Instructing expert held not reasonable given issues in case

The considerations when instructing a skilled, or expert, witness were addressed by Sheriff McGowan in Hunter v East Lothian Council.

While supervising children in a playground, the pursuer, a nursery nanny, had fallen and broken her arm after being struck from behind by a child on a tricycle. In essence, the pursuer’s case was that there had been a lack of appropriate monitoring of the number of children. Her employers denied liability. When the case eventually settled, the defenders opposed the motion for certification of one of the pursuer’s skilled witnesses who had extensive experience of situations involving risk assessment and safe systems of work in other workplace contexts, although not nurseries. He also had knowledge of children and education policies.

The defenders argued that (i) the witness was not skilled; (ii) if he was, it had not been demonstrated that he had exercised that skill; and (iii) it had not been reasonable to instruct him. Given the witness’s background, he could not assist the court and his instruction had therefore not been reasonable.

Sheriff McGowan noted the two parts to the test for certification: whether the person was a skilled person, and whether it was reasonable to employ them. In looking at the first part, the witness’s putative skill should be considered in isolation – the only question was whether, at the time of instruction, the witness possessed the skill based on knowledge, experience and/or training, which could be determined with reference to the expert’s CV. Sheriff McGowan had no difficulty in holding that the witness was skilled.

The next question was whether it had been reasonable to employ the witness. This was to be assessed at the time that the decision to instruct was taken. A number of relevant factors were identified, including the steps taken to establish the witness’s credentials and the timing of instruction. Other factors were identification of the relevant issues at the time of instruction and whether the witness had the relevant skill. In Sheriff McGowan’s view, the skill of the witness instructed by the pursuer was not well suited to the circumstances of the case, and as he was not satisfied that it had been reasonable to employ the witness, the motion for certification was refused.

Hunter v East Lothian Council [2018] SC EDIN 19 (ASPIC, 23 January 2018)