Interpretation of documents is the judge’s job

[2008] EWHC 185 (Ch) TEDR Volume 13 Issue 3

The Facts

The case concerned the pension scheme set up by the Claimant for the benefit of its employees.

The case revolved around construction of the scheme relating to its funding.

Each party produced expert actuarial evidence.

The Issues

When is expert evidence admissible and of assistance?

The Decision

The expert evidence before the Court was both admissible and helpful in so far as it described the various ways in which pension schemes may be funded and the role that is played by the scheme actuary in the funding process.

Expert evidence may also be relevant and helpful if the wording of the scheme were in a standard form within the industry.

However, the individual views of actuaries on the meaning of particular wording within the scheme are of peripheral relevance at best. That is a question for the Court.

It is possible that the Court will derive some indirect assistance from learning how a skilled actuary would interpret the words in question but, if another would interpret the words differently, the effect of this evidence is likely to be neutral.

Comment

An expert can only give evidence about issues which are within his expertise. The interpretation of a document (save if it is in an industry-standard form where the assistance of an expert may be helpful) is a matter for the Judge.

Lay Witness with expert knowledge

[2008] EWHC 2220 (TCC) TEDR Volume 13 Issue 3

The Facts

This review concerns the status of the evidence of a Mr Taylor at the final trial of the extensive litigation arising out of the construction of the “new” Wembley Stadium.

Mr Taylor gave his evidence by way of witness statement of fact rather than as an Expert. Upon service, the Claimant objected to its admissibility on the basis that it contained opinion, comment, argument and expert evidence. Little more was said about the issue until the witness had given evidence. The Trial Judge was persuaded by both parties to deal with the issue of admissibility in his final judgment rather than during the trial.

The other issues (of which there were many) need not concern us here.

The Issues

To what extent can a witness of fact give evidence which contains opinion, comment, argument and expert evidence?

The Decision

Mr Taylor was a factual witness. He had no experience of giving expert evidence and no knowledge of the requirements of so doing. He was not independent of the Defendant, having worked for a company within their group for the last 11 years. There was no permission for his evidence under CPR 35. However, he was a highly qualified and experienced engineer who worked on the project.

Accordingly, the Trial Judge treated Mr Taylor’s evidence as that of a factual witness who:

a. Possessed considerable engineering expertise; and

b. Had personal knowledge of the roof design and erection engineering decisions during part of the construction.

The Court was referred to Lusty v Finsbury Securities Ltd (1991) 58 BLR 66 where the Court of Appeal held that an architect suing for fees could give opinion evidence as to the value of his work.

Further, in DN v LB Greenwich [2004] EWCA Civ 1659, the Court of Appeal considered the admissibility of such evidence in a professional negligence action. It was thought common that the alleged negligent professional would seek to give evidence as to why his conduct did not fall below the standard of care reasonably to be expected of him, perhaps by reference to literature. Such evidence was certainly admissible. Whilst it may lack the objectivity of an independent expert, that went to the cogency of the evidence and not its admissibility.

Accordingly, the Judge held that in construction litigation, an engineer giving factual evidence may also proffer:

a. Statements of opinion which are reasonably related to the facts within his knowledge; and

b. Relevant comments based upon his own experience.

Given the evidence was already before the Court, the Judge dealt with the issue on this basis and discounted anything within his evidence that did not fall within the above description.

Had the matter been considered pre-trial, the witness statement could have been re-drafted to remove any offending material.

The Judge noted that Mr Taylor gave his oral evidence in a fair and candid manner, despite his connection with the Defendants. He did, however, criticise the presentation of his written evidence as having been “unduly influenced” in its drafting by the Defendant lawyers.

Comment

Importantly, the lay witness who possesses relevant expertise can use it within his evidence. However, he may be subject to criticism for lack of objectivity.

If you are asked to give such evidence, take as much care with how the statement is drafted as you would with an expert report to help persuade the Judge (even before he hears from you) of your objectivity regardless of the different status.

 

Experts need knowledge Lawyers do not have

[2008] EWCA Civ 842 TEDR Volume 13 Issue 3

The Facts

This matter arose out of opposition proceedings pursuant to the Trade Marks Act 1994. The opponents (Direct Line) contended that the mark sought to be registered (a computer mouse with wheels (of undetermined colour) for insurance and financial services) was similar and confusing relative to their own (a red telephone with wheels) and that it took advantage of their own mark.

The critical issue was that of confusion, i.e. Would people confuse the esure mouse with the Direct Line Telephone and the Direct Line company and business.

Direct Line commissioned an Expert’s Report from an expert in branding.

He had no specific expertise in the insurance market.

With regard to confusion, his report read as follows:

“It is my opinion that people would confuse the esure mouse on wheels with the Direct Line Telephone Device and the Direct Line company and business. The use by esure of an object of a similar oblong, block-like shape, also on chunky wheels – which up to this time have been the “property” of Direct Line – would lead a significant number of the public to think that the esure mouse with wheels was somehow connected with Direct Line, particularly as both companies are involved in insurance. The fact that the esure mouse on wheels is also a desk top object could increase the confusion which I believe will arise. Confusion is especially likely to arise in the case of the esure mouse on wheels if used in the colour red, as at appendix 4 (“the red esure mouse on wheels”), as the colour red has also in my view become the “property” of Direct Line and a major component of the Direct Line Telephone Device. It is not uncommon for companies to extend their brands to embrace new products and services using their well established brand device, or create similar devices as a “family” of related devices. It is my opinion that the use by anyone, including esure, of a device similar to Direct Line Telephone Device, such as the esure mouse on wheels would cause confusion among members of the public.”

The matter proceeded before a hearing Officer of the Trade Marks Registry where the opposition of Direct Line was upheld. The decision was upheld on appeal. Part of the test applied was, however, criticised. The matter came before the Court of Appeal.

The Issues

This review is restricted to the issues relating to expert evidence.

The relevant issue was, therefore, whether expert evidence was required and/or what weight ought to have been attributed to the expert evidence that was before the Court.

The Decision

Once again, the Courts reiterate that an expert is only qualified to give evidence about a matter which is within his expertise and is not within the knowledge of a lay-person.

Comment

Clearly, the instructions to the expert ought to recognise the permissible scope and be limited in their remit accordingly.

That said, when acting as an expert, do raise these issues with those instructing you to avoid any personal discomfort at trial!

SJE – tests for allowing additional Experts

[2008] UKEAT 0591_07_2105 TEDR Volume 13 Issue 3

The Facts

Mr Saunder brought a claim against his employers, Birmingham City Council alleging 48 individual complaints of unlawful racial discrimination. Three of those complaints were upheld by the Employment Tribunal and Birmingham City Council was found liable for those acts of discrimination.

Following such a finding, directions were given for a remedy hearing.

Mr Saunder maintained that he had suffered psychiatric illness as a result of the bullying and racial discrimination he had suffered and thus an Order was made that the parties should agree upon a joint psychiatrist to report to the Tribunal on the issue of causation of any injuries. In default of agreement, the parties were to return to the Judge who would decide who should be appointed.

The parties could not agree and thus the Judge selected a Professor Freeman.

Professor Freeman prepared a report. It was unhelpful to Mr Saunder.

In response, Mr Saunder obtained reports of his own (from Dr Deuchar and Dr Khalil) which commented upon the report of Professor Freeman. An application was made by Mr Saunder to the Employment Tribunal:

a. To exclude the evidence of Professor Freeman on the basis that he had exhibited bias to Mr Saunder himself and against the contention that race discrimination may cause or contribute to mental illness; and

b. For permission to adduce the reports of Dr Deuchar and Dr Khalil.

The Judge ruled that Professor Freeman could give evidence and rejected the application for permission to adduce evidence from Dr Deuchar or Dr Khalil. He concluded that any criticisms of bias or bigotry could be advanced by way of cross-examination of Professor Freeman at the remedy hearing.

Mr Saunder appealed.

The Issues

This summary is limited to how an allegation of bias against an Expert to be dealt with by the Courts.

The Decision

The relevant authorities were reviewed.

The classic statement as to the duties of an Expert is to be found in The Ikarian Reefer [1993] 2 Lloyds Rep 68, 81-82. Those duties were summarised as to oblige the Expert to provide “an objective, unbiased opinion on matters within his expertise”. It was said that “if he fails to fulfil that obligation the Tribunal will no doubt take that into account in assessing his evidence and whether or not it should be accepted”.

In Armchair Passenger Transport Limited v Helical Bar PLC [2003] EWHC 367, the test of apparent bias was considered to be irrelevant to the question of whether or not an expert witness should be permitted to give evidence.

Accordingly, the decision to allow Professor Freeman to give evidence, and the reasons for the decision (namely matters could be pursued by way of cross-examination) was upheld

Mr Saunder was, however, granted permission to call one of the two alternative Experts upon whom he wished to rely, particularly as the Court recognised that cross-examination is only truly effective when there is evidence to support it and this is particularly so where the allegation is that the expert has failed to comply with his duty to give an objective, unbiased opinion within his expertise.

Comment

Once again, it is made clear that the duty of the expert to be objective, unbiased and comment only upon matters within his expertise. That is of crucial importance.

Any alleged failure to comply with this duty does not de-bar the evidence from being received but can (and doubtless will) be dealt with by cross-examination.

Accordingly, any failure to comply is likely to lead to an uncomfortable time in the witness box!

The burden of proof and the remit of the Expert

[2007] EWCA Civ 1433 TEDR Volume 13 Issue 1

The Facts

This case concerned a Claimant who had sustained a hip injury during an accident at work.

The Claimant’s own evidence, and thus her case, was that she continued to suffer pain long after the time that she, according to the orthopaedic evidence, ought to have recovered.  She contended that she suffered chronic pain.

The Claimant gave extensive evidence at trial which was inconsistent in many regards. The Judge certainly regarded her as a poor historian.

Expert evidence was received from two Orthopaedic Surgeons (one for each party). A joint statement had been prepared. Neither expert gave live evidence.

The Claimant’s Orthopaedic expert accepted that, clinically, the Claimant was in pain. However, he could not give a diagnosis. He did not believe that a diagnosis was possible.

The Defendant’s orthopaedic expert concluded that the symptoms were unrelated to the injury. His view was that they were caused by a degenerative disease of the spine which had been accelerated by the accident.

Overall, they were able to agree the following:

“2. We are of the opinion that this was a low velocity injury and affected soft tissue.

3. We agree that there is a past history of low back pain in 1997, notably July, August and October of that year.

7. We agree that the diagnosis remains uncertain and that there are features of both hip and spinal origin of her pain and disability”.

At most, the evidence was that, orthopaedically, the Claimant ought to have recovered within a  matter of months to one year.

In addition, a further orthopaedic surgeon had examined this Claimant. He too concluded that there was “nothing within the hip itself to explain the patient’s discomfort”.

Accordingly, psychiatric reports (one for each party) were before the Court too.

There was a joint statement which disclosed that there was little between their evidence. Nonetheless, they both gave oral evidence.

Neither of them believed the Claimant to have suffered any psychiatric injury and thus they ruled out what the parties called ““chronic pain syndrome”. They were invited to consider whether the Claimant was malingering. The Claimant’s own expert believed that there were signs against such a conclusion. The Defendant’s expert believed it was a possibility. Both experts agreed that, ultimately, that issue was a matter for the Trial Judge to determine.

Finally, a Clinical Psychologist gave evidence. He rejected the idea of a Pain Syndrome. He also concluded that there were “features suggestive of her concealment of positive aspects of her functioning and the amplification of exaggeration of negative aspects of her functioning”.

The Issues

In essence, the Judge at first instance had to consider whether, on the balance of probabilities, the Claimant had established that her ongoing pain was caused by the accident.

The Decision

At first instance, the Judge decided that:

1. 1. The Claimant was not lying;
   2. There was ample evidence, including from medical men that she was suffering pain;
   3. She was a poor historian given that she denied she had returned to work for a substantial time after the accident when she undoubtedly had and had told her physiotherapist at one point that she was fully recovered;
   4. It was perfectly plain that she was, however unintentionally, exaggerating her symptoms of pain;
   5. The pain did coincide with the accident and, save for a period of months  early on, it has been fairly continuous;
   6. However, there was no physical cause for this pain disclosed by the orthopaedic reports;
   7. The psychiatrists stated that there was no psychiatric illness and there was no psychological cause that they could find for this pain;
   8. Accordingly, on the balance of probabilities, the pain could not be attributed to the accident for which the Defendant was responsible as opposed to some other cause for which the Defendant may not have been responsible.

In other words (and as the Judge clarified), “In the absence of an identifiable cause, a cause identifiable and attributable to the accident, the case fails”.

The Judge assessed damages on the basis of the identifiable orthopaedic injury being one that ought to have resolved within the year.

Whilst the Judge’s reasoning (or apparent reasoning) was criticised by the Claimant in the Court of Appeal, the appeal was dismissed.

The Court of Appeal held that it was entirely open to the Judge to reach the conclusions he did on the totality of the evidence before him.

Comment

This case confirms the importance of Expert evidence in establishing a causal link between an accident and an injury.

The Judge was prepared to accept the Claimant, although exaggerating, was not lying.

He was prepared to accept that, so far as the Claimant was concerned, she had sustained an accident and had been, largely speaking, in pain since.

However, he applied the appropriate test as to whether, on the balance of probabilities, the Claimant had proved a link between the accident and the injury itself. In the absence of any identifiable medical cause, the Claimant failed to do so.

In addition to the above, the case reiterates the importance of an Expert of an appropriate discipline providing the evidence and the fact that the evidence of an Expert is limited to his or her area of expertise.

Lord Justice May, in considering the contents of the Orthopaedic reports, expressed a clear view about Experts and their remit, observing that, in this case, neither Orthopaedic Expert had, in his Lordship’s view, gone beyond their professional expertise:

“They [the orthopaedic experts] found no observable explanation and, accordingly, were unable within the professional discipline to attribute her continuing pain causatively to the accident. I do not read their reports as asserting positively that the continuing pain was attributable to the accident. I rather think that, in the light of the complete absence of observable orthopaedic cause, it would have been beyond their professional competence as orthopaedic surgeons to assert positively that there was a continuing causative link”

Expert evidence – Judge preferring the evidence of one Expert to that of another

EWCA Civ 1261 [2007] TEDR Vol 13 Issue 1

The Facts

Mr Cookson had worked for Novartis in the production of dye-stuffs, including azo-dyes, for some years during the 1960’s. He had developed bladder cancer and alleged that the condition was caused by exposure to carcinogens, in breach of duty, during his employment with Novartis.

Mr Cookson had also been a moderate smoker for many years. He had given up in 1980.

It was accepted by all that occupational exposure to various carcinogens and cigarette smoke were both capable of causing bladder cancer.

On the evidence, the Judge at first instance identified several carcinogenic substances that Mr Cookson would have used and/or been exposed to during his employment.

As to the level of exposure, expert evidence was called on both sides. In brief, the expert for Mr Cookson believed that he had been exposed to carcinogens. He concluded that the exposure had significantly increased the risk of him developing cancer. The expert for Novartis disagreed. He considered that when account was taken of the frequency and duration of the exposure, the daily and cumulative doses would not have exceeded the in-house exposure limits. The Judge accepted that there had been exposure and exposure in breach of duty.

The matter then turned to medical causation.

Expert evidence was given firstly by two Urologists, one for each party.

Mr Cookson’s expert originally dealt mainly with condition and prognosis but expressed the view that long exposure to carcinogens at work was probably responsible.

Novartis’ expert expressed the view that cigarette smoking should be viewed as the cause until other aetiological factors could be established. He felt unable to express a view as to the occupational exposure or its causative potency.

Because causation was a live issue, the parties agreed jointly to instruct an Epidemiologist who had widely published on the issue of bladder cancer.

In his report, he opined that Mr Cookson had only been at a low risk of developing cancer but that, of the two possible causes, the risk of harm from cigarette smoking was greater. In an addendum report, he concluded that the occupational exposure had been very low, albeit he accepted that it was greater than he had originally thought following sight of various other evidence.

Mr Cookson’s Urologist did not agree with the report of the Epidemiologist. He referred to the Epidemiologist’s own published work that the risks due to smoking decreased with the passage of time after cessation. Accordingly, he conducted a review and prepared a full report dealing with the issue.

Mr Cookson’s Urologist and the Epidemiologist were invited to prepare a joint statement setting out areas of agreement and disagreement. The issue between them was on the one hand that the occupational exposure was significant and was the main contributor to the causation of the cancer and on the other that the occupational exposure was so low that the exposure to cigarette smoking must be regarded as the major contributor.

In oral evidence, Mrs Cookson’s Urologist maintained his stand. The Epidemiologist did too but admitted that, when he formed his opinion he had been handicapped by the inaccuracies of his understandings of the exposures. However, he did not consider that these differences gave rise to the need for him to change his mind on the respective contributions of smoking and occupational exposure.

The Decision

The evidence of Mr Cookson’s Urologist was preferred. It was apparent from the first instance judgment that the Judge considered the unwillingness showed by the Epidemiologist to reconsider his opinion in the light of the new information unimpressive.

The Judge went on to award damages to Mr Cookson.

The Judgment was appealed on several grounds, one of which was that the Judge ought not to have preferred the evidence of an Urologist over that of the real expert in the field, an Epidemiologist. It was argued that, “only he could have a full appreciation of the comparative risks from smoking and occupational exposure as revealed in the published literature”. It was further argued that the literature did not support the proposition that the occupational exposure level revealed by the evidence increased the risk of bladder cancer and the evidence of the Urologist was pure assertion, going beyond his expertise as a clinician. Moreover, because he had worked in Manchester for many years, he had seen many employees with similar problems and was thus too ready to assume that working for Novartis gave rise to an increased risk.

Lady Justice Smith was wholly unable to accept this criticism as follows:

“The proposition that a clinician is not capable of fully understanding the published epidemiological literature on causation of a condition within his own specialty seems unsustainable and would, I think, surprise many clinicians and epidemiologists. In my view it was clear from his detailed reports on causation that”[he].. Was familiar with the published work and he was also able to discuss it intelligently when giving evidence. The Recorder was plainly of that view. As for the suggestion that”[he].. Was too ready to assume that working for the appellant created an increased risk, this was a good “jury point” but, if it did not appeal to the Recorder, that was an end to it”

Comment

Once again, this case demonstrates the need to consider the expert and his or her field of expertise, as opposed to their title, when considering what issues they can opine about.

This case also demonstrates the importance of an Expert being prepared to look at the factual evidence in advance of the trial and formulate his or her views as to how the varying factual evidence impacts on their conclusion.

There is nothing wrong in principle with a report drawing two or more conclusions based upon the varying factual bases disclosed by the evidence given that the Judge’s first task will be to decide the factual matrix.

Finally it shows that Judges can and do form adverse views of Experts whom they perceive to be unwilling to consider alternative evidence (or an alternative factual matrix) being put to them in the witness box.