It is not unusual for a court to order those in dispute over an allegedly defective vehicle to obtain a report that has not been written by a “hired gun”.
A jointly instructed expert is agreed, whose job it is to produce an independent report for the court. However, we are finding that these experts often exceed their role and so their findings need to be scrutinised and challenged.
The rules state that an expert cannot pass comment on matters that are beyond their expertise.
However, when writing for the court, they often start giving legal opinion too and this practice needs to be nipped in the bud. For example:
“I believe that the car was not of merchantable quality when sold 8 months previously”. In this case, the fact that “merchantable quality” was removed from the Sale of Goods Act a decade ago clearly shows that this engineer has no grounds at all for making this type of assertion. It is not for him to give an opinion as to whether the car breached the law or not.
“I think that the seller should have noticed this at the point of sale / be held responsible / have to pay for the cost of repairs”. Again, the engineer examining must stick only to what he finds and leave the decision making to the court.
From our point of view, experts need to give a considered opinion as to what the likely cause of failure was. It may be beyond doubt that a head gasket has blown but establishing why it is likely to have done so if often the real crux. Has it blown because it was itself defective or as a result of it having been driven continuously with no water in it?
Great care therefore has to be given to what an expert witness is instructed to report on during his or her inspection of a vehicle but not to the extent that they are given the freedom to become Lord Chief Justice at the same time!
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