Slip and Fall in UK Law

Experts can and often do give evidence of fact as well as opinion evidence. A skilled witness, like any non-expert witness, can give evidence of what he or she has observed if it is relevant to a fact in issue. An example of such evidence in this case is Mr Greasly's evidence of the slope of the pavement on which Miss Kennedy lost her footing. There are no special rules governing the admissibility of such factual evidence from a skilled witness.

Impartiality and other duties: If a party proffers an expert report which on its face does not comply with the recognised duties of a skilled witness to be independent and impartial, the court may exclude the evidence as inadmissible: Toth v Jarman [2006] EWCA Civ 1028; [2006] 4 All ER 1276, paras 100–102.

The test in Quinn v Burch Bros, that it is necessary to distinguish between a breach of contract which causes a loss to the Plaintiff and one which merely gives the opportunity for him to sustain the loss, is helpful but still leaves the question to be answered, "How does the Court decide whether the breach of duty was the cause of the loss or merely the occasion for the loss?"

There may be cases where such an order would be justifiable: for example, a very nervous plaintiff. In such a case it might well be, indeed it probably would be, preferable to have some other person present rather than a consultant whom he or she has probably only seen once. Another case might be the sort of case which arose in Starr v. National Coal Board, where it was thought that the consultant who the defendants wished to examine the plaintiff was one who tended to be hostile to plaintiffs.

We end by reiterating that costs judges should be more willing to approve what appear to be high success fees in cases which have gone a long distance towards trial if the maker of the CFA has agreed that a much lower success fee should be payable if the claim settles at an early stage: see Re Claims Direct Test Cases [2003] EWCA Civ 136 at [101], [2003] 4 All ER 508 for an earlier exposition of this principle.