The Gazette 1996

JANUARY/FEBRUARY 1996

GAZETTE

The Expert Witness

By David R. Pigot

An expert acting in such capacity in my view cannot confine himself to advising simply on the facts presented to him if on any reasonable assessment of those facts it is (or should have been) apparent to the expert that the advice which he can give on those facts is inadequate for the client's stated purpose. In such event further information must be sought or, alternatively, the expert's advice so qualified that the client (or third party) can be under no misapprehension as to the precise basis upon which the advice is given, and that, if further information was available, that advice might be different. Similar principles apply where the expert is retained in a contentious matter. While it is not of course the responsibility of the expert to decide whether his client has a cause of action against another party (that is a matter for a lawyer), some knowledge of the basic principles of negligence would appear essential if the expert's report is to be of real value to the client. The following extract from the address of the trial Judge ( McNair J) to the jury in the Bolam case is of assistance in this regard, viz: "How do you test whether this act or failure is negligent? In the ordinary case it is generally said that you judge it by the action of the man in the street. He is the ordinary man. . . . But where you get a situation which involves some special skill or competence then the test as to whether there has been negligence or not is not the test of the man on top of the omnibus because he has not got that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art".

The purpose of this short paper is to very briefly outline what I perceive to be the duties and consequent potential liabilities of an expert acting as such either in the ordinary course of his business, or advising a party to litigation, or acting as an arbitrator. Firstly, what is an expert? I think an expert can be fairly described as a person having a special skill or knowledge of a particular subject or subjects. It is not necessary that he should have acquired that knowledge professionally. It is enough if he has made a special study of the subject or has acquired a special experience in it. In the final analysis however whether a witness tendered by a party in a contentious matter will be accepted as an expert is a matter for the trial judge (or arbitrator). Two 1980 Irish cases are of assistance in this latter regard. In the first (Minister for Agriculture -v- Concannon - High Court 14 April 1980) it was held that the testimony of the expert that he was a veterinary surgeon was prima facie evidence of that fact and sufficient to support a conviction unless and until rebutted. In the case of Martin -v- Quinn [1980 IR 244] the court came to the same conclusion in the case of a medical practitioner. As earlier suggested, it appears to me there are three sets of circumstances to be considered:- 1. When the expert is retained by a client to give specific advice in a non contentious matter. 2. When the expert is retained by a party in a contentious matter to give expert evidence on that party's behalf.

David R. Pigot

As to the first, it would appear from the judgments in the Medley Byrne -v- Heller and Partners Ltd. [1964 AC 465] case that when an expert is retained by a client to advise him on a particular matter which is within his area of expertise, if the advice which he gives is negligent, and his client, or another party whom he should have reasonably contemplated might be affected by such advice, suffers loss in consequence, almost certainly the expert will be liable in damages to such person. In that case it was held that "a negligent though honest misrepresentation, spoken or written, may give rise to an action for damages for financial loss caused thereby, apart from any contract or fiduciary relationship, since the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care, and that party knew or ought to have known that reliance was being placed on his skill and judgement". A simple example of this is the Irish case of Wall -v- Hegarty [ 1980 ILRM 124J where an intended legatee failed to receive a legacy because of the negligence of the solicitor who drew up the will.

3. When the expert is appointed to act as an arbitrator.

This principle has been repeated in a

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