ANOTHER UNSATISFACTORY EXPERT: WITH A WRONG VIEW OF HIS ROLE

In Sinclair -v- Joyner [2015] EWHC Civ 1800 (QB)  Mrs Justice Cox made some important observations about the role of the expert and the conduct of the expert instructed by the defendant in that case.

THE CASE

The claimant was badly injured whilst riding a cycle. She could not give evidence. Both parties called expert evidence in addition to lay evidence.  The judge made observations about the defendant’s expert.

  1. It is therefore unnecessary to consider the different theories advanced in this case by Mr Newton. However, his reports and his evidence at this hearing raise matters of concern which I consider it necessary to refer to, having regard to criticisms made by the Court of Appeal in Liddell v Middleton [1996] PIQR P 36 and by Coulson J in Stewart v Glaze [2009] EWHC 704 (QB), as to expert accident reconstruction evidence exceeding its proper parameters.
  2. As Stuart Smith LJ emphasised in Liddell, the reconstruction expert’s role is to provide the judge with the necessary scientific criteria and assistance based upon his or her specific skills and experience, which the lay judge will not usually possess, to enable the judge to interpret the factual evidence. It is not, as Mr Newton described it in the witness box, “…to discover the facts and to use my expertise and experience to give an opinion as to what happened.”
  3. Unfortunately, this wholly erroneous view of the reconstruction expert’s role led Mr Newton to express comments and opinions throughout his reports, adopted as his evidence in chief, as to the facts and as to his view of “the most likely scenario” on the evidence. There are references, for example, to the Claimant having “struggled up the long, slow hill in a low gear”, and to her having “stood up on the pedals too fast” and “fainted”, which amount in any event to no more than assumptions or speculation on his part, unsupported by evidence.
  4. In addition to expressing inadmissible views on the factual evidence in his report, he was further disadvantaged in the witness box in not having attended the trial on the first day, as did Mr Mutch, to hear the factual evidence being given and tested in cross examination. His evidence that he was told not to attend, as a costs-saving exercise, raises further concerns given the issues in this case.
  5. In relation to providing scientific assistance, while robustly concluding that there “cannot have been any contact” between the Volvo and the bicycle, Mr Newton made no reference at all in his report to the scuff marks found on the tyres, upon which Mr Mutch based his views as to contact. In the joint statement, in disagreeing with Mr Mutch’s reasoned conclusions as to contact, he expressed the view, unsupported by any analysis or reasoning, that there was “no likelihood that the scuff marks to the cycle and car tyres were caused by contact with each other.” He described such marks as more often caused by contact with kerb or road surfaces, without providing any evidence or analysis in support of these opinions. Yet in cross-examination he said that he agreed with Mr Mutch’s explanation in the witness box as to why the marks seen on these tyres could not have been made by a kerb stone or road surface.
  6. I accept that Mr Newton has had “many years of experience looking at thousands of crashes”, as he said when questioned as to his qualifications and expertise. It emerged, however, that most of that experience was gained when he was working as part of a multi disciplinary team of academic experts and professionals at Loughborough University’s Vehicle Safety Research Centre, to whom he could and did defer on matters beyond his own expertise, Mr Newton’s academic qualifications being limited, on his own admission, to the military equivalent of the core O’level subjects.
  7. He identified in his report three individuals with academic qualifications in the fields of medicine and engineering, who were consulted by him for the purposes of preparing his report. Their involvement was, however, not documented and there is no information as to the questions they were asked or the answers they gave. The “two wheeler” consultant identified was consulted, Mr Newton said, as “someone who knows a great deal about two wheeler accidents”, who had “checked my report to check its scientific validity” and who was consulted “mostly to confirm that what I thought about the case was true.”
  8. This is clearly unsatisfactory. Most of the criticisms made by the Court of Appeal in Liddell seem to me to apply to the accident reconstruction evidence called on behalf of the Defendant in this case. Wisely Mr Freeman placed no reliance upon it in his closing submissions.”

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