How Independent Are You? Background
Bond Solon trainer and subject matter expert, Nick Deal reviews the background of Tylicki v Gibbons [2021] EWHC 3470 (QB) case and the salient points.
The first instance judgment in Tylicki v Gibbons [2021] EWHC 3470 (QB) provides invaluable commentary on this issue, noting that experts should be wary of sympathising with their instructing party and should not produce a report that has been influenced by instructing solicitors. It also highlights how judges may assess these issues and how experts might be challenged in court.
The claim arose out of an incident during a race at Kempton in the 3.20 Mile Maiden on 31st October 2016. There was a collision between Graham Gibbons and Frederick Tylicki, both experienced professional flat race jockeys. The collision caused Mr. Tylicki’s mount to fall, resulting in Mr. Tylicki sustaining T4 AIS complete paraplegia.
Mr. Tylicki alleged that Mr. Gibbons had ridden in a way that fell below the standard of care that was expected of him.
In support of his claim, Mr. Tylicki called Mr. Ryan Moore as an expert witness on the issue of professional flat race riding. There was no doubting his subject matter expertise. Her Honour Judge Karen Walden-Smith described him as having ridden in “tens of thousands” of races and having won more than 2,500 of them.
Why, then, was he subjected to “sustained criticism” by Mr. Gibbons’ barrister?
There were two broad criticisms:
- Firstly, that he was too sympathetic to Mr. Tylicki to be a truly independent expert witness.
- Secondly, the manner in which his report came to be drafted.
Either of these criticisms, had they stuck, would be likely to have led to the judge disregarding, or at least placing less weight, on his evidence.
The sympathy issue
Mr. Moore was approached directly by Mr. Tylicki to give expert evidence. He was cross examined about his sympathies for the claimant and expressed a great deal of sympathy for him - and also for Mr. Gibbons. Mr Moore stated that it was a “horrible situation” and that he was trying to write a report that was fair.
The judge’s assessment was that Mr Moore was “an extremely straightforward witness who was using his expertise in order to assist the court’’.
She expressed complete confidence that he was trying to provide a fair report. This was based on his experience and on the evidence in the case. And found nothing in his evidence, or his delivery of it, to support this criticism.
118 | The Report • September 2022 • Issue 101
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