Legal Mind Case and Commentary No.7: Regulating Expert Evidence - Dr Hugh Koch & Dr Richard Cosway
05/07/16. Case: Kennedy v. Cordia LLP [Scotland]. This case centres on a Supreme Court judgement in relation to an accident involving a home carer in Glasgow who visited an elderly lady who was terminally ill. The carer, in the process of carrying out her duties for her employer Cordia, slipped on the public footpath approaching the house and fell, injuring her wrist. The case was initially heard in front of a Lord Ordinary who held Cordia liable. In these proceedings, evidence was heard provided by an expert witness (or “skilled witness” in Scotland), under objection from the defence, in the area of Health and Safety which proved pivotal in finding for the claimant.
The case was appealed by Cordia at the Extra Division of the Court of Session. The appeal was upheld and a judgement was provided which highlighted difficulties around the evidence provided by the expert witness. Two areas of difficulty were highlighted in relation to the expert evidence. Firstly, that the expert had given his opinion on matters of law reserved for the court and, secondly, that the area of Health and Safety practices of employers was not a “recognised body of science or experience” on which opinions could be based and “subjected to forensic evaluation.”
At a further appeal by Kennedy, The Supreme Court disagreed with the decision by the Extra Division and upheld the original judgement. The judges found that, in the initial judgement, the Lord Ordinary was correct in using the expert evidence to assist the court in the area of health and safety with both expert fact and opinion evidence.
In paragraph 44 (page 14) of the judgement, the Supreme Court judges address the use of Expert or Skilled witnesses and set out four considerations governing the admissibility of skilled evidence...
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