Summary

The defender’s insured drove his motorcycle into the pursuer’s parked lorry causing the pursuer, who claimed he was standing on the steps of the lorry on one foot and leaning on the cab, to allegedly lose his balance and suffer injuries. The defendant led an expert witness, Mr H, who presented himself as a Forensic Engineer, and the pursuer an Orthopaedic expert, Mr S. 

The Sherrif concluded that he could not afford Mr H’s conclusions more than minimal weight because of a failure of methodology. Mr H had also expressed his conclusions in terms that gave the appearance that he was the decision-maker and made concessions during cross-examination. The Sherrif found Mr S to be a credible and reliable witness overall but noted that he was not clear when describing his fee arrangements. 

Learning points

• Make sure that you use the correct methodology and undertake any physical examinations or interviews that are required to support that methodology.

• Be careful of expressing your conclusions in terms that might give the impression that you consider yourself to be the decision-maker.

• Always be clear when responding to questions about your fee arrangements as any doubts or confusion about these arrangements, particularly any suggestion that your fee is contingent on the outcome of the case, will impact your credibility and your independence may be called into question. You can use EWI's Standard Terms and Conditions of Engagement to ensure your fee arrangements are clear and have been agreed with your instructing party. 

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