WITNESS STATEMENTS: WHEN CAN A LAY WITNESS GIVE OPINION EVIDENCE?THE STATUTE, THE CASES & SOME GUIDANCE

I have written, many times, about the dangers of putting opinion evidence into witness statements.  The attempts of witnesses to be experts, or to tell the judge what the outcome of the case should be, can lead to robust adverse comments* . However, as in most things, there is an exception to this rule.   There little guidance on the circumstances in which a witness is allowed to give an opinion. Here I try to extrapolate the principles involved, looking at the statutory basis for opinion evidence and the cases.

* In Rock Nominees v RCO Holdings [2003] EWHC 936 (CH) Smith J observed that a witness:

“80. The only evidence offered by the Petitioner, was that of Andrew Stephen Wilson, who was described as being financial adviser to Carlisle, who also advises other entities in which Carlisle and Lord Ashcroft have an interest. He also stated that he had primary responsibility for the affairs of Kiwi and Gambier.

  1. It is not being unfair to Mr Wilson to say that it is about the only clear part of his evidence. Before he actually gave evidence we had the somewhat surprising spectacle of finding something like 75% of the witness statement being struck out, as Mr Potts QC conceded in effect the material there, consisting largely of assertions, expressions of opinion and usurpation of my role, should never have been there in the first place.”

SOME GUIDANCE

Looking at the disparate case law it is hard to find universal principles. However:

  • The starting point should be s.3(2) of the Civil Evidence Act 1972, that is a witness can give opinion evidence on matters “personally perceived by him”.
  • The need for personal perception should put an end to statements such as those in the Rock Nominees case.
  • So (for instance) those giving evidence for an organisation should be confined to opinions on matters that they “personally perceived” and not be allowed to opine generally on matters which they had no personal involvement.
  • A lay witness giving opinion evidence  does not displace the need of a party to obtain expert evidence.
  • The fact that a lay witness has a personal involvement goes, very much, to the weight  to be given to any opinion.
  • There is no duty to cross-examine a lay witness as an expert. The fact that a lay witness was not asked for an opinion on whether something was “negligent” does not render a trial unfair.

It is wise to consider, and apply, the mandatory (but often overlooked) requirement that a witness give the source of any information and belief in their statement.  If there is no adequate source then the evidence should not

The Statutory Provisions

Section 3(2) of the Civil Evidence Act 1972 states:

“where a person is called as a witness in any civil proceedings, a statement of opinion by him of any relevant matter on which he is not qualified to give expert, if made as a way of conveying relevant facts personally perceived by him, is admissible of evidence of what he perceived.”

Section 3(3) states:

 “In this section ‘relevant matter’ includes an issue in the proceedings in question.”  

This section has received surprisingly little attention from the courts being mentioned in passing in several cases.

JACKSON J: THE LIMITS OF EXPERT EVIDENCE A LAY WITNESS CAN GIVE

 

Multiplex Constructions (UK) Limited -v- Cleveland Bridge UK Limited [2008] EWHC 2220(TCC) was a case relating to the building of Wembley Stadium. A lay witness, himself a highly qualified engineer who had been involved in the project, provided a witness statement which contained considerable “expert opinion”. Jackson J stated:-

  1. In relation to admissibility, the first point to note is that Mr Taylor is called a factual witness. He has no experience of giving expert evidence and no knowledge of the requirements for giving expert evidence. He is not independent of CB, having been employed by a company in the Cleveland Group for the last eleven years. See day 17, pages 77 – 78. Permission has not been obtained or sought under CPR rule 35.4 to call expert evidence in relation to the “roof” issues which Mr Taylor addresses. CPR Part 35 constitutes the “rules of court” referred to in section 3 (1) of the Civil Evidence Act 1972.
  2. The second point to note is that Mr Taylor, like several other witnesses in this case, is a highly qualified and experienced engineer, who was involved for many months in the Wembley project.” …”I shall therefore treat Mr Taylor as a factual witness who (a) is possessed of considerable engineering expertise and (b) has personal knowledge of the roof design and erection engineering decisions which were made in the period February 2004 to October 2005.
  3. The question then arises as to whether Mr Taylor is confined to giving evidence of fact, without including his expert opinion on matters. Alternatively, can he include statements of professional opinion bearing upon facts within his personal knowledge? 
  1. This question arises in many fields of litigation, for example professional negligence actions where the defendant is a witness of fact but also wishes to justify his actions by drawing upon his professional experience. This question arises with particular frequency in litigation in the Technology and Construction Court. Most factual witnesses called are possessed of technical knowledge and expertise. In relation to major engineering projects (such as Wembley Stadium or the M6 Toll Road) those factual witnesses are likely to have very considerable expertise. Otherwise they would not have been engaged upon such projects in positions of responsibility. 
  1. As a matter of practice in the TCC, technical and expert opinions are frequently expressed by factual witnesses in the course of their narrative evidence without objection being taken. Such opinion evidence does not have the same standing as the evidence of independent experts who are called pursuant to CPR rule 35. However, such evidence is usually valuable and it often leads to considerable saving of costs. 
  1. Having regard to the guidance of the Court of Appeal and the established practice in TCC cases, I conclude that in construction litigation an engineer who is giving factual evidence may also proffer (a) statements of opinion which are reasonably related to the facts within his knowledge and (b) relevant comments based upon his own experience. For example, an engineer after describing the foundation system which he designed may (and in practice frequently does) go on to explain why he believes that this was appropriate to the known ground conditions. Or an engineer brought in by a claimant to design remedial works (which are subsequently challenged as excessive) may refer to his experience of rectifying comparable building failures in the past. For example, such evidence may be given in cases about concrete failure through ASR (a worldwide problem).

RECOGNITION THAT A LAY WITNESS GIVING “EXPERT” EVIDENCE CAN PUT A PARTY AT A DISADVANTAGE

In S -v- Chesterfield and North Derbyshire Royal Hospitals NHS Trust [2003] EWCA Civ 1284 the claimant appealed to the Court of Appeal when a Master refused an application that he be allowed to call two experts in obstetrics.  The claimant argued that the defendant’s doctor would give, in effect, expert evidence on his conduct in addition to the defendant’s expert and he should be able to call two experts in response.

Brooke L.J. stated:
“[23]  Above all, however, for a case of this importance, high monetary value and complexity the parties will not be on an equal footing if Master Ungley’s order is to stand. The master appreciated that it was inevitable that a witness who happened to be a professional will give evidence of his actions based upon his or her professional expertise, but he thought that it was possible to isolate this evidence from the evidence on the “vital question of whether those decisions fell short of the required standard” on which he was permitting only one expert on each side. In my judgment he was clearly wrong to do this on the facts of this case.
[24]  Anybody watching the trial would be bound to be impressed by the fact that there was only one consultant obstetrician giving evidence for the Claimant, while there would be three giving evidence for the defendant hospital trust, and those three would cover a much wider spectrum of personal experience than the single expert permitted to the Claimant. It is not as if the medical witness of fact for the defendants is a junior hospital doctor. We were told something of Mr Downes’ professional history both as a practitioner in a number of hospitals and as a teacher, and his evidence on the reasons why he believed he acted with appropriate care will be supported by two other consultants. Against them there will be a single voice speaking for the Claimant, and Mr Wheatley spoke convincingly of the danger that he might appear to a judge to have a “bee in his bonnet” or an overly academic approach to matters of day by day clinical practice.
[25]  I do not moreover consider that the extra time and expense that would be introduced into the trial by the calling of a second expert for the Claimant would be disproportionate in a case of this monetary value and importance.
[26]  For these reasons I would allow this appeal and direct that para 7A of the master’s order be varied so as to permit the Claimant to call two experts in the field of obstetrics. Whether in due course the Defendants should be permitted to call two such experts is not for us to decide on this appeal. After the expert evidence has been exchanged, it may be that the Defendants will be able to persuade the master that despite the wealth of obstetric expertise already on their side, a further expert is reasonably required. This is for the future. For present purposes it is sufficient to say that in my judgment it is necessary to permit two experts for the Claimant in this case for some real purpose (to quote Lord Woolf’s language), and that real purpose is the achievement of justice in accordance with the overriding objective on the particular facts of the present case.
[27]  Nothing in this judgment must be taken to give any sort of green light to the calling of two experts in a single discipline in any case which does not have exceptional features. On this appeal the presence of three consultants on the Defendants’ side constitutes such an exceptional feature.”
Holman J stated:
[31]  Before the master, the application for two experts in the field of obstetrics seems largely to have been based on the argument of “equality of arms”. The master rejected that argument since he drew a sharp distinction between witnesses of fact and expert witnesses. Of course that distinction does exist. It is an important one, and it underpins the scheme of Part 35 of the CPR. But in my view it should not obscure the realities of a case such as this. As the master himself recognised, “it is inevitable that a witness who happens to be a professional will give evidence of his actions based upon his or her professional experience and expertise. . .”. It is, in my view, not only inevitable but appropriate, for no professional person can explain or justify his or her actions and decisions save by reference to his or her training and experience.
[32]  In my view this is of particular relevance to an action which alleges professional negligence, governed by the Bolam test. When a court is considering what practices may be adopted by a responsible body of medical opinion, it seems to me impossible to exclude evidence given by two doctors, now both of consultant status, of their own experience, however much they may be labelled and confined as “witnesses of fact”. The reality is that they have and profess expertise and, if credible, their evidence based on their experience and expertise cannot be ignored. So in my view there is an issue of equality of footing if the Claimant is only permitted to call one obstetric expert while the Defendants can rely upon two consultants plus an expert. However, that is not decisive, for equality of footing is only one of the considerations in the overriding objective.

RELYING ON A  LAY WITNESS  ALONE TO GIVE “EXPERT” EVIDENCE IS UNWISE

In DN -v- London Borough of Greenwich [2004] EWCA Civ 1659 the claimant brought an action alleging negligence on the part of an educational psychologist. The defendant did not adduce any expert evidence but relied on the evidence of the psychologist alleged to be at fault.

[9]  The trial was unusual in that Greenwich did not rely on any independent expert on the issue of the standard of care reasonably to be expected of an educational psychologist working for a local education authority at the relevant time. Instead it was content to rely on the evidence of Mr Moreland, coupled with the evidence of Mr Radcliffe, another educational psychologist who was charged (but acquitted) of negligence in connection with a report he wrote about DN in 1994. DN, for his part, was able to rely on the evidence of Mr Albert Reid, who was for 10 years between 1980 and 1990 the senior specialist educational psychologist for children with complex needs in the Inner London Education Authority. The judge described Mr Reid as an impressive and highly experienced witness, whose evidence was frank, compelling and authoritative, even if he was prone to a tendency on occasions to use the language of an advocate.

THE COURT OF APPEAL: THE LAY “EXPERT” EVIDENCE HAD TO BE CONSIDERED – BUT THE APPEAL WAS STILL DISALLOWED

The Court of Appeal’s comments on these issues are important:-

[21]  The case was not an easy one to try, because the central question the judge had to determine was whether Mr Moreland (and, later, Mr Radcliffe) had failed to act with the care and skill that should reasonably have been expected of him, and the Defendants, as we have said, decided not to call any expert evidence to assist the judge on this issue. Very soon after the trial started, the judge adverted to this fact in an exchange with counsel (mainly Mr Warnock, who appeared for Greenwich):
“Q: I have two questions. The first is that there is no educational psychologist that I am referred to for the Defendant. Is that right?
A: That’s right.
Q: Do I assume, therefore that Mr Reid’s conclusions on liability are unchallenged?
A: No, your Lordship should not assume that.
Q: You do not have any expert evidence to counter his?
A: No, I do have two very experienced educational psychologists.
Q: They are the targets of the DN’s allegation?
A: Yes, that is right.
Q: They are witnesses of fact.
A: They are also able to explain why they acted as they did and certainly I will be testing Mr Reid’s evidence.
Q: You are perfectly entitled to test but to rely upon the targets of N’s as experts, I am afraid you are not permitted to do that.
A: Perhaps we can address that when we come to it, my Lord.
J: I am telling you that that is the position.”
[22]  During the first day the judge was handed the joint report of the parties’ psychiatrists (for which see para 47 below) which showed a significant measure of agreement. He immediately encouraged the parties to discuss settlement terms in the light of this report and the fact that the Defendants did not have an expert on liability. Mr Warnock declined this invitation and told the judge that he had quite a lot to say on the question of liability.
[23]  The judge’s belief that the Defendants should have conceded liability in the absence of an expert of their own was also evidenced by the terms of his later ruling that the Claimant should receive his entire costs of the action.
[24]  The judge addressed the absence of an expert witness for the Defendants in paras 43-48 of his judgment in these terms:
“43. Mr Phillips for the Claimant submitted that it is rare for a defendant in a professional negligence case to call no independent expert evidence. He submitted that there was no admissible evidence to rebut the evidence of Mr Reid.
  1. Mr Warnock agreed that the Defendant called Mr Moreland as a witness of fact, but said that if Mr Moreland gave opinion evidence, then the court should take it into account, relying on the case of ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284.
  1. In his closing address, however, Mr Warnock did not refer to any aspect of Mr Moreland’s evidence relating to opinion, other than by implication in submitting that his evidence should be preferred to that of Mr Reid.
  1. It would be surprising, in my judgment, if in deciding ES the Court of Appeal intended to drive a coach and horses through the rules as to the giving of expert evidence contained in the CPR. In my judgment ES is a case management decision based on exceptional circumstances, which is directed at equality of arms in the giving of expert evidence. It cannot be said to amount to authorising the elevation of the evidence of a witness of fact (albeit a defendant in a professional negligence action) to that of expert witness, where the defendant has chosen to call no other expert evidence.
  1. Thus I conclude that there is no expert evidence to counter the evidence of Mr Reid – or none that can be regarded as independent or of any weight.
  1. That is not to say that the court can or should, without more, accept the opinions of Mr Reid. His evidence needs to be assessed and the effect considered of cross-examination by Mr Warnock (without the benefit of an expert witness instructing him).”
[25]  It very often happens in professional negligence cases that a defendant will give evidence to a judge which constitutes the reason why he considers that his conduct did not fall below the standard of care reasonably to be expected of him. He may do this by reference to the professional literature that was reasonably available to him as a busy practitioner or by reference to the reasonable limits of his professional experience; or he may seek to rebut, as one professional man against another, the criticisms made of him by the claimant’s expert(s). Such evidence is common, and it is certainly admissible. Mr Phillips, who appeared for the Claimant at the trial, did not believe he had told the judge that Mr Moreland’s evidence on matters of this kind was inadmissible, and neither of the very experienced leading counsel who appeared in this court was willing to support the judge’s view of the matter.
[26]  Of course a defendant’s evidence on matters of this kind may lack the objectivity to be accorded to the evidence of an independent expert, but this consideration goes to the cogency of the evidence, not to its admissibility. That such evidence was in principle admissible should have been reasonably apparent from the judgments in this court in ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284 at [paras] 24, 31-32 and 41, [2004] Lloyd’s Rep Med 90.
[27]  If it had in fact been the case that the judge disregarded or excluded any evidence of this kind that was given or tendered by Mr Moreland, then that would certainly have constituted grounds for setting aside his judgment.

THIS WAS NOT A GROUND FOR OVERTURNING THE JUDGE’S DECISION

The judge had found in favour of the claimant. The Court of Appeal did not overturn that decision.

“[31]  It seems to us that the Defendants’ dilemma ultimately stems from their decision not to field an independent educational psychologist of their own. Whether the evidence of such a witness could have led the judge to conclude that Mr Reid was applying an unreasonably high standard will never be known. As it is, it appears to us that the judge was entitled to adopt what Mr Reid told him Mr Moreland should have done if he had acted with the skill and care reasonably to be expected of him, and that it would be wrong for this court to interfere with the judgment on these grounds.”

A LAY WITNESS NEED NOT BE ASKED THEIR OPINION

In Royal Wolverhampton Hospitals NHS -v- Evans [2015] EWCA Civ 1059 a doctor was found to have negligently performed an operation on the claimant. On appeal one of the grounds of appeal was that the trial was unfair due to a serious procedural irregularity, namely that the doctor had not had the opportunity to give his opinion as to whether his actions were negligent.

“That leaves only the argument that the trial was unfair due to a serious procedural irregularity. Mr Thomas submitted that Mr Mughal had not had the opportunity to deal with the allegation that he had negligently cut the cement extrusion at a time when he did not have a complete view of the rim because of the presence of the pusher. This, submitted Mr Thomas, was a different allegation from saying that he had failed to look carefully enough for cement which was there to be seen.
 
[49]  I would reject this ground of appeal. First, Mr Mughal’s function was that of witness of fact. He was there to describe what he had seen and done. He was not there in the capacity of an expert whose function it was to give an opinion on breach of duty. So, strictly speaking, it would not have been proper to ask Mr Mughal whether or not it would be negligent if he had cut the cement while using the pusher. I would accept that, in clinical negligence cases, where the person criticised often has a high degree of expertise, this distinction can become blurred. But it cannot be a serious procedural irregularity not to put to a witness of fact that a particular action amounted to substandard practice.”

 

 

A TRIPPING CASE WHERE OPINION EVIDENCE WAS CONSIDERED

Lawrence v Kent County Council [2012] EWCA Civ 493

The Court of Appeal considered a “second tier” appeal in a highway tripping case. The claimant won a case at first instance but lost when the matter was appealed to the High Court judge, Mr Justice Eady. Eady J allowed the defendant’s appeal because he felt that the circuit judge had relied on matters of opinion which were irrelevant. He found that he was, therefore, able to take his own view of the danger posed by the defect and held that it was not an undue danger.

The opinion evidence

The opinion evidence came from the claimant’s daughter who said that she took a photograph of the defect “because I don’t think it’s right” and “Obviously when my mother walks, she wears glasses, so she always looks ahead, she does not walk with her head down, so I think anyone could have possibly tripped in the same way, that was the reason”.

Further opinion evidence was given by the council’s surveyor who stated “I estimate the height of the manhole cover to have been around 10 to 15 millimetres” and “I didn’t feel it was dangerous”.

Sir Mark Waller (giving the judgment of the court) observed:
(1) “It is trite law that opinions are the province of experts. It is furthermore trite law that even experts do not decide cases – judges decide with the help of experts. It is very common certainly in civil cases for a factual witness to give evidence and in order to describe that on which they are giving that evidence express an opinion. This is recognised by Section 3 of the Civil Evidence Act 1972 …”
“Of course the weight to be given to such evidence will depend on many things. In the instant case Mrs Rose was the claimant’s daughter and thus not independent. Mr Cunningham was the surveyor who inspected the manhole cover after the event and might have borne some responsibility for any failure to repair and thus evidence against his interest might be more relevant than evidence which sought to lessen his responsibility”

The Court of Appeal’s findings

The Court of Appeal upheld the decision of the High Court judge, but on slightly different grounds. The opinions of the witnesses were not irrelevant. However the trial judge had not taken the correct view of the evidence. Over-stating the claimant’s case and failing to give full credence to the evidence of the opinion of the defendant’s inspector who had recorded his opinion at the time.

RELATED POSTS

Witness statements “facts” and “opinions”.

Source of information and belief

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