Lawyer Monthly Magazine - July 2019 Edition

The Expert Witness Code of Conduct requires the expert take all reasonable steps to ensure the relevant information is available to provide the opinion and declare in the expert report anything that was not available that might have aided the preparation of the opinion. This sometimes means that my team spends time with the client clarifying the available information to ensure the expert opinion is based on the best information. In your opinion, what could be done to reduce or prevent impaired driving? It is easy to be despondent when we look at the figures of deaths and injuries due to drug or alcohol impairment on the roads, at work or when travelling. But we must not forget the great strides that have been made in community education, public awareness and law enforcement. Innovations include the development of random roadside drug and alcohol testing, interlock devices for convicted drunk drivers, zero tolerance for alcohol in professional and newly licensed drivers. In my experience which spans almost two generations, there has been steady improvement. This is no reason to be complacent, but we should celebrate our successes. Most of the population want to be safe at work, on the roads and when travelling and will make good decisions if they have the information. The next logical step in road safety would be to have zero tolerance for alcohol in all drivers. There is a misconception in Australia that 0.05% is an acceptable blood alcohol concentration and in other communities 0.08% is accepted. My research shows that at 0.05% the risk of a collision causing injury to the driver is about 5 times greater than driving sober. When challenged, I ask “Who would let their airline pilot fly at 0.05%?” or “Would you let a surgeon operate on you at these levels?” What are the key attributes that a good and objective expert witness needs to possess? An expert must be able to demonstrate expertise and experience in their chosen field. It is important to have the confidence to present well in court so that the expert opinion can be tested. This means to be able to communicate effectively with judicial officers and laypersons on a jury. It is important to understand the principles of giving effective evidence and staying within the bounds of one’s expertise. The ideal expert will have experience teaching concepts to students or lay audiences so that it comes naturally when asked to explain technical issues and industry jargon in a manner that a layperson can understand. Being recognised as an expert is not to be taken lightly and maintaining the respect of the courts, legal practitioners and one’s peers. There is no property in expertise and the expert cannot ‘take sides’ in a dispute. This may mean writing a report that does not appear to further the cause of the person requesting it. Consistency of opinion and critical thinking are key to maintaining credibility. There must always be a willingness to consider alternative interpretations of the facts. In court, there may be vigorous attack on the expert’s opinion that can be politely resisted without being dogmatic or failing to adequately consider alternative opinions. There must always be a willingness to work with experts from the opposing side of a dispute to reach a jointly considered position. LM MA MBBS BMedSc GradCertMgt FRACGP FAChAM(RCPA) FFCFM(RCPA) Professor Edward Ogden PSM is a legally qualified medical practitioner reg- istered by the Medical Board of Australia. He is one of the only practition- ers in the country with Fel- lowships in Forensic Medi- cine, Addiction Medicine and General Practice. This experience gives unique insight and expertise in the human factors of forensic medicine. He was employed by Vic- toria Police in various roles from 1978 to 2012, includ- ing 11 years full-time in the Department of Forensic Medicine and 17 years as Principal Medical Advisor. He was awarded the Pub- lic Service Medal (PSM) for services to forensic medi- cine on Australia Day 2005. He is Secretary of the In- ternational Council on Alcohol Drugs and Traffic Safety and a member of the International Working Party on Prescribed Medi- cation and Driving. He is a member of the Australian Medical and Professional Society on Alcohol and Drugs and the Internation- al Association of Forensic Toxicologists. PROF. EDWARD OGDEN PSM JUL 2019 53 Expert Witness www. lawyer-monthly .com