EWCA Civ 277
Court can prefer eye witness evidence to the expert’s opinion
This case concerned two claimants who claimed that, whilst waiting at traffic lights in the centre of York, one of the Defendant’s buses collided with their car, and that they sustained back injuries as a result.
The single joint expert in the matter, a forensic motor vehicle engineer, gave evidence to the effect that the damage sustained to the claimants’ car was so minimal as to suggest that the collision had not in fact caused the car to move at all, let alone jolt sufficiently to cause back injury.
The claimants called no technical evidence to challenge the expert’s view and simply relied on their own evidence that the collision had happened and had caused them injury.
In effect, the expert’s view meant that the judge at first instance was faced with, on one hand accepting the claimants’ evidence as undermining the expert’s conclusion, and on the other, finding that the claimants were lying.
The first instance judge found for the claimants, relying on a previous case in similar terms, Coopers Payen & Ors v Southampton Container Terminal  EWCA Civ 1223 (summarised in The Expert in [late] 2003). He found the claimants to be honest, and thus necessarily decided to reject the expert’s view as containing a ‘possible error’ although he could not identify what, if anything, was specifically wrong with it.
The Court of Appeal upheld the judge’s approach, holding that there was no principle of law which required an expert’s view on a matter such as this to be preferred to the evidence of eye witnesses. Brooke LJ said We do not have trial by expert in this country; we have trial by judge, making reference to the Coopers Payen case.
The Court further held that there was no problem in principle with the trial judge having rejected the expert’s conclusion despite not pointing out any specific flaw in it. It was capable of being sufficient that the judge was convinced of the claimants’’ honesty.
This case confirms yet again that the Court of Appeal will uphold decisions which prefer the evidence of an eye witness to that of an expert. Equally plainly but not mentioned in the cases is the point that an expert witness provides his or her opinion. That is a privilege as ordinary witnesses are generally not permitted to give opinion evidence as it is inadmissible in court proceedings. The expert witness in providing an opinion is doing just that and importantly is not giving a guarantee or assurance that every view that he expresses is necessarily
100% correct. The expert may express his or her opinion in a number of ways it may have (and often will have) caveats or restrictions, in other cases it may be expressed in such a way as to suggest a high level of robustness or reliability and be backed up by an analysis of the underlying
relevant evidence. Putting it another way that is the different between a fact and an opinion and that explains why a court may, in certain circumstances, quite properly prefer the evidence of a witness of fact to that of an expert witness giving opinion evidence.