Frost v Oldfield

[2009] EWHC C279 (QB)

Expert criticised for manner in which evidence presented

The Facts

This was a road traffic accident claim where the Claimant and Defendant were each riding motorcycles along a single lane road but travelling in opposite directions. The facts of the accident were that they hit each other somewhere on the carriageway, each sustaining right-sided injuries. The question for the Court was which rider was on the wrong side of the road and therefore who was to blame for the accident. In the alternative the question was did they meet in the middle of the road and, therefore, both share some of the blame.

Both sides instructed accident reconstruction experts to examine the forensic evidence available at the scene. Further, there was lay witness evidence from each motorcyclist (essentially neither of whom could remember the entirety of the accident) plus some lay witnesses who saw the events leading up to the accident and indeed the aftermath.

Both expert witnesses examined the scene and had available the extensive photographs taken by the police investigator, together with a plan prepared by him.

Essentially, there were three main differences between the two experts. Firstly, they disagreed as to what speed each rider was travelling at prior to the accident. Secondly, they disagreed as to the distance along the straight where the accident happened that each had travelled prior to the collision. Finally, and most importantly, they disagreed as to the side of the carriageway the accident took place in.

The Issue

In which lane of the carriageway did the accident occur?

The Decision

Overall, the Judge drew various conclusions from the lay witness evidence and was inclined to accept the evidence of the two independent witnesses which, in turn, suggested that Mr Frost’s case was correct. However, the Judge then went on to analyse the expert evidence.

Overall, the expert evidence for Mr Oldfield was fundamentally rejected on the basis that the manner in which he had made his calculations and the theory at which he had arrived were simply not plausible. However, the Judge continued to analyse his evidence and made the following criticisms:

a) During the joint report process, the expert for Mr Oldfield had sought to produce a Google map view of the crash scene. The expert had marked on it an arrow stating, “approximate impact location”. During the evidence it emerged that the point at which the arrow indicated was considerably to the east of where it was the expert actually contended the accident location was. Further, he varied that accident location slightly to the west of where he had originally put it during the course of the trial. The position shown on the Google map was very far removed from anything the expert had sought to justify in writing. In seeking to explain this mistake away he claimed in evidence not to have identified a particular scuff in the verge on the plan of the police officer which in the Judge’s view was an inexplicable omission given that the expert thought that the trajectory of the wheel which must have caused the scuff was very important in his theory as to how the accident happened;

b) The expert had made what the Judge referred to as “small points of sloppiness” in his report. Firstly, there had been a failure of him to correct the contents page in the final version of the report as served and secondly, paragraphs 8.7 and 8.8 of his report were simply duplicates of each other;

c) There were concerns about the quality of his evidence generally in that he had attempted to gauge the speed of the motorcycles prior to fixing the likely impact point which was an impossible task;

d) He had wholly failed to deal with the opinion of the investigating police officer which, although made without detailed calculations, was something that the Judge considered deserved respect and was contrary to the view of the expert;

e) The expert had included a list of documents he had seen in his report. This included a witness statement of an Andrew Bassam. It was said to be dated the 13th March 2006 and therefore a date over two years before the accident under consideration in this case. There was no witness of this name in this case. In cross-examination when it was suggested to him that perhaps this was the name of a witness from another case, the expert said that he could find no reference to the name in his database and it meant nothing to him. As matters turned out and in closing submissions, the mystery of the witness statement of Andrew Bassam was solved by those representing Mr Frost. It appeared that a case called Powell v Auden [2009] EWHC 98 (QB) had been decided a little under a year from the date of hearing this case. That was apparently another motorcycle accident in which the same expert had given evidence and one of the main witnesses was Andrew Bassam. Therefore, it did seem that a mistake had been made by the expert in that he had erroneously put a reference to a witness from a previous case into his report for the instant one. However, the Judge found it very difficult to see how the name Andrew Bassam meant nothing to him as he suggested in cross-examination.

Whilst Mr Oldfield lost the case because the Judge made findings of fact on the basis of the factual witness evidence and preferred the fundamentals of the evidence given by Mr Frost’s accident reconstruction expert (which coincided with that found by the investigating police officer) it is clear that the other issues did not help the cause of his expert witness.

Comment

I was actually involved in this case and it was very far from a pleasant experience listening to my own expert witness be torn apart in this fashion in cross-examination. Many of these items were “silly mistakes”. One wonders whether the expert would have been better simply saying so. As uncomfortable as it was for me as an Advocate to listen to that happening, one can only hazard a guess as to how uncomfortable it was for the expert in the witness box. Accordingly, there is a cautionary note – All experts need to be careful with the drafting of their report. Whilst of course the expert was entitled to express an opinion on how the accident happened and had done so, it matters how that opinion is expressed too. A Judge’s mind can certainly be coloured against an expert by the manner in which the expert evidence is presented and justified in the witness box.

TEDR Volume & Issue

TEDR Volume: 
15
TEDR Issue: 
2