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In construction litigation a lot of emphasis is placed on expert evidence, but there usually has to be evidence of fact too, writes Sue Lindsey. Why a building fails may be a matter of opinion, but what was agreed was to be built in the first place is a matter of fact. Yet there can be overlaps. Who does the judge believe if an expert and a factual witness contradict each other? You might be tempted to think the answer is the expert, who is there to assist the court and is supposed to be impartial.

But that is not necessarily right, as the Court of Appeal recently held in Armstrong & Connor v First York Bus Company (17 January 2005).

Mr Armstrong and Ms Connor were driving in their Ford Fiesta through York.

While stopped at traffic lights, a bus tried to pass them on the nearside. Unfortunately, the lack of space led to an accident, and Armstrong and Connor brought claims for injuries sustained to their backs. They both said their car was jolted by the impact of the bus, and that had caused the injuries.

However, there was a single expert, Mr Childs, a 'forensic motor vehicle engineer'. His evidence was that the damage to the car was so slight that the impact had been insufficient to even have moved the stationary car on its own springs, still less to have moved the car on its wheels. The claimants made no attempt to call any engineering evidence to contradict this.

Without movement of the car, the injuries claimed for could not have been caused by the accident. The defendant therefore alleged that the claimants were lying, and the claim was a dishonest one.

The two versions of events were irreconcilable; either the car had moved, or it had not.

The trial judge heard the claimants' evidence in court, and said: 'Not one jot of evidence, not one shred, seriously undermined? my confidence in their veracity and straightforwardness.' But he was also faced with Mr Childs' evidence, which he found to be 'logical and consistent'. If he accepted that, it followed that the claimants were dishonest.

In the event, the judge decided in favour of the claimants, because of his clear, unequivocal impression of their honesty. He therefore concluded that there must be an error in Mr Childs' evidence.

At the defendant's appeal, the court held that there was no principle of law that an expert's evidence had to be accepted to the extent that a judge was compelled to find that palpably honest witnesses had come to court to deceive him. Nor, in rejecting the expert's evidence, did the judge have to give technical reasons for doing so.

Citing an earlier case, Lord Justice Brooke said: 'We do not have trial by expert in this country; we have trial by judge.' While expert evidence can be crucial, we have to remember that it is the judge who decides a case on the basis of all the evidence that he or she receives.

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