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BWR 310 > Opinion Evidence > Flashcards

Opinion Evidence Flashcards

1
Q

What is opinion evidence?

A

We draw an opinion when a witness testifies to their inference which is a perceived impression of their belief

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2
Q

The Opinion Evidence Rule

A

v If the court can adjudicate a matter without receiving opinion
evidence, such an opinion is inadmissible because it is irrelevant.
Ø The evidence is essentially superfluous or supererogatory.
Ø The court can use its own knowledge, experience and education
to draw the necessary inferences and to adjudicate the dispute.

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3
Q

Why is opinion evidence excluded?

A

v It would have no probative value.
v It creates the risk of confusion about the issues.
v It would make trials long.
v It can open an Evidence-Pandora-Box.

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4
Q

When might opinion evidence be included?

A

v If the witness is in a better position that the court to form the opinion.
Ø Here the evidence may be of appreciable help and thus relevant
because it carries probative value by assisting the court to
adjudicate the dispute.

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5
Q

Case law supporting the inclusion of opinion evidence

A

R v Vilbro and Another
Ø The court dealt with the ULTIMATE ISSUE and found that a witness may not usurp the function of the court by expressing a view/opinion on the ultimate issue
Ø However, the court ruled that if a lay person can assist the court because they are FAMILIAR WITH THE ISSUE that the court must decide, such opinion evidence from a layperson would become admissible.

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6
Q

Difference between fact and opinion evidence

A

Sometimes its hard to differentiate between the two, especially when it concerns emotions
If theres confusion then it will be ruled as opinion evidence
As the witnesses one word description will be regarded as a factual data to the what they perceived

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7
Q

Foundational theories to OE Rules

A
  1. The OE will be admissible if it relevant and inadmissible if its irrelevant
    Zeffert and Paizes says that under normal circumstances OE is superfluous
  2. The ultimate decision is reserved for the courts
    However there are situations where OE may lead to ultimate decisions
    Ag v Firestone SA
    Ruled that Ultimate decision doctrine is incorrect
    A witnesses cannot usurp the court’s discretion in making the ultimate decision of a case
    We will only test OE on whether or not it was helpful
  3. Opinion evidence may not be advanced to include an inference of a particular case or to change the meaning of application of legislature
    Association of amusement and Novelty machine operators
    Opinion of language expert=inadmissbile because courts could easily ascribe meaning to everyday life
    International Business Machines case
    Decision in Amusement and Novelty Machines operators may differ if word has a special/technical meaning
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8
Q

General rule on lay evidence

A

General rule is that opinion evidence is superfluous
It will however be admissible if it is relevant

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9
Q

What must lay opinion evidence may be relevant to?

A

Age of person
State of sobriety of person
General condition of thing
Speed of a vehicle

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10
Q

Whats the effect of a person’s inability to provide a reason for their opinion?

A

It will not affect the admissibility of that evidence but will affect the weight of the evidence ( To what extent the court may use it die to its credibility)

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11
Q

Under what conditions do we consider the probative value of evidence?

A

If OE is relevant and therefore admissible
If OE is not challenged It will be prima facie evidence , and may be accepted by court

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12
Q

what does S v January say on the acceptance of evidence?

A

This acceptance will depend on:
Individual circumstances of case
Reasons advanced by lay witness for forming evidence

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13
Q

TEST ON PROBATIVE VALUE:

A

COURT WILL ASK CAN LAW WITNESS EXPRESS AN INFORMED AND SOUND OPINION?

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14
Q

S v Faltein on what happens if lay opinion evidence is challenged

A

When lay opinion evidence is challenged, expert evidence may be
required.
Ø This case dealt with the identification of whether a substance was
dagga, and not just anybody can identify it.

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15
Q

three functions of expert witnesses

A

AM v Minister of Health:
Give evidence of facts📃
Give abstract or general knowledge on their expert disciple 💼
Give own inferences on the issue to the court and reason for that opinion

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16
Q

Test for admissibility of evidence

A

ASK IF THE COURT CAN RECEIVE APPRECIABLE HELP FROM THIS EXPERT EVIDENCE
Ø If yes: It is admissible.
Ø If no: It is inadmissible.

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17
Q

When will expert evidence NOT be admissible?
(The Basic Rule for Admitting Expert Evidence)

A

According to Ruto Flour Mills v Adelson:
If its superfluous
If its irrelevant
If the court can reach their inference without the expert evidence

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18
Q

How does the Makhabela case support Ruto Flour Mills v Adelson?

A

A court need not be guided by opinion evidence regarding issues that may be assessed on ordinary knowledge or skill.

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19
Q

When will Expert Evidence be admissible?
(The Basic Rule for Admitting Expert Evidence)

A

When the expert’s knowdege, skill and expertise will help the court be in a better position to draw inference

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20
Q

How does the Ja Obo case support admissibility of EE?

A

The court can not classify themselves as having specialised skills to reach an inference if they do not.
(Then they’ll need to admit expert evidence)

21
Q

Is the admission of the expert evidence a Question of Science of Skill?
(The Basic Rule for Admitting Expert Evidence)

A

§ Holzhausen v Roodt
* The expert is permitted to give an opinion, even on the ultimate issue, if it is a question of science or skill.
* This judgement was clearly wrongly decided.

22
Q

What was the decision in Ja obo DA v MEC for Health, Eastern Cape?

A

§ It is irregular for a court to attempt to qualify itself as a
specialist or expert for purposes of adjudicating the trial OR to
rely on his/her own peculiar specialist knowledge.

23
Q

How will someone be classified as an expert?

A
  1. If they have the knowledge, skills training and expertise
  2. That expert must have those skills and knowledge are necessary for what they been called to draw inference on
  3. The expert must not draw evidence on hypothetical facts
24
Q

Menday v Protea Assurance on laying an expert foundation

A

Dont just be an “expert”
-have necc knowledge skills etc
Merely having qualifications is not enough
Must be able to see that you are able to apply your qualifications through your previous work

25
Q

Mahomed v Shaik on laying an expert foundation

A

The court must decide, based on the qualifications and experience
of the proposed expert, if the expert HAS WHAT IT TAKES to deliver a reliable opinion.

26
Q

Van Graan v Naude on laying an expert foundation

A

Ø A formal qualification is not essential or indispensable.
Ø Practical experience may be enough.

27
Q

General rule on expert witnesses giving reasons

A

v Expert witnesses must support their opinions with sound and valid
reasoning.

28
Q

How to determine the adequacy of expert reasoning

A

Given that many variables are at play, there is no set rule for the expert’s reasoning but much of it will depend on:
Ø The nature of the issues.
Ø Is the expert opinion attacked by the litigant’s opponent>
v Sound reasoning of the expert opinion will strengthen its probative
value.

29
Q

Coopers (SA) v deutsche Gesellschaft fur Schadlingbekamfing MBH on adequacy of reasoning given by experts

A

The ipse dixit of an expert (mere “say so”) without reasons does not assist the court.

30
Q

List three places where may reasons emanate from?

A

Common cause facts between the parties.
Facts established into evidence by witnesses. The expert’s own data and facts solicited by the expert.

31
Q

Comment on the Court not being in a position to follow technical or complex evidence

A

The reputation of the general expert’s profession; and
The presence of bias becomes important.

32
Q

R v Nksatlala on Court not in position to follow technical or complex evidence

A
  • The court should not BLINDLY accept and act upon the evidence of an expert witness, even of a finger-print expert.
  • The court must DECIDE FOR ITSELF whether it can safely accept the expert’s opinion.
33
Q

Michael v Linksfield Park Clinic on Court not in position to follow technical or complex evidence

A
  • The court must be mindful of the difference between scientific standards of proof, which is different from judicial measures of proof.
34
Q

What are the two things in which an expert can base/premise their reasoning on?

A

Ø Their own knowledge, experiments or testing; or
Ø The work of other recognized writers or authorities in the science

35
Q

S v Van As on experts basis of their reasoning

A
  • Work of others is considered authority in the science
36
Q

§ Mathamelo v Road Accident Fund on experts basis of their reasoning

A

Confirms and discusses concepts from S v Van As

37
Q

What are the effects of an expert’s reasoning?

A

The reasoning and presentation of the opinion will enhance the opinion evidence

38
Q

MVA Fund v Kenny on WEIGHT OF EVIDENCE

A

When factual evidence (direct lay credible evidence) exists on an issue, such as direct lay evidence,
the direct evidence must carry a greater weight than that of an expert opinion, who reconstructs the event after the fact, such as an accident reconstruction expert.

39
Q

S v M on WEIGHT OF EVIDENCE

A

§ Courts are not bound by expert opinion and the presiding officer must, in the end, make the decision.
§ The court must evaluate the expertise and weight the of the evidence in the contextual matric of the case.
§ However, a wise judicial officer will not lightly reject evidence on expert matters falling within the purview of the expert witness, especially if the expert’s opinion is based on a factual
premise which is sound and where they advance their reasoning in a satisfactory manner

40
Q

S v Venter on WEIGHT OF EVIDENCE

A

A court may reject the expert evidence even where it is unchallenged.

41
Q

Ja obo DA v MEC of Health, Eastern Cape on WEIGHT OF EVIDENCE

A

Confirmed S v Venter.
§ Also said expert evidence is unreliable if:
* It is based on an interpretation of the facts
* Is speculative
* Is inherently contradictory and/or inconsistent
* Based on a standard of conduct that is higher or lower than what was found to be the acceptable standard.
* The expert’s methodology is flawed.

42
Q

The reliance of experts on facts

A

If the expert set out an abstract or general knowledge (which has
bearing on the case) the above position does not find application.
Ø A typical example is than an expert expressing an opinion on a
medical practioner’s negligence may rely on hospital records
(collateral input).
§ The hospital records must be established as evidence.
§ If not established into evidence = inadmissible hearsay
evidence.
Ø Once the expert predicates their opinion on hypothetical factual
scenarios, divorced from facts that serve before the court, such
opinion should be inadmissible and falls to be disregarded

43
Q

S v Harris on the reliance of experts on facts

A

§ The court must consider the expert opinion not in isolation but against the factual matrix of the actual (entire) case, including the reliability.

44
Q

The expert witness may not be biased:
Ø S v RM on factors that make bias clear

A
  • The expert reaches a conclusion even before accepting the instruction.
  • He/she has a financial interest in the outcome of the case.
  • He/she is related to one of the parties involved.
  • He relies on irrelevant information to support his/her conclusion
  • He/she is argumentative and refuses to make reasonable
    concessions on the stand.
  • His/her view offends the mainstream view in a given
    discipline.
  • The opinion is divorced from the objective facts.
  • He actively associates with one party during the trial.
45
Q

S v RM on rules for testaments by experts

A

The expert must testify only to matters within their discipline of expertise.

46
Q

Expert witnesses must remain:

A

Objective

May not be hired guns, even though they are party introduced (the party wishing to use the witness pays for them).

47
Q

What are the rules on what Counsel should not do?

A

Ø Put their interpretation of the expert’s opinion to the expert, as the
evidence is then not that of the expert; and
Ø The expert may hide behind the words of counsel.

48
Q
A

BWR 310 (6 decks)

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