[2012] SGHC 135 TEDR Volume 17 Issue 3

This is a case from the Singaporean High Court. It is reported in this issue because it gives some very good examples as to how experts should not approach their duties to the tribunal. In this case, both of the claimant’s experts came in for very severe, albeit evidently deserved, criticism.

The Facts

The dispute concerned a container vessel, The APL Sokhna. The plaintiff alleged that the defendant had negligently dropped a hatch cover, damaging it and damaging the vessel.

The plaintiff called two expert witnesses in support of its theory of the case that the hatch was damaged by the defendants negligence. The first was a Captain Jonathan Lee. The trial judge described him as “rather unhelpful.” In particular, the judge noted that:

Capt Lee’s report to the court did not set out all the issues which he had been asked by the plaintiff’s to give evidence on, despite that being required by the relevant rules of court.

When Capt Lee was asked about that by the defendants, he could not provide an answer.

Capt Lee had not inspected the gantry crane, the spreader, the lifting sockets or even the hatch cover itself. He had not even asked for the relevant measurements.

Instead, Capt Lee conceded in cross-examination that he had depended on the reports made available to him, and the photographs attached to the witness statements.

Astonishingly, Capt Lee admitted in cross-examination that he had simply selected those parts of the witness evidence that supported the plaintiff’s case in order to form his “independent and objective” views.

Although pressed repeatedly and at length, he could offer no explanation as to why he preferred the plaintiff’s evidence over the defendant’s.

Unsurprisingly, the judge held that he had “no doubt whatsoever” that Capt Lee did not assist the plaintiff’s case. If anything, the plaintiff’s second expert, Dr Skyes was even worse. Indeed, the trial judge described his evidence as “calamitous.”

Although put forward as a metallurgist and material scientist, Dr Sykes did not carry out any metallurgical tests on the hatch cover to exclude the possibility that defects in the hatch, as opposed to negligence, had caused the damage.

Dr Skyes was discovered in cross-examination to have formed an opinion on the cause of the accident more than 2 years beforehand in a separate report to the P&I Club, but he had failed to disclose that in his report to the court.

Dr Skyes failed to disclose to the court that he had had relevant discussions with the Claimant about how to approach the cause of the accident back in 2009.

Having formed a view back in 2009, Dr Skyes failed to carry out any new tests or consider any other evidence that might have challenged his original report to the P&I Club.

Dr Skyes’ report to the court was simple a re-hash of his 2009 report, despite the fact that in 2009 he had expressly not been asked to look at the issue of causation that was central to the trial.

Dr Skyes based his conclusions at least in part on evidence as to “load of force” which was not mentioned in his report.

Unsurprisingly, the judge dismissed the plaintiff’s claim.

Comments

The plaintiff’s experts in this case seem to have got almost everything wrong. Since the introduction of the Civil Procedure Rules in England & Wales in 1999 and the mandatory requirements of CPR 35 as to what is expected of an expert, it is fortunate that judges in this jurisdiction are rarely presented with expert evidence that suffers from so many shortcomings. However, there are important lessons to be learnt from this case for experts everywhere, or at the very least reminders as to how not to approach matters. In particular, it is very often the case that, like Dr Skyes, experts will be asked to produce reports on issues for use in court when they have a long-standing prior involvement in the case. That does not disqualify the person involved from acting as an independent expert to report to the court, but it does mean that they need to be very careful to approach matters afresh when they give their evidence.

[2011] EWHC 1936 (TCC) TEDR Volume 16 Issue 3

The Facts

The facts surrounded a catastrophic fire which destroyed the Claimant’s large confectionery factory in Pontefract. The issues surrounded the Defendant’s supply of a CO2 fire suppression system for the popcorn machinery where the fire broke out. It is not necessary for our purposes to dwell on the facts further.

The parties were both given permission to call two experts each, one in fire suppression systems and one in relation to forensic fire investigations. There was also permission given to the Claimant to serve additional expert evidence from an architect specialising in requirements for fire protection and safety in building construction and the spread of the fire. It is worthy of note at the outset, the latter expert escaped any criticism whatsoever from the Judge. The same cannot be said of the other experts.

At the first CMC in the case the parties were ordered to agree preliminary lists of liability issues to be considered and discussed by those experts. The parties failed to comply with that direction and no lists were prepared. At the second CMC the Judge ordered that the list be agreed so the experts could meet without prejudice and prepare a joint statement setting out matters upon which they agreed and disagreed. Those reports were ordered to be served together with, at a later stage, any supplemental reports necessary from those experts. Once again the parties and/or the experts did not agree a list of issues and no joint report was prepared. The Court was simply told that the experts had fallen out and therefore no statement could be prepared.

The Court gave some lengthy guidance arising out of its criticisms of the conduct of the four experts in the case.

Guidance

Firstly Mr Justice Coulson said that, “the experts appointed in civil litigation have no business to ‘fall out’ and to fail to comply with the orders of the Court. Experts are there to provide evidence on technical other purpose. If they take matters of personal disagreement to such level, they are failing to provide that service.”

Because there had been no joint report prepared, at the commencement of trial, the parties sought permission to allow each of the four experts mentioned above to provide an oral presentation to the Court. The Judge commented as follows, “it quickly became apparent to me that these presentations were designed to allow in to evidence a variety of disparate matters, some of which were not even in the extensive reports produced by the four experts in question. These presentations amounted, therefore, to a third attempt on the part of the experts to express their opinions.”

The joint statements were not in fact produced until part way through the trial. The Judge commented that, “unfortunately, they were of little or no use, because they were not focused on the issues between the parties. Instead, they operated as a sort of summary of some of the technical differences between the experts, often un-linked to the particular matters of important which I have to resolve.”

The Judge then set out his particular criticisms of each of the four experts in turn.

The Claimants’ fire expert

The Claimants’ fire expert had been called in to deal with the fire on behalf of the Claimant’s insurers within days of the fire itself. The principal problems with the evidence of this expert were found to be as follows:-

a) He failed to disclose his original report or notes which would have been prepared at a time when he had investigated the physical remains of the building and interviewed those who were there, advantages which no other expert had;

b) He relied on unsophisticated tests which made no attempt to replicate the conditions in the oil production area on the night of the fire;

c) He adopted an unacceptably partisan approach, particularly in his attempt to contextualise another report;

d) He failed to agree and/or carry out any joint testing with any of the other experts;

e) He failed to set out his theory as to fire spread in a coherent and comprehensive fashion. He was also criticised for changing his mind in a report then failing to explain why he did so.

The Defendant’s fire expert

He came in for criticism for having allowed students at Edinburgh University to carry out some testing which was relevant to his report. Apparently, no information about the tests had been disclosed other than the short summary given in the report which came from a blog taken from the internet which had been written by one of the students whilst they were doing the tests. There was apparently a video of the tests available but it had not been disclosed to the Claimants or the Court even at the time the Judgement was prepared. The tests were of course carried out unilaterally so were of no assistance to the other parties.

The Claimants’ fire suppression systems expert

His report was said to be inordinately long at 76 pages but failed to deal in any cogent way with the only issue on which the evidence could have been helpful. With regard to his supplemental report it was said to be a “paragraph by paragraph critique of Mr Jackman’s report, in which any semblance of the wood had been completely obliterated by the trees”.

The Judge further criticised this report and subsequent oral evidence for failing to get a grip of the real issues in the case. He commented that the report seemed to be operating on the basis that if the opposite experts said ‘x’ he should say ‘y’ no matter whether the issue was relevant or not. In terms of oral evidence, this was said by the Judge to have “degenerated into bad tempered bickering”. He criticised the witness for repeatedly failing to answer questions put to him and being unwilling to make even the most basic assumptions in order to answer the questions being asked.

The Defendant’s fire suppression system expert

He came in for criticism because his report was taken up with criticisms of the Claimants which did not apparently form any part of the pleaded allegations of contributory negligence so were irrelevant and inadmissible. The testing that he had used was not fully explained in his report and the Claimants had been engaged in trying to elicit information about them to allow them to complete their own expert evidence.

Having completed a précis of the criticisms, the Judge outlined what should have happened.

The Judge stated, in terms that firstly a list of issues should have been agreed between the solicitors to form an agenda for the experts meeting. Secondly, those meetings ought to have occurred and a joint statement ought to have been prepared. That would have been in accordance with the original Court Orders. He stated that if there had been a problem the parties should immediately have come back to Court for help. He criticised the experts for not conducting their meetings properly and in a way which would have revealed that further testing/ experiments were necessary. A programme for those tests in his view should have been drawn up and they should have been planned and carried out either jointly or at the very least in the presence of everybody.

Had matters been dealt with in this way the issues would all have been dealt with to enable the trial to run smoothly. Instead the Court had to struggle with, “unsatisfactory and disparate expert evidence, often unrelated to the real issues, prepared and delivered in a variety of places and in an acceptably partisan way. Unsurprisingly, perhaps, this has created real difficulties in the preparation of parts of this Judgement. It has also led me, very unusually, to be dubious about the reliability of all the expert evidence that has been presented to me. This is emphatically not a case where the Court is able to prefer one expert over another and let that approach dictate the result”.

Comment

The case should serve as a salutary lesson to all experts that they must bear in mind their Part 35 duties and take them seriously to assist the Court. I would suggest that no one wants their name associated with such a judgement.

[2010] EWHC 279 (QB) TEDR Volume 15 Issue 2

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