There’s Many a Slip; But Do They All Need Expert Help?

By Bart Kavanagh

The use of expert opinion evidence has become commonplace in construction disputes. The recent Scottish case of Kennedy v Cordia [1], however, required the Supreme Court to consider whether it should be always admissible.

Miss Kennedy, a carer visiting a client in the course of her work, slipped and fell on an icy path and sustained an injury. At issue was the question of whether the risk assessment carried out by her employers had been adequate and whether, on a proper assessment of the risks, they ought to have provided her with anti-slip attachments for her footwear. Expert evidence was admitted, which covered both the adequacy of the risk assessment made by the employer and the availability and effectiveness of anti-slip attachments.

At first instance, the Lord Ordinary found in Miss Kennedy’s favour. On appeal, an Extra Division of the Inner House reversed that decision stating that the Lord Ordinary had erred in five respects, the first of which was by admitting and relying upon the expert evidence.

“[The expert] should not have been allowed to give the evidence (…). It is one thing to say that a precaution could have been taken; that is simply a matter of fact and is accordingly, in the context of litigation, within the province of a witness. It is another thing to say that a precaution should have been taken; that is a matter of judgement to be exercised by reference to the applicable rules of law and, in the context of litigation, generally within the exclusive province of the judge.” [2]

and

“[The dispute] was something that the Lord Ordinary was fully equipped to [resolve] without any instruction or advice; it was squarely within his province as judicial decision-maker. No additional expertise was required. (…) It is the job of a judge to hear evidence about matters with which he may previously have been totally unfamiliar and, on the basis of that evidence, come to conclusions of fact and then apply the relevant law to these facts.” [3]

CPR Part 35 prescribes neither rules regarding the admissibility of expert evidence nor criteria for establishing appropriate credentials or qualifications for those who hold themselves out as experts in any field. However, as long ago as 1984 in the South Australian case of R v Bonython [4] King CJ dealt with both of these issues, stating that before allowing expert opinion to be adduced as evidence, two questions must be considered:

The first is; “whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible”. King CJdivided this into two parts:

    1. “whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgement on the matter without the assistance of witnesses possessing special knowledge or experience in the area; and
    2. whether the subject matter of the opinion forms part of a body of knowledge and experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which of the witness would render his opinion of assistance to the court.”

The second is:

“whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issue before the court.”

This provides a working test, which has been applied subsequently in the English courts. [5]

The Supreme Court referred to Bonython and stated that:

“There are in our view four considerations which govern the admissibility of skilled evidence:

    1. whether the proposed skilled evidence will assist the court in its task;
    2. whether the witness has the necessary knowledge and experience;
    3. whether the witness is impartial in his or her presentation and assessment of the evidence; and
    4. whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.

All four considerations apply to opinion evidence, although, … when the first consideration is applied to opinion evidence the threshold is the necessity of such evidence.” [6] (Emphasis added)

In the majority of construction cases that come to court, the technical matters at issue are almost certain to fall outside the knowledge and experience of the judge. Similarly where professional competence is being questioned, a judge is unlikely to have sufficient knowledge of current practice in a particular profession to decide whether or not the performance complained of was that of a competent professional acting with reasonable skill and care, without the assistance of expert opinion. In both cases the existence of an underlying ‘reliable body of knowledge or experience’ is unlikely to be in doubt.

In the case of arbitration or adjudication, however, the situation may be different. Here the parties are able to select the tribunal on the basis of having skills and experience that are relevant to the matters in issue and there are many practicing arbitrators and adjudicators who have both legal and technical or professional expertise. In both of these forums, where the parties have some control over the process, its cost and the time it takes, it may be quicker and more cost effective to rely on the technical and/or professional expertise of a tribunal selected precisely because of that expertise, than to marshal the efforts of two separate experts.

In these forums, therefore, the question of whether expert evidence will assist the tribunal should be properly considered, preferably in conjunction with the tribunal, rather than assuming that it should be assembled and presented simply as the default option.

This is not to say that expert opinion cannot be beneficial outside the courts. Even in those cases where it may not be necessary in order to assist the tribunal, an independent expert view is likely to be of considerable assistance to the parties. It will help them to assess the strengths and weaknesses of their case and to develop an effective strategy for structuring that case. Who knows, it may even encourage them to reach a realistic settlement long before the tribunal needs to sit.

[1] Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland) [2016] UKSC 6 on appeal from [2014] CSIH 76.

[2] Tracey Kennedy against Cordia (Services) LLP [2014] CSIH 76, Lord Brodie – Paragraph 14

[3] Tracey Kennedy against Cordia (Services) LLP [2014] CSIH 76, Lord Brodie – Paragraph 15

[4] R v Bonython (1984) 38 SASR 45, 46 – 47 (Sth Australia Supreme Ct)

[5] For example JP Morgan Chase Bank v Springwell Navigation Corp [2006] EWHC 2755 (Comm)

[6] Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland) [2016] UKSC 6 on appeal from [2014] CSIH 76. Para 44

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