David Walker v Smith Anderson Packaging Limited

Ergonomics – an uncomfortable seat in the box

[2012] CSOH 001 TEDR Volume 17 Issue 1

In many ways these judicial comments on the experts might be regarded as the Scots version of the English popcorn case (Trebor Bassett Holdings Limited & others v ADT Fire & Security Plc [2011] EWHC 1936 (TCC)) last year. There is however a significant difference in that some Experts were not referred to in the same way as the ‘infamous four’ in Trebor Bassett. For example “Turning to Dr Graveling, he impressed me as being steady, reliable, thoughtful and professional” and “I turn to Dr Ross. He is a consultant orthopaedic hand surgeon. He has specialised in hand surgery since 1982 as is evident from his CV. His evidence was clear and persuasive.”

In a similar vein to the Trebor note (see TEDR vol 16 iss 02 pp 28-29) this is a series of extracts from the judgement. Not so much on the case but on the so called experts. The extract on Mr Andrews is longer than usual but the learned judge did list nine different reasons for effectively disregarding his opinion.

“Observations on the Evidence.

Turning first to the pursuer, I would observe that it was apparent that, at times, he was prone to exaggeration.

I move then to Clive Andrews, who retired from teaching ergonomics at Napier University in 1998 and is 78 years old. I reject his evidence. It was presented as expert evidence, the area of expertise relied on being ergonomics, particularly, for the purposes of this case, in the context of upper limb injuries sustained at work. I was not, however, satisfied that he was qualified to give expert evidence at all. Rather, unfortunately, his evidence demonstrated his incompetence. I so conclude for a number of different reasons. First, as a generality, he was dogmatic, unduly defensive, aggressive at times and not prepared to make any concessions at all. Secondly, he asserted that he kept up to date. Doing so would, evidently, involve knowledge and understanding of relevant up to date studies (the defenders’ productions included, for instance, studies which postdated 2000). Mr Andrews report contained a list of 30 references “RE: TENOSYNOVITIS” ranging in date from the nineteenth century to 1982. No reference later than that was included, not even the later 1987 version of a report (the 1982 version of which he listed) by ‘Armstrong et al’(produced by the defenders at 7/15, 5b). Some of them were written in German; Mr Andrews does not speak or read German. Although he, initially, insisted that he had read all the papers and articles referred to, on further questioning, it transpired that he had not done so. He suggested he had read synopses in English, of the German ones. He also said he could not remember what he had read. Thirdly, he repeatedly and erroneously referred to Dr Graveling’s report as having stated that the time involved in the manual folding process alone (i.e. stages (ii) and (v) above) was 20 seconds when plainly it did not …. Further, he insisted on basing his answers on a timing of 20 seconds … even although the DVD (which he had filmed himself) demonstrated that the time taken was significantly less than that. Fourthly, when asked if he had read the report by Dr Ross, his answer was that he ‘believed’ it had been sent to him but he had ‘read a whole lot of documents’ and hoped that if it was in ‘the pile’ that he would have read it, giving the distinct impression that he had a poor memory and was careless. Fifthly, he refused to answer questions in cross examination which were posed on the basis of a hypothesis of fact which was, given the defender’s case, appropriate. Sixthly, he had worked on the basis that the breaks afforded to the pursuer when working 12 hour shifts were only 50 minutes (which they were not – as above noted, the breaks totalled 90 minutes) and that the pursuer worked a 5 day week on 12 hours shifts (which he did not – he worked 4 days). Seventhly, he was offensively dismissive of Dr Graveling’s report. He assumed he had not slowed down his DVD, to analyse it (which Dr Graveling had in fact done). He referred to Dr Graveling’s use of the word “stereotyped” and rejected it because ‘it could mean anything’; as Dr Graveling explained, that term is well recognised by ergonomists. Eighthly, he made no allowance, when analysing his DVD, for the fact that it was a staged event … as Dr Graveling explained, tends to be artificial. Ninthly, as explained by Dr Graveling, the description in Mr Andrews’ report of the sequence of movements carried out by the pursuer in the folding operation did not tally with what was shown on the DVD.

Moving on to Professor McQueen, her eminence in the field of orthopaedics, particularly in relation to the upper limbs, is well known and was not disputed. She is a world authority on wrist fractures. She examined the pursuer on 3 May 2010, some 3 years and 8 months after him having attended his GP complaining of wrist pain. She concluded that the pursuer’s pain at that time was a result of tendonitis. The treatment of tendonitis is a minor part of her practice, amounting to about 5%. Professor McQueen concluded that the pursuer had been suffering from tendonitis. She stressed that her view was arrived at on a balance of probabilities – in fact referring, at one point, only to there being a “chance” that the pursuer was suffering from tendonitis – and in circumstances where she could not think of any other diagnosis … She also appeared to assume that the job involved rapid movements of which there were many in succession which, again as shown by the above findings, it did not.

Professor McQueen did, however, accept that so far as the thinking behind prescribing an anti-inflammatory was concerned, one would need to hear what the GP had to say about that. It was evident that she was assuming, from the fact of the prescription of diclofenac that the GP had been satisfied that there was inflammation. Also, she had not viewed the DVD she had not seen the pursuer carrying out the relevant manual folding task and she was not given any account of the particular hand and arm movements involved; it was surprising, in these circumstances, that she was prepared to offer the view that the pursuer’s condition was caused by his work. … Professor McQueen’s assumption that the pursuer’s task involved rapid movements of which there were many in succession was shown by the DVD and by the pursuer’s and his workmates’ descriptions of the job, to be erroneous. Further, regarding (e) she appeared to contradict herself, having earlier indicated that inflammation in that area was indicative of a de Quervain’s tendonitis but that she did not even suspect that the pursuer had that condition. She would not countenance the possibility that the appropriate way to describe the pursuer’s condition was as having had arm pain of inspecific origin because, in her view, that could only apply in the case of malingerers – which the pursuer was not – or persons with psychological problems. The impression was that she felt she had to come up with a diagnosis and tendonitis was her best effort. I found that the above matters significantly weakened the value of her evidence and led me to the conclusion that I could not place any weight on it when determining the issues in this case.

Turning to the expert evidence, Mr Mackenzie referred to the well known passage in the opinion of Lord President Cooper in Davie v Magistrates of Edinburgh where he stresses that however expert the witness, he can do no more than give evidence to furnish the judge with the necessary scientific criteria for testing the accuracy of their conclusions and that ultimately, the decision is for the judge not the expert.”

Zeid And Others v Credit Suisse

The experience of an Expert

[2011] EWHC 2422 (Comm), [2011] 2 CLC 523 TEDR Volume: 16 Issue: 1

The Facts

This was an application to determine whether expert evidence might or might not be of assistance in a complex financial case where Credit Suisse had advised the Claimants to invest in some Structured Notes.

The first attack that was made was upon the expertise of the expert himself. He was a man with some 15 years experience in dealing with structured products and had academic and professional qualifications relating to securities dealing. He had worked in the industry with direct client contact and, thereafter, he had worked as a consultant to the industry.

Overall, when looking at the CV of the proposed expert, Mr. Justice Hamblen considered that the expert was generally qualified to give evidence on the topics which he was going to be required to talk about. It was accepted that expertise can be based on both experience and study, both of which the expert in this particular case appeared to have. This particular field of expertise had no professional body and the Defendant tried to make mileage out of this fact. However, the judge felt that given there was a structure to investment advice within the country with various FSA rules governing it, he considered that the Court was likely to derive some help from a person with a real understanding of such products. The Court went on to say that of course the weight that the evidence would be given in the end of the day would be a matter for the trial judge. The Defendants would of course be free to make whatever point they wished to make about the level of expertise at trial. However, that was not a reason for excluding the evidence in the first place given that it was only admissibility that the Court was considered with at the permission stage.


Was expert evidence necessary?


Overall, it is not necessarily the case that experts have to have professional qualifications or be members of professional bodies to allow them to give expert evidence upon an issue. Clearly, people can gain expertise in particular fields over the years by pursuing their interests or profession and will be well able to talk about that with expertise before a tribunal. Whilst of course lack of expertise can lead to cross examination in the witness box, a lack of expertise can lead to cross examination in the witness box, a lack of paper qualifications should not be of too much concern.

Contact Us