Is it right for a judge to set himself / herself up as an expert witness in the face of proper expert evidence?
September 13, 2010
(1) JOSHUA SMITH (BY HIS FATHER & LITIGATION FRIEND PETER SMITH) (2) CO-OPERATIVE GROUP LTD v MARK HAMMOND (2010) CA (Civ Div) (Moore-Bick LJ, Wilson LJ, Moses LJ) 25/6/2010
The Claimant, Joshua Smith, aged 13 years old at the time, was a paperboy. The accident circumstances were that he had cycled across a road without looking properly. The Defendant, a lorry driver, was driving along the same road, and consequently a collision occurred. Joshua suffered serious head injuries and the lorry driver, Mark Hammond, suffered post traumatic stress disorder.
Mr Hammond had not sounded his horn before the accident. The judge found for Joshua, but also found him 60% to blame for the accident. Mr Hammond's counterclaim for post traumatic stress disorder was dismissed.
The Defendants called, Dr Searle, an expert witness. His evidence was that even if Mr Hammond had taken steps to sound his horn, the accident was already inevitable, because the overall time required for Mr Hammond to sound the horn and for Joshua to react to it would have been about 3 to 4 seconds, by which time Joshua would already have been part way across the road and into the path of the lorry.
The judge, however, rejected that evidence, preferring to rely on his own experience of reacting to the sound of a horn when driving.
Did the trial judge approach the expert evidence properly?
The Court of Appeal held that the trial judge was wrong to reject Dr Searle's evidence. The judge was not bound to accept Dr Searle’s evidence if he had good grounds for not doing so. However if he was going to reject it, he should have given cogent reasons for doing so other than simply relying upon his own experience, however tempting it was to do so.
In the view of the Court of Appeal, there were no grounds for rejecting the evidence of Dr Searle on this question. The Court of Appeal therefore set aside the judgment against Mr Hammond, and granted his appeal against the dismissal of his counterclaim.