Court assesses the reasonableness of instructing a skilled witness

  • Insight

17 April 2018

The importance of the need for careful consideration before a party employs a skilled witness to give expert evidence in support of a claim has been highlighted in the case of Hunter v East Lothian Council.

The All-Scotland Sheriff Personal Injury Court refused a pursuer’s motion for the certification of a skilled witness in this case in which the court emphasised the need for the witness to be sufficiently skilled and for the instructions to be timely and fully detailed. The tests of reasonableness and necessity were affirmed by the court in a written decision issued by Sheriff McGowan.

The case

The pursuer, Margaret Hunter, was employed as a nursery nurse by East Lothian Council, the defender. Ms Hunter was struck from behind by a child on a tricycle while she was supervising 17 children aged four years. She fell and broke her arm. It was the pursuer’s case that the appropriate maximum adult/child ratio was 10 children to one adult. As part of that case an expert, Mr Bradley, was instructed to comment on the appropriate ratio and the  Council ’s risk assessment process.  The pursuer’s solicitors then sought certification by the court of Mr Bradley as a skilled witness. This was opposed by the defender and the arguments of both sides were considered by the court.

The arguments

In assessing the use of evidence from skilled witnesses, the pursuer’s agents relied substantially on the Supreme Court case of Kennedy v Cordia. They argued that Mr Bradley had experience of risk assessments and safe systems of work. Although his experience was not in the context of nursery nursing, it was argued not to be fatal to his certification as a skilled person. He had knowledge of children, education policies, completing risk assessments, and identifying and reducing risks. Such generic knowledge can be applied to a variety of work settings as seen in Kennedy – the expert witness had not been an expert in care work.

The defender argued the following:

(i) Mr Bradley was not skilled,
(ii) if he was skilled, it had not been demonstrated that he had exercised that skill, and
(iii) it had not been reasonable to instruct him.

The defender argued that Mr Bradley’s report was incomplete, that he had applied the wrong care standards, had indulged in advocacy, and had made assertions without offering proof. They further stated that Mr Bradley’s experience was primarily in nursing in the NHS and was therefore not relevant to a nursery nursing setting.

The decision

The sheriff said that for Mr Bradley to certified as a ‘skilled witness’ the court must be satisfied that he was a skilled person and that it was reasonable to employ him.

Mr Bradley’s putative skill should be looked at in isolation from the case at hand and the question was whether he had skill based on knowledge, experience, training, education, or a combination of these.

From a consideration of Mr Bradley’s CV, Sheriff McGowan was satisfied that Mr Bradley was skilled.

The sheriff’s decision therefore focused on whether or not his skills were relevant to the circumstances of the case, and whether or not it was reasonable to employ Mr Bradley.  The sheriff emphasised this was not an exercise conducted with hindsight.

In assessing reasonableness, the sheriff said the following ought to be considered:

  • the steps taken to establish his credentials;
  • the timing of the instruction;
  • the relevant issues at the time of the instruction; and
  • whether he had relevant skills.

The sheriff found that the pursuer’s agents had provided no guidance to the court on any steps taken to establish the credentials of the witness. The instruction had been made at the “last minute”, at a point in the case where the pursuer’s agents could not be sure of the defender’s position. Mr Bradley’s letter of instruction demonstrated that the issues on which expert evidence may be led had not been properly considered. Mr Bradley had been asked to provide an opinion on matters which were for the court (including causation and foreseeability). The information which was provided to him was incomplete. In addition, whilst he was “skilled”, his skill was not well suited to the circumstances of the case.

Sheriff McGowan therefore held that it was not reasonable to employ Mr Bradley at the stage at which he was instructed, and consequently refused the pursuer’s motion to certify him as a skilled witness.

Comment

Although fact specific, this case highlights the importance of agents giving proper consideration to whether it is necessary to instruct an expert and whether the expert identified has a skill set suited to the circumstances of the case. It further highlights the need for considerable thought to go into the letter of instruction, ensuring that the questions are appropriately focused, in the knowledge that the court will have regard to that letter if certification is opposed.

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