Summary
The judge found that the Defendant’s expert in snowmobile operations was a partial witness who acted as an advocate for the Defendant’s case. He not only ignored the Claimant’s evidence and adopted the snowmobile guides’ evidence, but positively sought to persuade the Court to find facts in the Defendant’s favour.
Learning points
Learning points for experts
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Make sure that you fully understand which facts are agreed and which are in dispute and consider what your opinion would be under each set of disputed facts.
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You must not advocate for one version of disputed facts.
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Ensure that the headings of your report accurately describe the content underneath them.
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Carefully review photographic evidence to ensure that you understand what it shows. Don’t claim to have taken a photograph that was actually taken by someone else on a different occasion.
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Make sure you engage in a joint discussion with the opposing expert, to determine the issues on which you agree and disagree, before the preparation of the joint statement. You can review the EWI Guidance on Expert Discussions and Joint Statements at: Expert Discussions and Joint Statements
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If you are providing evidence in an unfamiliar jurisdiction, ensure that you understand and comply with the applicable rules for expert evidence. Do not assume that they will be the same as in the jurisdiction where you normally act.
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When a fact you have relied on is corrected during cross-examination, carefully consider the implications of that correction for your opinion. Never fall back on making your evidence up as you go along.
Learning points for instructing parties
The case
The Claimant was injured when he drove his snowmobile off the track and hit a tree. The Defendant had furnished the snowmobile and a guide, whom the Claimant was following, as part of a holiday package. The Claimant asserted negligence/breach of contract by the guide and claimed damages for personal injury.
The expert evidence
Expert evidence was provided on Finnish law, accident reconstruction, and snowmobile operation and guiding.
Mr G’s expert report
Mr G was instructed by the Defendant to advise on breach of duty as an expert on snowmobile operations. Mr G rode the track used by the Claimant on the same type of snowmobile.
The judge noted that Mr G made a number of errors in his expert report:
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Throughout his report he assumed the version of the disputed facts provided by the guides was the only version which the Court should accept and ignored the version given by the Claimant, including:
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Whether the guide was in view of the Claimant at the time of the accident,
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Whether the Claimant and his partner received an adequate safety briefing,
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The content of that safety briefing,
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Whether the Claimant and his partner’s sitting positions were checked and the emergency tether cord attached.
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He advised the court of what conclusion was “safe” to make regarding the settings of the snowmobile, which was a disputed fact,
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He opined on matters that were up to the court to decide, including noting that:
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“with respect to the safety briefing, in my opinion, on the balance of probabilities and with regards to reasonable expert certainty based upon the training of the guides, the briefing complied with the industry norms, standards, and practices” and
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“it is unlikely to within a reasonable degree of expert certainty that both of the guides failed to properly and satisfactorily provide the routine and basic briefing.”
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The judge considered that “these sentences were a litmus test for assessing Mr G’s impartiality and he failed the test. He sought to provide his expert opinion on issues of fact based upon something he described as ‘reasonable expert certainty’.” The judge noted that “I have no idea what that is.”
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Under the heading “Qualifications and Experience”, he set out his conclusions rather than his qualifications and experience.
Mr G’s evidence was also unconvincing on some points, including:
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He used the Claimant’s previous experience riding jet-skis as a form of experience for riding snowmobiles. The judge noted that there are considerable differences between these devices including travel on water rather than snow, and the configuration and make-up of the controls,
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He asserted he had taken a photo of the track and copied it into his report, where he marked, as a circle, his estimate of the approximate location of the guide’s snowmobile after the crash. In fact, the photo was taken by the operator’s staff soon after the crash and actually showed the guide’s snowmobile, to the right of the circle drawn by Mr G, in its actual position,
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He did not consider whether using the snowmobile’s Standard, rather than Eco, mode had any influence on the Claimant’s failure to control the vehicle or whether the glove the Claimant wore would be likely to get stuck in the throttle,
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He provided comments on visibility despite riding the track in the daylight and not at sundown, the time of day ridden by the Claimant.
The judge also noted that Mr G and the Claimant’s expert prepared a joint statement without even talking to each other before producing it.
Cross-examination
During cross-examination, Mr G stated that he would not change his opinion even if the tether was not attached to the Claimant or the guide was driving so far ahead of the Claimant that the Claimant could not see him. He also refused to accept evidence that the type of snowmobile used by the Claimant suffered from understeer.
He agreed that in his report he had assumed that the facts asserted by the guides were true, which he said was his practice acting as an expert witness in North America. He did not see it as a failing to ignore the Claimant’s version of the facts and denied he was acting as an advocate for the Defendant in seeking to persuade the Court to accept the guides’ version of events.
Mr G asserted that the Claimant could see the tracks of the guide because these were the first tracks of the afternoon. When this was shown to be incorrect, he retreated into asserting that it had been groomed during the day. The judge noted that “[a]t this stage I gained the impression that [Mr G] was making his evidence up as he went along.”
The judge’s conclusion on Mr G
The judge found that Mr G “was a partial witness who acted as an advocate for the Defendant’s case. He not only ignored the Claimant’s evidence and adopted the guides’ evidence, he positively sought to persuade the Court to find facts in the Defendant’s favour. His report was littered with errors and illogicality. His research on modes of operation of snowmobiles was flimsy and unimpressive. He strayed into accident reconstruction. He made things up in the witness box and he estimated facts when the actual facts were staring him in the face. I am unable to rely on the vast majority of his evidence.”