession.
23
[1970] S.A.S.R. 256 at 261.
24
Gillies, op. cit., at 608.
694 The Australian Law Journal — Volume 61 November, 1987

In a thorough discussion of this topic 2 5 it has way of the sensible expounding of a qualified
been suggested that the true position is that opinion,
there is no such separate exclusionary rule. The
true position is that Conclusions
,,A . ., -xx ι x Subject to certain criticisms it is suggested
An expert cannot be permitted to express an t h a t ¿e ^ a s tQ ^ a d m i s s i o n of ^inion
opinion upon an ultimate issue, if its detenni- e v i d e n c 6 i a n d i n p a r t i c u l a r e x p e r t opinion evi-
nation depends upon the application of some , , ,. ¿ . -ι · „ „ „ χ : ,L A ^~
, ι . \ H" dence, work satisfactorily in practice and are
directed towards a sensible objective.
m, . T , i x , - . r . i . This is not to deny that problems exist. It may
There is I suggest, much to be said for that b e h m o s t o f t h e ¿ r o b l e m s a r e n o t attributable
view, although in my opinion two qualifications undul restrictiv^ or l e n i e n t r u l e s of i n a d m i s .
1S e e T
™ X , ; Ί u Tl sibility but to difficulty in assessing the evi-
y
can adequately convey his opinion without d e n c e o n c e a d m i t t e d . It is true, as some suggest,
deposing to the very issue to be decided he will ., . j · ι . u u- x· ·
u ui xu -xx Α χ J rnu J that our adversarial system has objectives in-
probably not be permitted to do so. The second . . . .. u .u ^ J i U a x^,^ W O T ; ^c *ή~„^
> .u 4, u i i x j j · · i l i consistent with those of the true man ot science,
is that even when a legal standard is involved he T h e a d v e r s a r i a l s r t e m adjudicates upon the
may be permitted to depose in terms of that rtive m e r i t s 0 f c a s e s . 4 h e s c i e n t i s t i s con-
standard as long as he makes clear his interpret- c e r ^ e d w i t h a b s o l u t e t m t h o r { a c t n B u t this
ation of he standard, for example, a valuer m e r e l y demonstrates the importance of a proper
deposing to the unimproved value of a prop- p r o f e / s i o n a l a p p r o a c h o n the part of the wit-
Y' ness. The problem lies not in the scientific
Undoubtedly the rule is thought to exist, but approach but in the danger of the legal approach
is applied in a relaxed fashion. To the extent distorting the former and producing advocacy
that it excludes needless or embarrassing disguised as expertise, be that a result of the
opinion evidence it serves a useful function. But permissible process of selecting favourable
the rule should not be permitted to stand in the opinion and discarding the unfavourable, coun-
^ sel's tendentious presentation of the evidence or
the unconscious bias referred to in Lord Abinger
" S a m u e l s , " P r o b l e m s Relating To The Expert Wit- J '
ness In Personal Injury Cases", in Glass (ed.), Seminars
2
on Evidence (Law Book Co. Ltd), p . 153. * See Mason, op. cit., η . 7, at 8.