§ ADMISSIBILITY OF EXPERT OPINION AND CERTAIN EXPRESSIONS OF NON-EXPERT OPINION.
§ Question proposed, That the Clause stand part of the Bill.
§ Mr. McLaren
The Clause is declaratory of the existing common law as to the admissibility of opinion evidence. It also extends the admissibility of such evidence in the case of non-expert evidence.
As hitherto, an expert may give evidence of inferences that he draws or 1989 opinions that he forms, and the non-expert is to be allowed to make statements of opinion if those statements are a way of conveying relevant facts which he personally has perceived. An example that we have considered before is that of the witness in a car case who says "There is nothing he could have done to avoid the accident." What such a witness is, in fact, saying is that what he saw was that the car was very near when the pedestrian stepped off the pavement.
Although there may be an alteration of the strict principle that witnesses must state facts and not opinions, the deviation is more apparent than real and it will be more helpful than damaging.
§ The Solicitor-General
My hon. Friend said that the Clause was declaratory of the common law relating to the evidence of expert witnesses. That is almost entirely the case, and it certainly is the case that the most important change made by the Clause is that in subsection (2), dealing with the admissibility of en passant expert opinions by witnesses giving their account of relevant facts.
But there is a change in respect of the admissibility of expert opinion by expert witnesses. Up to this point in time, although an expert has been able to express his opinion on almost every issue that arises in a case, he has not been allowed to express his opinion on the issue in question. That rule has been honoured more in the breach than in the observance, but, strictly, the rule is that one may not in terms ask an expert medical witness "Was the defendant doctor negligent?" because that has been the issue which the judge has had to decide. The effect of subsection (1) together with subsection (3) is to set aside that rule and make that kind of question admissible.
The opinion of the expert on the issue which the judge has to try is, of course, not decisive, but it is a factor that the judge himself may take into account. That change arises from the fact that subsection (1) says that the opinion of an expert on any relevant matter on which he is equipped to give expert evidence shall be admissible. Subsection (3) defines "relevant matter" as an issue in the proceedings in question. This is the change made by the Clause 1990 in addition to that so clearly explained by my hon. Friend.
§ Mr. S. C. Silkin
I am extremely glad that the Solicitor-General has clarified that, because it is a matter of great importance. The only thing that concerned me about the Clause was that the principle contained in the clarification note by the Solicitor-General has not been extended to evidence generally. The 17th Report of the Law Reform Committee points out that what is described as the ordinary man when giving evidence is frustrated if he is confined within the narrow bounds of our rules of evidence and finds it extremely difficult to give a spontaneous account of events which he has seen or heard without in the course of it expressing some opinion such as that the child ran out and the defendant did not have a chance to avoid hitting her.
The report goes on to say—and this is the effect of subsection (2)—that all the members of the Committee—there is no dispute about this part of the report—would accept that such evidence should be given by a witness, but would not accept that a direct question should be asked of the witness on the witness's opinion of a matter in issue, because that would be an encroachment on the decision-making function which is the judge's alone.
This encroachment has been accepted in the case of the expert witness. I cannot see what problem there would be in allowing a witness to state the facts and, when he has finished stating the facts in examination-in-chief, the question then being put to him: "Did you think that any party was blameworthy; what was your opinion?", because often the answer can produce considerable enlightenment on the value of the evidence and the facts to which the witness has deposed. One knows that a judge will not be prejudiced by such an answer. He will give it what weight it deserves, and it may help him to form an impression.
However, I understand that subsection (2) is deliberately phrased in a way which would not permit that. It is a step forward. I do not oppose the Clause on that account.
§ Mr. Stanbrook
I agree that the Clause is relatively innocuous, but I should like 1991 to ask a question about it. Does it mean that in future it will be admissible for any witness in a civil case, for example, involving an accident, to say that someone present at the scene was drunk? Heretofore I think that such a statement of opinion by a lay person would not have been admissible; he would have been required only to say whether the person concerned was staggering about, whether his eyes were glazed, whether his speech was thick and so on. In other words, evidence would be produced in a factual way which, to anyone listening, would be 99 per cent. conclusive of the drunkenness of the person concerned. I understand that that is the present position.
In future, because of the operation of the Clause, will it be permissible for a person to say "So-and-so was drunk" and for the other side to say "That is your opinion, now admissible because of Section 3 of the Civil Evidence Act, but on what do you base your opinion?" No doubt it will then be necessary for the witness to give his reasons for arriving at that opinion. Is that a fair summary of the position as it will be in future as a result of the change which the Clause will effect?
§ Mr. McLaren
The courts apply some common sense in these matters. When the court hears a witness say "He was drunk", the court and everyone else knows that the witness means he saw that the man appeared to be unsteady on his feet and gave all the appearances of being drunk. As in the case I described of the road accident, the witness who says he could not have avoided the accident means that he did not have sufficient time as the vehicles were too close. As I see it, we have been discussing these examples on the same footing, and the short answer to my hon. Friend is "Yes, that would be allowed".
§ 2.45 p.m.
§ Mr. Percival
Some interesting questions have been raised by my hon. Friend. I shall not oppose this Clause either. However, life is not quite so simple as my hon. Friend suggests on this or any other point. We may find that a number of entirely new and interesting questions arise. At present, if a question which is asked is the very question that 1992 the judge has to decide, or one of those questions, it is inadmissible for that reason. In future, it will not be inadmissible for that reason. It will be admissible provided that it is a question that the expert is qualified to answer. So we shall have the interesting question: what is the witness's qualification, and does his qualification cover an expertise which is relevant in answering that question?
I believe that the answer lies in what my hon. Friend said about common sense in replying to my hon. Friend the Member for Orpington (Mr. Stanbrook). I do not believe that changes like this are necessary. The elasticity and common sense which are such common form in the common law courts have been adequate to deal with all the sort of points about which we are now talking on the Clause.
I rise only to say that no one should think that the matter is quite as simple as the promoter of the Bill suggested. We know what we mean, I expect, but we are not always right in thinking that we know what we mean. We do not always put into words what we think we mean. The one thing that we do not mean to do is to provide any further points to be the basis of further leading authorities in the courts, but we are not always right about that. It could be that we will have some further interesting litigation on this Clause.
§ Question put and agreed to.
§ Clause 3 ordered to stand part of the Bill.