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Supreme Court of Appeal confirms role of expert witness Jacobs v Transnet 2015 (1) SA 139 (SCA)

27 May 2015

 

  1. The role of an expert witness, particularly in construction arbitrations and adjudications is often misunderstood. Lawyers often see experts as “hired guns”, arriving to save the day and secure a positive result for their client.  On the other hand, arbitrators, particularly when such arbitrators possess technical skills and experience similar to that of the experts, tend to either feel threatened by such experts or simply tend to ignore their evidence in favour of their own personal experience.

 

  1. Experts are required to act independently and with a degree of objectivity. Their purpose is to assist the arbitrator or adjudicator in dealing with areas of specialist knowledge.

 

  1. Unfortunately sometimes experts act as if they are the advocates of their client’s case. In the English case of London Underground v Kenchington Ford Plc (1998) 63 Con LR 1 (TCC) the court criticised the lack of independence of one expert and stated that he “ignored his duty to both the court and his fellow experts” and “continued to assume the role of advocate of his client’s cause” – in so doing the court discounted his evidence.

 

  1. In the recent case of Jacobs v Transnet 2015 (1) SA 139 (SCA) the Supreme Court of Appeal has reinforced the role of experts. This case involved a delictual action following a collision between a truck carrying seasonal farm workers and a train at the Croydon intersection near Cape Town.  Various expert witnesses testified, including one Roodt.

 

  1. The trial court had been faced with conflicting expert opinions regarding the speed limit leading up to the crossing and whether such speed limit was excessive. Unfortunately the trial court failed to reach a decision as to which expert opinion to accept and there was no finding on the reliability of the various expert opinions.

 

  1. At paragraph 15 the Supreme Court of Appeal reiterated the role of experts.

 

It is well established that an expert is required to assist the court, not the party for whom he or she testified.  Objectivity is the central prerequisite for his or her opinions.  In assessing an expert’s credibility an appellate court can test his or her underlying reasoning and is in no worse a position than a trial court in that respect.  Diemont JA put it thus in Stock v Stock:

‘An expert . . . must be made to understand that he is there to assist the Court.  If he is to be helpful he must be neutral.  The evidence of such a witness is of little value where he, or she, is partisan and consistently asserts the cause of the party who calls him.  I may add that when it comes to assessing the credibility of such a witness, this court can test his reasoning and is accordingly to that extent in as good a position as the trial court was.’”

 

  1. The Supreme Court of Appeal found that Roodt’s testimony was of poor quality and lacked impartiality and objectivity. The court also held that his opinion lacked proper motivation and was accordingly discarded.

 

  1. The Supreme Court of Appeal’s judgment sends a timely reminder to all construction law practitioners, adjudicators and arbitrators that expert witnesses should be carefully chosen and selected. Employing partial experts could be fatal to a party’s case.  Similarly arbitrators and adjudicators who choose to ignore the evidence of expert witnesses in preference for their own experience could find their awards (in the case of arbitrators) being reviewed or appealed or their decisions (in the case of adjudicators) being found unenforceable.