OPINION EVIDENCE

Opinion evidence involves conclusions, interpretations, evaluations and inferences derived

from observed facts. A witness is expected to only narrate events as he or she witnessed
them. He or she is not expected to give their opinion.

Section 22 of the Civil Evidence Act [8:01] says that the opinion of a person who is an
expert on any subject, that is to say, of a person who possesses special knowledge or skill in
the subject, shall be admissible in civil proceedings to prove any fact relating to that subject
which is relevant to an issue in the proceedings.

The opinion of a person who is not an expert shall be admissible to prove any fact relevant to
an issue in civil proceedings if

a. His opinion is based on what he saw, heard or otherwise perceived; and

b. His opinion is helpful to a clear understanding of his evidence or to the determination
of that issue.

A court shall not be bound by the opinion of a person, expert or not, but may have regard to
the person’s opinion in reaching its decision.

Formulation of the Opinion Rule

There are two approaches, the traditional formulation and the wigmore-vilbro formulation.
Both approaches are irreconcilable even though at times they co-exist in our practice –
perhaps because of lack of awareness of the significance or even the existence of their
divergence. Both approaches have vices and virtues.

Traditional Formulation

The rule excluding evidence of opinion is traditionally stated in broad and general terms,
subject to a more or less closed list of excerptions. According to Phipson a witness may
dispose the facts which he has observed, but he may not ordinarily state any inferences which
he has drawn from those facts or opinions founded upon facts of which he has no personal
knowledge. Whether an inference should be drawn is a matter for the court to decide. The
witness only narrates the perceived details and the court draws the inference. The drawing of
inferences is the courts’ business not that of the witness. Courts jealously guard usurpation of
their functions.

S v. Adams 1983 (2) SA 577

The court noted that in an accident damage case, for example, a witness may say that the
driver was intoxicated because his body smelt of liquor, that his speech slurred and that he
staggered as he walked, but it is not for the witness to say that it was the intoxicated driver
who was at fault.
Exceptional cases in which witnesses may state the inferences which they have drawn usually
include expert evidence and various categories of non-expert opinion such as identification,
estimates of age, value, speed or degree of intoxication.

This apparently simple formulation gives rise to a number of difficulties, chief of which is
that no satisfactory distinction can be drawn between “facts” and “inferences”.

It follows that the law cannot impose a total prohibition on all evidence involving inferences;
it can only draw a line between some inferences which are considered objectionable and
others which are not. To decide where this line is to be drawn, one must examine the reasons
for the exclusion and reception of opinion.

The Wigmore-Vilbro Approach

This approach was derived from the case of R v. Vilbro. A witness’ opinion may assist the
court if the witness is better qualified to form an opinion rather than the court. A witness is
prohibited from stating his opinion also when it appears that he can without difficulty
communicate to the court the data upon which his inferences are based and so place the court
in an equally good position to decide whether such inferences should be drawn.

Hollington v. Hewthorne [1943] 2 ALL ER 5

Goddard LJ said, “It frequently happens that a bystander has a complete and full view of an
accident. It is beyond question that, while he may inform the court of everything that he saw,
he may not express an opinion on whether either one or both of the parties were negligent,
the reason commonly assigned is that this is the precise question the court has to decide, but,
in truth, it is because his opinion is not relevant. Any fact that he can prove is relevant but his
opinion is not.”

The general practice is to avoid having a witness state his opinion upon an issue which the
court must ultimately decide unless it is impossible for him to give the court substantially the
same assistance without doing so. The potential value of the witness’ opinion must be
balanced against potential prejudice to a party through the tribunals being misled into giving
the opinion exaggerated importance,

It is submitted that the wigmore-vilbro approach is consistent with the following

propositions:

a. There is no general rule that a witness can never state his opinion upon a matter which
the court will have to decide.

b. If the court is unable to decide an ultimate issue without the assistance of someone
qualified to give his opinion on it, then it must necessarily be instructed, as it were by
expert opinion.

c. There are some ultimate issues upon which a witness opinion will always be
superegatory and inadmissible. A witness is not permitted to give his opinion on the
legal or general limits of the case. He cannot give his opinion on a question of
 international law that is part of domestic law or interpretation of a statute (expert in
regards to words with a special meaning).

d. Subject to (c) above, where the court is able to reach some sort of independent
conclusion, but the opinion of an expert would be of “great assistance to the court” in
reaching it, the opinion is relevant and the court is entitled to receive it.

Expert Opinion

Expert opinion is admissible provided that it is relevant. By reason of their expertise and
specialised knowledge more often than not there are people who are better placed to assist the
court arriving at a sensible decision than the court would have been able to do on its own
without such assistance.

Expert evidence ordinarily falls outside the competence of the average reasonable court
because the average judicial officer cannot be expected to be a heart surgeon or professor of
robotics.

Experts are expected to facilitate the resolution of the fact in issue. Expert must be a credible
witness and expert opinion evidence has been received in a number of cases including matters
relating to chemistry, engineering, ballistics, etc.

A party wishing to call an expert has to prove to the court the qualifications of the expert.
Expertise could have been acquired through formal training or experience. Experience on
occasion can be decisive. It is the function and discretion of the court to satisfy itself that
indeed the expert has the necessary qualifications. His qualifications have to be measured
against the evidence he has to give in order to determine whether they are sufficient to enable
him to give relevant evidence. It is not always necessary that the witness’ skill or knowledge
be acquired in the course of his profession – it depends on the topic.

R v. Silverlock [1894] 2 KB 766

A lawyer who had extensively studied people’s handwriting, but without formal qualifications
on the matter was allowed to testify as an expert.

An expert witness can be cross-examined like any other witness.

A party in civil proceedings who wishes to call an expert is required by the rules of the court
to give his opponent notice of his intention to do so. The purpose of this rule is to prevent
surprise and to give a litigant the opportunity to come to trial prepared to counter the expert
evidence adduced by his opponent; furthermore, proper compliance with it may enable
experts to exchange views before giving evidence and to reach agreement on some of the
issues so that costs and the time of the court are saved.

S v. Lupiene

L had been observed leaving a disco with another person who looked like a woman but in
fact a man. L was subsequently arrested by the police in a hotel bedroom with this person.
The evidence of the police was to the effect that the two were placed in an intimate position
which justified the inference that an act of indecency had been committed or was about to be
committed. L’s defence was that at all material times he had mistaken this person for a
woman. He sort to lead evidence from a shrink which would show that he had a sort of
chemical in his body which would make him react violently to homosexual activities and that
he would not knowingly engage in homosexual exploits. The court a quo found the evidence
inadmissible but the court of appeal admitted the evidence.

One should look at relevance, what decides relevance is the fact in issue. In this case the fact
in issue is, are you a homosexual or not? Thus his evidence is admissible.

Whenever you are looking at exceptions note relevance in determining a fact in issue.

When a witness is deposing to ‘facts’ which are not directly in dispute, he will frequently be
allowed to state inferences in order to save the time of the court and not to hold up the normal
flow of his narrative. In such a case the opinion is not irrelevant or superfluous because it is
not given in addition to the facts upon which it is based, instead it forms a convenient
summary of those facts

Wright v. Tatham 7 ER 559

It was submitted that the witness may do so to the extent that his summary is relevant, that is
to say of assistance to the court.

A failure to give reasons for an opinion may have the effect of rendering it superegatory and
inadmissible. Subject to this observation, it is submitted that a statement of opinion is not
admissible merely because no reasons are given, and if the point is not converted it may well
be sufficient. Although there are decisions which require an expert’s opinion to be supported
by evidence of the “facts” on which an inference is made, others allow evidence of inferences
and rely on them without supporting facts.

The Rule in Hollington v. Hewthorne

The rule states that on the trial of an issue in the civil court the prior determinations of a
criminal court are irrelevant. If the criminal court finds the accused guilty, the plaintiff in
subsequent civil proceedings cannot use the record of conviction, in order to establish
liability on the part of the defendant who in the criminal court would have been accused.

Hollington v. Hewthorne [1943] 2 ALL ER 5

A company’s employee was involved in an accident which resulted in the death of the
Plaintiff’s son. The Plaintiff was the administrator of his son’s estate. He then sued the
employer vicariously for accident damages arising from the negligence of the employee. The
Plaintiff’s only witness would have been the deceased and in order to prove liability he
sought to lead evidence of the conviction of the company’s employee. Mr. Denning
contended that, as he has to prove negligence as part of his case, he is entitled to put in the
conviction, not as conclusive, but as prima facie evidence that the defendant was driving
negligently. The court held the evidence to be inadmissible because it amounted to no more
than the opinion of the criminal court and the liability of the defendant would have to be
proven all over again.

In the case Goddard LJ gave a number of reasons for its inadmissibility the most important
of which was that the conviction was merely the opinion of another court that the driver had
driven carelessly.

The decision in Hollington v. Hewthorne was followed in a series of English decisions.

Goody v. Oldham’s Press Ltd [1967] 1 KB 339

Plaintiff was a convict in the great train robbery; he brought action for defamation on a
newspaper which had published an article which said that he had taken part in the great
train robbery in which £2.5 Million had been stolen. At the time of the action the plaintiff was
serving 30 years imprisonment after conviction for taking part in the robbery. It was held
nonetheless that the conviction was not evidence of liability. Lord Denning who had argued
the case way back in 1943 as a barrister ironically found himself later in life bound to apply
a rule which he had argued against. He thought that it was wrong but binding on the Court of
Appeal and other members of the court agreed with him.

Criticism of the rule by the English Law Reform Committee was “It is in a sense true that a
finding by any court that a person was culpable of a particular offence or civil wrong is an
expression of opinion by the court. But it is of a different character from an expression of
opinion by a private individual. In the first place, it is made by persons, whether judges,
magistrates or juries, acting under a legal duty to form and express an opinion on that issue.
In the second place, in forming their opinion they are aided by procedure, of which the law of
evidence forms part, which has been with a view of ensuring that the material needed to
enable them to form an opinion is available to them. In the third place, a verdict of guilty or
not guilty in criminal proceedings or a judgement in civil proceedings has consequences
which are enforced by the executive power of the state.”

In consequence of the recommendations of the Law Reform Committee (The prospect of a

number of libel actions by unemployed train robbers along the lines of the Goody case also
had some influence upon the speed which Parliament acted) the rule was abolished in
England by the Civil Evidence Act 1968. Section 11 (1) provided that “in any civil
proceedings the fact that a person has been convicted of an offence by or before any court in
the U.K... shall be admissible in evidence for the purpose of proving, where to do so is
relevant to any issue in those proceedings, that he committed that offence, whether he was
convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil
proceedings.”

In Zimbabwe the rule continued to be applied until 1995 where the Civil Evidence Act
(Section 31) came into force.

Tomes v. Sithole 1981 ZLR 444

In this case McNally J, as he then was, had occasion to comment obiter on the Hollington v.
Hewthorne case and asked the legislature to intervene as in the case in England.

In South Africa there has been no such statutory reform and in civil proceedings, lower courts
held themselves bound by the rule.

Yusuf v. Bailey 1964 (4) SA 117

In a defamation action, the court held that the Plaintiff’s conviction was no evidence that he
had been guilty of fraud.

Hefer JA remarked in passing in S v. Mavuso 1987 (3) SA 499 that it is an open question
whether relevant evidence of a previous conviction would not be inadmissible in a
subsequent trial because of the rule in Hollington v. Hewthorne. It is submitted that the rule
has no application to this situation. Firstly, it is generally seen as wrongly decided. Secondly,
the judicial tendency has been to confine it to civil proceedings within the meaning of the
Civil Proceedings Act 1965.