Volte-face: When an expert changes their mind in the witness box

In February, a sporting injuries case made headlines for being amongst the first of its kind to award damages on the grounds of negligence. A deciding factor in the judgement was down to the change in direction by the defendant’s expert. The presiding judge and EWI Chair, Sir Martin Spencer, told us more about the case — and explains why experts shouldn’t be afraid to change tack.

The case

Dani Czernuska, the claimant, was playing her first competitive game of rugby when she was heavily tackled by Natasha King, the defendant. As a result, Czernuska sustained a spinal cord injury that left her paraplegic, needing to use a wheelchair for the rest of her life.

“Generally speaking, injuries in rugby are an accepted risk of taking part in the game”, presiding judge Sir Martin Spencer told us. “But Czernuska argued that the tackle by King was illegal, inappropriate, and beyond the normal risk of the game.”

For the defendant to be found liable, the court needed to establish that she was reckless or exhibited a very high degree of carelessness – and, depending on the court's findings in relation to the first issue, whether the tackle met this test, too.

And that, of course, is where Expert Witnesses came in.

The experts

The expert evidence focussed on whether, within the laws of rugby, the defendant was offside; whether the claimant had possession of the ball; whether it was legitimate for the defendant to tackle the claimant; and how the defendant executed her tackle.

Both the claimant’s and the defendant’s experts were renowned, experienced and accomplished referees. But in their reports, they took very different views.

Edward Morrison, the claimant’s expert, said in his report: “These actions are not those of a responsible rugby player. In my opinion, it was a reckless and dangerous act and fell below an acceptable standard of fair play."

Meanwhile, the defendant’s expert, Anthony Spreadbury, said in his report: “Natasha King was not off-side, nor did she commit any act of foul or dangerous play in accordance with the Laws of the Game. […] Natasha King executes a legal tackle correctly.”

Conceding the case

It was under cross-examination that Mr Spreadbury changed his opinion, and came much closer to that of Mr Morrison’s. During the trial, he made a total of eight concessions, including that the claimant was vulnerable because of her position and also because of her size and stature compared to the defendant.

Mr Spreadbury also conceded that he would not want to see a tackle of that kind on any rugby pitch, and he’d only seen two such tackles in the whole of his career, calling it “the very epitome of dangerous tackling.”

“Those concessions totally changed the perception of the expert evidence”, explained Sir Martin. “It was, as we say in the legal world, a volte-face, or about-face.”

In his judgement, Sir Martin noted that: “Two of the essential struts to the Defendant's case had, by the end of Mr Spreadbury's evidence, gone: the Claimant was not in possession of the ball and so should not have been tackled at all; and the mechanics of the tackle itself were dangerous and liable to give rise to serious injury whereby such a tackle had no place on the rugby field. This meant that, if the Defendant's defence to this claim were to survive, it would have to be put forward on a very different basis.”

A learning experience

It’s impossible to say for sure why Mr Spreadbury made those concessions. The experts’ different viewpoints clearly weren’t resolved at the joint meeting. “It took the court case and the discipline of the court to bring them closer together”, said Sir Martin. “Sometimes, experts see things in the course of a trial.”

Sir Martin praised the skilful cross-examination and also pointed out that both experts were exploring new ground.

“The number of cases that go to trial and involve forensic examination is uncommon, particularly in the field of sport”, Sir Martin explained. “This was the first time both experts had given evidence in court and the first time being cross examined in a court of law. It would have been a learning experience for both of them.”

A dynamic process

Sir Martin emphasised that experts shouldn’t be afraid to concede at any point during a trial. “The fact Mr Spreadbury made [the concessions] speaks very highly of him, because they were the right concessions to make”, he said. “He hadn’t closed his mind – he’d left it open. Should the evidence have led him there in the first place? Arguably yes. But it’s sometimes difficult for experts to see the whole picture.”

“The giving of expert evidence is a dynamic process”, Sir Martin continued. “They have to be reactive to the evidence they’re hearing and the arguments put forward. They have to be ready to adjust their opinions accordingly. This was a very dramatic example of that.”

His advice for other experts about conceding their position? “Never let your integrity be compromised by a misplaced loyalty to the client. I wouldn’t try to dissuade anyone from instructing Mr Spreadbury again. He understood his duty to the court as an independent expert witness.”

Setting a new precedent?

The claimant’s legal team was quoted as saying: “The outcome sets a legal precedent for future sporting injury claims involving spinal cord injuries and we hope that Mrs Czernuska’s case goes a long way to raise awareness of the dangers involved with foul play on the sporting field.”

But Sir Martin is cautious when it comes to speculating on whether we can expect more cases in the future which consider whether players are taken to court for negligent behaviour.

“I think possibly, if I had found against the claimant, it would have stopped such claims in their tracks”, he acknowledged. “Each of these cases is different. To draw parallels between different cases is very, very difficult. Any caution people have had in the past about bringing such cases forward is very appropriate.”