When I was still a young lad my father would have a bit of fun testing me. He’d ask me things like “When is a door not a door?” or “When is a room not a room?”, and so on. These silly brain teasers were meant to provoke linguistic articulation in the mind of the six-year old that I was. My father, no doubt, failed in this little enterprise of his. So, can anyone tell me…is there a suitable answer to the more pressing judicial question “When is an expert, not an expert?” More to the point perhaps, when does a Court move to disregard what an appointed expert has determined when it is clearly not within his capacity to make that determination, when the conclusion he has reached is unsound?
This was the vexing question surrounding the report and testimony of traffic expert Mario Buttigieg in Gasanmamo Insurance Limited and Maris and Paul Ellul vs. Alexandra Agius 303/2016LM decided by the First Hall of the Civil Court on the 13.05.2019, a claim for damages resulting from a horrible head-on collision in October, 2014. Plaintiffs, represented by your humble scribe, were awarded substantial damages and the defendant found totally responsible for the accident. But that isn’t the point. Not by a long stretch. For reasons best known only to himself, the traffic expert at some point decided that he was also a medical expert. He concluded – on the basis, mind, of no evidence whatsoever – that the defendant lost consciousness whilst driving, exonerating her from culpability. Now, no doctor, consultant, clinician, physician or other medical professional could provide evidence of this. The forensic doctor assigned to the case and who examined the parties just minutes after the accident couldn’t find anything that, in any remote way, would prop up the thesis put forward by the defendant and that, ostensibly, supported by the traffic expert (or was he a medical expert?!). Now one of the qualities expected of court appointed experts, is their impartiality. It is this basic tenet, amongst others, that lends credibility to their institution. Once that’s gone….
The traffic expert eventually caved in under the pressure of cross-examination with the Court taking furious note of this, disregarding his conclusions completely and literally tearing them to shreds one-by-one, in its reasoned, dispassionate and logical judgement. The expert, though appointed by the Court of Criminal Inquiry, was found to have had no basis to conclude things the way he did with his entire report being thrown out of the proverbial window. A Court – no Court – is ever bound by the conclusions of an appointed expert – be it the same Court that appointed him or not. Nevertheless, it is exceedingly rare that a Judge would dismiss their opinion. Otherwise what would be the point of having experts in the first place? Evidently (pun totally intended) this was the exception that proved the rule.
Alas, there is no humorous retort to the riddle. The answer is quite simple: “An expert isn’t an expert where he isn’t one”.