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GAZETTE
JANUARY/FEBRUARY 1996
The Expert Witness
By David R. Pigot
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.
3. When the expert is appointed to act
as an arbitrator.
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.
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".
This principle has been repeated in a
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