Kirkman v Euro Exide Corporation (CMP Batteries Ltd)

A witness gives factual evidence when stating what that witness personally would have done in a hypothetical situation. This remains factual even where the statement draws upon professional knowledge and experience. By contrast, expert evidence applies specialised knowledge or received professional wisdom to determine what a competent practitioner generally would or probably should have done.

Equality of arms usually favours comparable limits on each party’s expert evidence. It creates no absolute rule requiring both parties to call the same number of experts. The usual approach may yield where justice requires.

The claimant suffered a workplace knee injury and later underwent surgery, contracted MRSA and required an above-knee amputation. Liability was admitted, but the parties disputed whether the workplace accident had caused the surgery to occur when it did.

The claimant wished to call his treating surgeon, Mr Banks, alongside his chosen medical expert. Mr Banks proposed to say that, without the accident, he personally would not have advised the surgery undertaken. HHJ Warnock allowed the defendant’s appeal from a case management order and excluded Mr Banks’s statement as expert evidence.

The claimant appealed on the permitted question whether the disputed statement was factual or expert evidence.

1. Appeal allowed unanimously. Mr Banks’s proposed statement was evidence of fact. He was the doctor who would actually have advised the claimant and was stating what he personally would have done in circumstances which did not occur. His reliance upon professional knowledge and experience did not convert that statement into expert opinion.

2. Experts without personal knowledge would instead apply their expertise to the assumed facts and express an opinion about what competent surgeons generally would advise, or what an unidentified surgeon probably would have advised. That exercise concerns received medical wisdom and constitutes expert opinion. Mr Banks did not assert that his proposed advice would have been correct, representative or consistent with received medical wisdom. Its correctness was not the issue; the issue was what he would have advised.

3. The same distinction was illustrated by an employer’s evidence that an employee would have been promoted but for an injury. Such evidence remains factual even though its credibility depends upon the employer’s knowledge, experience and expertise. There was no essential difference between that evidence and Mr Banks’s proposed statement.

4. The aspiration of equality of arms generally supports permitting each party comparable expert resources. It does not impose an absolute rule that each side must always call the same number of experts. The usual approach may give way where necessary to achieve the overriding objective of dealing with the case justly. ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284 illustrated circumstances in which it could do so.

5. Mr Banks was permitted to give evidence in accordance with his statement dated 7 October 2005. If cross-examination drew him into expert opinion, the trial judge retained discretion to permit that development where it would assist a just decision.

1. Court of Appeal (Civil Division): The claimant’s appeal was allowed. The court held that Mr Banks’s redrafted statement contained factual evidence and permitted him to give evidence in accordance with it. Any further development of that evidence was left to the trial judge’s discretion: [2007] EWCA Civ 66.

2. Bolton County Court: HHJ Warnock allowed the defendant’s appeal from District Judge Shaw’s case management order and directed that the claimant could not rely upon Mr Banks’s statement because it was expert evidence.

3. District Judge: District Judge Shaw directed Mr Banks to attend the trial and left the trial judge to decide whether his proposed evidence contained expert opinion.