Supreme Court on experts usurping the function of the court
Can an expert opine on matters the court has to decide?
The recent Supreme Court judgement in Kennedy -v- Cordia1, a Scottish case, has provided some interesting guidance on the issue of when an expert’s opinion appears to go to the fact-finding which is in fact the function of the court.
Ms Kennedy was employed as a home carer by Cordia. Her work involved visiting clients in their homes and providing personal care. Late in December 2010 she was required to visit an elderly lady. The footpath to the elderly lady’s home was on a slope and was covered with fresh snow overlying ice. It had not been gritted or salted. After taking a few steps, she slipped and fell, injuring her wrist. The Lord Ordinary (the trial judge), relying on expert evidence, found her employer liable for the injury on the basis that it did not provide her with protective footwear. This finding was reversed on appeal. Ms Kennedy’s appeal to the Supreme Court concerned the admissibility of evidence given by the expert witness, and whether Cordia had been in breach of their statutory duties or negligent.
In unanimously allowing Ms Kennedy’s appeal, the Supreme Court had this to say on the role of the expert [see paras 65 and 66 of the judgment]:
“The [lower court] had two other major criticisms of [the expert’s] evidence. One was that he was inadmissibly giving his opinion on matters of law. The other, which was based on the well-known dictum of Oliver J in Midland Bank Trust Co Ltd -v- Hett, Stubbs & Kemp  Ch 384, 402, a case of solicitor’s negligence, was that an expert’s opinion of what he would have done in the circumstances did not assist the court, and was therefore inadmissible.”
“The former objection may properly be made to [the expert’s] statements that it was for Cordia to consider the range of footwear and attachments that were available (main report para 3.74) and that it was for Cordia to take steps to reduce the risk as far as was reasonably practicable (main report para 4.11). They appear at first sight to be statements of opinion on Cordia’s legal duty, which would not be admissible before lay fact finders and should be avoided. An experienced judge however could readily treat the statements as the opinions of a skilled witness as to health and safety practice, based on the Management Regulations and the PPE Regulations and on HSE guidance, and make up his own mind on the legal question. The Lord Ordinary (at para 48 of his opinion) interpreted passages in [the expert’s] supplementary report as expressing an opinion that Cordia had breached their statutory duty. If that were a correct interpretation of what [the expert] had said, those passages of his evidence were not admissible. But, as we shall explain, that does not undermine the Lord Ordinary’s decision, because he applied his own mind to the central legal issues.”
This case follows the trend set by other recent cases on, for example, childhood memory and facial mapping in which experts have been permitted to give an opinion on the ultimate issue. All the leading authorities now agree that, provided the judge makes it clear to all members of the jury that they are not bound to follow the expert’s opinion, or in the absence of a jury the judge turns his or her own mind to the point, the expert will generally be permitted to opine on the ultimate issue.
1 Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland)  UKSC 6, on appeal from  CSIH 76.