Day 070 - 20 Dec 94 - Page 49


     
     1        Plaintiffs' witnesses on about what our witnesses had said
     2        would all be hypothetical.
     3
     4   MR. JUSTICE BELL:  I take that point.  I think the point
     5        I particularly had in mind was to question the value of a
     6        hypothetical question where the witness has, for better or
     7        worse, said that he or she does not know anything about
     8        that topic.  If, for instance, a witness says:  "The
     9        situation of fact is this", and then goes on to volunteer
    10        an opinion as to the propriety or otherwise of that
    11        situation, you are perfectly entitled to say:  "But if the
    12        situation was this, would your view be different?"  I am
    13        only giving that as an example.
    14
    15        Where I have on one or two occasions been anxious about
    16        hypothetical questions is where the witness says:  "Well,
    17        I just do not know about that" because in those situations
    18        you have to judge each one as it crops up.  But you are
    19        probably much better just to accept that as an answer and
    20        wait to call your own witness and let them give their
    21        evidence of fact and the conclusion they draw from it.  It
    22        is perfectly proper to have raised it with the Plaintiffs'
    23        witness in the first place.
    24
    25   MS. STEEL:   Sometimes it is not that they do not know, it is
    26        that that say they do not believe what our witnesses or
    27        what we have said, and they do not believe that that could
    28        ever be and, therefore, they do not want to answer the
    29        question.  I think it also came up with Professor Wheelock
    30        when we were asking him about people who ate at McDonald's
    31        every day.  He was saying:  "Well, it was just an
    32        hypothetical situation".
    33
    34   MR. JUSTICE BELL:  All I can say is it is an area which is
    35        fraught with problems.  It is a matter which regularly
    36        crops up as to whether, whatever the situation is, in
    37        evidence which has being given a certain of kind of
    38        hypothetical question is useful or not; it can only be
    39        dealt with on an ad hoc basis.  I certainly was not meaning
    40        to say to you:  "Do not ask hypothetical questions".
    41
    42   MS. STEEL:  That is fine in theory.  The only thing is that it
    43        tends to be when it does come up, you indicate that you do
    44        not want to talk about it then because it is wasting the
    45        witness's time.
    46
    47   MR. JUSTICE BELL:  It may well be that I was guilty of that with
    48        regard to Mr. Oakley, because we were anxious to get him
    49        finished that day.  If you have any doubt about it in the
    50        future, raise it specifically with me on the question or 
    51        questions that are asked. 
    52 
    53   MS. STEEL:  The "don't know" interjections is what we were
    54        talking about the other morning.  We are well aware that
    55        Mr. Rampton stood up on a number of occasions and said in
    56        front of the witness that if the witness says that they do
    57        not know about something that they cannot be asked any
    58        questions about it.  We feel that that gives them
    59        encouragement to say that they do not know anything about a
    60        subject, because that means that they will not be able to

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