15 August 2019

Not wishing to recant too many tales from the fireside, but I remember one time in court back in my trainee days in a road traffic case. The Judge became increasingly irascible as evidence was lead from expert witnesses and he ultimately commented along the lines that it defeated him why parties insisted on instructing so many expert witnesses when it is the duty of the court to consider the available factual evidence and come to its decision. Fast forward a few years and the recent decision in Beckham v McCabe [2019] SC EDIN 65 highlights the perils of relying on the opinion of expert witnesses in (what would appear to be) the absence of good quality factual evidence.

The circumstances in this case involved a multi-vehicle shunt. The Pursuer was the third in a line of vehicles and claimed that he had been hit in the rear by the Defender, suffering a whiplash injury and shunting him into the vehicle in front. The Defender denied that any collision had taken place. Each party instructed an engineer to act as a skilled and expert witness and provide their opinion as to the mechanism of any accident. The experts disagreed on almost every aspect in their explanations and yet, crucially, neither of them had seen or examined the vehicles themselves and were restricted to considering poor quality photographs. Both of the experts were criticised by the Sheriff for “reaching conclusions…elevated to a level of certainty which [is] impossible to reconcile with the absence of any physical examination.” There was no police report to refer to and neither expert heard the factual evidence of the witnesses. Ultimately, it was the view of the sheriff that he could not place reliance on the evidence of either expert witness. On balance and assessing all factual witnesses as credible, the court found in favour of the Pursuer.

Perhaps a salutary, if potentially trite, lesson to all of us to consider the merits and pitfalls of instructing and leading expert witnesses. Expert evidence has a very valuable place in proof/trial preparations - of course it does. However, such witnesses can only provide opinion as good as the source material they are provided with and while their best case scenario may fit our own arguments, such propositions need to be robustly tested before opened up to the scrutiny of the courts. It is an expensive exercise to find out at proof that such evidence is only to be discounted.

Contact: Tim Webster Associate twe@bto.co.uk T: 0141 221 8012