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A one-sided battle of experts and a costly outcome for one defendant
- Jul 24, 2023
- Latest Journal
by Kate Archer, Partner, DAC Beachcroft and Jenny Fitzpatrick, Associate, DAC Beachcroft
The recent case of Rowbottom -v- (1) The Estate of Peter Howard, deceased and (2) David Teasdale [2023] EWHC 931 (KB), in which DAC Beachcroft acted on behalf of the first defendant (D1) and his insurers, provided an valuable lesson for experts, and those instructing them, and demonstrated the costly effects of relying on expert evidence which fails to meet the standards expected and demanded by the courts.
Background
The facts surrounding the tragic accident at the centre of this case are simple. On the evening of the 5th July 2018 the claimant (C) was the pillion passenger on a motorcycle ridden by Peter Howard when it was in collision with a motor car driven by David Teasdale, the second defendant (D2). Mr. Howard was tragically killed in the accident and C brought a claim against his estate (D1) and D2. The claim was valued by C in excess of £10 million. In separate criminal proceedings D2 was prosecuted for the offence of causing death by careless driving but was acquitted.
The issues at trial
Both defendants accepted, as did the court, that C was blameless and the issue for the trial judge was whether the collision was the fault of D1, D2, or both. D2’s position was that he remained on the correct side of the road and that it had been Mr. Howard who was responsible for the accident having strayed onto the wrong side of the road.
The lay evidence
The judge, His Honour Judge Sephton KC, sitting as a Judge of the High Court, heard evidence from various witnesses of fact some of which was agreed prior to the Trial with two lay witnesses giving evidence on behalf of D2.
Having considered the evidence of the witnesses present at the time of the accident, the judge came to the conclusion that none could help him with the central issue of where the vehicles were at the moment of impact and was left with considering the expert evidence in relation to this crucial point.
The expert evidence
This was a case in which the judge’s views of the expert evidence would be vital and this came from three accident reconstruction experts, Mr. Roberts for C, Mr. Davey for D1 and Mr. Green for D2.
It was clear that the experts had significantly different opinions on the issues key to the claim. Unsurprisingly, the experts were closely examined by the counsel for the parties, in the case of Mr. Green, the inquisitorial questioning coming from Mr. Winston Hunter KC instructed on behalf of C and Mr Nigel Lewers for D1.
Mr. Green’s evidence did not impress the judge who stated that “I have, with some dismay, come to the conclusion that I cannot rely upon the evidence of Mr Green, for a number of reasons.”
The judge’s reasons, while specific to the evidence in this case, do provide a clear insight into the nature of matters that are likely to tip the balance when it comes to the judge determining which party’s evidence is to be preferred.
The most basic reason is that in his evidence, Mr Green advanced propositions of physics that were obviously incorrect. For example, he suggested that at the moment of collision, the forward motion of both vehicles cancelled each other out. Since the Vauxhall continued along its path at a considerable speed until it hit the verge, the proposition that its forward motion was cancelled out is palpably false. In my judgment, Mr Green compounded the error when he was asked to account for his statement. Instead of agreeing with the suggestion of Mr Hunter that this was nonsense, he hedged by saying that "how it's written is not correct" as if some typographical error was responsible for the blunder. A second example is his assertion that "you can't put fluid under pressure, you can't compress it." Whereas I accept that liquids are not readily compressible, the suggestion that fluids cannot be put under pressure is absurd. I am left wondering what is the purpose of the oil pressure gauge in my motor car if the purpose is not to show the pressure in the oil system.
A second reason why I do not feel able to rely upon Mr Green is that he did not appear to me to understand the obligation of an expert fairly to deal with all the evidence and not simply to address the points that support his hypothesis. Mr Hunter's criticism is fair that Mr Green was happy to emphasise the witness evidence that supported his theory whilst remaining silent about those witnesses whose evidence did not. I am critical of the fact that Mr Green relied upon the marks on the upright of the Recycling sign without drawing the court's attention to the fact that there were several other marks on the upright that were not consistent with his theory.
The judge was also critical of Mr. Green’s approach to the expert’s discussion adding:
I am thus forced to the conclusion that in failing to explain to his fellow experts that they had misunderstood him, Mr Green has not complied with his obligation to help the court understand the expert evidence and in explaining his conduct to me, he has given inaccurate and unreliable evidence.
However, the judge described himself as “impressed” by C’s expert, Mr Roberts, and that “the most convincing expert witness was Mr Davey”. In relation to Mr. Davey the judge made clear why and in so doing showed what a court is looking for from experts:
Mr Davey carefully analysed the evidence and presented a fair and, to me, convincing account of the collision in his written and oral evidence. In giving his evidence, he was firm but not inflexible. He was an impressive witness. My conclusions about what happened are largely informed by his opinion.
The decision
In the light of the view taken of the expert evidence, the judge came to the conclusion that D1 had not been on the wrong side of the road when the impact took place although he had been travelling at a speed slightly in excess of the speed limit, the judge saying “The mere fact that he was exceeding the speed limit by a modest amount did not, in my view, carry with it a foreseeable risk of harm to his passenger. I have accepted Mr Roberts's evidence that this accident and its consequences would have been no different had Mr Howard been riding at a slightly lower speed. Thus, so far as the allegation of excessive speed is concerned, neither breach of duty nor causation has been proved.”
The judge went on to find that D2 had “drifted onto his incorrect side of the road”, probably as a result of a loss of concentration, and did not see the motorcycle coming towards him until the last moment, making no attempt to avoid the collision. It was, the judge concluded, D2’s negligent driving that was the cause of the accident and went on to find that C’s claim against D2 succeeded but that C’s claim against D1 had to be dismissed.
Conclusions
This was a case in which the expert evidence was to prove to be key. Confidence in the evidence of Mr. Davey and the views taken on the report of Mr. Green led to the conclusion that this was a case to run to trial, and that decision was vindicated by the finding that D1 was not responsible for the accident. The judgment shows the importance of undertaking a critical analysis of any expert evidence and the results that can be achieved by taking robust decisions and running the right cases to trial.
In cases where the lay evidence is not conclusive, expert evidence is likely to be the determining factor. While no party wishes their expert to be easily swayed and dissuaded from their opinions, a steadfast refusal to see and to deal properly with weaknesses and counter-arguments is a failure that will not impress a court. It is rare for judges to refer to experts opinions as “obviously incorrect” and “palpably false” but when they do the die is cast and the outcome clear.
The dismissal of the entire claim against Mr Howard was particularly welcome to the first defendant’s insurers as, given the severity of the claimant’s life-changing injuries, the claim advanced on her behalf was very significant.
If you wish to discuss this further, please feel free to get in contact with our Motor Injury Team at DAC Beachcroft Claims Limited.
www.dacbeachcroft.com