Expert Witness Journal

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ISSN 2397-2769

EXPERTS WITNESS SURVEY RESULTS RICS - DRONES -PSYCHOLOGY

EXPERT WITNESS CONFERENCE REVIEW

THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES Vol 1 Issue 14 - Winter 2015/16 - UK £5.00 Euro 6.00

phone:

0161 348 7843 0161 348 7844

PROF. PAUL TIPTON

email: web:

enquiries@drpaultipton.co.uk www.drpaultipton.co.uk/exper t-witness

EXPERT IN THE FIELD OF DENTISTRY

LOOKING FOR A DENTAL EXPERT WITNESS FOR A NEGLIGENCE CASE? Professor Paul Tipton is one of the UK’s leading dental expert witnesses.

Regularly featured in the Top 20 most influential dentists in the UK (Dentistry magazine), he has extensive experience dealing with a range of negligence cases.

In 1992 he was awarded the Diploma in General Dental Practice (DGDP) by the Royal College of Surgeons UK and became a specialist in Prosthodontics in 1999.

He is currently President of the British Academy of Restorative Dentists (BARD) and visiting Professor at the City of London Dental School. With over 25 years experience in his field, he has trained more than 3,000 of the UK’s dentists and continues to be one of the most prominent figures in the industry and on the global speaking circuit.

To secure Professor Tipton’s services, whether acting for defendant or claimant, please call today

Professor Tipton’s commitment to clients: ● To deliver expert witness advice as a leading specialist in the field of dentistry in a timely, professional and concise manner. ●

To issue concise, accurate and clear reports to assist the courts with their decision.

●

To ensure communication is paramount throughout the process.

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ISSN 2397-2769

Welcome to the Expert Witness Journal

EXPERTS WITNESS SURVEY RESULTS RICS - DRONES -PSYCHOLOGY

EXPERT WITNESS CONFERENCE REVIEW THE JOURNAL FOR INSTRUCTING PROFESSIONAL AND EXPERT WITNESSES Vol 1 Issue 14 - Winter 2015/16 - UK £5.00 Euro 6.00

Hello and welcome to the 14th issue of the Expert Witness Journal, and a Happy New Year to all our readers.

Our main feature this issue is the Bond Solon Annual Conference review and includes the results of the Bond Solon Expert Witness Survey. The Survey highlights what experts do and do not like, what the average hourly rates are, what experts common complaints are, views on a fairer way to be instructed and many more valid and interesting points. It makes interesting and in some cases predictable reading.

The survey comes at the same time that personal injury legislation is changing, particularly concerning motor vehicle accidents with the news that the Government would end the right to cash compensation for minor whiplash injuries. The proposals would also see the upper limit for personal injury claims to be dealt with by the small claims court raised from £1,000 to £5,000 - reducing legal and experts costs.

In our opinion it seems that experts are being penalised because a small amount of law firms and solicitors have aggressively chased clients, in some cases coercing them, propelling a flood of claims of which some are dubious. Perhaps a ruling that limits the legal fees in these cases would be a fairer system, also the new system may penalise ‘serious whiplash claims’ and genuine but complex personal injury claims.

We are pleased to announce that our Journal is now registered with International Standards serial Number (ISSN) for both digital and print editions. This number found on the front cover in the top right hand corner can be referenced for all CPD relevant articles.

Expert Witness will be distributing Journals and Directories at Law London, Kensington Town Hall on from March 1st to the 3rd, if you are attending please call by and say hello.

Chris Connelly

Acting Editor Email:chris.connelly@expertwitness.co.uk

This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products. No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’ The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. ABC audit applied for 2016. The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2016.

The Expert Witness Journal, Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk - www.expertwitnessjournal.co.uk

EXPERT WITNESS JOURNAL

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Did you know the Expert Witness Journal is Online?

Distributed to over 48,000 solictors Optimised for tablet and smart phone Over 27,000 hits in its first month online* ISSN Registered All articles archived and available for subscribers Subscribe today at admin@expertwitness.co.uk

www.expertwitnessjournal.co.uk

* Source Google statistics Oct 2015

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Contents Some of the highlights of this issue The End of Whiplash

by Mr James Spargo

Page 11

How to Keep an Expert Witness Impartial

by Dr Bashir Qureshi

Page 13

Review of the Bond Solon Expert Witness Conference

by Mr Mark Solon

Page 16

The Bond Solon Expert Witness Survey Results

by Bond Solon

Page 20

Quantitative Evidence - Avoiding Statistical Pitfalls

by MrJames Rothman

Page 32

How to Analyse Clinical Records

by Dr Mark Burgin

Page 38

Joint Opinion Preparation in Chronic Pain Cases

by Dr Hugh Koch and Associates

Page 41

A Brief Review of the Research Findings of Increased Risk of Dementia in Association with Traumatic Brain Injury by Dr Linda Monaci

Page 48

Shaken and Stirred - Assessment of Mild Traumatic Brain Injury

by MrJohann Wolfgang von Goethe

Page 55

The Visual System ‘A Good place for Subjective & Objective Assessment of Head Injury’

by Mr Mike Potts Page 63 Assessment and Treatment of Scars

by Professor Kayvan Shokrollahi

Page 65

Meteorology in Legal Cases

by Mr John Coates-Greetham

Page 71

Roberts & Johnstone - Whats the Verdict?

by Mr David Cowan, BSc, BArch, RIBA, Chief Executive Cowan Architects

Page 73

Arbitration Construction and Engineering Disputes

by Mr Martin Burns, RICS

Page 76

High Flyers

by Mr Craig Lippett

Page 78

Trees: The Key to Securing a Long Term Investment

by Mr Mark Chester - Cedarwood Tree Care

Page 80

Wood Man;s Oldest Building Material

by Mr Roger Galpin

Page 85

FOSPA

by Mr Pierre de Jager

Page 89

All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Expert Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal. The publisher does not accept responsibility for advertising content. The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2016. The Expert Witness Journal, Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk - www.expertwitnessjournal.co.uk

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News & Events Security Experts Support Dutch Stance on Encryption UK security experts have come out in support of a Dutch government statement against weakening encryption for the purposes of law enforcement and intelligence agencies

According to US reports, the White House has already begun raising its concerns with tech firms about reports that terrorists may have used encrypted technology to co-ordinate and plan the attacks in Paris on November 13th 2015 that killed 130 people.

The Dutch government’s view is that strong encryption is essential for the security of the country, and the Netherlands will not follow the trend of weakening encryption for security purposes. The Dutch executive cabinet endorses the importance of strong encryption for internet security to support the protection of privacy for citizens, companies, the government and the entire Dutch economy, .

Dutch minister Van der Steur, extolled the virtues of encryption, which include enabling the Dutch government to communicate online safely with its citizens about taxes and digital IDs. “Cryptography is key to security in the digital domain,” he said. Mr Van der Steur also said that “infringement is permissible” given “a legitimate purpose” with regulation and restriction by law.

This statement comes in contrast to the UK government’s draft Investigatory Powers Bill, which is aimed at giving police and security forces easier access to digital communications. China and the US are also considering similar legislation that will require technology firms to give authorities access to encrypted internet traffic.

Concerns about terrorists using encryption The ongoing debate on the strong encryption has been fuelled by the November 2015 terror attack in Paris and the US shootings in San Bernadino on December 2nd 2015.

Tashfeen Malik, one of the attackers in the December 2nd shooting in San Bernardino, also posted extremist messages, including a pledge to the leader of Islamic State on a Facebook page, according to law enforcement authorities, underlining concerns about the use of social media by terror groups.

Ethos Forensics provides: ❖ Forensic consultation in relation to DNA and body fluids evidence ❖ Interpretation of blood pattern analysis evidence ❖ Expert witness services

“The decisive announcement from the Netherlands to maintain strong encryption and avoid implementing back-door access sets a powerful example that other world governments should follow,” said Nithin Thomas, co-founder and CEO of London-based security firm SQR Systems.

❖ Urgent responses and reporting within 5

working days, if required ❖ Forensic training for police customers, forensic

scientists or other interested parties (Bespoke courses can be arranged)

“Mr Van der Steur is correct in asserting that strong encryption is vital to the privacy and security of the entire country. Creating back doors in encryption technology would just as readily create access for hackers as it would intelligence services, leaving everything from individual financial data to national secrets at risk,” he said.

❖ Auditing and quality systems consultancy to

ISO 17025 Contact, Forensic Consultant Sue Carney MPhil, BSc (Hons), MCSFS Telephone +44 7796 546 224 www.ethosforensics.com

EXPERT WITNESS JOURNAL

In November 2015, the Information Technology Industry Council (ITI), which represents more than 60 major tech companies including Google, Apple, Microsoft, Intel and Facebook, said in an open letter to US president Barack Obama that it opposes “any policy actions or measures” by the federal government that would undermine encryption technologies.

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News & Events According to Thomas, instead of pursuing any approach that would make current encryption technology less secure, the organisations and individuals that own the data must be able to access and control it themselves. “This would allow them to comply with legal needs during investigations and criminal proceedings without compromising security. This requires communications service providers to re-think their communications security architecture and corporate policy to enable them to deal with legal intercepts.

In December 2015, Ross Anderson, professor of security engineering at the computer laboratory at the University of Cambridge, told the Joint Committee on the Draft Investigatory Powers Bill inquiry that if surveillance technologies are used in ways that do not have public support, it undermines trust between citizens and police. â–

Subscribe call 0161 834 0017 or Email: admin@expertwitness.co.uk

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News & Events Gum Disease and Breast Cancer Link The actual mode of action between gum disease and breast cancer is not fully understood. One suggestion is that the chronic inflammatory response caused by gum disease could provide the link. It may be that the gum disease bacteria and their inflammatory products enter the bloodstream and circulate around the body; ultimately affecting breast tissue.

Each year about 50,000 people in Britain and Northern Ireland receive the traumatic news that they have breast cancer.

A person's risk of developing breast cancer depends on many factors, including age, genetics and exposure to risk factors such as obesity, alcohol and smoking. Now researchers at Buffalo University in America have found a possible connection between gum disease and breast cancer.

Bleeding gums, bad breath and loose teeth are all signs of gum disease. Gum disease presents in different people in different ways. For instance in some people the gums swell up, bleed and turn purple; while in others the gum recedes, exposing more of the tooth root. In many smokers, the cigarettes have stunted the blood vessels in the mouth to such an extent that even when there is extensive gum disease the gums don't bleed.

A recent study found that postmenopausal women are more likely to develop breast cancer if they suffer from gum disease. Those women with a history of smoking are particularly affected. The researchers monitored just over 73,000 women and found that 26 per cent of them had gum disease.

Smoking has long been known to make gum disease worse so the researchers factored smoking status into their findings. The researchers found that among all the women, the risk of breast cancer was 14 per cent higher in those who had gum disease. Women who smoked had a 32 per cent higher risk of breast cancer if they had gum disease, but the association was not statistically significant.

The good news is that gums can be restored to health.

Essentially, treatment can stop the inflammation reaction caused by gum disease, benefitting not only your oral health but more critically your overall body health. The first port of call is to arrange a visit to your dentist. â–

Dental clinical negligence and PI reports with long-term treatment costs Unlike medicine, dental reports are different since 92% of all dental care is carried out in the High Street, it is measureable both quantitatively and qualitatively and many treatments are elective.

Edgar Gordon MSc DDS BDS MGDS FFGDP

33 Arden Road Finchley London N3 3AB Telephone: 020 8346 1411 Email: egordon@dentmedneg.demon.co.uk

EXPERT WITNESS JOURNAL

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News & Events Analysis Shows Survival Rates for Patients with Localised Prostate Cancer Better with Surgery Compared to Radiotherapy A rigorous evaluation of survival rates has shown that cancer patients with localised prostate cancer - the most common form of prostate cancer - have a better chance of survival if treated by surgery than by radiotherapy. These findings hold true even after accounting for type of radiation and the aggressiveness of cancer. This is the most robust analysis (meta - analysis) to date of published literature comparing surgery and radiotherapy for localised prostate cancer. The study is published in the peer - reviewed journal, European Urology.

Nevertheless, there are times when radiotherapy may be more appropriate than surgery, so it is important that a patient discusses treatment options with his clinician .”

Localised prostate cancer – where the cancer is confined to the prostate - accounts for around 80 % of prostate cancers. Around 400,000 men are diagnosed with prostate cancer each year in Europe, meaning that around 320,000 will suffer from localised prostate cancer. The most common way of treating localised prostate cancers are either with radiotherapy, or with surgery. The choice of radiotherapy or surgery varies according to country. For example, in England and Wales, radiotherapy is used more often than surgery.

According to senior author, Dr Robert Nam (Odette Cancer Centre, Sunnybrook Research Institute, University of Toronto, Canada): “In the past, studies that have compared the success rates of surgery or radiation have been confusing because of their methods. We have evaluated all the good quality data comparing surgery and radiotherapy, and the results are pretty conclusive; in general, surgery results in better mortality rates than radiotherapy.

The researchers conducted a meta - analysis (a ‘study of studies’) which compared 19 studies including up to 118,830 patients who had undergone treatment with either surgery or radiation. ■

Mr R A Miller MB. BS. MS. FRCS Consultant Urological Surgeon/Urologist I have 28 years of teaching hospital consultant experience. I am recognised expert in endoscopic and percutaneous surgery of the kidney, bladder and prostate (250 publications).

Matthew Long MD, FRCOG

As Chairman of NLCN (urology section) I supervised all regional urology cancer work and was Lead Clinician for Kidney and Bladder Cancer. I was also Lead Clinician dealing with gynaecological injuries to the bladder, ureter and kidney.

Consultant Obstetrician, Gynaecologist & Mininmal Access Surgeon

I currently practice at 3 private hospitals and see NHS Choose and Book patients. I am Hon. Sen. Lecturer Institute of Urology and was previously a consultant lead at The Whittington, Royal Free and University College Hospitals. I am fully trained in medico-legal work and lecture on this subject. I undertake 120 cases annually 10% single joint expert, 60% claimant, 30% defendant. I have extensive court experience in clinical negligence and personal injury case both in the UK and The Republic of Ireland.

I have over 25 years experience in dealing with obstetric and gynaecological health issues. In addition to my clinical practice, I have had academic papers published in peer reviewed national and international medical journals.

I am regularly instructed by the leading law firms,The MPS and MDU. CV and Terms and Conditions available on website

I act as a medico-legal expert in the field of clinical negligence and personal injury for both Claimant and Defendant in the following areas:

Contact: Telephone: 0203 539 6712 - Medico-legal – Linda Morrell 020 8341 3422 - Clinical – Debbie Van de Peer Fascimilie: 0208 341 1823 Email: linda@ronaldmiller.com Website: www woolastonhouse.com Address: Urology Chambers Limited C/O Woolaston House PMC 17-19 View Road, London N6 5QJ

Audit of 50 Solicitors Understanding of the role of the Expert Witness Understanding of all relevant procedures Report Writing Skills Answering Questions Part 35 Professional Knowledge Ability to extract relevant information Communication Skills Presentation Skills Would you instruct Mr Miller again Would you recommend to a colleague

The obstetric management of labour and delivery; Urinary incontinence & pelvic floor problems, including pelvic organ prolapse; Minimal access surgery including hysteroscopy, laparoscopy and treatments for menorrhagia; General gynaecology.

N/A

Excellent

Good

Fair

Poor

No comment

0

46

2

0

Below 0

0

2

I am fully compliant with the GMC and RCOG regulations on specialist registration and continuing education.

0

46

4

0

0

0

0

0

46

4

0

0

0

0

32

10

4

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50

0

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0

0

0

0

46

4

0

0

0

0

0 10

44 32

6 4

0 0

0 0

0 0

0 4

T: 01293 822 344

-

100%

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-

-

-

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E: matthewlong@nhs.net

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100%

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w: www.specialistgynaecologist.co.uk

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P. O. Box 302, Horley, Surrey RH6 9TB

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Company Profile Vedanta Hedging Vedanta Hedging is the UK’s leading derivative expert witness service.

We have acted in more than 420 legal disputes involving derivatives.

These range from vanilla and structured interest rate derivatives, foreign exchange derivatives, commodity derivatives, credit derivatives, commercial mortgage backed securities and investment management.

Most businesses will try to avoid derivatives disputes and litigation as they are time consuming, expensive, and may have other negative ramifications.

We have formally advised our own regulatory body, the FCA. We have advised many Government Ministers, and the Government has published our advice and recommendations on best practices on hedging for SMEs.

Without in-depth product knowledge and experience, it may be difficult to assess whether or not a business has a credible claim, and, if so, what the quantum of that claim should be and the technical strengths and weakness of a case. In addition, where a bank offers an alternative derivative, it is important that independent advice is sought before entering into a binding, and potentially very expensive, contract.

We frequently provide analysis to Government Ministers and regularly appear in national media. We have also been interviewed by Sky News, ITV News, Bloomberg, The Times, Channel 4, The Telegraph, The Daily Mail, International Business Times, Reuters, and many more on multiple occasions regarding our expertise on hedging.

It may be difficult to know whether a business should contest or settle a claim that has been made against it.

A bank has deep expertise in derivatives and a client needs to be fully, independently and impartially informed as to the implications of derivative-based disputes.

Vedanta Hedging has been routinely instructed by the leading barrister chambers in London including 3 Verulam Buildings, Fountain Court, One Essex Court, Blackstone Chambers, 39 Essex Chambers, Outer Temple, Maitland Chambers, 24 Old Buildings, One Gray’s Inn, Guildhall Chambers and many more.

It is vitally important that an independent valuation is obtained from derivatives experts of the relevant assets or transactions on the issues under consideration from someone who has had first-hand experience of dealing with such assets, transactions and issues in an investment banking context.

Our expert witnesses have received instructions from leading international law firms in the UK, USA, Germany and Israel. These firms include Clyde & Co, Collyer Bristow, Enyo Law, Hausefeld, Quinn Emmanuel, Hewitstons, Withers, Fladgate, Teacher Stern, Shakespeares, Cooke Young & Keidan, Carter Ruck, Evans Dodd, Kingsley Napley, Berg Law, Bircham Dyson Bell, Mischon de Reya, Stewarts Law, Lexlaw, Pennington Manches, Ellis Jones and many more. â–

Our consultants are experienced in the procedural requirements of litigation and can act on an advisory or formal CPR 35 basis.

Vedanta Hedging is fully authorised by the FCA, and understands the sales processes and conventions, as well as the advice that banks should be providing in order to comply with FCA rules. Banks face a delicate balancing act between increasing the profits they generate from selling derivatives, and determining the appropriateness of derivatives for the client.

EXPERT WITNESS JOURNAL

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News & Events Talking Life

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Being an Expert Witness (Day 2) London 2016 Date: Thursday 21st January 2016 Where: London, Address TBC Price £358.80 includes VAT ...

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Being an Expert Witness (Day 2) Birmingham 2016 Date: Wednesday 16th March 2016 Where: Birmingham, Address TBC Price £358.80 includes VAT ...

Category: Open Access

Experts’ Meetings Starting 25th Apr 2016 14:00 in London

Being an Expert Witness (Day 2) Manchester 2016 Date: Wednesday 17th February 2016 Where: Manchester, Address TBC Price £358.80 includes VAT ...

Category: Open Access

Excellence in Report writing Starting 01st Feb 2016 09:30 in London Starting 22nd Feb 2016 09:30 in Manchester Starting 09th Mar 2016 09:30 in London Cross Examination Day Starting 03rd Feb 2016 09:30 in London Starting 11th Mar 2016 09:30 in London See more at: www.bondsolon.com

Expert Witness Training & Court Skills One Day Public Access Course This is a course for the inexperienced or nervous professional.

Re:Cognition Health

Expert Witness Training (including Court Skills & Writing Reports) The course, aimed at the Expert Witness, explains the English legal system and how an Expert Witness fits in.

See more at: www.talkinglife.co.uk

Proud to sponsor The Alzheimer’s Show Olympia, Hammersmith Road, London on 10th and 11th June 2016. www.alzheimersshow.co.uk/london/

Professor J. Peter A. Lodge

MD FRCS

Recognised internationally as an expert in complex surgery for disorders relating to the liver, gallbladder and bile ducts as well as weight loss (bariatric) surgery Surgical training primarily under the guidance of Professor Geoffrey R Giles, and the New England Deaconess Hospital (Harvard Medical School), Boston, USA, under the guidance of Professor Anthony P Monaco.

Please enquire via my website, www.peterlodge.com Email: peter.lodge@nhs.net Telephone: Secretary +44-(0)113 2065175 Fax: +44-(0)113 2448182 Mobile: +44-(0)7775 825934 Address: HPB and Transplant Unit, St James's University Hospital, Leeds LS9 7TF

EXPERT WITNESS JOURNAL

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News & Events Role & Responsibilities of the Expert 7th Mar 2016 Venue: Hong Kong Football Club, Happy Valley, Hong Kong

Chartered Institute of Arbitrators Senior Executives Course - Part 2 14th - 17th January 2016 12 Bloomsbury Square, London, WC1A 2LP Part 3 7th - 10th April 2016 Keble College, Oxford,OX1 3PG

Much more than simply the Role & Responsibilities of the expert - this course puts the role of the expert in perspective.

All courses based in London unless stated The Academy of Experts 3 Gray's Inn Square, London WC1R 5AH www.academyofexperts.org

ArbitralWomen and CIArb International Women’s Conference: Improving the Role of Women in Dispute Resolution: Evolution or Revolution?

Wednesday 16th March 2016 UNESCO House, Paris, France

The Solicitors Group Law London, Kensington Town Hall, London 1st to 3rd March 2016

For more information on our courses, please contact CIArb Member Services. The Chartered Institute of Arbitrators,

Network with over 1,500 legal professionals from across London and the South East.

Meet with the profession’s leading suppliers and take advantage of the special offers available to you and your firm.

Keep up to date by attending the training congress featuring 16 CPD accredited conferences covering all the major legal practice areas and featuring some of the profession’s leading speakers

12 Bloomsbury Square, London, WC1A 2LP T: 020 7421 7439 F: 020 7404 4023 E: education@ciarb.org W: www.ciarb.org

The Academy of Experts Into Court - January 2016 14th Jan 2016 Venue: The Academy of Experts

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Professional Solutions

As an Expert you will be judged on the quality of your evidence - not just the quality of your opinion.

Our expert witness training workshops are held in Central London 3 to 4 times per year. We limit the size of the workshops to allow plenty of time for interaction and discussion during the presentations and breaks. Many of our presenters have worked with us for over 15 years and have developed and refined our workshops as the role of experts has evolved and changed. No one else can offer this level of continuity in the delivery of learning.

Foundation Course - February 2016 17th - 18th Feb 2016 The Expert Witness Foundation Course course is an intensive study through both the theory and more practical aspects of being an Expert Witness.

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Talking Life is the No.1 choice for high quality training in the Public, Private and Voluntary sectors. Established for more than 15 years, we offer a portfolio of over 1000 in-house courses and a small number of specialised open-access courses which we can deliver from as little as £250 (+ vat) for a half day training course.

Talking Life has developed a high quality range of legal courses in recent years which has attracted outstanding feedback across our client database. Our Achieving Best Evidence (ABE) course uses highly innovative techniques, including the use of actors and our Court Skills training is second to none (though we say it ourselves!).

Our Court skills and Expert Witness training team is led by a senior practising Barrister and our ABE course is led by a former senior specialist police officer.

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Download the current Legal brochure from our website at www.talkinglife.co.uk or call on 0151 632 1206

Telephone: 0151 632 1206 Fax: 0151 632 1206 Email: info@talkinglife.co.uk or enquiries@talkinglife.co.uk Website: www.talkinglife.co.uk Talking Life Ltd 36 Birkenhead Road, Hoylake, Wirral, CH47 3BW

EXPERT WITNESS JOURNAL

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The End of Whiplash

by James Spargo George Osborne does not like whiplash. That much is obvious from his autumn statement where he promised tough new rules whereby Claimants would not longer be able to claim for soft-tissue injuries.

Instead, they would be offered physiotherapy and other treatment through their own insurers.

to have his gravy train derailed but in truth, since the Jackson reforms in 2013, low value whiplash claims are not good business any more, unless you can do them in bulk with a very fast turnaround time.

Tony Newman, head of motor claims at Allianz, said of the existing system that: ‘It’s still too expensive, encourages bad behaviours and fails to put the genuine claimant at the heart of the process.’[1]

Having worked as a Defendant for many years and defended a good many whiplash claims, I can tell you that I don’t much like whiplash either. For the unscrupulous out there, it is the perfect condition. It is nearly impossible to diagnose with 100% accuracy and there is no particular test for it. The so-called ‘Waddell’s signs’ can supposedly be used to determine fakers and malingerers but with a bit of research, one can see that Waddell’s signs were not intended to determine if someone was faking an injury, but only if there is a non-physical component to their pain. The only real way to combat false whiplash claims is a long and expensive investigation process that does not often yield fruit.

I am afraid how I am at a loss to understand how a blanket ban on such claims puts the genuine Claimant at the heart of the process, or indeed anywhere, except up the proverbial creek without even a canoe, let alone a paddle.

James Spargo – November 2015 References [1] Insurance Times – Insurers Welcome Osbourne’s whiplash crackdown, 25 November 2015

The diagnosis of whiplash relies on the patient’s history and account and a doctor assuming that neck pain after an accident must equal whiplash. This, I feel, is one of the reasons why there are so many cases of whiplash in Britain compared to other countries.

Having said that, the recent proposals seem akin to using a sledgehammer to crack a nut. I am fully aware of the amount that fraud costs the insurance industry, both in pay-outs for false claims and in the efforts that go towards detecting the fraud in the first place. It seems, however, a rather radical solution to decide simply that, instead of developing efforts to detect and combat fraud, nobody with a soft-tissue injury will be allowed to claim.

Mr Shahid Khan MA (Cantab) FRCS (Tr&Orth)

Consultant Orthopaedic and Spinal Surgeon

To be fair to George Osborne, he says that the plan is to end compensation for ‘minor’ whiplash claims, but he fails to define ‘minor’. His associated plan to raise the small claims injury limit to £5000 would seem to indicate that he feels that a whiplash injury worth less than £5000 is ‘minor,’ although maybe not minor enough to be caught by his blanket ban. According to the JC Guidelines, used by lawyers to assist in valuing personal injuries, a whiplash claim worth £5,000 would mean continuing pain for around 2 years. I doubt that a Claimant in that position would consider his condition to be ‘minor’.

Provides 400 medico-legal reports a year on all areas of personal injury specialising in trauma and orthopaedic injury, back pain and whiplash injury. Provides clinical negligence reports within the field of Spinal Surgery

EXETERSPINE The Avenue, Brampford Speke, Exeter, Devon EX5 5DW Tel: 07779 238366 Fax: 01242 708192 E-mail: karen_street_khan@yahoo.co.uk Web: www.oceanphysio.com Consulting rooms/appointments available in Bristol, Exeter and Plymouth

Now I know that some of you may just dismiss this as the whinging of a personal injury lawyer who is about EXPERT WITNESS JOURNAL

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Report Writing and Court Room Skills for Expert Witnesses For over 10 years MBL Seminars have been delivering the latest updates and practical know-how training in compliance, law and tax, and are firmly established as a leading learning & development provider for professional services firms.

Personal Injury, Clinical Negligence, Product Liability, Construction, Insurance and Common Law. He has been involved in a number of high-profile cases, and has a reputation for incisive crossexamination.

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How to Keep an Expert Witness Impartial?

by Dr Bashir Qureshi FRCGP, FRCPCH, FFSRH-RCOG, AFOM-RCP, Hon FRSPH, Hon MAPHA-USA 1) Expert Witness in Cultural, Religious & Ethnic Issues in litigation.

2) Expert Witness in GP Clinical Negligence.

3) Author, Transcultural Medicine. work income for the Expert from that solicitor and their colleagues. This pattern may be repeated with other legal firms.

Practical Issues • British Courts need Expert Witnesses to be truly Impartial and require them to sign a statement of impartiality. Since 1992, I am the only Expert Witness in Cultural, Religious & Ethnic Issues in Litigation in the UK; covering all three dimensions related to a case. I am also one of many Expert Witnesses in GP Clinical Negligence as I am a practising GP since 1969. When I am commissioned to write a Report, the instructing solicitor explains and asks me to sign the impartiality statement, because of the Court’s demand. I confirm always that my impartial report is addressed only to the Court, and also to Jury in Criminal Courts.

v) Not to present to Court any Report which goes against their case, either financed by client or Legal Aid Authority. The money is lost. The Court is not made aware of this action.

• Legal Aid cuts for poor immigrants or refugees have affected adversely the provision of Justice for them in Britain. The income and incentives for Impartial Expert Witnesses has been reduced substantially.

• In reality, I have been observing that the instructing solicitors want the Expert Witness to appear impartial, as the Court require, but support their clients’ cases. A client would only continue to use the solicitor’s services if they win the case. There are no ifs and no buts.

• However, Insurance companies still pay genuine fees to Impartial Expert Witnesses for GP Clinical Negligence cases.

• Now- a- days, an instructing solicitor has to contact a few Expert Witnesses to bid for fees and choose the cheapest bidder, due to genuine limitation of funds, in these times of real austerity. Sometimes, the quality of the cheapest bidder may be far less than an average or higher bidder. It is said that to pay peanuts invites monkeys, so it may attract a Partial Specialist than an Impartial Expert Witnesses.

• Instructing solicitors use many methods to persuade an Impartial Expert Witness to become fully or somewhat partial to help their client to win the case. i) Asking the Expert to provide a provisional report first; so that they get the opportunity to edit it to favour their client’s case. There is no extra fee for a provisional Report. It doubles the Expert’s work for the same fee.

• A solicitor knows something about everything whereas an Expert Witness knows everything about something; which means in his/her area of expertise.

In a Court both play different but valuable roles to assist the Judge and Jury, to deliver fair justice.

ii) Promising good and prompt payment of the fee; enticing the Expert to favour.

• Sometimes, it is better to have no Expert Witness than to have a cheap one who may not have appropriate training and experience.

iii) Putting direct or indirect pressure on the Expert to modify or omit certain parts of the Report which go against their client’s interest.

• Among Expert Witnesses, their quality of Experience Evidence and Research Evidence vary considerably. A Court would be in a better position to assess their capacity and capability.

iv) Not to hire that Expert Witness’s services again, if his/her Report has gone against them once and the Expert refrains to modify or omit due to honesty and the truth. No more EXPERT WITNESS JOURNAL

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Proposed Solution • Single Joint Expert, appointed by the Court, is the answer. Politics, economics and austerity measures are keys to maintain our legal system. The decision makers, who administer the Judiciary Services in the Uk, should consider some of the problems which I have highlighted above, along with input from other stake holders. They could come round to consider the following two suggestions; A or B: A. To create a “Partial Specialist/Expert Witness” and let the solicitors for claimants and defendants hire them freely without a conflict of interest. The Court needs to know the breadth and depth of both sides of the story, in keeping with our Adversarial Judiciary system. Each one of two Specialist/Expert Witness should be asked to sign a “Partiality statement”. Everyone would adhere to their own position sincerely. Honesty is the best policy among all policies to help the Courts.

Dr Bashir Qureshi is a Expert Witness in Cultural, Religious and Ethnic Issues in Litigation & Expert Witness in GP Clinical Negligence Expert Witness in Cultural, Religious & Ethnic issues in Litigation, since 1992. Also Expert Witness in GP Clinical Negligence and Child Abuse Cases.

Author of Transcultural Medicine. Particular Expert in English, Pakistani, Bangladeshi and Indian Subcultures and in Islamic, Christian, Jewish, Hindu, Sikh Religions and Secular Customs.

Along with Ethnic/Racial issues.

B. To create a “Single Joint Impartial Expert Witness” for each area of expertise, who should be appointed by the Court. Both sides of solicitors/ counsels should be able to question them, akin to other factual witnesses. In this way, current uncertainty of loyalty to instructing solicitor and stress of losing work income would be resolved amicably. The outcome is likely to be better input by Impartial Expert Witnesses and fairer Justice. ■

Website: www.drbashirqureshi.com

Mr Terence J Duffy MA, BM, BCh, FRCS

Consultant General & Breast Surgeon Consultant Breast and General Surgeon North Staffordshire Nuffield Hospital Previously Lead Clinician (Breast) University Hospital of North Staffordshire Appointed in 1984, I have a special interest in Breast Disease (benign and malignant including delay in diagnosis, breast injury and breast surgery) also in Hernia Surgery.

I have over 20 years experience of Medico-legal reporting.

Address: Merry Tree, Baldwins Gate, Newcastle-under-Lyme Staffordshire ST5 5ES Tel: 01782 680 199 Fax: 01782 680 199 Mob: 07734 601 881 Email: tjduffy@merrytree.net

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Providing Expert Reports: Knowing the Limits of Your Competence

by Michael A Foy A recent brief article in the BMJ provides food for thought for Orthopaedic surgeons who carry out expert witness work (Dyer, 2014)1. It concerns the case of a Consultant Psychiatrist who was felt, by the Medical Practitioners Tribunal, to have acted beyond his competence in preparing an expert report on a paramedics’ fitness to work.

“Orthopaedic/Spinal” expert for the claimant was a Spinal Injuries Consultant. It became clear during the trial that the Spinal Injuries Consultant didn’t have a great deal of day-to-day experience of managing patients with neck and shoulder girdle problems and was not a sensible choice of expert to act for the claimant. The Judge dismissed his evidence. As far as I am aware the matter was not taken any further. However, it appears to me with the precedent set by the case discussed above it is only a matter of time before experts from other specialist areas find themselves before the Medical Practitioners Tribunal if they stray outside their areas of expertise.

Briefly, the Psychiatrist in question was instructed by solicitors in October 2011 to provide a report for the Health Professions Council on the fitness of a person to work as a paramedic. The paramedic had a personality disorder and PTSD. The doctor worked as a psychiatrist in a prison and specialised in learning disability. His standing as an expert was challenged by the expert for the paramedic. It transpired that the only time he had worked in the field of general adult psychiatry was as an SHO. The tribunal concluded that he did not have sufficient experience to act as an expert in this case and had misled those instructing him. It was agreed that he was more than competent in his day to day practice at the prison. However, the Medical Practitioners Tribunal suspended his licence to practice for three months. They concluded that his behaviour amounted to, “misconduct which required a message to be sent to you and to the public that undertaking the duties of an expert witness is not a matter to be taken lightly”.

The message to take from these cases is that it behoves all of us to ensure that we really are experts in the area that we are providing opinions on. If seriously challenged in Court it may not be sufficient to put forward an argument that we treated patients with back pain, shoulder problems, foot/ankle problems or whatever as an SHO but have not been actively involved in their management for a number of years. ■

Michael Foy is a Consultant Orthopaedic and Spinal Surgeon, is Chairman of the BOA’s Medico-legal Committee, Co-Author of Medico-Legal Reporting in Orthopaedic Trauma and author of various papers on medico-legal and spinal/orthopaedic issues.

A number of references were made to the GMC guidelines on the duties of an expert witness (2013)2 and in particular paragraph 12 “You must only give expert testimony and opinions that are within your professional competence or about which you have relevant knowledge. If a particular question or issue falls outside your area of expertise you should either refuse to answer or answer to the best of your ability but make it clear that you consider the matter to be outside your competence”.

References: 1. Dyer C (2014) Tribunal suspends doctor for acting as expert witness beyond his competence BMJ; 348 : g4126 2. www.gmc-uk.org/static/documents/content/Acting_as_an_expert_witness.pdf

I recently attended Court in a “whiplash” claim where there were significant ongoing neck/shoulder girdle symptoms and more general pain issues. I was acting as an expert witness for the defence and there was a Pain expert on each side. The EXPERT WITNESS JOURNAL

Originally published in the Journal of Trauma & Orthopaedics (Volume 2 / Issue 4) © British Orthopaedic Association 2014 15

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Review of the Bond Solon Expert Witness Conference 2015 On November 6th over 360 expert witnesses met in Westminster for the twenty first Annual Bond Solon Expert Witness Conference. Supported by our sponsor Expert Witness, this is the largest annual gathering of experts in the UK. It tackled some of the most important issues facing expert witnesses today.

Retired Experts One of the arguments that re-emerged was the use of use of retired expert witnesses. In his keynote address, The Right Hon Lord Hughes stated that “your evidence or advice is not much use to anyone unless you have current hands-on experience in your field.”

He added that “It is particularly a problem in medicine …

If you are being asked for a prognosis the first question any barrister will ask is when you last had a patient (not a client) in the same situation. And then, how many, so that you can be seen to be speaking from a decent size of sample of the way patients actually react. If you are being asked whether the practice adopted at the operation passes muster or not, same question: when did you last do it yourself ?”

Most experts did not agree with Lord Hughes. In the annual survey we asked ‘Do you think that when someone retires from their profession they should also retire from expert witness work?’ 72% said no and only 22% said yes.

It is not always possible to ignore retired experts: one finance expert in the audience commented that the banks don’t allow their employees to act as experts. There are also cases where a retired expert is more appropriate. For example in historical cases, where a retired expert may be less likely to confuse historical working practices with more recent developments. Retired experts are often better able to meet tight deadlines and court appearances.

Ben Holland, Partner at Squire Patton Boggs, also commented that he looks for an expert who has recent experience of giving evidence and of writing reports and often the more experience an expert has in the courtroom, the fewer hours they will be able to commit to direct practice.

His Honour Judge Topolski QC argued that retirement should not be a bar to giving evidence. When ‘should expert witnesses be in active practice in their speciality?’ was put to our Question Time panel later that morning, he

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responded: “It is to my mind inconceivable that there isn’t that huge reservoir of talent that we should just simply abandon”. However, experts not currently in practice are at a disadvantage.

Lord Hughes argued that independent experts are the most effective: “My guess is that most advocates will tell you that a good expert is usually very difficult to challenge so long as he sticks to saying “Look, I’ve been doing this all my life; I am telling you x or y”, and he is clearly sure about what he is saying. He is exceptionally difficult to challenge if he is clearly not trying to see behind the question and to trim his answer to the client’s case, but simply takes each question on its merits and gives his honest opinion. So long as he gives the same answer whether it helps or hinders the client, simply because he knows he is right, you will rarely dislodge him unless of course there is serious flaw in his reasoning. But conversely, so soon as he starts to play the advocate, you have usually got him.”

Judge Topolski highlighted the Karen Henderson appeal in which he, as a barrister, called an expert who was not in current practice. Lord Justice Moses was very concerned that a retired expert would be disadvantaged in two ways: by not doing the job on a daily basis and potentially not keeping up with developments. Judge Topolski urged retired experts to “read that part of the judgement in Henderson … get familiar with the way that the court was thinking and act accordingly.”

Allen & Overy Partner Joanna Page reflected Judge Topolski’s comments when she addressed delegates in the afternoon. If you are not fully up to date in a particular area, she said, then you should tell your solicitor at the earliest opportunity: if you are shown to be out of date in crossexamination then your evidence could be diminished.

This was picked up again in the afternoon when Partner Joanna Page discussed building a relationship with the solicitor. Your objectivity may cost you the job with some solicitors, she said, but she values objectivity. “We don’t want you to be our advocate. The experts who start arguing the case are a disaster.” Critical judgments are also increasingly damaging: American lawyers now trawl the internet to see whether an expert has been cited before in a case.

If you are working in a controversial area then you could also take the initiative and ask your instructing solicitor to put it before the judge as a preliminary issue. This may avoid arguments later when you have done the work and risk not being paid for it. Judge Topolski mentioned that he had heard an application on this in a criminal case.

Always on the same side One expert asked our Question Time panel: ‘what are the panel’s views on the ratio of prosecution and defence (or claimant and defendant) cases undertaken by an expert?’

Tim Owen QC replied that if an expert always works for one side then this is an obvious question for any advocate to pursue; whether it succeeds will always depend on how the expert responds.

Independence The speakers had two strong messages on independence.

Firstly, don’t change your answer because of who is asking it. Secondly, don’t try to be an advocate: that is the role of the barrister.

Above, Question Time at the conference EXPERT WITNESS JOURNAL

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However Ben Holland said that he would not hesitate to instruct an expert who had taken a solid view, from conviction, and so appeared on one side more often. This can be safer, he argued, than instructing an expert who has tried to take a balanced approach and risks contradicting evidence they have given in a previous case.

Of course an expert cannot always choose the work they are offered. One delegate had found that after accepting her first case she was generally only offered cases for the same side.

But you can spread your marketing widely and refuse work that you feel ties you to one side: the Forensic Accountant Brent Wilkinson gave the example of refusing defendant insurance panels.

Judge Topolski concluded by warning those experts with an unbalanced workload to be open about it and to be prepared for questions on it. He argued that when an expert is not prepared to be frank about only accepting instructions from one side their reputation can quickly crumble in the witness box.

Cognitive bias Dr Itiel Dror provided a fascinating insight into our own unintentional bias, with examples of cognitive bias from court cases, research and exercises on the audience.

Dr Dror argued that hardworking, dedicated and competent expert witnesses are not as objective and independent as they like to think. Experts, like everyone else, are affected by context and the shortcuts that enable our brains to work efficiently. But we can take steps to minimise this unconscious bias.

Above, Lord Hughes addresses the conference “The agreed statement of what is common ground will I am certain become increasingly important. It is possible, maybe likely, that this process will, gradually, go further.

That it will advance from the agreed statement in a single case to an agreed statement of general principles applicable to cases of a particular kind. One day I hope that there will be primers in the sciences which constantly recur. They will be booklets prepared by well-respected experts in the field, which set out the minimum common ground which is generally agreed by those who practise in the particular area, and in language which simple lawyers can understand – hence ‘primers’. A start has been made in the specific field of forensic science, under the supervision of Professor Sue Black in Dundee and under the auspices of the Royal Society. The first primer has been commissioned and we await its appearance. I would like to hope that one day this can be done in far more fields than forensic science (ie crime scene analysis). In principle this ought to be capable of accomplishment in plenty of fields. It will not put experts out of work, for there will always be disputed territory beyond the agreed minimum, and litigants who need to go there.”

Awareness of cognitive bias is increasing in the legal world.

In October 2015 the Forensic Science Regulator published the guidance ‘Cognitive bias effects relevant to forensic science examinations’. Dr Dror has provided training to the senior judiciary and cognitive bias has been raised in a number of cases.

Experts should not be exposed to irrelevant information about a case, he said. Lawyers like to give experts background information, but this can affect your decision and leave you open to questioning on how the information affected your decision. Police officers are also guilty of this: a forensic linguist attending the conference had earlier complained that police officers like to give him information about the victim/defendant that he does not need to know, and which potentially damages his objectivity.

Ask the solicitor not to tell you irrelevant information.

Remind them that this exposure could undermine your evidence. Dr Dror urged experts to decide what they need to know and shield themselves as much as possible from irrelevant information and pressure. It will improve the contribution you make to the court.

A chartered surveyor attending the conference supported this approach, and the time and money that could be sensibly saved in the High Court and County Courts. In his experience, when two experts put a single statement of agreed facts they are “consistently knocked back, told to do two reports and then to sit down and see what aspects we can agree”.

Primers Lord Hughes wanted to see expert witnesses create ‘primers’ - setting out the common ground on which experts in their field generally agree.

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Other groups have previously supported the idea of primers: in the Annual Legal Update Jason Tucker advised experts to look at Sir Brian Leveson’s ‘Review of Efficiency in Criminal Proceedings’ and The Royal Statistical Society’s primer-style ‘Case Assessment and Interpretation of Expert Evidence’.

• If cost estimates change, discuss it with the solicitor at the earliest opportunity.

Randomised selection of experts Richard Mason, Deputy Director for Civil Justice at the Ministry of Justice, gave a briefing on the Government’s whiplash reform programme.

Capped fees How will the cap on expert witness fees affect the instruction of experts? In criminal Legal Aid cases, Tim Owen QC said that “the situation is dire but I fear that there is little prospect of things changing unless and until enough expert witnesses simply refuse to accept the instructions”.

The two expert witnesses on our Question Time panel already refuse cases with capped fees.

In February 2012 the Government committed to tackling the number and cost of whiplash claims and highlighted potentially unhealthy relationships between experts and the people instructing them. The MedCo portal was introduced to break that link.

From 6 April 2015 solicitors and other instructing parties can only source expert medical reports in soft tissue injury claims through the MedCo portal which returns a choice of randomly generated MROs and medical experts from which they must choose. To ensure that all experts meet the high standards expected by the MoJ, from February 2016 experts will only appear on the MedCo portal if they have undertaken and passed MedCo’s accreditation.

Annual legal update As usual, the Annual Legal Update was delivered by Jason Tucker of Cardiff University Law School. Jason provided an invaluable summary of case law, procedural and practical changes.

During his session he pointed out the need to shorten expert witness reports (a focus in the Family courts for some time) has now been raised in the Civil courts. In Harman v East Kent Hospitals NHS Foundation Trust [2015] EWHC 1662, Mr. Justice Turner said that “there is a regrettable tendency for experts to produce reports which are simply far too long”. Turner J noted that the consequences of lengthy reports were that disproportionate time was spent reading the reports, which increases costs, and the risk of important points getting lost was increased. Producing short and succinct reports which still contain all the information required will be a challenge for many experts.

Richard Mason stated that the Ministry of Justice has confidence in MedCo, but changes may be introduced as a result of the MedCo review and Judicial Review underway.

The MedCo review and audit of Medical Reporting Organisations (MROs) was started earlier than planned to tackle perceived gaming of the system by MROs. The outcome of the review will be published shortly.

Questions from the audience showed that experts still had questions about, and problems with, the new MedCo system.

There are currently no plans to expand the MedCo system to other areas of expertise, Richard Mason said, but once it is fully bedded in the Government will consider whether the system should be expanded into other areas. For example, he mentioned that the Ministry of Justice has asked the Civil Justice Council to investigate potential abuse within cases of Noise Induced Hearing Loss, for which a MedCo approach may be suitable. ■

Parallel sessions After lunch delegates divided to attend the Criminal, Commercial, Family and Medico-Legal parallel sessions.

Speakers the independent arbitrator Jeremy Winter, criminal barrister David Hughes, family lawyer Jerry Bull, medico-legal advisor Andrew Andrews MBE and Jo Wren from the GMC. What solicitors want?

Joanna Page, Partner at Allen & Overy, discussed how experts can improve the relationship with the solicitor.

Examples included: • Be proactive and pushy to ensure you get good quality instructions. Ask good questions to establish what the key points are.

by Mark Solon, Bond Solon www.bondsolon.com

• Ensure you know the name of the Partner responsible for the case. Contact them if something is going wrong.

• Keep a careful record of all documents you have received.

• Ensure you are given the timetable and kept updated: if you don’t know what the deadlines are then you will not be able to comply with them.

• Don’t overpromise: be honest about the time that it will take to do the work and the other commitments in your diary.

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Above, Question time with the audience All photohraphs courtesy of Bond Solon.

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The Bond Solon Annual Expert Witness Survey Conducted at the Bond Solon Annual Expert Witness Conference, 6 November 2015.

Sample: 191 experts completed the survey Published: 16 November 2015 4, Do you think that when someone retires from their profession they should also retire from expert witness work?

Yes 43 No 137 Don't know 11

1, Over the last 12 months, have the number of your instructions: Gone up 89 Gone down 25 Stayed the same 75 No answer 2

Comments Nearly half the experts reported an increase in the number of instructions received. This trend goes against the intention of the courts to limit expert evidence to speed proceedings and reduce costs.

Comments Interestingly experts do not appear to think they have a sell by date. Often judges want experts who are currently working in their chosen field. At the conference it was clear that in some fields e.g. banking it is virtually impossible to get working experts as the employing organisation will not allow it.

2, What is your average hourly rate for report writing?

Average £178 Average for civil experts £190 Average for criminal experts £103 Average for family experts £110 See Appendix 1 for a full list of hourly rates, including area of expertise and rates for court.

5, Do you receive feedback on your report?

Never 15 Rarely 111 Usually 47 Always 18

Comments Rates for civil experts are some 50% higher than in criminal matters.

3, How does this relate to your average hourly rate in 2014?

Higher 43 Lower 14 The same 129 No answer 5

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Comments Although it would be of benefit to experts to help them improve the quality of their work to have feedback from the instructing solicitor or counsel, a majority reported they rarely had such feedback.

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6, Would mandatory accreditation for all experts improve the standard of experts?

Yes 109 No 37 Don’t know 44 No answer 1

Other: ● Supply of all contact details. I have to meet the client and access to mobile phone numbers is top of my list. ● Last minute updates and changes. Also letters listing numerous questions –the answers to which would be apparent in they read the report properly. ● Prolonged negotiation to get paid. Had to resort to debt collecting agency. ● ALL solicitors put the CD password with the CD! Or give no password at all even though encrypted. ● Bad manners of some ● Documents not well presented / paginated. ● Not provided with outcomes of cases ● QC pressure to change reports ● No feedback ● Pressure to alter dates and reference to documents seen. ● No complaints ● Relevant documents provided late. ● Not giving client contact details to arrange interviews and assessment –often spend days trying to track down detail and waiting for clients to respond. Some solicitors are very helpful –some do not take any responsibility.

Comments Most experts would like some form of mandatory accreditation to improve standards however this is expensive to implement.

7, Is randomised selection of experts a fairer way for experts to be instructed?

Yes 25 No 107 Don’t know 54 No answer 5

We also asked experts to explain why. For a full list of their responses, see Appendix 2.

Comments Most experts do not like the idea of randomised selection of experts as has been started by MedCo in whiplash cases (www.medco.org.uk). MedCo is the new system to facilitate the sourcing of medical reports in soft tissue injury claims brought under the MoJ’s Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. The new system went live on 6 April 2015. Medical Experts, MROs and Commissioners of Medical Reports must register via this website in order to be able to provide or commission medico-legal reports in relation to RTA soft tissue injury claims.

Comments As in previous years, experts continue to have issues around solicitors and their instructions.

9, Are there solicitors / law firms / instructing parties that you would refuse to work with again?

Yes 94 No 90 No answer 7

8, What are your common complaints about solicitors?

Late payment 100 Late instruction 41 Poor instructions 60 Not provided with all relevant documents 77 Not kept up to date with progress of the case 81 Pressure to change report 39 Unrealistic deadlines 54 EXPERT WITNESS JOURNAL

We also asked experts to explain why. For a full list of their responses, see Appendix 3.

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We also asked experts ' If yes, how did you respond?

If no, how would you respond?’. Their answers are in Appendix 4.

Comments Still a large proportion of experts have had bad experiences that have led them to refuse to work with certain people.

Comments Some three quarters of experts have not had their objectivity questioned under cross examination.

10 Has your objectivity ever been questioned during cross-examination?

Yes 32 No 145 No answer 14

Appendix 1 What is your average hourly rate Area of expertise Accommodation Accommodation Accommodation in personal injury and clinical negligence Accountancy Accountancy Accounting, valuation and finance

Report Writing £150 £195

Court £225 £220

£190 £150 £225 £500

£1500 per day £200 £225 £500

Actuary Anaesthesia Architect/accommodation for disabled people Assessment of parents with learning disabilities Banking and financial services Banking, finance, investment and regulation Cardiology Cardiology Cardiothoracic surgery Cardiothoracic surgery Care and OT Care of elderly people Chartered surveyor Chartered surveyor Child and family psychologist Child protection / psychiatry Child psychiatry Child, adult, parent psychology Children's nursing / care Civil and structural engineering Clinical and forensic psychology Clinical psychology Clinical psychology

£300 £175 £150 £93.60 £375 £350 £300 £340 £150 £200 £170 £81 £175 £200 £90 £135 £150 £90 £75 £125 £90 £93.60 £100

£300

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£200 £93.60 £375 £350 £300 £2500 per day £800 per day £200 £175 £240 £90 £135 £150 £90 £75 £125 £93.60 £200

Most work in Civil Civil Civil Civil Civil None /multiple Civil Civil Civil Family Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Family Family Civil Family Civil Civil Criminal Family Civil WINTER 2015/2016

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Appendix 1 continued Area of expertise Clinical psychology Clinical psychology Colorectal surgery Construction Construction Construction planning engineer Consultant dermatologist Consultant surgeon Cultural, religious and ethnic issues Dental Dental

Report Writing £150 £240 £200 £125 £180 £85 £280 £200 £120 £120

Dental Dentistry Dentistry Ear nose throat Ear, nose and throat surgery Educational psychology Emergency medicine Emergency medicine ENT ENT Epidemiology / assessing research evidence External limb prosthetics / orthotics Family medicine and clinical forensic medicine Fire investigator Forensic accountancy Forensic accounting Forensic collision reconstruction Forensic pharmacology Forensic physician - sexual offences

£150 £160 £220 £200 £190 £120 £100 £250 £120 £175 £80 £180 £108 £190 £32 £32 £150 £98 £108

Forensic psychiatrist Forensic psychiatry Forensic scientist General medical practice General practice General practice / pain / whiplash General surgery Geriatric medicine GP GP GP GP GP GP (personal injury claims) GP / soft tissue injuries GP / soft tissue injuries

£108 £150 £200 £240 £220 £150 £140 £180 £85 £100 £150 £150 £250 £100 £110 £250

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Court £100 £240 £1000 per day £125 £200 £100 £200 £200 £900 per day £150 £650 per day £150 £1500 per day £220 £200 £190 £50 £100 £1000 per half day £120 £175 £90 £1000 per day £108 £210 £32 £32 £150 £98 £350 per half day / 500 per day £75 £220 £1600 per day £250 £500 per half day £150 £85 £100 £150 £150 £250 £110

Most work in Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil None /multiple Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Criminal Civil Criminal Criminal Criminal Criminal Criminal Criminal Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil

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Appendix 1 continued Area of expertise GP medical expert Hand and wrist surgery Hand surgery Health and safety Horticulture Housing needs in PI claims Independent social work / psychotherapist Insurance practice Marine Marine surveying Marine weather Medical Medical Medical Medical aesthetics Medicolegal Medicolegal Medico-legal Medico-legal Midwifery Midwifery Midwifery Midwifery Neurodevelopmental paediatrics

Report Writing £180 £250 £400 £100 £50 £205 £80 £295 £120 £65 £175 £120 £245 £250 £160 £100 £175 £150 £200 £75 £90 £100 £165 £108

Neuropsychology Noise induced hearing loss (acoustics) Nursing older people Nursing older people Occupational lung disease Occupational therapy Occupational therapy Oculoplastic, orbital and lacrimal disorders Oral and maxillofacial surgery Orthopaedic Orthopaedic Orthopaedic surgery Orthopaedic surgery Orthopaedic surgery Orthopaedic surgery Orthopaedic surgery Orthopaedic surgery Orthopaedics Orthopaedics Orthopaedics Orthopaedics Orthopaedics Orthopaedics

£100 £150 £135 £135 £200 £95 £150 £425 £150 £240 £300 £150 £150 £180 £200 £250 £300 £100 £200 £200 £240 £250 £250

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Court £250 £400 £100 £100 £245 £80 £2000 per day £145 £95 £1000 per day £180 £245 £250 £160 £200 £300 £200 £500 per day £90 £100 £750 per day £108 £100 £250 £950 £900 £200 £95 £150 £150 £187 £2,500 £100 £1000 per day £1500 per day £300 £500 £1,400 £100 £400 £2000 per day £250

Most work in Civil Civil Civil Criminal Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil None /multiple Civil Civil Civil Civil Civil Civil Civil Civil Criminal Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil WINTER 2015/2016

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Appendix 1 continued Area of expertise Orthopaedics Orthopaedics Orthopaedics - trauma Osteopathy and acupuncture Orthopaedics, trauma and knee surgery Paediatric medicolegal / child abuse Parental substance misuse Personal injury Personal injury / accident and emergency Personal injury / driver licensing Personal injury and clinical negligence Pharmaceutical market evaluation/forecasting Physiotherapy

Report Writing £300 £350 £200 £150 £200 £100 £108 £150 £100 £250 £180 £180 £145

Physio Plastic and hand surgery Plastic surgery Plastic surgery Property valuation Psychiatry Psychiatry Psychiatry Psychiatry

£195 £400 £192 £300 £150 £76 £108 £108 £108

£195 £150 £192 £1500 per day £200 £76 £108 £108

Psychiatry Psychiatry Psychiatry Psychiatry Psychiatry Psychiatry Psychiatry Psychology Psychotherapy Psychotherapy Psychotherapy Respiratory medicine Retail theft and card fraud Rheumatology Rheumatology Rheumatology Sexual and reproductive health Skin surgery and vasectomy Soft tissue Solicitor negligence Speech and language therapy Surgery Surgery Surveying

£120 £130 £200 £200 £220 £225 £320 £90 £120 £120 £125 £180 £115 £250 £300 £320 £300 £150 £240 £225 £135 £200 £750 £110

£120 £200 £2000 per day £200 £225 £1200 per day £320

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Court £1600 per day £1600 per day £150 £200 £250 per half day £108 £150 £500 £125 £200

£120 £1000 per day £125 £400 per half day £70 - £490 per day £250 £800 per half day £300 £240 £250 £450 per half day £400 £250 per half day

Most work in Civil Civil Civil Civil Civil Criminal Family Civil Civil Civil Civil Civil None /multiple Civil Civil Family Civil Civil Family Civil Criminal None /multiple Criminal Criminal Civil Civil Civil Civil Civil Criminal Civil Civil Civil Civil Criminal Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil Civil

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Appendix 1 continued Area of expertise Surveying Surveying and valuation Temporary work Tissue viability Trees and planning / boundaries Upper GI / laparoscopic and gallbladder surgery Upper limb surgery Urology Use of force Valuation of property Veterinary surgeon Wood products consultant

Report Writing £150 £250 £130 £81 £67 £210 £250 £200 £95 £225 £120 £125

Court £175 £250 £155 £81 £87 £2500 per day £200 £325 £225 £120 £125

Most work in Civil Civil Civil Civil Civil Civil Civil Civil Criminal Civil Criminal Civil

Appendix 2 Is randomised selection of experts a fairer way for experts to be instructed?

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Account should be taken of experience as expert witness, expertise (qualification) and reputation (large feedback).

Because there are no data I’m aware of on which to form a scientific opinion.

But not in current form – single experts and agency should be together.

But speciality choice?

Certain experts are more focused in specific areas.

Does not necessarily ensure quality or relevant expertise.

Doesn’t allow for being able to instruct experts with a particular area of expertise. Experts with dubious ability will be instructed more often.

Each case is different and therefore may call for an expert of a certain experience!

Each expert has different experience and specialisms within their expertise eg specific industries / markets / claims. Removing the choice of expert means that most appropriate expert may not be selected.

Excellence should be recognised and used.

Expertise and clients should have a choice relating to area of expertise and cost.

Experts need to be selected on the basis of what they bring to that case. Each case is different.

Experts should be instructed on the strength of their experience and particular expertise. The best expert needs to be appointed in every case!

Experts should be selected/instructed on the basis of their expertise and skills.

I know little about this but I think that a Court or Solicitor should have choice, particularly if their previous experience of an expert is very good or very bad. This is in my area which is very different from MedCo. I perceive a significant range of quality and it would be unfair unless there was some sort of uniform standard.

If I wanted to instruct a solicitor over a personal matter I would choose one who I felt had the skills I needed and with whom I felt comfortable. Why wouldn’t a solicitor choose an expert on the same basis?

If you have a good reputation then solicitors should use you!

In my field of colorectal surgery there are numerous subsidiary fields. It is important to secure a good match.

I refer on to other numerous cases.

Insufficient in my field to be compatible with any choice for patient/family.

It hopefully means that newer experts won’t lose out on instructions as not known to solicitors. But I think there should be an option to choose a particular expert if known to the solicitor.

It should be based on expert’s proven track record in providing reports.

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Just would not work. Experts need to be chosen on a custom basis to suit a particular case.

Lack of prior working relationship will hinder process etc. adding to cost and time. Most appropriate experts may not be assigned.

May not make best use of available expertise My field is too specialised and there are too few of us for it to work.

My field is very limited in no. of experts available.

My field the pool is too small and there are several highly partisan experts who would not be successfully accredited if such accreditation occurred so would have to be linked to accreditation as well.

No incentive to improve, provide above average service and unable to build up reputation with solicitors.

Not in my field as expertise can be too broad for many cases that more specialised experience is needed.

Often it depends on the particular sub-interests of the psychologist instructed rather than their professional title.

Possibly however may not be able to take instructions if ‘general’ rate than specific area – feels fairer intuitively.

Probably familiarity. Solicitors get to know their experts (and vice versa) Probably not as each individual case varies so much. However would remove pressure from solicitors to “select” the expert most likely to help them succeed.

Provided there is assessment to ensure a range of consistency Randomisation doesn’t guarantee a good expert.

Randomness of selection is about luck. If it was my case I would not want to play dice with selection of an expert.

Rating of experts centrally – as perhaps reliable (and value for money) – by Judiciary could help select honest and competent and value (adding) experts…

Relevant expertise is crucial to the court Self-regulation of poor experts gradually get less and less work and poor reputation will disappear.

Should be some client choice, as well as choice by expert as to whether they have the expert expertise required.

So that well regarded and experienced experts can be selected.

Solicitors and experts get to know each other and form working relationships Solicitors are in a position to choose experts they think are experienced and reliable in report writing.

Also have the skills to appear as an expert witness.

Solicitors should be able to choose the medical expert.

Solicitors should have the right to use expert of their choice.

Solicitors should instruct the best available expert in a particular field of expertise after considering CVs and making the usual enquiries.

Some are bad and solicitor should have choice.

Specific expertise of the expert is not taken into account.

The client/solicitor should have choice.

The criteria for randomisation are then critical and the ‘viable’ or those who enter such a system are not necessarily the best.

The current system favours agencies. Low fees for doctors = shoddy reports. This is in nobody’s interest.

Pressure on fees should firstly be brought to exclude agencies.

The experts may be randomly bad.

The market can choose.

The panel will have to be of experts who will have to give same opinion as all other experts if it is to be fair.

In effect this means only one opinion can be used in all cases!!

The solicitor should select an expert based on expert’s past performance / level of training / experience / standing in his/her profession.

There may be specific areas in which a particular expert would be helpful.

Understanding the team you work with is advantage.

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What does “randomised” mean. A solicitor needs to build up trust with and expert.

Why should it?

Would allow MROs to call too many shots – independents would be drowned out.

Would give new experts a chance. However, you may need an experienced expert and solicitor should be allowed to state what is required.

Yes, but not necessarily the best way – but how do the less experienced gain experience?

Appendix 3: Are there solicitors / law firms / instructing parties that you would refuse to work with again? If yes, why? ● ● ●

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2 year payment terms. Some don’t pay until the case is settled = 3 years Agencies mainly.

Agency – one firm – constantly asking for reports that they say are late and constantly failing to note my repeated requests for notes/xrays etc. and I suspect telling solicitors it is my fault. One solicitor – same, demanding reports with insulting letters when I keep asking for records.

Any legal aid.

Apparently poor knowledge/awareness of the complexity of the disability of some of the claimants. I have felt that sometimes the interests of the claimant are not represented well. This is more with claimant’s solicitors but also defendants.

Breakdown professional trust. Usually to extend prognosis or verbatim accept client’s perspective.

Can’t supply notes. Don’t settle within a reasonable period. Disorganised.

Certain solicitors because of undue pressure to alter dates of reports and unrealistic deadlines for producing further work.

Constantly having to chase for fees (17 times in 18 months!)

Delay in payment. Unacceptable pressure to alter my opinion.

Disorganised running of a case Excessively late payment. Withholding information relevant to the questions in instructions.

Extremely late payment Failure to pay Failure to pay requiring use of claims online process, of 7 uses all have been won.

I have had anecdotal reports about some solicitors behaviour which, had I experienced them myself, would undoubtedly have led to my refusing further instruction.

I will now only take instruction from a solicitor not a 3rd party.

Incompetent instructions. Will not send records. Late payment. Unqualified case managers.

Inefficient. Don’t pay. Don’t reply to letters.

Instructing parties – Agencies – a) refused to work for Mobile Doctors: 40% DNA, b) Capita are a real pain, c) Premex a pain, d) Speed don’t pay on time AND are a pain.

Late fee payment, in spite of reminders.

Late payment and general amateurishness.

Late payment!

Late payment. Poor instructions. Requests to change reports. Unrealistic deadlines.

Late payments Late payments – need a lot of chasing. Not being kept up to date about case or client’s change of advocate.

Not being kept up to date of advocate’s change of location / law practice.

Late, or no, payment.

Late/no payment. Very poor instructions Legal aid / pro bono.

My understanding of a telephone conversation with the instructing solicitor was that I should proceed with the report as time was so short – solicitor then refused to pay as case dropped and nothing in writing.

No, but clearly there are solicitors who only want to receive a report which suits them. If they receive a truly

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objective report where the conclusion is either 50/50 or the case has absolutely no basis, you don’t hear from them again!

Non-payment of fees Non-payment / extremely late payment of professional fees.

Not listening to advice/opinion given – kept asking the same questions, just re-phrased and then refused to pay for work completed – it didn’t say what they hoped for.

Offensive email when requesting payment of one due fee notes. Implication report should not be paid for if it does not support their client’s case.

One non-payment in Ireland. One solicitor’s abusive behaviour directed at my admin staff.

One particular agency – communications are from less than knowledgeable staff – v frustrating.

Only one. Because I experienced the solicitors as ‘telling’ me what to say.

Payment (non-payment) and lack of professionalism.

Payment issues.

Payment issues. Uncomfortable about reluctance to get additional medical and care records where these seemed highly likely to reduce value of claim considerably (relate to free and funded care being provided but carer alleging he was unable to work as providing care).

Poor administration.

Poor communication from solicitors throughout. Late payment and only after several reminders and a threat to sue.

Poor communication. Late payment. Large amount of failed cases. Large amount of suspicious cases.

Poor communication. Poor instructions. Telling me what documents are relevant and not.

Poor initial instruction – refused to accept that he had instructed me when I presented my report – refused to pay – abusive to my office manager. The list goes on…

Poor instructions Poor instructions, no information about Court Directions, slow payment of invoices (e.g. 15 months) and no update of proceedings. In one case a firm of solicitors has changed so that all emails and letters come from a Litigation Executive – never from the solicitor who seems distanced from the case.

Poor payers Poor payers of fees. Unreasonable pressure to change report to suit C or D. Poor payment history.

Poor payment.

Pressure to be partisan – 2 firms (both large) Pressure to change report. Late payment.

Pressure/inappropriate request to change report without any new evidence.

Put pressure on me to change my opinion or amend and add more information to the one provided by the claimants during interview / examination.

Rude attitude (x1 case only) Solicitors out of their depth in my field. Poor instructions, poor choice of barrister (also out of his depth).

Quibbling over my fees despite a clear signed contract.

Some are disingenuous. They want a ‘hired gun’ and expect the expert to ‘do as they are told’. They show no respect for the expertise per se. They will then dispute the fees.

Terrible instructions and unrealistic fees.

Terrible late payment and passing off between 3rd parties The work is done and then you hear nothing…

There are a small number of solicitors who are new in the field of clinical negligence that don’t know or understand the subject and I feel are unsafe practitioners putting patent’s case at risk and my credibility.

There was one who was really not providing the client with a good service.

They tried to pass on financial implications of a reduced settlement to me.

Those wanting ‘reports at legal aid rates’.

Trips and slips cases – hopeless instructions served by clients who know nothing – seems that whole thing

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sometimes is generated by a computer.

Undue pressure to amend report… new disclosable evidence based on claimant’s modified history.

Deferred, late or non payment.

Unpleasant, unreasonable, wish to unreasonably influence report.

Unreasonable conduct, obvious intent to maximise quantum at expense of appropriate provision.

Appendix 4: Has your objectivity ever been questioned during cross-examination? If yes, how did you respond? If no, how would you respond? ●

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I’m not sure… perhaps ask the judge for direction as to whether I should say anything or wait for my instr. sol/counsel to manage the situation.

Fall back on reasonableness of my expressed opinion.

Quite firmly!

Would defend what was being questioned.

I dealt with the facts and my objectivity as demonstrated in my reporting.

Quote the requirements of CPR pt. 35 and maintain that that is what I am following…!

I asked what led them to that conclusion and explained why they were wrong. I explained that my instructions, depending upon whether a single joint instruction was viewed as 1 or 2 , were split 1:1:1 or 1:1:2 between claimant : defendant : SJE I would give a breakdown of my work which is balanced (claimant/defendant/joint) and not all from any one firm.

I try very hard in preparing reports for that not to happen.

Try to convince the judge I am objective but mentally some of my evidence has to be my viewpoint and others may have different opinions. Don’t be arrogant!!

Inadvertently used ‘we’ when referring to the defendant, by whom I was instructed. Blustered!

Counsel: suggested all in hindsight. My reply to judge: My Lord, do I have a choice?

I would say that I always focus on the child’s needs in relation to nursing / care. I am clear that my responsibility is to the court and not the instructing party.

I point out my opinion is on my history taking, examination, record reading, viewing X-rays and images; knowledge of all the Court rules and being in medical practice for 54 years. As a doctor I am only an expert in my branch of medicine and I cannot reject what I am told by the client/patient. Judging evidence and truth is entirely and properly the prerogative of the court.

My duty is to assist the court – my expert opinion reflects that.

I have been accused of “claimant bias” in medical report. They receive a warning and apologised.

Yes. Rejected the premise without elaboration. Barrister moved on.

I explained why that was not the case.

Poorly phrased report title – I acknowledged it was inappropriate wording.

I confirmed that I comply with all CPR requirements and that I know that my duty is to the court or PCC. I guess I’d want cross-examining counsel to explain why s(he) thought I wasn’t objective and try to rebut the assertions.

I have considered the evidence, listed in an appendix to my report, and have set out the reasons why I have reached the opinion set out in my report. My objectivity has not been questioned and my involvement in Fitness to Practice panels with the HCPC has been evaluated and my objectivity has been affirmed by experienced panel chairs.

Open and honest.

Not been to court, as yet, following being an expert witness for 6 years.

I explained the basis of my confidence in my objectivity.

This is a challenge. I know I do work for claimants and defendants. I try to focus just on what I have been asked rather than ‘straying’ into other areas. Often what I am asked about do have subjective elements within them.

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I would examine my objectivity.

By sticking to the factors considered to reach opinion. If pressed a … could be given with explanation of reasoning used to reach opinion.

N/A Never been cross-examined.

I routinely exclude Conflict of Interest in my Terms.

I would respond by saying that I have had experience of examining both complainants and alleged offenders. I also prepare expert witness reports for both prosecution and defence.

The judge intervened and stated that he was entirely happy with my objectivity based on my report. This was a very early question from a solicitor whose own expert is highly partisan in my view (supported by the view of the court in judgement!).

I try to rely on evidence from my findings. Possibly being balanced can come across as lack of skills??

Can’t say as it hasn’t happened but I don’t think my reports have ever been anything but objective.

Run through the question with the person making the statement.

I don’t know. I would have to consider why my objectivity was being questioned. I would certainly defend my objectivity.

My own experience of client / family takes precedence in my evidence. If I have a partiality – it is for the child / children.

It happened once, more than 20 years ago, as part of the first question under cross-examination. The judge intervened and warned the Barrister to be civil.

By calmly justifying my opinion in the interest of the child.

Dr Zbigniew Kirkor Consultant in Pain Medicine Medico-Legal Expert and Mediator

About Bond Solon Bond Solon is the UK’s leading expert witness training company. To date over 250,000 expert witnessess have attended these training courses and in excess of 1,000 have completed, or are in the process of completing, the Cardiff University Law School Bond Solon Expert witness Certificates.

Dr Kirkor has been involved in medico-legal work since 2011. He has experience as a Consultant in Anaesthesia and Pain Medicine in regional district hospital (DRH). Work in DRH means a broad variety of cases seen in his clinic every week including, back and neck pain, whiplash injuries, Whiplash Associated Disorders, Neuropathic pain, Post-traumatic injuries and many more.

This survey was completed by delegates attending the Bond Solon Annual Expert Witness Conference in London on 6 November 2015.

Areas of expertise include: Chronic pain Acute pain Whiplash injury Whiplash-Associated Disorder Post-injury pain Postoperative pain Anaesthesia

For more information on Bond Solon and training, either: ● Visit www.bondsolon.com ● Call 020 7549 2549 ● Email info@bondsolon.com

Dr Kirkor can offer the appointments for Polish customers in their native language.

Please contact Bond Solon directly to view survey results from previous years.

EXPERT WITNESS JOURNAL

All correspondence to: Apley Clinic, Apley Castle Telford, Shropshire TF1 6TF E-mail: medicolegal@pain3.org Website: www.drkirkor.com

Appointments available in three venues: Birmingham, Telford and Shrewsbury Evening and Saturday appointments. available and in some circumstances home visits (subject of additional fee.)

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Quantitative Evidence Avoiding Statistical Pitfalls

by James Rothman M.A. FMRS C.Stat. Dip MRS MAE © Quantitative evidence, i.e. evidence containing numbers or probabilities arises in many cases. The consequences of failing to consult an expert can be unfortunate. Sally Clarke and Angela Cannings provide the most dramatic examples of this since they might not have been wrongly imprisoned for the murder of their children if a statistical expert had been called at their original trials. However the outcome of many civil cases can also turn on the correct interpretation of this type of evidence.

run. This is due to the fact that those who commission commercial work usually do so because they are prepared to accept the results. On the other hand our adversarial system means that in legal cases there will always be one party who will take a sceptical view of any type of evidence.

An example of the need to design surveys carefully was a passing off action on whether a Scottish sounding name could be used for a whisky that was not distilled in Scotland. A survey had been conducted that showed that most people thought that the whisky had been produced in Scotland but the Defendants argued that this was not surprising. They claimed that Scotland was such a dominant producer that most people would think that any whisky was made there. I was only consulted after this point had been raised. Fortunately the questionnaire had asked people to give reasons for their answers. I carried out a detailed reanalysis of these. This enabled the Defendants’ argument to be refuted and the case was settled satisfactorily.

My career as a quantitative evidence expert came about because I am an experienced market researcher. However my knowledge of statistics and my experience in analysing and interpreting numerical data has led to my being consulted in many other types of case as well as ones involving market research.

In this article I shall therefore describe how both marketing research and other types of quantitative evidence have been used.

Planning and Licensing Here is an example of the importance of correctly interpreting quantitative evidence. The market research consultant for a casino group who knew of my experience in acting as an expert witness contacted me because an applicant for a casino licence which the casino group was opposing had, at the last minute, submitted a report on a market research survey that the applicant had commissioned.

I examined this report and found that the questionnaire was not objective as it contained phrases that suggested to those interviewed that they should give favourable answers. More importantly when I re-analysed the results, I found that the number who might actually visit the casino was much smaller than that claimed, once account was taken of the interviewees’ past experience of casinos as well as their claimed likelihood of visiting the new one. My report enabled the person responsible for the survey to be cross-examined very effectively, the Judge preferred my evidence to theirs and the licence was refused.

Later I was asked to plan a survey for another passing off action where, even though the ‘product’ in question was a web page, the Claimant was well known and might have been thought to be dominant.

I avoided any possibility of a similar defence being raised by using an experimental design to show that confusion arose with the Defendant’s page but not with that of another similar company. The results were unambiguous and this enabled the case to be settled quite readily.

Quantum Survey results are not always as unambiguous as they appear. When the Law Commission was reviewing the appropriate level of damages for non-pecuniary loss for physical injury, it employed the ONS to ask questions of the general public on the level they thought appropriate in four typical cases. The Law Commission believed that the results supported their view. This was that damages for non-pecuniary loss should be increased by a factor of at least 1.5 but not more than 2, where the current award would be more than £3,000. This would have a severe effect on those paying these awards and could have led to a substantial increase in insurance premiums. I was, therefore, asked to examine the Law Commission report on the research and give my opinion.

Passing Off Research agencies may not appreciate that surveys conducted to provide evidence in legal cases have to be designed even more carefully than the normal EXPERT WITNESS JOURNAL

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Among the conclusions in my detailed report were the following:

determined by the accuracy with which results are required. If results are needed for subgroups, e.g. users of a particular brand, then steps have to be taken to ensure that the number of these is adequate.

• The value of the information obtained from the ONS survey is limited by the way in which it was designed. (This included the questionnaire as well as other aspects of the survey design.)

An example of the importance of these issues is a case where I was only consulted after results for a sample of stores had been obtained. The value of claims for each store in the sample had been assessed and the question was how these claims should be grossed up to evaluate the total claim. Problems arose because one type of store had been deliberately omitted and the characteristics of stores in the sample did not match the population that the sample was intended to represent. I was able to show that these deficiencies did not make much difference to the size of the claim.

I did this by demonstrating that different assumptions produced similar results and that the sampling error was not excessive. Nonetheless it is preferable to obtain expert advice before a sample is drawn rather than to delay seeking it until after the results have been obtained.

• The method of interpretation that was adopted did not reveal the instability caused by respondents’ tendency to give round number answers.

• Even for the four cases studied the results of the survey did not support the conclusion that non-pecuniary damages should be increased by a factor of at least 1.5 but not more than 2.

• The range of cases studied would in any case have been too limited to allow the results to be extrapolated to other cases.

Furthermore I was able to show that, contrary to the Law Commission interpretation, the results did not support a uniform increase for all levels of damage.

Instead they suggested that the proportionate increase should be greater for the most severe cases than for those that were less severe.

However sampling issues often arise with other types of legal evidence. One area is when the quantity of evidence is large e.g. millions of envelopes a proportion of which had been misaddressed or tens of thousands of cases of mineral water some of which had been contaminated. With these quantities the storage cost can be high so both parties will wish to reduce the volume of evidence by sampling. The sample preserved as evidence has to be designed not just to enable the average level of defects to be assessed but also to determine how the level of defects varies, e.g. is it confined to a particular period of production or to items of a particular type? I have found designing sampling schemes that are practicable, economical and meet the evidential needs of all parties in a case to be a fascinating exercise.

The matter was decided by means of an appeal in specimen cases. As in other cases the contribution of the legal team was crucial. I was, however, gratified that the comprehensive judgement reflected my findings. It included the following: ‘At the highest level, we see a need for awards to be increased by in the region of one third. We see no need for an increase in awards which are at present below £10,000. It is our view that between those awards at the highest level, which require an upwards adjustment of one third, and those awards where no adjustment is required, the extent of the adjustment should taper downwards’.

Sampling issues arise in other disputes, e.g. when the volume of paper records is too large to examine or, as in one case in which I acted, where some of the records have been damaged or destroyed. In these circumstances it is necessary to assess whether the remainder can be treated as being representative of the whole either by treating it as a single sample or by making appropriate statistical adjustments.

Sampling Sampling is, of course, crucial to marketing research.

The first question to be decided is what is the population that is to be sampled? The answer to this is not always as obvious as it seems. Apart from questions of geography there are other questions such as whether it is people or visiting occasions that should be sampled, i.e. should the answers of those who use a facility more often be given greater weight?

Those who do not consider these questions at the outset may find themselves trapped into having sampled a population that is not well suited to their needs.

Statistical Misunderstandings Sometimes an expert is needed to correct misunderstandings about statistics. For example it is often thought that a sample that only represents a small percentage of the population must be inadequate. In fact the sample size required usually hardly varies with the size of the population.

Even when the population has been selected the practicalities of sampling may impose constraints. It is therefore advisable to incorporate quality controls to test that the constraints have not distorted the representativeness of the sample unduly. The size of the sample also needs to be decided. This is EXPERT WITNESS JOURNAL

Misunderstandings about samples can be even more extreme. I was asked to give expert evidence in a fraud case. I was told that a sample of 97 customers had been interviewed and none of them had received 33

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the service promised for the fee that they had paid. I asked why my services were required in what seemed to be an open and shut case. My client explained that they were concerned because they knew of a similar case in which a sample of calls had been analysed.

The judge in this had said that, if the case proceeded, he would have to tell the jury to assume that all the unsampled calls were legitimate. This, of course, would have meant that only a small proportion of customers could have been found to have been misled, so the case had to be discontinued. I took care that my Report explained clearly why the results could be extrapolated to all those who had received the calls. Nonetheless the Defendants called their own expert. We had an expert meeting and produced an agreed statement. This concluded that, although there were some minor points, the main findings that had been discussed in my report remained unchanged and the defendants were convicted.

were extremely unlikely to be found if the sample had been drawn from a normally distributed population of products. In my report I said that I did not know why or how this had happened but that one possible explanation was that steps were being taken to make sure that the products did not fall below the critical level.

Another statistical term that is worth knowing is the Likelihood Ratio. This can be defined in different ways. I think the simplest is to say that it is the probability of certain evidence being found if a specified hypothesis is correct divided by the probability of it being found if the hypothesis is not correct or, in some cases, if an alternative hypothesis applies. The relevance of this statistic is that it evaluates the ‘weight’ of the evidence. This is because it indicates the factor by which the odds in favour of the hypothesis, i.e. the prior odds, increase when the evidence is included, assuming that the prior odds are independent of the evidence. The Likelihood Ratio may be particularly useful in a civil case, which is decided on the balance of probabilities. In a criminal case there is no statistical equivalent to the test of ‘beyond reasonable doubt’. Nonetheless it may still be worth calculating the Likelihood Ratio when considering a piece of quantitative evidence.

Technical Language Another source of misunderstanding is that certain words have a different meaning to their everyday interpretation when they are used for statistical concepts. The statistical meaning of ‘significance’ or ‘significant’ is often misunderstood. If a sample is used to test a hypothesis, say that a value exceeds a particular figure, then a result is significant if it is unlikely, (e.g. less than 5% probability) to have been obtained by chance, if the hypothesis was correct. This need not mean that the difference between the sample result and the hypothesis is so great that it could be described as ‘significant’ in the everyday sense. The value investigated may not be relevant or, if the sample is large, the difference may be too small to be relevant in spite of being statistically significant.

In some cases the only real evidence for a person being accused may be the evidence that is being evaluated by the Likelihood Ratio. In these circumstances it is difficult to know how small a number should be used for the prior odds, i.e. what is the statistical equivalent of ‘innocent until proven guilty’?

An alternative approach is to calculate the number of innocent people who could have similar evidence brought against them. I was asked by the defence to consider the case of a man who had been present in four different locations at the time a robbery took place. Although it was accepted that the man took no part in the robberies it was suggested that this coincidence was so unlikely that he must have been an accessory. It turned out that the man spent a considerable amount of time in these places. Even taking this into account I calculated that the probability of a particular person like him being present by chance when four crimes were committed could be as low as 1 in 250,000, although it could be higher - 1 in 600 or even 1 in 140 according to the assumptions that were made. I then pointed out that, although at first sight the probabilities that I had calculated might look low, they still meant that two or more innocent people in a year could be prosecuted on similar evidence. This was on the assumption that 1% of the UK population spent as much time as the accused in locations of the type where the robberies occurred.

The term ‘normal distribution’ is another source of misunderstanding. This refers to a statistical distribution having a particular bell-shaped form, i.e. one specified by a certain mathematical equation. The misunderstanding arises because the terminology suggests that a distribution will always have this form.

However this is not necessarily so. For example incomes and body weights are not normally distributed.

I was asked to act as an expert in a case that concerned whether the products produced by a manufacturer had failed a quality control test. None of those sampled had actually failed the test but it was claimed that the test results showed so much variability that an unacceptable proportion of the products produced would have failed if they had been tested. This argument was based on the assumption that the test results would follow the normal distribution. I carried out an analysis that showed that this was not the case, i.e. the test results EXPERT WITNESS JOURNAL

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course, calculate them or explain how they can be produced.

Probability and Coincidence in criminal cases The above example shows that it is easy to be mistaken when examining quantitative evidence.

The prosecutor’s fallacy - that the probability of a conclusion about guilt or liability is the same as the probability of the evidence being found by chance - is or ought to be well known and I have already referred to the cases of Sally Clark and Angela Cannings .

d) If a sample had been used whether it correctly represented the population in relevant respects and the likely accuracy of any population estimates. e) The likely impact of any deficiencies noted.

2) Alternative sources of data that might substantiate or refute the evidence presented.

In one case that I was involved in, an expert with a limited knowledge of statistics examined 91 records, picked the 10 most extreme cases and calculated for each of them the probabilities of their being found if they were chosen at random from a population with a specified mean and standard deviation. My own tests showed that the results taken as a whole were not abnormal. Other cases have included the one already quoted which concerned whether or not the circumstances of a set of crimes were sufficiently alike for them to be used as similar facts evidence and if so whether mere presence at a crime scene on multiple occasions is evidence of guilt.

3) The method by which the data was analysed and interpreted.

This includes: a) The reasonableness of any assumptions that had been made. This refers both to those that had been stated and to those that were implied but had not been described. b) Whether there were any alternative methods that might lead to a different conclusion.

Where the expert is producing their own evidence they need to consider similar points to those set out above but from the opposite point of view. In other words they need to make sure that the study will provide the information that is required in a manner that is open to as little reasonable objection as possible.

Probability of incorrect records in Civil Cases A question that can arise in civil cases is whether apparently contemporaneous records were actually created at the time or were constructed after the event. Statistics can help to answer this question since the characteristics of artificially created records often differ from the ones that they would have if they were produced correctly. For example I was asked to examine sets of time sheets that were being used to substantiate a civil claim. I found a number of regularities that would have been extremely unlikely to have occurred by chance if the time sheets had been produced in the manner claimed. My clients received a satisfactory settlement.

In all cases they need to ensure that their report is as comprehensible as is possible. â–

JAMES ROTHMAN M.A. FMRS C.Stat. Dip MRS MAE

Summary I hope that this article has explained that quantitative evidence can arise in many different types of case and that where it does come up it can be advantageous to obtain advice from an expert at as early a stage as possible. It is also helpful to have an expert who can explain the issues clearly and be a good witness.

The work carried out will depend on whether the expert is commenting on evidence produced by someone else or producing quantitative evidence themselves. In the first situation the expert will consider such issues as:

Economic & Marketing Research Quantitative Evidence EXPERT WITNESS AND ADVICE Contact: James Rothman Tel: 0207 586 2925 Fax: 0207 483 1026 Mob: 07710 023 340 Email: james.rothman@outlook.com

1) The method by which the evidence was obtained.

This includes: a) If a questionnaire was used the question wording and the likelihood of this having biased the results.

Address: 25 Norfolk Road, London NW8 6HG

b) Whether the statistics presented were appropriate to the case.

Louis J Rothman Reg. No. 249

MEMBER

c) Whether there were other statistics that might be relevant. If so, the expert will, of EXPERT WITNESS JOURNAL

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The Academy of Experts In this issue we focus on The Academy of Experts (TAE). Now located in Gray’s Inn Square in London, TAE was founded in 1987 with the objective of providing, for the first time, a professional body for Experts to establish and promote high objective standards. Although there is representation on the Academy’s Council from the legal profession the majority of the officers, including the Chairman, are practising Experts TAE is run by Experts for Experts and those using them. All applicants to The Academy who wish to become Accredited Practising Expert Witnesses undergo a rigorous vetting procedure to ensure standards of excellence are maintained.

Procedure Rules The optimum timing is as soon as convenient after attending the Foundation Course. Because this course covers the procedures which must be followed, it should be ‘sooner’ rather than ‘later’.

Attendance on the Foundation Course or suitable prior experience is advisable to gain maximum advantage from this course.

Practical Law for Experts This is not a particularly time sensitive course in that it supplements knowledge of a general legal nature and so it can be taken at any time.

The Academy offers a comprehensive range of training programmes to enable members to develop their expert skills, and undertake Continuous Professional Development activity.

Courses range from basic Role and Responsibilities through to the requirements of Procedure Rules and the practice of Giving Evidence. The Academy is also a training and accreditation body for ADR Neutrals, including Mediators, Conciliators and Expert Determiners. It publishes and maintains The Register of Qualified Dispute Resolvers and awards the designatory letters QDR to those achieving the approved standard. Standards are enforced in exactly the same way as for experts.

This course can be of value to you in everyday commercial life as well as for your Expert practice.

Into Court…

There is more than one ‘best’ time for this course.

This course is designed for those starting their Expert careers although everybody benefits from honing their skills.

Into Court... should not normally be undertaken before the Foundation Course or without some other appropriate experience.

The Academy’s training courses for Expert Witnesses cover a wide range of subjects all valuable for the practising Expert Witness from the experienced to the new practitioner. Expert Witness journal takes a look at some of the of courses available at TAE.

You will gain the greatest benefit by attending this course shortly after the Foundation Course and/or as a refresher/confidence builder just before a court or arbitral appearance.

Expert Determination Expert Determination is a form of Alternative Dispute Resolution involving the use of an independent Expert to investigate the referred matters and to give his Determination which is binding on the parties.

Foundation Course This is a two day course before for those who have not undertaken any Expert Witness work before, It would probably be useful to attend this course before you accept instructions.

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Although not strictly an ‘Expert Witness’ training course Expert Determination is included here as it is a valuable adjunct to the other courses.

Details of all the courses available can be viewed on the Academy’s website www.academyofexperts.org which also has information regarding TAE, its work, and membership along with many resources useful to the practising expert; courses are also available as in-house or bespoke courses. ■

This can be undertaken at any time but ideally before accepting an Expert Determination appointment!

The Judicial Committee TAE’s Judicial Committee is chaired by a former Supreme Court Judge, and consists of Lords Justice of Appeal and other Senior Judges from the United Kingdom (including Northern Ireland) and Hong Kong.

The Judicial Committee has been responsible for a number of important documents and guidance notes for experts.

The Judicial Committee’s publications have included: The Model Form of Expert’s Report (as commended by Rt Hon Lord Woolf), Guidance Notes on The Meetings of Experts and Guidance Notes on Contingency Fees for Experts.

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How to Analyse Clinical Records

by Dr Mark Burgin.

Clinical records vary in complexity from the briefest of notes to well organised systematic detailed documents. The records themselves are only evidence of how well the consultation was documented and not how well the consultation went. uses knowledge, skills and attitudes in education.

Every consultation should be recorded in the clinical records for two reasons, first to ensure that the patient is safe and second to improve the performance of the medical team.

My model combines both approaches to create a 2 by 3 grid (see below). Each of the six pairs refers to a different area of a doctor’s performance, I have called the system ‘The Barnsley Clinical Standards.’

When analysing clinical records the expert must attempt to answer questions about what happened or would have happened if a breach had not occurred.

A consultation from a legal perspective is whenever a duty of care arises, and would therefore include activities such as a review of the post, test results and all available information about the patient.

Each of the Barnsley standards has a name to aid memory and an associated statement to allow comparison with the doctor’s performance.

The Barnsley Clinical Standards.

A doctor should make a reasonably skilled assessment of the patient within the time allowed, and arrange appropriate follow up care/treatment when issues remain.

This legal definition is much broader than that used by some experts who prefer to refer to problems that occur outside of the consulting room as ‘system errors’.

A doctor should contribute to patient’s safety by identifying and documenting red flags and where appropriate arrange investigating, treating, referring and monitoring.

Bolam1 refers instead to ‘the given circumstances’ which gives provide a possible defence to the defendant that wherein the system made the error unavoidable.

A doctor should record a ‘meeting of minds’ with the patient where there are issues such as consent, capacity and patient opinions that could have an impact on the patient’s safety.

Analysing a consultation requires the expert to recognise not only the areas where something went wrong (acts of commission) but where something that should have been done has been omitted (acts of omission).

A doctor should understand the legal and clinical significance of their own and others written records, letters, prescription and reports.

Bolam considers both acts of commission and omission to have equal weight and either can cause a breach in the duty of care.

A doctor should make reasonable efforts to consider what might have gone wrong when a significant adverse event (or a near miss) has occurred.

It is helpful to have a structure for analysing consultations, I have drawn heavily from other work in order to create a model.

A doctor should use problem based learning plus other reasonable techniques and liaise with their colleagues to improve their performance.

At present the GMC considers safety and performance in their work regulating doctors and the RCGP The Barnsley Standards Knowledge Skills Attitudes

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Performance Data interpretation Assessment Learning

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Safety Red Flags Meeting of minds Mistakes

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There are a further three basic standards which set the background to clinical practice for the court.

These will assist the court when considering what weight to give to the given circumstances.

1, A doctor should be able to demonstrate they have sufficient knowledge and skills to perform their roles.

The resulting web of overlapping paths can make the clinical negligence report complex, and difficult to follow.

Duty of candour, requests for factual statements of usual practice can help reduce the number of health care professionals unnecessarily served with legal proceedings.

2, A doctor should aim to achieve both performance and safety and balance by managing uncertainty, that occurs when they conflict.

All health bodies registered with the CQC, have a duty of candour policy and risk prosecution, if the health care professionals do not comply with that policy. Request copies of any protocols that are material to the case as they will clarify what the protocol writer had intended the professional’s usual practice to be.

3, A doctor should be honest, follow the law, record variance from guidance, behave in a reasonable way, be organised and systematic, make records and be aware of the care that they give.

If the defendant doctor’s attitudes to safety and performance raise concerns. Request evidence of involvement with learning activities, CPD and significant event audits.

Applying the standards to medical records.

Identify in the medical records all the consultations either directly from records or from indirect sources, such as colleagues records or administrative or computer records.

Simplify the web of causation by pruning all the paths with less than 50% probability as they cannot be established on the balance of probabilities.

Request audit trails rather than a computer printed record where possible, as they include more details.

For each consultation, identify where possible the author of the record and their status (doctor, nurse or administrative staff).

Material issues.

At this stage the expert will have a number of questions or material issues that require answering before a final opinion can be determined.

Transcribe any relevant entries letter for letter and include the word ‘draft’ where for instance the photocopying is poor or the entry is written.

Ideally the chains of causation should have a high probability. The expert should be cautious of chains that can vary either side of the 50% line depending on the answers to questions.

Analyse the record for evidence under each of the six sections, and assess the performance against the statements.

Some issues are factual and must be determined by the court based on the evidence that is available, for instance what was actually said in the consultation.

Issues that are outside of the expert’s expertise require different specialist experts to compile seperate reports to resolve uncertainties. For instance the natural history of the disease and what symptoms were present at each material time.

I recommend using a semi-quantative scale similar to CQC to describe the performance such as: Outstanding, Good, Requires Improvement Inadequate.

To these four grades I would add a further grade of ‘Obviously Dangerous’ based on the legal definition of recklessness.

There are other issues that can be resolved by obtaining further evidence. For instance triage records may not be in a GPs’ print out and pharmacists keep electronic records of prescriptions issued on home visits.

The expert may well have the defendant doctor’s statements, and their response to the duty of candour requests to allow assessment of the defendant doctor’s attitudes to safety and performance.

Use the recommendations section to communicate with the legal team what the material issues are, what is required to solve them, how to get the evidence and why it is needed.

The web of causation.

Ambiguous or inadequate records may mean that a large number of health care professional consultations may be found to be potentially in breach.

Analysing clinical records systematically helps the expert reconstruct each consultation and focus on those parts of the case that are likely to be successful.

The greater the number of breaches the more chains of causation are opened - potential paths joining each of those breaches with the harms.

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References 1, Bolam v Friern Hospital Management Committee [1957] WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in

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negligence cases involving skilled professionals (e.g. doctors): the Bolam test. Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent".

Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA

Chronic Pain Expert

Dr Mark Burgin is on the General Practitioner Specialist Register and is based in Barnsley Yorkshire.

Dr Adedokun has extensive clinical experience in the management of various Chronic Pain Syndromes including persistent Neck, Back, Neuropathic or Complex Regional Pain Syndrome especially following Personal and Occupational Injuries.

He also has wide experience in Medical Negligence claims.

He has extensive MedicoLegal experience, covering the following areas; Personal Injury - Road Traffic Accidents/Low Velocity Impacts. Clinical Negligence - Screening reports, GP Liability and Causation reports. Disability Condition and prognosis reports Disability appeals for ESA, DLA and PIP.

Listed on the UK register of Expert Witnesses, an APIL expert, Member of Society of Expert Witnesses, Expert Witness Institute and is a Sweet & Maxwell accredited Expert Witness 2015.

Dr Adedokun accepts instructions from Claimants, Defendants and as a Single Joint Expert.

He covers Manchester, Liverpool, Leeds, Birmingham & London.

Other locations and Domiciliary visits can be arranged.

He undertakes regular attendance at training from solicitors and agencies, recent Bond Solon Cardiff Law school, CPR 35 and CertMR training.

Submitted report for assessment. Up to date with CPD. Recent appraisal.

Contact:

Tel: 01625 526 665 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk

Contact: Dr Mark Burgin MRCGP, DCH, Dip Medical Ethics BM BCh, MA, Member Royal College of General Practitioners Tel: 0845 331 3304 Email: admin4dr.burgin@gmail.com Website: www.drmarkburgin.co.uk Area of work Yorkshire, Midlands, N West and Scotland

Suite 6, Wilmslow House, Grove Way, Waterlane, Wilmslow Cheshire, SK9 5AG

Dr Dawn Bailham Consultant Clinical Psychologist MSc Forensic Psychology DClinPsych Doctorate in Clinical Psychology BSc (Hons) Psychology

Dr Dawn Bailham is a Consultant Clinical Psychologist with over 14 years experience working in Child and Adolescent mental health inpatient and community settings, Forensic mental health with adults, adults with learning disabilities, and younger adult males. In her current position Dr Bailham is Lead Psychologist in a low secure CAMHS inpatient service for adolescents aged 12 – 16 years with emerging personality disorders.

Graham Rogers and Associates Limited Consultant Psychologists M.Sc., (Ed Psych) M.Sc., (REBT) B.Sc. (Hons)., PGCE., Dip. REBT., C. Psychol., AFBPsS

Dr Bailham has considerable experience spanning 10 years of assessing parents and children within the family courts and preparing reports. She has experience of conducting forensic assessments particularly for domestic violence, sex offending and physical violence.

Specialising in children & adults with learning disabilities.

Experience at The Central Criminal Court, and The Principal Registry of the Family Division.

She has attended court as an expert witness on numerous occasions giving evidence in the family courts, and on a number of criminal law and personal injury cases. She completed the University of Cardiff Bond Solon Certificate for expert witnesses working in criminal law in September 2013, as well as additional modules in family law.

Contact 156 Little Cattins, Harlow, Essex CM19 5RW Mob: 07952 170 627 Email: info@grahamrogers.org.uk suzi.v.brown@gmail.com Web: www.grahamrogers.org.uk

Tel: 07801 266 010 Email: dawnbailhan@icloud.com Oracle care Unit 54, Wrest Park, Silsoe Bedfordshire MK45 4HS

Consultant Psychologist

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Joint Opinion Preparation in Chronic Pain Cases

by Dr Hugh Koch, Chartered Psychologist and Director, Hugh Koch Associates LLP Dr Mark Sanders, Consultant in Pain Medicine, Spire Norwich Hospital Dr Tom Boyd, Chartered Psychologist, Hugh Koch Associates LLP Dr Kate Humphreys, Chartered Psychologist, Hugh Koch Associates LLP Pain, whatever the cause (constitutional, normal life event (e.g. child birth) or traumatic accident) is distressing and can have many psychological, social and occupational consequences. Using the McGill Pain Index (Wall and Melzach, 1994), (see Fig 1 next

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page), labour pain can vary between 28 – 36 (on a 50 point scale), clinical pain syndromes (e.g. arthritis, cancer pain, causalgia) can vary between 18 – 42, and post-accident pain from sprain to amputation can vary between 15 – 40.

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in personal injury cases. Each expert is expected to discharge his or her responsibility to the court by producing a robust and independent report based on available information, plus subsequent clarification or amendments when questioned or provided with additional evidence. The pre-CPR practice of obtaining both claimant and defendant-instructed opinions continued with the increased use and expectation of ‘opposing’ experts ‘meeting’ to produced a joint statement (Koch and Kevan, 2005).

The aims of joint statements are to help the court clarify both experts’ opinions, in terms of level of agreement and disagreement. Where there is disagreement, experts are expected to explain whether this is substantive or not. As a result, the need to call the experts to court, and its attendant costs, can be reduced.

Above; Figure 1 We have written extensively about the psychological aspects of pain in previous articles in this and other journals, covering the experience of pain (Koch and Hampton, 2011) the relationship between orthopaedic and psychological aspects (Koch and Mackinnon, 2009) with case studies analysis (Koch, 2004)

As experts frequently instructed by both claimant and defendant lawyers to provide psychological/ psychiatric opinions, we produce on average one or two joint opinions per month at least one of which includes issues of chronic pain. In this paper, we have itemised and discussed some of the key issues which are pertinent to the apparent or real clinical differences in opinions of two psychologists or psychiatrist experts in the same case.

Other clinicians have described the link between chronic pain and depression (Castairs and Saunders, 2013) and persistent pain (Logan, 2013).

Due to the complex medico-legal issues involved in chronic pain (diagnosis, attribution, duration, prognosis), and the higher level of quantum typically claimed, it is often the case that experts on either side are ordered by the court to prepare a joint statement to clarify areas of agreement and disagreement.

Different timelines for expert assessment The typical timeline for the involvement of two same-professional experts is: a. Expert 1 (instructed by claimant-side) – First assessment

Opposing experts, despite their independence and impartiality, may produce opinions which differ in terms of the following questions: 1. Is there an organic explanation for the pain (detected or possible)?

b. Expert 1 (instructed by claimant-side) – Second review assessment c. Expert 2 (instructed by defendant-side) – First assessment

2. Is this organic cause sufficient to explain ongoing symptoms?

The gap between (c) and either (a) or (b) can result in ‘like-for-like’ comparisons being difficult and less reliable, and result in different opinions based on fluctuation of symptoms/disorder with/without treatment or the effects of additional life events.

3. Is there an ongoing psychological cause for the dysfunctional pain coping behaviours?

4. Is this psychological cause specifically pain-related or due to other reasons (e.g. trauma, depression) 5. Is there a pre-existing history of pain behaviour (explained and/or unexplained).

If the two experts are instructed at the same time, then the two resulting opinions can be compared ‘like-for-like’ as the claimant would be expected to present and report pain symptoms similarly to both experts. However, although no timeline difference exists, one other variable may occur which can predict differing opinions – that of either the claimant or defendant-instructed expert adopting a style which reduces his/her objectivity and reliability by being over-accepting (‘claimant-orientated’) or over-suspicious (‘defendant-orientated’). This effect has been significantly reduced since 1999 with most experts developing an independent, non-partisan, robust

The overlap between orthopaedic and psychological/psychiatric opinion in cases of chronic pain, with significant functional impact, frequently cause lawyers and the court difficulties, in terms of diagnosis, severity assessment, causation and prognosis/ treatment (Koch and Mackinnon, 2009).

Whither Joint Opinions in Chronic Pain Cases?

The introduction of the Civil Procedure Rules (CPR) in 1999 paved the way for clearer roles and responsibilities for experts when producing opinions EXPERT WITNESS JOURNAL

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approach to providing balanced opinions (Koch and Elson, 2011).

Experts have different methods for producing a joint opinion. Typically and logically it should involve the following. a. Logical summary of areas of agreement and disagreement from both reports (produced as a written draft by one expert) b. Discussion by email and telephone or face to face c. Revision of summary (as many times as is necessary) To reinforce our view stated at the outset, the main aim of the joint opinion is to present the court with a clear and relatively unambiguous summary of what the two experts believe and also, having highlighted any disagreement, to try and explain why such disagreement pertains.

Interpretation of pain and its cause: the role of vulnerability and somatisation The explanation of pain (single site or multi site) following an index event can cause orthopaedic experts a quandary in that their medical model may only explain the pain for an approximate time period. Psychologist and psychiatrists with expertise in the psychological aspects of pain diagnosis and management will debate the possible diagnoses of: 1. Pain disorder with psychological factors

should be making recommendations for the best available treatment to reduce a claimant’s disability if this has not already been offered by treatment agencies. It is incumbent on the experts to be up to date in discussing and agreeing on appropriate psychological therapies, including CBT and mindfulness, and psychiatric treatments.

2. Pain disorder with no psychological factors 3. Pain tolerance adversely affected by stress-related psychological disorder or depressive disorder.

They will also consider and debate the level of reliability and/or truthfulness they found at interview and/or when viewing surveillance evidence.

What experts think of Joint Opinion process Recent surveys have found that generally experts have a positive view of the joint opinion process (Koch et al 2011). The key factors that could adversely affect the case and effectiveness of conducting a joint opinion were: a. Personality and style of expert: Most experts who had been working for many years attested to their colleagues being easier to get on with and debate differing opinions with. However, the communication style and personality of the other expert could still be a factor contributing to difficulty in producing a useful joint opinion.

The final piece of the diagnosis ‘jigsaw’ is the presence/absence of a somatoform disorder defined as many, multi-site physical complaints over several years before and/or after an index event, with some medical inexplicability.

A problematic factor for experts is to what extent a claimant’s underlying personality, tendency to omatosize, and general lifestyle, including alcohol or drug use, ‘colours’ a reaction to a traumatic event or the way it is described to the expert. The ‘but for’ test is often helpful to differentiate index event-related pain problems from personality traits or lifestyle difficulties, however this is often not easy, especially where multiple and independent causes are involved.

b. Accessibility and efficiency of other experts: ‘Sometimes making contact with the other experts was difficult’. When responding to tight time constraints either imposed by the court, instructing solicitors or one’s own competing, often clinical, commitments, the ability to make, rapid and ‘one stop’ contact with the other expert makes life considerably easier, or adversely if absent, very difficult and time consuming.

Treatment and prognosis issues Any claimant must try and ‘mitigate his/her losses’ by availing themselves of any appropriate treatment including pain coping therapy. Similarly the expert EXPERT WITNESS JOURNAL

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A balance is always necessary to maintain between individual professional opinion (clinical and medicolegal) and increasing consistency of interpretation of evidence and multi-sourced data. The court requires that the appropriate range of opinions has been considered by both experts in their initial report and subsequently when they undertake the joint opinion (diagnosis, causation, or prognosis) within the key professions and structure of joint opinion with/ without a provided initial agenda.

Example Pain Assessment Trail during litigation process GP ❑ Orthopaedic ❑ Psychological/Psychiatric ❑ Pain Management (Anaesthetist) ❑ Multidisciplinary Management Treatment (Medical and Psychological CBT) To address comprehensively the several medical and psychological aspects of chronic pain, some orthopaedic/psychologist teams are currently offering ‘joint appointments’ to lawyers. Such appointments have the advantage of: • Same day appointment with orthopaedic specialist and clinical psychologist.

Training and continuing education might also address within-specialty clarity and reliability of initial opinion, as well as how best to accommodate the several issues raised above in the formulation of future joint opinions.

As discussed in a earlier paper (Koch & Elson 2011) recurrent legal publications have addressed the ‘use of concurrent expert evidence’ (Lazarevic, 2011) and ‘Hot Tubbing’ (Clements, 2011) in criminal cases. In this, the court take expert evidence and the above written/agreed Joint Opinion process a stage further.

To examine, debate and extend the differences between experts ‘opinions’ within the courtroom under the direction of the judge.

• Separate report with agreed conclusions following case discussion between experts.

• Appointment within 6 – 8 weeks.

These assessments cover: Orthopaedic • Location of pain – anatomical, organ system • Temporal characteristics of pain and pattern of occurrence

The challenge of both joint opinion and ‘hot tubbing’ is to produce reliable and robust evidence whether this be from an individual expert, two experts discussing matters professionally or in court (Koch, 2011).

• Aetiology.

Psychological • Psychological experience of pain.

• Impairment in social and occupational functioning.

Making sense of the complexity of chronic pain: The cross-specialty joint opinion Typically joint opinion discussions take place between experts of ‘like discipline’. However it is not uncommon for cross-specialty joint opinions to be requested by the court (Mackinnon, Koch and Yates 2009). This is most typically in areas of chronic or atypical pain in which any two of the following specialists may be needed: rheumatologist, orthopaedic, psychologist, psychiatric and anaesthetics/pain management. The two experts may be on the same legal side or opposing legal side.

• Psychological factors in onset, severity, exacerbation and maintenance of pain.

• Exclusion of factitious disorder or malingering.

• Use of pain coping strategies and readiness to change.

This moves on, then, to the potential use of the Joint Opinion (orthopaedic/psychological or pain management/psychologist). On occasion, the court instructs an orthopaedic or pain management specialist and psychological expert to discuss their separate, independent opinion and prepare a ‘Schedule of Agreement and Disagreement’ relating to the claimant’s chronic pain. Despite the different clinical background of the two experts, discussion views on the interface of physical and psychological explanations and prognosis can be invaluable to the court’s deliberations.

We are aware that in the treatment and prognosis of chronic pain, psychologists and pain management specialists are actively engaged in providing psychological (and medical) interventions in cases of chronic pain, addressing the several psychological (cognitive, emotional, behavioural) and social aspects of disability. This can be offered either on an individual (one-to-one) basis or as part of a multidisciplining hospital –based pain management intervention.

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An example, anonymised/stylised joint statement (pre DSM V) between a psychological and a pain medicine specialist is illustrated in Figure 2 below: -

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Figure 2: Psychologist (Dr Y)/Pain management Specialist (Dr X) Joint Statement The points of agreement are as follows:1) Type of Accident:Mrs X is a 34 year old who was in a traffic accident on 25/12/2012 2)

Nature of any psychiatric/psychological symptoms and medical condition post-index event: a) Mood Disturbance Exacerbation of pre-existing Anxiety Social Withdrawal Ongoing pain (back) b)

We agree she has developed significant disability as a consequence of her pain, consistent with a Pain Disorder with some psychological factors (DSM IV 307-89).

3)

There was relevant pre-accident history which impacted on her accident-related problems.

4)

We agree that Mrs X has a longstanding pattern of difficulties coping with pain symptoms, which dates back to her adolescence with referrals to clinical psychologists specialising in pain management for help with the psychological aspects of her pain between 2000 - 2010.

In Dr X’s opinion, the pre-existing psychological problems in relation to chronic pain meet the diagnostic criteria for a somatic symptom disorder, which fluctuated between moderate and severe in severity during the years before the index accident. In Dr X’s opinion this somatic symptom disorder exacerbated distress and disabilities due to medical problems and caused episodes of apparent medical distress and disability due to psychosocial stress both before and after the index accident.

In Dr Y’s opinion, her pre-existing coping problems did not amount to a somatic symptom disorder. He notes that in the 12 month period prior to the index incident there was no evidence of maladaptive pain coping problems (self-report and GP records) In Dr X’s opinion, there has been a complex interaction between Mrs X’s medically caused pain due to a variety of complaints between 2000 and 2010 and that this complicated interaction between psychosocial stress and medically-caused pain has persisted since the index accident.

In Dr Y’s opinion, there was an interaction between her psychological state and his pain tolerance post accident.

We agree that the relative contribution of pre-existing and accident related medical problems and their contribution to Mrs X’s medical pain and to its exacerbation of his psychological symptoms, is a matter for Mr D and Mr E, the orthopaedic experts.

5)

We agree that a combined and multi faceted treatment approach is warranted involving pharmacological (drugs), facet joint injections, behavioural activation with physiotherapy, and a psychological approach (cognitive behavioural).

The cost of an initial assessment by a pain consultant with regard to medication is likely to be in the order of £150 - 200, with a 3-4 subsequent visits (at around £150/visit) necessary to establish an effective analgesia regime.

Thoracic facet joint injections may be undertaken at a cost of £2000, with a subsequent denervation procedure (if benefit is significant but short lived) a further £2500. These should be undertaken with a course of physiotherapy (up to 8 sessions)

6)

Dr Y (psychologist) suggested a series of 8 – 10 sessions of pain coping CBT therapy (cost on private basis approximately £175 per session, total £1750 approximately).

7)

We agree that, with treatment, the claimant’s condition could improve. If she does not increase incrementally her activity level or have some form of therapy, then her condition is likely to remain unchanged.

8)

We agree that at the conclusion of any pain management treatment program, a further reassessment by us both is recommended.

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• Experts involved in the Joint Statement process should be aiming for greater clarity and understanding of the evidence in its totality, using their individual opinions as a starting point (Koch postulate XVIII).

The way forward Experts and the Court frequently debate the validity of the evidence presented in terms of whether data from claimants is accurate and reliable and, whether claimant self report is affected by ‘negative response bias’ or conscious functional overlay. It is thought that thorough assessment of poor cooperation and negative response bias should play a major part in the degree of certainty ascribed to a DSM diagnosis and robust expert opinion about chronic pain (Merten and Merckelback, 2013).

• The court should consider instructing experts of different professions to take part in Joint Statement preparation in cases of chronic pain (Koch postulate XIX). ■ References Castairs K and Saunders F (2013) The relationship between chronic pain and depression. Expert Witness Journal. 60 – 63 Diesen C and Koch HCH (2015) Contemporary 21st Century Therapeutic Jurisprudence in Civil Cases: Building bridges between Law and Psychology. Ethics, Medicine and Public Health Koch HCH (2015) Robust opinions need robust reasoning: 15 medico-legal postulates. Solicitors Journal. May Koch HCH (2011) Obtaining a high quality joint opinion.

EWI, November Koch HCH (2011) Obtaining a high quality joint opinion.

EWI, November Koch HCH (2004) Orthopaedic and Psychological trauma.

PMILL June 20, 5, 7 – 8.

Koch HCH and Elson P (2011) I agree with you but…how to produce a high quality joint opinion. APIL PI focus 21, 2, 16 – 18 Koch HCH, Fraser F, Mackinnon J and Midgley (2015) Decision making in chronic pain. Expert Witness Journal, summer.

Koch HCH and Hampton N (2011) The experience, evidence and opinion on pain. Your Expert Witness.

Autumn Koch HCH and Mackinnon J (2009) Understanding ongoing pain. Legal and Medical, 13.

Koch HCH, Mackinnon J, Harrop C and Boyd L (2015) Expert Evidence in Chronic Pain. Winter

The fairly useful and explanatory Pain Disorder (3 types; 307.89) in DSM-IV has now been eliminated and replaced in DSM V by the Somatic Symptom disorder (DSM V 300.82). This has caused considerable debate in that it de-emphasises the potential role of psychological factors. Indeed, one eminent researcher (Young, 2013) has suggested Pain diagnosis has been ‘ill treated’ by DSM 5 and considers an alternative – The Chronic Pain Complications disorder as a potential replacement, aiming to capture the psychological state of genuine pain claimants and patients. This debate will, no doubt, rumble on and form part of the deliberation for DSM-VI. Enhancing the importance of the chronic pain Joint Opinion process is a crucial plank of the developing more towards both a Therapeutic Jurisprudence (TJ) approach to Civil Litigation and also the application of a Total Quality Management (TQM) approach to collaboration between experts (i.e. professional responsiveness). Independent and impartial experts increase the robustness of their own individual opinion by cooperating in the production of joint statements (Diesen and Koch, 2015).

Koch HCH, Morris R, Payne L and Cooper A (2011) Balanced view. Legal and medical 28 – 31.

Logan A (2013) Personal Injury and the problem of persistent pain. Expert Witness Journal. 73 – 76

A final note on chronic pain opinions: In a recent publication (Koch 2015) the first author outlined a set of 15 ‘postulates’ illustrating how robust opinions required robust reasoning. One additional postulate (Koch Postulate XVI) was added (Koch 2015):

Merten T and Merckelbeck H (2013) Symptom validity testing in somatoform and dissociative disorder.

Psychological injury and law. 6, 122 – 137 Wall P D and Melzack R (1994) Textbook of pain.

Churchill Livingstone New York. 339 - 345 Young G (2013) Ill treatment of pain in DSM 5.

Psychological Injury and law, 6, 307 – 313

‘Irrespective of the prognosis for organically mediated pain, psychologically mediated ‘overlay’ can have a positive prognosis especially with pain-related CBT therapy resulting in increased pain coping and adjustment.’

Dr Hugh Koch, Dr Tom Boyd and Dr Kate Humphreys are all clinical psychologists and part of Hugh Koch Associates, Cheltenham UK. Dr Hugh Koch regularly holds clinics in Birmingham, Cheltenham and London.

Dr Tom Boyd regularly holds clinics in Swindon and Newbury.

Dr Kate Humphreys regularly holds clinics in London and Faversham Dr Mark Sanders is a Consultant in Pain Medicine, Spire Norwich Hospital Norfolk.

Arising from this paper, the following additional postulates pertaining to chronic pain joint opinion consideration include: • Dispute resolution via the joint statement process is an essential and collaborative intervention in a mutually beneficial undertaking between claimant and defendant (Koch postulate XVII) EXPERT WITNESS JOURNAL

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Royal College of Psychiatrists' Response to Prime Minister's Speech “We have been lobbying for better mental healthcare for expectant and new mothers and are delighted to see a pledge of some ÂŁ290million to offer vital support to an additional 30,000 expectant and new mothers struggling with mental health issues every year. With 1 in 5 new mothers developing a mental health problem around the time of the birth of their child, this money is vital to provide treatments and early interventions for their recovery.

Responding to today’s announcement by the Prime Minister, President of the Royal College of Psychiatrists, Professor Sir Simon Wessely said: “The Royal College of Psychiatrists warmly welcomes today’s announcement of just under ÂŁ1billion of investment in mental health to begin to put it on an equal footing with physical health. The College has been part of NHS England’s Mental Health taskforce, which will shortly be setting out the roadmap for mental health for the next five years, and we are pleased that the Prime Minister supports some of the key priorities identified by the taskforce.

“The promise of ÂŁ247million to provide much needed investment in A&E liaison psychiatry services will mean that more people in crisis can expect to receive expert help when they need it most; when they are acutely ill and turn to their local A&E department. Additionally, the investment of over ÂŁ400million to enable 24/7 treatment in communities will help provide safe and effective alternatives to hospital when appropriate.

“One in four of us will suffer from a mental health problem at some point in our lives, and the Prime Minister’s vision of openness and support to all affected is refreshing and something for the UK to aspire to. Mr Cameron’s aspiration of creating mature, open dialogue around mental health, addressing stigma and taboos is something the College strongly supports – indeed, the College was the first organisation to run an anti-stigma campaign to change attitudes towards those suffering mental ill health. The time has clearly arrived for a transformation in mental health: in both the care we offer and the attitude we take.

“Supporting the mental health of young people is so important to the mental health of the country as a whole.� “Put simply, more money means fewer problems.

Fewer lives impacted by illness, fewer families existing rather than living, fewer constraints on the care provided.â€? â–

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A Brief Review of the Research Findings of Increased Risk of Dementia in Association with Traumatic Brain Injury

by Dr Linda Monaci, Consultant Clinical Neuropsychologist and Chartered Clinical Psychologist In civil law cases provisional damages can be awarded if the disease or deterioration is serious, which means beyond ordinary deterioration and if the risk of disease or deterioration has a measurable chance of occurring. It therefore follows that solicitorsâ&#x20AC;&#x2122; instructions usually require the instructed experts of the field: usually neurologists, neuropsychologists and neuropsychiatrists; to also comment on whether the traumatic brain injury (or other condition involving the brain) may cause any adverse long-term effect.

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It is an established finding that brain injury can be associated with an increased risk for epilepsy (Lowenstein, 2009). Research has also found that repeated mild traumatic brain injuries (TBI), such as those experienced by professional boxers, are associated with a high risk of chronic traumatic encephalopathy (CTE), originally termed dementia pugilistica (McKee et al., 2012). It was previously thought that this condition only affected professional boxers, but recent research has found neuropathological features of this condition in retired American football players, 48

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a professional wrestler, a professional hockey player and a soccer player (McKee et al., 2009), as well as in non-athletes (Roberts et al., 1990).

bleeding (Hannay et al., 2004). A history of brain injury is a predictor of poor outcome (Thornhill et al., 2000).

CTE is a type of dementia with distinctive neuropathological features, but clinically it can be mistaken for Alzheimer’s disease or fronto-temporal dementia (Gavett et al., 2010, 2011). It usually becomes symptomatic several years after the individual experiences repeated concussive or sub-concussive blows to the head, usually in mid-life (Gavett et al., 2010). Typical clinical features include: disordered cognition, most pronounced for memory and executive skills, disturbances in mood and behaviour, such as apathy and irritability, and Parkinsonian signs (McKee et al., 2012). According to Gavett et al. (2010) probably many individuals could develop CTE following falls, motor vehicle accidents, assaults, epileptic seizures or repeated mild head injuries of diverse origins.

Brain injury severity is usually established considering length of post-traumatic amnesia (PTA), score on the Glasgow Coma Scale (GCS) and duration of any loss of consciousness (LoC; Saatman et al., 2008).

Dementia According to the International Classification of Diseases (ICD-10; WHO, 2001) dementia constitutes a syndrome due to disease of the brain, usually of a chronic or progressive nature, in which there is disturbance of multiple higher cortical functions.

Memory problems are not essential for the diagnosis, but the cognitive profile may help diagnose the type of dementia and therefore the diagnostic process.

The ICD-10 reports that consciousness is not clouded in dementia, and that impairment of cognitive function is commonly accompanied and occasionally preceded by deterioration in emotional control, social behaviour or motivation. According to the Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV; APA, 1994), it is characterised by multiple cognitive deficits, including memory impairment and at least one of the following: aphasia, apraxia, agnosia or disturbance in executive functioning. Social or occupational functioning is also impaired. There is no gross clouding of consciousness, which is usually associated with acute confusional states, such as delirium.

What appears unclear, and therefore controversial, is whether a single (or a few) traumatic brain injuries, such as those sustained in road traffic accidents or assaults, increases the risk of developing dementia later in life. Research in this field has yielded mixed results: several peer-reviewed articles (DamsO’ Connor et al., 2013; Tyas et al., 2001; Williams et al., 1991; Mehta et al., 1999; Ameducci et al., 1986; Launer et al., 1999; Nemetz et al., 1999; Lindsay et al., 2002) have not found a link between TBIs and dementia, while several others have found some kind of relationship between them (Plassman et al., 2000; McKee et al., 2012; Guo et al., 2000; Johnson et al., 2013; Gardner et al., 2014; Johnson & Stewart, 2013 & 2015; Vincent et al., 2014; Shively et al., 2012; Gardner & Yaffe, 2015; Lye & Shores, 2000; Fleminger at al., 2003; Gardner et al., 2015; Godbolt et al., 2014; Johnson et al., 2012).

Alzheimer’s dementia (AD) is the most common type of dementia; it is a clinical syndrome which has been allocated specific clinical criteria. Criteria suggested by the National Institute of Neurological Disorders and Stroke (NINDS) and Alzheimer's Disease and Related Disorders Association (ADRDA) consider insidious onset and progressive impairment of memory and other cognitive functions as essential.

This article aims at presenting some of the challenges that can make it difficult to conduct research in this field and provides a brief overview of the findings.

‘Probable’ Alzheimer’s until autopsy One of the difficulties in this field of research is that the diagnosis of dementia (and the type of dementia) can only be confirmed at autopsy, and therefore the presence of a number of dementia misdiagnosis is likely.

Traumatic Brain Injury (TBI) Brain damage caused by sudden acceleration/ deceleration can lead to both focal and diffused lesions, due to the effect of brain rotation. Areas particularly vulnerable to damage are the frontal and temporal lobes, which are involved in executive functioning and memory, as the soft brain accelerates inside the skull and on impact hit the body projections at the base of the skull. Brain rotation can also lead to axonal shearing, where axons can be severely damaged, which causes degeneration of the surrounding brain, commonly named ‘diffuse axonal injury’ (Hannay et al., 2004). In TBI the brain is affected not only by primary brain injury, but also secondary injury, which can occur as a result of brain swelling, raised intracranial pressure and intracranial EXPERT WITNESS JOURNAL

A moderate or severe TBI is linked to an increased risk of developing not just Alzheimer’s dementia (AD) but also Parkinson Disease (PD; Goldman et al., 2006) and Amyotrophic Lateral Sclerosis (ALS; Chen et al., 2007).

It is therefore possible that the kind of dementia that follows repeated head injuries or repetitive mild trauma may be caused by chronic traumatic encephalopathy, alone or in conjunction with other kinds of neurodegenerations (for example, those associated with Alzheimer’s disease). Studies that include post-mortem neuropathological verification 49

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Personal reports may not be accurate for several reasons including lack of awareness of the brain injury severity (e.g. sometimes individuals who sustained a moderate/severe TBI can report they have had a concussion). Third party reports, such as those by family members could be biased towards remembering TBIs in those individuals who developed dementia, perhaps to try to explain their condition, as well as being affected by potential inaccuracies in relation to the TBI severity.

provide reliable confirmation of the clinical diagnosis; without this confirmation the prevalence of CTE neuropathological features in the study samples is unknown (Gavett et al., 2010) and it is possible that some of those who have been thought to have developed Alzheimer’s dementia have developed (at least concurrently) CTE. From a clinical point of view, CTE and AD or fronto temporal lobar degeneration can be very similar, although the age of onset for CTE is generally younger than that for AD and the course of the disease is typically slower than that of AD or frontotemporal lobar degeneration (Gavett et al., 2010).

Another issue is finding the appropriate informant for comparison with a control group, for instance comparing reports from a spouse with reports from a less involved family member.

Jellinger et al. (2001) is one of the few studies that evaluated the risk of Alzheimer’s dementia using neuropathological criteria and found that a history of severe traumatic brain injury in individuals with residuals of closed TBI lesions, such as old contusions in the frontal, temporal, or other brain areas (versus no history of brain injury), increased the risk of dementia.

Different TBI severities grouped together and non-significant results To complicate matters, studies that showed no link between TBI and dementia included a variety of TBI severities and most often were grouped in one single category for the data analysis, which is likely to have obscured some potentially significant results for the more severe TBIs:

Reliance on self-report or reports from family members vs. review of records An issue which appears to be affecting the reviewed studies that found no link between TBI and dementia is the reliance on family members or friends to precisely identify whether an individual had sustained a TBI earlier in life.

- Launer et al. (1999) and Dams-O’Connor et al.

(2013) analysed individuals with self-reported “TBI with loss of consciousness”, which could also include mild brain injury.

- Amaducci et al. (1968) and Tyas et al. (2001) included individuals who had been reported by

Dr Linda Monaci Consultant Clinical Neuropsychologist Expert Witness Services in Personal Injury, Medical Negligence and Occupational Health. Medico-legal assessments for suspected or known brain injury and/or brain dysfunction in personal injury and medical negligence claims.

• Acquired brain injury (for instance following road traffic accidents or assaults) • Post-concussion syndrome

• Stroke

• Anoxia

• Epilepsy

• Dementia

• Alcohol and drug abuse

• Neuropsychiatric conditions

• Mental capacity & fitness to plead assessments

Instructions from Claimants, Defendants and as a Single Joint Expert. Appointments within 2 to 4 weeks, and reports produced in a further 2 to 4 weeks. Assessments can be carried out in Italian. Dr Monaci also has a good knowledge of the Swedish language and has experience of working through interpreters”.

Dr Monaci has completed the Cardiff University Bond Solon Expert Witness Certificates (Civil and Criminal Law). Since 2009 she has combined independent practice with ongoing work in the NHS, she is employed as a Consultant Clinical Neuropsychologist.

Consulting Rooms Dr Monaci offers medico-legal assessments predominantly in Harley Street, London and New Malden,Surrey. She also has access to offices in several locations in the UK. Clients can also be seen close to their home; domiciliary visits can be arranged when clinically appropriate Contact: linda@monaciconsultancy.com for an initial enquiry.

Correspondence addresses: 10 Harley Street, London W1G 9PF Tel. 020 7467 8523 M. 07821 123618 Aston Clinic, 26 Kingston Road, KT3 3LS Surrey Tel. 020 8942 3148 www.monaciconsultancy.com

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relatives (i.e. Amaducci et al., 1968), or whom had self-reported (i.e. Tyas et al., 2001) a “head injury” or “head trauma”, which may include not only mild TBIs, but also individuals who might not have sustained any brain injury.

veterans who had sustained a moderate TBI had double the risk than controls to develop dementia.

Insufficient statistical power due to small sample size and non-significant results As reviewed above, different studies have employed different designs and had different sample sizes, which may explain their different findings. For instance, the EURODEM re-analysis (Mortimer et al., 1991), in which only cases involving head trauma with loss of consciousness were included, found an association between TBI and dementia when data from seven studies with conflicting results was re-analysed (those with a TBI with loss of consciousness were nearly twice as likely to develop Alzheimer’s dementia; Mortimer et al., 1991).

- Williams et al. (1991) analysed medical records to ascertain whether a head trauma had been sustained.

They included individuals who had had a “head trauma with presumed brain injury” but no information regarding the usual indicators of TBI severity (e.g. GCS, anterograde and retrograde amnesia) were included.

- Mehta et al. (1999) explored the link between self-reported TBI and dementia. TBIs were grouped into: “loss of consciousness of less than 15 minutes and above 15 minutes”, however, the rationale for this is not entirely clear given that a brain injury is usually considered mild with a loss of consciousness of up to 20 (Stein, 1996) or 30 minutes (Kay et al, 1993).

This means that this study may have included mild TBIs with moderate and severe TBIs, and it is not clear how many individuals with moderate and severe TBIs participated.

Fleminger at al. (2003) carried out a meta-analysis of 15 studies and estimated that individuals who had sustained a TBI of sufficient severity to cause a loss of consciousness were 50% more likely to develop dementia later in life.

Retrospective vs. Prospective studies Prospective longitudinal studies of head-injured individuals improve understanding of head trauma as a risk factor for dementia. These involve individuals who have had a TBI and whom were successfully followed-up over time (some individuals may be lost, for instance because they moved away, withdrew from the study or died) and monitored to see how many would go on to develop a dementia. Several prospective longitudinal studies have been published, but future studies should terminate in autopsy to ensure accuracy of diagnosis (standard criteria for CTE alone or mixed CTE and AD may need to be developed).

- Lastly, Nemetz et al. (1999) reviewed medical records to include individuals with head trauma and brain involvement: “injury with loss of consciousness, post-traumatic amnesia or neurological signs of brain injury or skull fracture”. The inclusion criteria would also be likely to group together TBIs of different severity.

On the other hand, several of the studies finding a link between TBI and dementia also reviewed the medical records: - Gardner et al. (2014) is one of the few studies that relied on hospital confirmed TBI diagnoses to determine outcome at follow-up and found an increase in dementia risk following a single, moderate or severe TBI. They also found that even a mild TBI contributed to an increased dementia risk in individuals of 65 years of age and older.

Retrospective studies, on the other hand, involve gathering information on TBI history in individuals who have been diagnosed with dementia, and as such, are prone to self-recall bias. Individuals, or their family members, who have concerns about perceived memory problems may be more likely to report a history of TBI than those who do not have dementia, however individuals with dementia may have memory problems which can affect their recall of any TBI earlier in life.

- The MIRAGE study (Guo et al., 2000), where information on head injury was collected by interviewing multiple informants and reviewing the medical records, found that individuals who had sustained a head injury with loss of consciousness were 4 times more likely to develop dementia and those who had had a head injury without loss of consciousness were twice as likely.

It is also difficult to find the appropriate control group to compare individuals who sustained a TBI but who did not develop dementia, taking into account potential variables that could also impact on the likelihood of developing dementia.

- Plassman et al. (2000) did not rely on reports, but analysis of the medical records of veterans hospitalised for TBI in midlife (and compared them with veterans hospitalised for other reasons). They found that veterans who had sustained a severe TBI were more than 4 times more likely to develop dementia (compared with a control group) and EXPERT WITNESS JOURNAL

Age at the time of injury and injury severity Most studies that have been reviewed have not considered the relationship between injury severity and when the brain injury was sustained. Gardner et al. (2014) has found these two factors to be relevant.

They found that moderate to severe brain injury 51

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sustained after the age of 55 and mild brain injury sustained after the age of 65 is likely to increase the risk of dementia. This risk to develop dementia appears higher if multiple TBI are sustained (Plassman et al., 2000; Smith et al., 2013) and the same has been found for Parkinson’s disease (Gardner et al., 2015).

They recommend carrying out further research using a population based design that relies on medical records to ensure a diagnosis of dementia has been made.

Summary A traumatic brain injury is not necessary, nor sufficient for the development of dementia; some individuals develop dementia without a history of head injury and others who sustain a brain injury may not go on to develop dementia.

Inter-individual differences Some studies have found a link between inheritance of an apolipoprotein E4 (ApoEe4) allele and dementia (Mayeux et al., 1995; Mehta et al., 1999; Jordan, 2000), but results have not always been replicated (Guo et al., 2000; Plassman et al., 2000) so this issue remains unclear. Jellinger et al. (2010) carried out neuropathological analysis of brain tissues of 55 individuals (and compared the findings with the analysis of 53 age-matched individuals used as a control group) and found that severe TBI is a risk factor for the development of AD, particularly in subjects lacking the ApoEe4 allele which is considered a risk factor for AD.

Emerging evidence suggests that moderate and severe TBI are a risk factor for dementia (although age at injury appears to be an important factor). Mild TBI may also be linked to an increased risk if sustained later in life. A TBI however appears to be only one of many risk factors. For instance high cholesterol, obesity high blood pressure and diabetes are risk factors in case of Alzheimer’s and vascular dementia (Qiu, 2012). Environmental factors, such as toxins, have been found to be implied in some neurological progressive conditions, such as Parkinson’s disease (Hannay, et al. 2004).

Alzheimer’s dementia is thought to be due to a mixture of genetic and environmental factors with many variables involved; some modifiable such as high blood pressure and other vascular risk factors, and others unlikely to be affected by lifestyle.

However, it is clear that individuals differ in how they respond to a TBI, for instance it is known that not all boxers develop chronic traumatic encephalopathy, so there are likely to be some protective factors in some individuals (Smith et al., 2013).

In predisposed individuals risk factors induce the complex events that contribute to the development of dementia. It is possible that a brain injury causes a reduction of the cognitive reserve, and therefore cognitive decline affects functioning sooner than would have been the case if the injury had not happened; but dementia is a multi-factorial disease and a neuropathological hypothesis as to the relation between TBI and dementia are also present in literature (Shively et al., 2012).

Gender differences Only some studies have considered potential gender differences in relation to TBI and dementia risk, which may be due to issue with sample size and statistical power. For instance Jellinger et al. (2010) found no gender differences, but they acknowledge the small sample size may have obscured meaningful differences.

A Clinical Neuropsychologist can provide an opinion on several issues that may be relevant to the topic discussed in this article such as: the severity of the brain injury, and if a brain injury is likely to have been sustained; the cognitive profile; the presence of any objective, vs. self-perceived, cognitive problems and their severity; the impact of cognitive impairment onto everyday life; and the risk of dementia following a TBI. ■

There can also be other variables that interact with gender and dementia risk. Guo et al. (2000) found that the association between head injury and AD was apparent in both men and women, although the relative risk for head injury with loss of consciousness was higher, although not significant, in men than in women.

Dr Linda Monaci, Consultant Clinical Neuropsychologist and Chartered Clinical Psychologist. www.monaciconsultancy.com References:

Plassman et al. (2000) found that younger men who sustained moderate or severe TBI appeared to be at higher risk of developing AD and other dementias later in life, but they could not rule out that other variables (not accounted for in the study) could explain this finding.

Ameducci L A, Fratiglioni, L, Walter A R, et al. (1986). Risk factors for clinically diagnosed Alzheimer’s disease: a case-control study of an Italian population. Neurology, 36: 922-931.

American Psychiatrist Association (APA, 2000). Diagnostic and Statistical Manual of Mental Disorders (4th edn) Text Revision (DSM-IV-TR). Arlington: APA. Chen H, Richard M, Sandler D P, et al. (2007). Head injury and amyotrophic lateral sclerosis. Am J Epidemiol, 166:810-816.

On the other hand, Fleminger et al. (2012) found support for the association between TBI and Alzheimer’s dementia later in life, but only in males.

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Kay T, Harrington D E, Adams R et al. (1993). Definition of mild traumatic brain injury. J Head Trauma Rehab. 8(3): 86-87.

Dams-O'Connor, K, Gibbons L E , Bowen J D, et al. (2012).

Risk for late-life re-injury, dementia and death among individuals with traumatic brain injury: a population-based study. J Neurol Neurosurg Psychiatry. 84(2):177-82.

Lindsay J, Laurin D, Verreault R, et al. (2002). Risk factors for Alzheimer’s disease: a prospective analysis from the Canadian Study of Health and Aging. 156: 445-453.

Fleminger S, Oliver D L, Lovestone S, et al. (2003). Head injury as a risk factor for Alzheimer’s disease: the evidence 10 years on; a partial replication J Neurol Neurosurg Psychiatry, 74:857.

Launer L J, Andersen K, Dewey M E, et al. (1999). Rates and risk factors for dementia and Alzheimer’s disease, results from EURODEM pooled analyses. Neurology, 78-84.

Johnson V E, Stewart J E, Begbie F D, et al. (2013).

Inflammation and white matter degeneration persist for years after a single traumatic brain injury. Brain, 136: 28-42.

Lowenstein D H (2009). Epilepsy after head injury: an overview. Epilepsia. 50 Suppl 2:4-9.

Johnson V E & Stewart, W. (2015). Age at injury influences dementia risk after TBI. Nature reviews Neurology, 11: 128-130.

Lye T C & Shores E A (2000). Traumatic brain injury as a risk factor for Alzheimer's disease: a review. Neuropsychol Rev. 10(2):115-29.

Johnson V E, Stewart J E, Begbie F D, et al. (2013).

Inflammation and white matter degeneration persist for years after a single TBI. Brain, 136: 28-42.

Mayeux R, Ottman R, Maestre G, et al. (1995). Synergistic effects of traumatic head injury and apolipoprotein-epsilon 4 in patients with Alzheimer’s disease. Neurology. 45: 555-557.

Johnson V E, Stewart W, & Smith D H. (2012). Widespread τ and amyloid-β pathology many years after a single traumatic brain injury in humans. Brain pathology.

22(2):142-9.

McKee A C, Cantu R C, Nowinski CJ, Hedley-Whyte E T, et al. (2009). Chronic traumatic encephalopathy in athletes: progressive tauopathy after repetitive head injury.

J Neuropath, 68: 709-735.

Gardner R C & Yaffe K. (2015) epidemiology of mild traumatic brain injury and neurodegenerative disease.

Molecular and cellular neurosciences, 6:75-80.

McKee A C, Stein R A, Nowinski C J, et al. (2012). The spectrum of disease in chronic traumatic encephalopathy.

Brain. 136(Pt 1):43-64.

Gardner R C, Burke J, Nettiksimmons J, et al. (2014) Dementia risk after TBI vs. nonbrain trauma. JAMA Neurol, 71:1490-1497.

Mehta K M, Ott M D, Kalmijn M D, et al. (1999). Head trauma and risk of dementia and Alzheimer’s disease, The Rotterdam study. Neurology, 53: 1959-1962.

Gardner R C, Burke J F, Nettiksimmons J, et al. (2015).

Traumatic brain injury in later life increases risk for Parkinson disease. Ann Neurol. 77(6):987-95.

Mortimer J A, van Duijn C M, Chandra V, et al. (1991).

Head trauma as a risk factor for Alzheimer's disease: a collaborative re-analysis of case-control studies. EURODEM Risk Factors Research Group. Int J Epidemiol. 1991;20 Suppl 2:S28-35.

Gavett B E, Stern R A, Cantu R C, et al. (2010). Mild traumatic brain injury: a risk factor for neurodegeneration.

Alzheimer’s Res Ther, 2:18.

Gavett B E, Stern R A, McKee A C. (2011). Chronic traumatic encephalopathy: a potential late effect of sportrelated concussive and subconcussive head trauma. Clin.

Sports Med. 30(1): 179-188.

Nemetz P, Leibson C, Naessens J M, et al. (1999). Traumatic brain injury and time to onset of Alzheimer’s disease: a population-based study. American Journal of Epidemiology, 149: 32-40.

Godbolt A K, Cancelliere C, Hincapié C A, et al. (2014).

Systematic review of the risk of dementia and chronic cognitive impairment after mild traumatic brain injury: results of the International Collaboration on Mild Traumatic Brain Injury Prognosis. Arch Phys Med Rehabil. 95(3): 245-56.

Plassman B L, Havlik R J, Steffens D C, et al. (2000). Documented head injury in early adulthood and risk of Alzheimer's disease and other dementias. Neurology. 24: 55(8):1158-66.

Qiu C (2012). Preventing Alzheimer's disease by targeting vascular risk factors: hope and gap. J Alzheimer’s Dis. 32 (3): 721-731.

Goldman SM, Tanner CM, Oakes D, et al. (2006). Head injury and Parkinson’s disease risk in twins. Ann Neurol, 60:65-72.

Roberts G W, Whitwell H L, Acland P R, et al. (1990). The Lancet, 335: 918-919.

Guo Z, Cupples L A, Kurz A, et al. (2000). Head injury and the risk of AD in the MIRAGE study. Am Accad Neurology, 1316-1323.

Saatman, K.E., Duhaime, A.C., Bullock, R., Maas, A.I., Valadka, A., Manley, G.T. et al. (2008). Classification of traumatic brain injury for targeted therapies, Journal of Neurotrauma, 25, 719–738.

Hannay, J., Howieson, D., Loring, D., Fischer, J. & Lezak, M. (2004). Neuropathology for Neuropsychologists, In M.D. Lezak, D.B. Howieson & D.W. Loring (Eds). Neuropsychological Assessment (4th Edition, pp. 157–285). Oxford: Oxford University Press.

Shively S, Scher A I, Perl D P, et al. (2012). Dementia resulting from traumatic brain injury: what is the pathology?

Arch Neurol. 69(10):1245-51.

Jordan B D, et al. (2000). Chronic traumatic brain injury associated with boxing. Semin Neurol, 20(2): 179-185.

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Smith D H, Johnson V E & Stewart W. (2013). Chronic

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neuropathologies of single and repetitive TBI: substrates of dementia? Nature reviews Neurology, 9:211-221.

Stein S C (1996). Classification of head injury. In Narayan R K, Povishock J T, Wilberg J E Jr (Eds). Neurotrauma. New York: McGraw-Hill (31-42).

Thornhill, S., Teasdale, G., Murray, G., McEwen, J., Roy, C. & Penny, K. (2000). Disability in young people and adults one year after head injury: prospective cohort study. British Medical Journal, 320, 1631â&#x20AC;&#x201C;1635.

Tyas S L, Manfreda J, Strain L A, et al. (2001). Risk factors for Alzheimer's disease: a population-based, longitudinal study in Manitoba, Canada. Int J Epidemiol. 30(3):590-7.

Vincent A S, Roebuck-Spencer T M & Cernich A (2014) Cognitive changes and dementia risk after traumatic brain injury: implications for aging military personnel. Alzheimers Dement. 10(3):174-87.

MD, FRCP, FRCR

Williams D B, Annegers J F, Kokmen E, et al. (1991). Brain injury and neurologic sequelae: a cohort study of dementia, parkinsonism, and amyotrophic lateral sclerosis. Neurology.

41(10):1554-7.

Tel: 01482 655 351 Email: malcolmrawson@hotmail.com 19 The Paddocks, Kirk Ella, Hull East Yorkshire HU10 7PF

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Psychological Expert Witness and Treatment Service Personal Injury - accident trauma - PTSD - anxiety - depression - chronic pain management physical rehabilitation - work related stress - occupational injury - disability discrimination

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Consultant Clinical Psychologist Accredited Cognitive-Behavioural Psychotherapist

30 years experience in paediatric neurology, neurodevelopment, learning difficulties, special needs, head injuries, and child protection. Experienced and special interest in cerebral palsy (causation and condition and prognosis), epilepsy, autism, victims of road accidents, child development and child protection.

Extensive training and experience in the psychological assessment and treatment of the following: chronic pain, acute pain, chronic illness / disability, psychological injury following accident or trauma, stress, PTSD, anxiety, depression, psychosexual functioning, work-related stress, employment issues, disability discrimination and mental health problems at work.

I prepare reports as a single joint expert in child protection cases, alleged non-accidental injury, care proceedings, failure to thrive and factitious and induced illness [FII] with frequent Court experience in giving evidence in these cases.

Experience of giving expert evidence in court and trained as a Single Joint Expert. Quality of my court reports have been commended by judges and lawyers.

Regular clinics held in paediatric neurology, genetics, neonatal follow up and ophthalmology (all paediatric). I am a member of the British Paediatric Neurology Association (BPNA). I prepare reports for plaintiffs and defendants, reports for CICA and COP3 reports.

Contact Details: 54 Asquith Boulevard, Leicester LE2 6FA t: 0116 212 9995 f: 0116 212 9300 m: 07900 916 857 e: al@psyworks.co.uk w: www.psyworks.co.uk

Contact: Mob: 0797 104 8544 Email: charles.essex@virgin.net Web: www.drcharlesessex.co.uk Address: Suite 115, 41 Oxford Street Leamington Spa, Warwickshire CV32 4RB

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Consulting Rooms: Spire Hospital, Leicester - Nuffield Hospital, Leicester Nuffield Hospital, Derby - Tranquil House, Birmingham Work undertaken nationwide

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Shaken and Stirred – Assessment of Mild Traumatic Brain Injury “We see what we look for. We look for what we know” Johann Wolfgang von Goethe responsible for the production of diffuse brain injuries. Similar brain damage has been observed in humans. Oppenheimer examined the brains of individuals who sustained minor to severe head injuries who died within several days of causes unrelated to the head injury. He found evidence of microscopic brain damage in cases where the cerebral injury was clinically trivial, consisting of a concussion which lasted for a few minutes. Oppenheimer concluded:

Introduction The controversy surrounding the symptoms that follow seemingly mild traumatic brain injury is a long-standing issue, as this introductory story to an article1 from a law periodical makes clear: “In a Supreme Court Trial several years ago, a medical expert was carefully explaining to the Judge the pathophysiological mechanism of traumatic brain injury. The Judge turned to the expert and remarked “the next thing you will be telling me is that you can have brain damage from a whiplash type injury”. The expert responded, well, yes you can. The Judge, obviously not impressed by this evidence, awarded the Plaintiff $20,000 in damages.”

Following a head injury, diffuse microscopic lesions can be seen in the high proportion of human brains…They are believed to be mechanical in origin, and can be attributed to (1) (2) (3) (4)

The truth, however, is that the research in this area is high quality and well established: “Researchers have clearly demonstrated that whiplash type, mechanical acceleration-deceleration injuries in primates produce observable brain damage. Rotational acceleration appears to be the primary mechanism EXPERT WITNESS JOURNAL

surface sheering and contusions; stretching and tearing of small blood vessels; stretching and tearing of groups of nerve fibres; tearing of nerve fibres by a crossing vessel

They can be seen, not only after severe trauma, but also in cases of ‘concussion’. Detailed studies of their sights and distribution could throw light on the mechanics of acceleration injuries of the brain”.

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This combination of factors results in dynamic and patchy injury throughout the brain:

From the 1960s and 1970s onwards, the relationship between what was considered mild traumatic brain injury and the potential for long term symptoms was recognised.

The problem was not, therefore, that the facts were unclear; they were simply not well known. Education of the core messages remains an important element and the latest research in this arena adds more detail to those messages.

This article focuses on bringing our understanding of the shaken (neurological) element of the consequences of the injured brain up to date. The stirred (psychological) element is equally interesting but beyond the scope of this article2.

The Pathophysiology of the Shaken Brain The key mechanism underlying brain injury in the shaken brain is an acceleration/deceleration injury. The published data relating to this area conclude that the specific trigger for a traumatic brain injury which could lead to diffuse axonal injury (DAI) is a rapid onset, forward acceleration of the brain.

The chance of such an injury causing significant DAI is exacerbated if there is any element of rotation3. Understanding of the pathophysiology is increasing month by month; in November 2015 a new marker of axonal injury was defined4.

Figure 3: Severity of Axonal Damage based on injury severity It therefore makes perfect sense that the latest evidence based review of this area concludes: “It is important to assess individuals with post-concussion syndrome to try to determine the basis for the syndrome. This may make an important difference in treatment approaches and may be a factor in litigation of cases that involve post-concussion syndrome. The recommendations for assessment include use of an open-ended interview, a structured interview, use of a post-concussion syndrome questionnaire, interview of a third party who knows the individual being evaluated, thorough record review, psychological assessment, and neuropsychological testing with effort/validity assessment. An adequate assessment can help determine the psychogenesis or physiogenesis of post-concussion syndrome-type symptoms.6”

The most complex element of this condition is in the inter-individual variation. On average the probability of a diffuse axonal injury is related to the change in velocity experienced. This is shown below in Figure 15:

The key to assessing patients with ‘mild’ traumatic brain injury is conducting a structured clinical interview focusing on discerning the important clinical features suggestive of DAI. Immediate and Acute Symptoms A structured assessment should take into consideration the following elements: Loss of consciousness While it is important to determine the presence and duration of loss of consciousness, it is equally vital to recognise that this is a poor guide to the presence of a mild traumatic brain injury. This has been established in animal models, which produce a pattern of DAI identical to human DAI7 and conclusively in the trauma8 and sports concussion literature, which is now the richest source of clinical evaluation of acute closed brain injury9.

Figure 1: The relationship between cumulative frequency and change in velocity in DAI The resulting injury creates a broad spectrum of tissue response within specific regions of the brain, some of which is physiological, some of which is permanent.

Neurogenic symptoms A critical element of the assessment is to determine the presence or otherwise of ‘neurogenic’10-11 symptoms as opposed to experiential symptoms. Recent studies addressing this issue have concluded that the following immediate and acute symptoms have a neurogenic basis: • • • •

Figure 2: The continuum of diffuse brain injury EXPERT WITNESS JOURNAL

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• • • • •

there are two types of black out in which amnesia occurs.

The first, which is typically referred to as a black out, is where the person has no memory at all during the period that they are unable to recall. The second, and more frequent form, is termed a brown out, where the person does have partial recall and this can be very similar to PTA. Alcohol induced amnesia tends to be associated with rapid drinking rather than high volume consumption and the onset is typically gradual rather than sudden and obviously temporally related to the rapid ingestion of alcohol. Alcohol induced amnesia typically recovers rapidly and completely after a period of sleep.

Forgetfulness; Poor concentration; Taking longer to think; Blurred vision; and Personality change.

Trauma Related Amnesia The presence and duration of post-traumatic amnesia (PTA)12-13-14 is an important feature, as the presence of PTA and the duration identifies those patients who are at a higher risk of developing permanent, significant subtle symptoms following their injury.

Usually retrograde amnesia is either not present or is significantly shorter than anterograde amnesia in patients who have sustained a mild traumatic brain injury23. When present, acute retrograde amnesia is directly related to the duration of anterograde amnesia, as demonstrated in Figure 4 below:

Patients assessed and treated by the NHS are not routinely prospectively assessed for the presence of PTA using an appropriate tool. This is unfortunate, as when appropriate tools are used prospectively in patients with closed head injuries, significant PTA is often detected in patients with otherwise normal Glasgow Coma Scale (GCS) score, no overt evidence of confusion and normal brain imaging.

The pathophysiological correlation of PTA remains unclear; there are a variety of proposed mechanisms that explain why a patient can appear alert and lucid yet is still suffering PTA15. It is also worth emphasising the extent to which the addition of a formal prospective assessment of post traumatic amnesia improves the sensitivity of detecting the presence of PTA beyond GCS and neurological assessment.

The sensitivity increases from 13% to 60%. This implies significant PTA is frequently missed by the current systems of assessment in the NHS. As PTA is a complex phenomenon accurate measurement, even prospectively, is challenging16. The key element is the return of continuous memory. This amnesia has several specific, additional characteristics: (1) The nature of snapshots of memory: they are discreet, specific and associated with salient events17;

Figure 4: The relationship between the duration of anterograde amnesia and the severity of retrograde amnesia

(2) The timing of snapshots: they all occur early in the PTA18;

In less than 1% of patients, a complex retrograde amnesia, which can date back many years, is present. This type of amnesia is consistent with those described in articles describing retrograde amnesia associated with other organic causes24-25. I have noticed the presence of this type of retrograde amnesia is typically assumed by many experts to be more consistent with a somatoform disorder. Despite doing an ‘acute neurological take’ where I saw many patients with “minor” head injury over a 15 year period (in Sydney, Sheffield and Plymouth), and having an active interest in medically unexplained symptoms, I can not recall ever seeing a case of ‘psychogenic amnesia’ triggered by a head injury. I have however, seen complex retrograde amnesia in about 5% of patients. I have seen cases of amnesia associated with presumed ‘dissociation’ but the amnesia in these cases was a minor feature of the patient’s clinical syndrome compared to the motor symptoms, the amnesia was a total blank and was short lived compared to motor symptoms.

(3) The state of the memory at the return of continuous memory: many patients are clear that although their memory is improved, it is of a significantly different quality to that of their memory prior to sustaining their head injury19.

PTA typically has to be determined by retrospective analysis using a tool that has been proven to be valid for accurate retrospective assessment of PTA across a wide spectrum of head injuries20. This is also the case if undertaken years after the original injury was sustained.

It should be noted that opiates can cloud a precise assessment of the aetiology of an amnesia following an accident21 and that in most studies considering this area patients who have consumed alcohol immediately prior to sustaining their brain injury are excluded. The studies of the impact of acute alcohol intake on memory per se22 suggest EXPERT WITNESS JOURNAL

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chronicity and disability. Further research is needed to determine whether post-traumatic headache (PTH) responds to headache treatment used in the primary headache disorders and whether chronic PTH is preventable.” 28

The published literature in the area of ‘psychogenic amnesia’26 helps to clarify the nature of this amnesia: Functional Amnesis and its types The memory impairment in ‘functional amnesia’ is usually of a retrograde nature, but might at times be anterograde as well. Although impaired recall of autobiographical events is the most prominent symptom in psychogenic amnesia, deficits in retrieving personal facts and general semantic (non-personal) knowledge can also occur. In addition, variable degrees of anterograde memory deficits (as detected by standard anterograde memory tests) can accompany the retro-grade amnesia.

However, in most patients with functional amnesia, anterograde mnemonic processing was reported to be preserved to a large extent” (authors emphasis).

Long-standing Symptoms The following symptoms are consistently associated with the presence of DAI 29-30: • Fatigue; • Sleep disturbance; • Intolerance to noise; • Intolerance to alcohol; • Reduced libido; • Marked symptoms that the patients are unaware of but that others have commented upon; • A significant change in personality, • Problems with working memory; • Problems with decision-making; • Difficulties with problem solving; • Problems with multi-tasking; • Problems with concentration; • Problems with social monitoring; • Problems with social control; • Problems with intuition; • Difficulties with new learning; and • Word finding difficulties.

Presence of Overlap Injuries Structured inquiry relating to traumatic damage to other structures (hearing, vestibular, facial) in the skull often reveals symptoms which might otherwise be missed. Their presence also helps illustrate the severity of the acceleration-deceleration injury that has been suffered.

Sub-acute and Chronic Symptoms Post-traumatic headache Post-traumatic headaches are extremely common. A recent paper 27 revealed that: • 18% of patients reported having a problem with headaches pre-injury;

The correlation between the chronic physical and cognitive symptoms and diffuse axonal injury (DAI) is well established, as outlined in Figure 5 below 31. This also demonstrates that the symptoms map to specific regions of the brain and that having DAI does not necessarily mean that a patient will exhibit all of the symptoms that are associated with this injury.

• 54% reported new or worse headaches compared to pre-injury immediately after injury; • 62% reported new or worse headaches at three months, 69% at six months, and 58% (109/189) at one year.

The authors concluded that: “Headache after mTBI is very common and persistent across the first year after injury. Assertive, early treatment may be warranted to avoid

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Figure 5 (below): Neural substrates of common sequelae of TBI

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However, the most recent review of the utility of this sequence in patients with head injury stresses that this only increases the tip of the ‘diffuse axonal injury iceberg’; currently, SWI is calculated to have a sensitivity of 23% and a specificity of 89% 35. Therefore, normal imaging does not exclude a diagnosis of diffuse axonal injury.

The Role of Imaging in the Diagnosis of Diffuse Axonal Injury One of the most misunderstood areas of this condition is that ‘normal’ CT scan and 3T MRI scans are consistent with the presence of DAI. The published literature has shown that attempts to correlate visible lesions on any currently available routine imaging modality to clinical symptoms in patients with DAI have proved disappointing.

The explanation offered in the literature is that the clinical deficits relate to a “more general compromise of the integrity of underlying white matter, which may connect topographically distinct regions” 32. This review of the utility of conventional imaging in patients with DAI states:

Post-traumatic epilepsy and post-traumatic dementia Traumatic brain injury leads to an increased risk of developing post-traumatic epilepsy and post-traumatic dementia. For both conditions, the level of risk is determined by the classification of the severity of the traumatic brain injury. The level of risk can often be underestimated as a result of superficial assessment of PTA; this aspect is critical, because the duration of the PTA is a determining factor in the classification of the severity of the brain injury, i.e. a patient who is assessed as having a mild brain injury on the basis of all other factors (e.g. imaging, loss of consciousness etc.) may be re-classified as having a moderate or severe brain injury as a result of the nature of the PTA they suffer.

“Historically, the widely distributed, microscopic nature of the axonal pathology in DAI rendered it essentially invisible with conventional brain imaging. As such, DAI was often a ‘‘diagnosis of exclusion’’ for patients with persisting symptoms related to head injury, but no radiological findings. In some patients, minor changes in the white matter have been found with conventional imaging techniques but likely reflected associated pathologies, such as microbleeds rather than actual axonal pathology” 33.

Post-traumatic epilepsy The increased risk of developing post-traumatic epilepsy is shown in Figure 6 below: Figure 6: Cumulative probability of late unprovoked seizures after TBI in seven studies

New imaging modalities There are new imaging modalities emerging, which are reviewed in a recent article34. The most clinically relevant of these is susceptibility weighted imaging (SWI), which can reveal strategically placed micro-haemorrhages that are highly correlated with the presence of diffuse axonal injury.

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Post-traumatic dementia Post-traumatic dementia (PTD) is an emerging issue. A paper by Srivli et al, entitled Dementia resulting from traumatic brain injury, what is the pathology?, published in the Archives of Neurology in October 2012, is a comprehensive review of the state of play with respect to the relationship between traumatic brain injury, both as a single event and as a chronic phenomenon, and the development of dementia. The paper contains the following statements:

Figure 8 below, taken from the Gardener et al paper described above, clearly shows a pattern consistent with the ‘interactive effects trajectory’ in Figure 7.

“…traumatic brain injury is perhaps the best established environmental risk factor of dementia”.

“On the basis of these and other studies, an Institute of Medicine committee concluded that “there is sufficient evidence of an association between moderate and severe TBI and dementia...limited suggestive evidence of an association between mild TBI (with loss of consciousness and dementia) and inadequate insufficient evidence to determine whether an association exists between mild TBI without loss of consciousness and dementia”.

Figure 8: Kaplan-Meier Plots for Dementia Free Survival after Non Traumatic Brain Injury Trauma (NTT), Mild Traumatic Brain Injury (TBI) or Moderate to Severe TBI

Since this time there have been further publications in this area. The first paper is entitled Dementia risk after traumatic brain injury and non brain trauma, the role of age and severity (Gardener et al). This was a retrospective cohort study, which was performed from 2005 to December 2013, all patients 55 or older diagnosed as having TBI or non TBI trauma and who did not have a baseline dementia or die in hospital were included. The study included 164,661 patients in the California state wide administrative health database of emergency department and inpatient visits. Patients were coded as having mild versus moderate to severe TBI.

Further evidence for this pattern of progression comes from a very recent paper 37. This paper accessed the extent of brain atrophy following TBI. The findings were clear; atrophy is accelerated following TBI, this correlates with clinical symptoms and this atrophy accelerates over time (see Figure 9).

The results showed a total of 51,799 patients with trauma, 31.5% with TBI. Of these 4,364 (8.4%) developed dementia compared with 6,610 patients with non traumatic trauma (5.9%) p0.001. In younger patients the risk was associated only with moderate or severe TBI, in patients over 65 all severities of TBI were associated with increased risk of dementia.

These findings add further support to existing positions in the published literature with respect to dementia risk following TBI. This paper also helps clarify an additional point. There is a growing body of literature that reveals that the temporal pattern of the cognitive decline is progressive.36

Figure 9: Grey matter and white matter predicted age difference (PAD) score increases with greater time since injury (TSI) Conclusion For a patient to develop DAI following a traumatic brain injury is a devastating life event. In my clinical practice I have found the presentation of these patients very stereotypical and consistent. It is also clear that the patients struggle to make sense of their symptoms themselves, as do their family and friends and treating clinicians; this often exacerbates the problems that these patients are experiencing. For a medico-legal process to then compound this problem feels like the final insult. Goethe said: “We see what we look for. We look for what we know”. In the case of DAI following traumatic brain injury it is time to acknowledge that this is a known problem, with a weight of

Figure 7: Model of premature brain ageing in traumatic brain injury EXPERT WITNESS JOURNAL

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evidence to describe its effects and presentation, and to ensure that the medico-legal assessment of patients takes place with that truth in mind.

Neuropsychology, 2:1, 51-60, 19, Laurence A.G. Marshman a,c, David Jakabek b, Maria Hennessy b, Frances Quirk c, Eric P. Guazzo A, ‘Post-traumatic amnesia’ Journal of Clinical Neuroscience 20 (2013) 1475–1481 20, King NS, Crawford S, Wenden FJ, Moss NEG, Wade DT, Caldwell FE. ‘Measurement of post-traumatic amnesia: how reliable is it?’ Journal of Neurology, Neurosurgery and Psychiatry 1997; 62: 38-42.

21, McCarter RJ1, Walton NH, Moore C, Ward A, Nelson I., ‘PTA testing, the Westmead post traumatic amnesia scale and opiate analgesia: a cautionary note’ 22, Goodwin DW, Crane JB, Guze SB (August 1969)."Alcoholic "blackouts": a review and clinical study of 100 alcoholics". Am J Psychiatry 126 (2): 191–8.PMID 5804804; White AM, Signer ML, Kraus CL, Swartzwelder HS (2004). ‘Experiential aspects of alcohol-induced blackouts among college students’ Am J Drug Alcohol Abuse 30 (1): 205–24.doi:10.1081/ADA-120029874.

PMID 15083562.

23, Smith, C.N. et al, ‘The nature of anterograde and retrograde memory impairment after damage to the medial temporal lobe’, Neuropsychologica 51 (2013) 2709-2714 24, Donna Rose Addis, ‘Remembering the past and imagining the future: common and distinct neural substrates during event construction and elaboration’, Neuropsychologia. 2007 April 8; 45(7): 1363–1377; Morris Moscovitch, ‘Functional neuroanatomy of remote episodic, semantic and spatial memory: a unified account based on multiple trace theory’, J. Anat. (2005) 207 pp35–66 25, Platek S.M., ‘Is family special to the brain? An event-related fMRI study of familiar, familial, and self-face recognition’ Neuropsychologia 2009 Feb; 47(3): 849-58 26, Staniloiu, A. et al ‘Towards solving the riddle of forgetting in functional amnesia: recent advances and current opinions’ Front Psychol. 2012; 3 27, Lucas S1, Hoffman JM, Bell KR, Dikmen S., ‘A prospective study of prevalence and characterization of headache following mild traumatic brain injury’ Cephalalgia. 2014 Feb;34(2):93-102. doi: 10.1177/0333102413499645. Epub 2013 Aug 6.

28, Lucas S1, Hoffman JM, Bell KR, Dikmen S., ‘A prospective study of prevalence and characterization of headache following mild traumatic brain injury’ Cephalalgia. 2014 Feb;34(2):93-102. doi: 10.1177/0333102413499645. Epub 2013 Aug 6.

29, Oppenheimer, D. R. (1968) ‘Microscopic lesions in the brain following head injury’. Journal of Neurology, Neurosurgery and Psychiatry, 31, 299– 306.

30, Garnett, M. R., Blamire, A. M., Rajagopalan, B., et al (2000) ‘Evidence for cellular damage in normal appearing white matter correlates with injury severity in patients following traumatic brain injury: a magnetic resonance spectroscopy study’. Brain, 123, 1403– 1409.

31, McAllister, T.M. ‘Neurobiological consequences of Traumatic Brain Injury’, Dialogues in Clinical Neuroscience Vol 13 No. 3 2011 32, Thurmond, V.A., Hicks, R., Gleason, T., Miller, A.C., Szuflita, N.,Orman, J., and Schwab, K. (2010). ‘Advancing integrated research in psychological health and traumatic brain injury: common data elements’ Arch. Phys. Med. Rehabil. 91, 1633–1636

Dr Steven Allder Consultant Neurologist Re:Cognition Health References 1, http://www.slatervecchio.com/articles/cases/mild-traumaticbrain-injury-and-the-thin-skull-rule.htm 2, http://www.economist.com/news/international/21676772mental-illness-caused-trauma-may-be-one-first-be-understoodphysical 3, Smith, D.H., and Meaney, D.F. (2000) ‘Axonal damage in traumatic brain injury’, Neuroscientist 6, 483–495 4, Victoria E. Johnson, ‘SNTF immunostaining reveals previously undetected axonal pathology in traumatic brain injury’, Acta Neuropathol DOI 10.1007/s00401-015-1506-0 5, Yoganandan, Gennarelli, Zhang, et al; J Trauma 2009 6, Post-Concussion Syndrome: An Evidence Based Approach Paperback – August 15, 2014 by William D. Boyd 7, Browne, K.D., Chen, X.H., Meaney, D.F., and Smith, D.H. (2011) ‘Mild traumatic brain injury and diffuse axonal injury in swine’ J. Neurotrauma 28, 1747–1755 8, Brian J. Blyth, ‘Traumatic Alterations in Consciousness: Traumatic Brain Injury’, Emerg Med Clin North Am. 2010 August ; 28(3): 571–594.

9, JP Kelly ‘Loss of Consciousness: Pathophysiology and Implications in Grading and Safe Return to Play’ J. Athl Train. 2001 JulSep; 36(3): 249–252 10, Mounce LT, Williams WH, Jones JM, Harris A, Haslam SA, Jetten J. ‘Neurogenic and psychogenic acute post-concussion symptoms can be identified after mild traumatic brain injury’, Journal of Head Trauma Rehabilitation 2013 Sep-Oct; 28(5):397-405.

11, Laborey M, Masson F, Ribéreau-Gayon R, Zongo D, Salmi LR, Lagarde E. ‘Specificity of post-concussion symptoms at 3 months after mild traumatic brain injury: results from a comparative cohort study’, Journal of Head Trauma Rehabilitation 2014 Jan-Feb; 29(1):E28-36.

12, Ellenberg JH, Levin HS, Saydjari C. ‘Post-traumatic amnesia as a predictor of outcome after severe closed head injury’, Arch Neurology 1996; 53: 782-791.

13, Wilson JTL.Tesdale GM, Hadley DM, Wiedmann KD, Lang D. ‘Post-traumatic amnesia: still a valuable yardstick’, Journal of Neurology, Neurosurgery and Psychiatry 1993; 56: 198-201.

14, Russell WR, Smith A. ‘Post-traumatic amnesia in closed head injury’, Arch Neurology 1961; 5: 16-29.

15, E A Shores, A Lamme´l, C Hullick, J Heedy, M Flynn, W Levick, J Batchelor, ‘The diagnostic accuracy of the Revised Westmead PTA Scale as an adjunct to the Glasgow Coma Scale in the early identification of cognitive impairment in patients with mild traumatic brain injury’, Journal of Neurology, Neurosurgery and Psychiatry 2008;79:1100–1106.

33, Smith, D.H., Meaney, D.F., and Shull, W.H. (2003) ‘Diffuse axonal injury in head trauma’ J. Head Trauma Rehabil. 18, 307–316 34, Hahnel, S., ‘MRI bio-markers in mild traumatic brain injury’, Neurology 2015; 84: 554-555 35, Hang, Y.L. et al, ‘Susceptibility weighted imaging in mild traumatic brain injury’, Neurology 2015: epub 2015 January 9

16, Laurence A.G. Marshman a,c, David Jakabek b, Maria Hennessy b, Frances Quirk c, Eric P. Guazzo A, ‘Post-traumatic amnesia’ Journal of Clinical Neuroscience 20 (2013) 1475–1481

36, Bigler, E.D ‘Traumatic brain injury, neuroimaging and neurodegeneration’, Frontiers in Human Neuroscience August 2013, Volume 7, Article 395

17, D. Gronwall & P. Wrightson (1980) ‘Duration of post-traumatic amnesia after mild head injury’, Journal of Clinical Neuropsychology, 2:1, 51-60,

37, Cole, J.H. et al ‘Prediction of Brain Age Suggests Accelerated Atrophy after Traumatic Brain Injury’ Ann Neurol 2015;77:571581

18, D. Gronwall & P. Wrightson (1980) ‘Duration of post-traumatic amnesia after mild head injury’, Journal of Clinical

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The Visual System: ‘A Good Place for Subjective and Objective Assessment of Head Injury’

by Mr Mike Potts, Consultant Ophthalmologist BSc, PhD, FRCS, FRCOphth As there is a rise in the medico-legal recognition of many aspects of head injury there is an increasing need for good evaluation of the levels and type of injuries sustained both subjectively and objectively.

The visual system and its neuro-ophthalmic measurement techniques can provide evidence of BOTH subjective problems reported by the patient and the ability to support this subjective symptomatology by measurable and reproducible neuro-ophthalmic tests.

No where is it more apparent that examination of the visual system can be one of the earliest and most sensitive indicators of head injury than on the rugby field.

In the recent world cup matches there were numerous examples of high energy impact collisions rendering players unconscious for periods from seconds to minutes. After the player has recovered sufficiently to be orientated in space and time, the most common method that the attending doctor will use to check recovery is the player’s visual system.

Both the ability to see clearly with either eye and the ability to coordinate eye movement, via the sensitive

ocular motor system is commonly used by the doctors in ‘follow my finger’ routines. These routines test both acuity and coordination of eye movements.

Commonly after head injuries the after effects of concussion may last only seconds or minutes with the commonly associated stars and flashing lights. Time and a cold sponge usually helps these! Symptoms of double vision however transientary can be harbingers of more serious degrees of head injury.

The optic nerves are the largest cranial nerves in the head comprising of 1.2 million nerve fibres in each optic nerve. Clearly long or short term damage to them is possible in head injury. Whilst short term damage will recovery rapidly, longer term damage can be easily confirmed and documented by careful measurement of visual acuity, colour vision and visual field testing. Modern automated visual field testing is extremely sensitive and reproducible. Furthermore it carries the possibility of being able to detect false positive and false negative responses being made by the patient. Hence it makes it a very reliable test which is hard to falsify. This fact is known by the DVLA and hence formal assessment of patients automated visual fields are often required by the

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DVLA if there is history of head injury and visual loss.

Also all head injuries should follow a clear pattern of being worst initially with some slow progressive visual recovery. Repeated visual acuity testing, colour vision and automated visual field plotting will confirm this natural pattern of recovery. Patterns which are different to this will raise suspicion of their causation.

Mr Mike Potts Consultant Ophthalmologist BSc, PhD, FRCS, FRCOphth

Mr Mike Potts is a Consultant Ophthalmologist based in the Bristol area. He has over 20 years experience as a consultant at Bristol Eye Hospital. He also holds a Neurophthalmic Clinic in Bristol which he has held for over 20 years.

The ocular motor nerves (three, four and six) that control eye movements are also amongst the most sensitive in the brain to blunt head injury. The sixth nerve having the longest course in the head of all cranial nerves makes it especially vulnerable in blunt head trauma. Hence double vision due to sixth nerve palsies are extremely common conditions after head injury. The severity and duration of these palsies are a good indicator as to the severity of the head injury.

These can be accurately and repetitively measured by orthoptic techniques which chart the severity and recovery of the double vision caused by these nerve palsies.

Surgically he specialises in: cataract surgery, orbit plastic and lacrimal surgery, and neurophthalmology cases.

Mr Potts has over 20 years Medico-Legal experience involving accident reports, and medical negligence cases for both plaintiff and defence.

He has a special interest in visual problems after mild, moderate and severe head injury.

His consulting rooms at 2 Clifton Park, are equipped to provide ophthalmic examination, visual field analysis and orthoptic

assessment for diplopia.

Tel: 0117 906 4258 Mob: 0773 666 5597 Fax: 0117 973 0887 Email:mikepotts@2cp.co.uk Web:www.eyesurgerybristol.com

More fine coordination of eye movements which involve accommodation of the lens and convergence of the eye movements are also delicately balanced fine ocular motor skills which can easily be disrupted by blunt head trauma. Their disturbance results in difficulties of fine coordination for reading and close work. This is best demonstrated in the accommodation convergent reflexes which again can be accurately and reproducibly measured by orthoptic testing.

Consulting Rooms Clifton Park, 2 Clifton Park, Bristol, BS8 3BS

Finally the skills of higher cortical functioning such as subtle form perception and visual memory skills are often also affected by blunt head injury. These fine cognitive skills which can be damaged subtly in head injury are again accurately and reproducibly tested by visual and visuomotor cognitive testing often performed either by orthoptists or by cognitive psychologists.

Professor Charles Claoué Consultant Ophthalmic Surgeon BA, BChir, MB, MA (Cantab), DO, MD, FRCS (Eng), FRCOphth, FEBO, MAE.

Specialising in; 1) Advanced Cataract Surgery: Surgery for Astigmatism, Multifocal and Accommodating Intra-Ocular Lenses; Small Incision Surgery (Phakoemulsification) and "No Needle No Patch No Stitch" Surgery.

For all these reasons an assessment by a competent neuro-ophthalmologist of the fine visual processing skills of a patient with brain injury will often allow the detection and measurement of the subtle types of brain injury that can result from such trauma.

2) Excimer Laser and other Refractive Surgery Techniques for Myopia, Hyperopia, Astigmatism and Presbyopia; PRELEX and LASIK. 3) Corneal Disease and Surgery including Corneal Transplants/ Grafts, Anterior Segment Reconstruction.

Reports for medicolegal work are available, including personal injury and medical negligence cases. Professor Claoué is a Bond Solon and Professional Solutions trained medical expert witness in ophthalmology, and a Member of the Academy of Experts.

Very many patients with head injury will complain of visual symptoms and their assessment and documentation is an important part of the assessment and rehabilitation of these patients. This requires a competent neuro-ophthalmologist and his supporting team of orthoptists, optometrists and psychologists. ■

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Contact: Miss Nadia Bouras Tel: 020 8852 8522 Fax: 020 7515 7861 Email: eyes@dbcg.co.uk Web: www.dbcg.co.uk DBCG Legal Ltd 36 New Atlas Wharf, Arnhem Place, London E14 3SS

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Assessment and Treatment of Scars

by Professor Kayvan Shokrollahi, BSc MB ChB MSc MRCS(Eng) FRCS(Plast) LLM - kayvan@shokrollahi.co.uk improves in colour, texture and vascularity. Very superficial injuries to the skin which affect the superficial part of the skin only (epidermis) can heal by regeneration (rather than repair) without permanent scarring, usually accompanied by temporary redness.

Nevertheless, superficial injuries can still result in scarring either due to pigmentation or another pathological process including keloid scars. The only other type of scar-less healing occurs in the foetus, and which is an active area of research.

What is a scar?

Believe it or not, this most fundamental question is not that easy to answer. A variety of dictionaries define scars variably: - Websters Dictionary: Middle English escare, scar, from Middle French escare scab, from Late Latin eschara, from Greek, hearth, brazier, scab. First Known Use: 14th century, A mark left (as in the skin) by the healing of injured tissue - www.thefreedictionary.com: 1. A mark left on the skin after a surface injury or wound has healed 2. A lingering sign of damage or injury, either mental or physical

The deeper an injury encroaches into the dermis of the skin, the more likely scars will form. This is relevant in terms of depth of burns and resultant risk of scarring. Similarly, scars can be avoided or minimised in the treatment of some skin lesions by use of precision lasers which limit dermal injury compared with surgery.

- Collins Dictionary: Any mark left on the skin or other tissue following the healing of a wound - dictionary.cambridge.org: A mark left on part of the body after an injury, such as a cut, has healed

In the absence of specific complications such as an infection, the time to healing of a wound and the initial acute management are the most important factors to minimise scarring and maximise the outcome. Hence, meticulous direct closure of traumatic or surgical wounds will allow rapid healing with reduced scarring compared with a dressing with delayed wound healing (so called secondary intention healing). Wounds should be cleansed and debrided, with good approximation of the wound edges using an appropriate surgical technique and avoiding tension – the debridement and cleansing being more important than closure initially.

- dictionary.reference.com: Any blemish remaining as a trace of or resulting from injury or use - A lasting effect of grief, fear, or other emotion left on a person’s character by an unpleasant experience (www.oxforddictionaries.com) Whilst some may understand the word to mean a permanent mark, others may feel permanency is not prerequisite to the definition and differentiate scars by presence or absence of the descriptor ‘permanent’.

Some would argue that a clinical or scientific definition of a scar would usually allude to a permanent mark, but this probably is not the case from a practical or legal point of view, necessitating the expert assessor to comment specifically on permanency or otherwise.

As previously mentioned, whilst scars are generally thought of as permanent, some skin changes such as redness or pigmentation may resolve with time or treatment. The history, anatomy and examination will be important at determining the potential either for permanent scarring or for improvement or resolution. For practical and legal purposes, any mark that was previously not present and occurred as a result of some trauma or intervention can reasonably be referred to as a scar on the basis that it will score positively and differently to unscathed skin when measured using an objective or clinical scar assessment scale or tool.

How is a scar formed?

A scar is formed as part of the normal process of repair after injury to the skin, and is characterised by the deposition of Collagen which contracts and strengthens the wound replacing the normal cellular anatomy of the tissues permanently. The initial healing phase then becomes a period of maturation over approximately 18 months whereby a scar usually EXPERT WITNESS JOURNAL

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5. Size 6. Shape 7. Shade 8. Surface 9. Surroundings 10. Substance

Common causes of scarring Traumatic injuries and burns (e.g. laceration or scald, bites) Surgery and medical interventions (e.g. elective or emergency surgery) Medical conditions and skin disorders (e.g. skin infections and acne scars)

A basic assessment and description of a scar will first entail a full and detailed history with reference to the medical records and any available photographs, followed by a medical examination. Specialists may use more objective methods of description and assessment. Key features to note include the location (or percentage surface area) and orientation of the scars, the degree of redness and pigmentation, and how raised or lumpy the scars are. Objective scar assessment tools do exist and range from spectrometry and ultrasound, to profilometry and cutometry but are not in widespread use and I would question their clinical utility or validity at this time outside a research setting. A photographic record is important with a good quality camera and consistent lighting.

Tissue distortion (e.g. 'stretch marks') Normal versus Problematic Scars Features of a good quality, albeit permanent 'normal' scars include: - Narrow in width - Good colour match with surrounding skin - Flat - Supple - Asymptomatic (lack of itching, pain, sensitivity) - Absence of contraction - Matured and optimum by about 18 months to 2 years

Functional problems should be noted, including contractures, range of movement and symptoms such as pain, itching or hypersensitivity. The examination should also have in mind implications for prognosis and treatments, ranging from topical treatments and massage, sunscreen, and cosmetic camouflage to very specialist areas such as reconstructive surgery or lasers. Anyone making treatment recommendations in this complex area should have sufficient working knowledge of alternative treatments prior to any recommendation.

Common Types of problematic scars Hypertrophic scars - thickened, itchy, raised but within the boundaries of the original injury Keloids - severely thickened, itchy, and raised but growing in a tumour-like fashion beyond the boundaries of the original injury Stretched and atrophic scars - thin and fragile skin with widening. Often pale and depressed or pitted.

Pigmented scars - these can be hypopigmented (lighter) or hyperpigmented (darker) than surrounding skin or have a mixed pattern

Scar contractures - where scars limit movement or distort anatomy due to shortening of the scar leading to deformity, reduced range of motion and reduced function

Objective clinical scar assessment measures such as the Vancouver Scar Scale (VSS) which is a clinicianonly score, and others which can be clinician-andpatient scores, can be helpful to bring as much objectivity as possible. Similarly, visual or numeric scales of pain or itch (e.g. 0-10), especially when assessing progress over time and response after intervention, can be valuable.

Stitch marks (cross-hatching) – the marks left behind from stitches used for surgical wound closure

Subjective measures and quality of life indicators can also ber very important and bring added context.

Special and specific types of scars: e.g. burns scars, acne scarring, donor sites from skin graft harvest, scar alopecia (hair loss from burns)

Psychological aspects Psychological aspects of scarring should not be underestimated, even for minor scars. There is evidence that the psychological impact of scarring is not directly proportional to the size or severity of the scarring. Small scars, even hidden ones, can have a big impact on patients, and this along with functional limitations can be captured by using quality of life measures. Loss of self-confidence can have a major impact on work, relationships and social interaction as well as overall well-being. Occasionally scars are a stimulus for psychological or psychiatric illness.

Mixed scars – these show a combination of a number of different morphologies

Assessment of Scars When taking a history, it is important to ask the patient about the following 3 S’s: 1. Symptoms 2. Severity 3. Stigma On clinical examination of the scar, another 7 S’s are important: 4. Site EXPERT WITNESS JOURNAL

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tion is routinely available on a residential basis. The Katie Piper Foundation is currently fundraising for a similar intensive residential burns and scar rehabilitation facility in the UK.

Common Treatment options - Sun avoidance and sunscreen with SPF factor 30+ - Moisturisation with ideally non-perfumed creams - Specialised scar-specific - Topical Silicone (sheets, sprays) - Pressure therapy (e.g. pressure garments, pressure clips) - Splinting and exercise to stretch scars and restore movement - Corticosteroid injections (hypertrophic/keloid scars) - Alternative injectables (5-Fluorouracil, 5-FU) for resistant keloid scars - Topical treatments and camouflage for pigmentation - Plastic surgery: scar revision, reconstruction, Z-plasty and flaps, scar release, skin grafts and skin substitutes - Laser treatments for pigmentation, redness, and hypertrophy - Topical and medical treatments for itch and pain - Camouflage and medical tattooing - Fat transfer: there is some evidence that this improves overlying scars - Hair restoration for hair-bearing areas with scar alopecia (destroyed hair follicles from burns) – eyebrows, beard and scalp in particular

For major injuries, peer support, social integration, and help back to work are especially important. ■ Help and support with scars: The Katie Piper Foundation The Katie Piper Foundation is a charity that provides a range of services to help patients with scars with a vision of: 'A world where scars do not limit a person’s function, social inclusion or sense of wellbeing'.

They provide national education to healthcare professionals in scar management, and facilitate access for patients to the latest treatments and rehabilitation as well as additional help ranging from peer support to medical tattooing, specialist cosmetic camouflage, hair replacement and transplantation, and access to laser treatments. A key part of their role is signposting patients to those who have the expertise and good outcomes in a variable and often unregulated and bewildering environment, and hence a trusted source to help patients navigate the system. This is especially important to ensure help comes from suitably experienced and qualified practitioners in an area where the complexities of medical scar management can overlap with the beauty and cosmetic industry. The Katie Piper Foundation is looking to imminently launch a residential rehabilitation centre for scars and burns.

Complex or burns scars are best assessed and treated with input from a plastic surgeon on the specialist register of the General Medical Council, and the latter from a burns specialist. Burns treatment in the UK is currently provided through specialist burns centres, burns units and burns facilities with major burns treated at the former two. Specialist assessment and treatment allows all treatment options to be explored in an appropriate and holistic context with surgical, non-surgical and other specialist options all being discussed and offered, as well as input from a psychologist when required. Newer technologies and techniques such as laser treatment of scars can have dramatic results, but is highly specialised and with a definite risk profile, and can be expensive. Unfortunately, laser and some other treatments for scars are often advertised on the high street with variable results in a currently under-regulated and generally cosmetic sector, and to vulnerable patients whose expectations can be artificially elevated. The recent Montgomery Supreme Court ruling has highlighted the importance of ensuring the consent process provides adequate information regarding all treatment options with patients.

Prof. Shokrollahi is a Consultant Burns, Plastic & Laser Surgeon, Chairman of The Katie Piper Foundation, Editor-in-Chief of the Journal Scars, Burns & Healing, and Associate Editor of Annals of Plastic Surgery. He was awarded the Hunterian Professorship of the Royal College of Surgeons in 2007 and graduated with a Master of Law degree in 2005.

Follow-up may be needed for years, especially for injuries in children. Scars over larger body surface areas require frequent ongoing intensive rehabilitation for months and sometimes years after injury for optimum outcomes and to reduce the need for further intervention such as surgical scar release. In some countries such as France, intensive rehabilitaEXPERT WITNESS JOURNAL

He has written a number of textbooks, including the imminent publication of both the Oxford Specialist Handbook: Burns, the International Flap Manual: A Practical Guide to Reconstructive Surgery, and is currently writing the textbook Laser Management of Scars.

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Post-Obesity Patients Left in Limbo Official Guidelines Ignored by 90% of Clinical Commissioning Groups – Surgeons Prove Cost-Effectiveness of Body Contouring Treatment A huge proportion of Clinical Commissioning Groups (CCGs) are ignoring official guidance by not funding potentially life-saving surgery, a new study has revealed.

feel whole. Many of the patients I see tell me that they feel 'disabled’ and incomplete. Almost like a mythical zombie: neither dead or alive, but stuck in a gruesome transitional state – slim now, yet dragging two people’s worth of skin which impede their movement or they’re forced to roll up and ‘tuck’ into their clothes. The removal of these folds cannot be classified as simply aesthetic – it is life changing and in some cases life saving.”

Following obesity treatment such as gastric bands, bypasses or sleeves, post-bariatric patients can be left with almost two people’s worth of skin (think of a deflated balloon) which result in functional problems – such as reduced mobility, hygiene issues and infections– a heavy impact on their psychological wellbeing as well as impeding their ability to work. In some cases, being left in these ‘molten bodies’ has even lead to depression and suicide.

The overhanging, excess skin folds left after massive weight loss (MWL) are not just a burden on the patient, their ‘transitional’ state is actively hurting the economy. In many cases patients’ self-consciousness and despair lead them to become isolated, unable to form romantic or sexual relationships and many sufferers end up so depressed they even put the weight back on, with it ensuing risks such as diabetes.

The British Association of Aesthetic Plastic Surgeons (www.baaps.org.uk); the only organisation based at the Royal College of Surgeons solely dedicated to the advancement of aesthetic (‘cosmetic’) surgery; says that removing the overhanging skin would help these patients to rejoin society and restore their lives to normality – and today proves that in fact this treatment is a cost-effective exercise for the economy as a whole.

It is known that every unemployed person in the UK costs the taxpayer £10,000 per year, the cost of treating depression is over £9billion per year and the economic cost of stress and anxiety is over £10 billion/year, moreover, it is known the unemployed become ill and have to visit the GP more often than those in employment. With obesity continuing to grow (twenty fold increase in case load from 2000 to 2010), this problem is set to become increasingly worse. The obesity crisis in fact is escalating so dramatically that Chief Medical Officer Prof Dame Sally Davies warns it should be included in national risk plans alongside threats such as terrorism and climate change.

A study by a leading plastic surgeon specialising in post-bariatric contouring and ‘body lifts’ has revealed that NICE-accredited national commissioning guidelines specific to the removal of overhanging, excess skin is being ignored by over 92% (100 out of 108) of CCGs across the country; and that 2/5 (42 out of 108) do not fund the surgery at all. One CCG admitted funding just 3 out of 66 cases referred, and two CCGs had only funded seven between them.

According to consultant plastic surgeon and BAAPS President Michael Cadier; “Not only can this type of procedure help these patients who feel ‘incomplete’ – but by eliminating their functional problems, increasing their self-esteem and removing the cost of treating co-morbidities (such as poor mobility, skin infections, anxiety and depression) it can in fact be an active contributor to the growth of the economy and the overall wellness – or ‘happiness’- indices of our country. According to the Office of National Statistics these metrics should

"We are only half-treating these patients, who have previously been severely obese,” says author of the study Mark Soldin, a consultant plastic surgeon at St George's Hospital and BAAPS member; "They have successfully shed, in many cases, half their body weight or more, and we know around 70% of them will require body contouring due to the excess skin folds. Yet under a short-sighted (and rather convenient) misunderstanding of the term ‘cosmetic’, they are left in a cruel limbo where they can’t yet quite EXPERT WITNESS JOURNAL

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be at the centre of many social and political measures, and we know Britain lags considerably behind other countries. This is not about making people ‘beautiful’ but restoring normality and function, so they can lead healthy and productive lives. Moreover, studies have shown that the higher your self-esteem, the higher your earnings, therefore, more tax injected straight back into the economy!”

cost, because the intervention is a one-off, but the returns ongoing.

According to Michael Cadier; “At it most simplistic, one must calculate the cost of illness plus the cost of treatment; which tends to be a one-off; minus the overall economic burden which remains year after year. Similar studies have undisputedly proven the need for obesity surgery in the first place (because of the reduction in having to treat costly problems such as Diabetes). They can also be used for other conditions often misperceived as purely ‘aesthetic’, such as breast reduction which also result in ongoing issues such as musculoskeletal conditions, persistent infections, back and neck pain, and stress. This is not just costly to the Health Service – through, for example, GP consultations and hospital treatment – but to the economy as a whole, such as days off work.”

“The term ‘contouring’ is probably misleading – this is not about liposuction for a ‘muffin-top’ or getting a bikini body. This is excision of aprons of skin which are impeding freedom of movement and resulting in painful and embarrassing conditions. Much is being done to stem the tide of obesity itself; but those who have been able to be pulled back from the abyss be it through exercise, diet or surgery should not be abandoned in what is effectively disfigurement.”

Using epidemiological, economic and outcomes data, the BAAPS has calculated that the economic burden of not treating these patients correctly (according to guidelines) is over £53 million per year (based on the costs of treating stress, depression and unemployment) HOWEVER, should these patients have access to this important surgical intervention, the potential net benefit (as in savings) to the economy could be as high as £73million EVERY YEAR; this benefit is a combination of removing the healthcare costs and increasing the tax paying ability and productivity of this 'lost' workforce. The payback is larger than the

The short-sighted refusal to fund proven, cost saving interventions is a perfect example of what the Institute of Economic Affairs describes as structural flaws in the NHS. According to their report (Diagnosis: Overrated), the NHS is falling well below its potential and demonstrates the lack of patient choice and lack of transparency in spending. Additionally, the authors state that the NHS still lags behind the health systems of most comparable countries in terms of health outcomes and healthcare quality measures.

Mr Eric Freedlander BSc. (Hons.) MB, ChB, FRCS, FRCS (Plast.) Ed.

Consultant Plastic Surgeon I have over 20 years experience providing medico legal reports for both claimants' and defendants' solicitors in cases of personal injury and also in cases of alleged medical negligence. I have appeared as an expert witness in court on a number of occasions.

I have extensive experience in nearly all areas of my speciality including: • Burns • Soft Tissue Injuries &Scarring • Hand Injuries

• Head & Neck Surgery • Cleft Surgery • Cosmetic Surgery

Tel: 0114 230 9160 Fax: 0114 230 9160 Mobile: 07702 339 930 Email: efreedlander@mac.com Claremont Hospital, 401 Sandygate Road, Sheffield, S. Yorks S10 5UB

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As well as Osborne's financial targets, Cameron has set national targets for Happiness and Wellbeing, a measure becoming increasingly important and at the centre of economic and social policies across Europe.

According to the Office of National Statistics, less than 60% of Britons feel satisfied with their health and in terms of overall wellbeing, scores for the UK lag well behind countries such as New Zealand, the USA and Israel.

CONSULTANT PLASTIC RECONSTRUCTIVE & HAND SURGEON MBA, MBBS, FRCS, DIP EUR B(PLAST), FRCS(PLAST) Mr Atul Khanna is a consultant plastic surgeon and has been involved in medical legal work since 1997. In this period he has provided over 2,300 medical reports. These have been predominantly in the following areas of expertise:

Proof in cost-effectiveness was cited by 3/5 CCGs as a need for justifying funding in Mark Soldin’s study; and a similar proportion cited the importance of Patient-Reported Outcome Measures (PROMS), which evaluate the results of procedures in satisfaction and quality of life.

• Hand surgery: Sequelae of hand injuries and surgery • Soft tissue injury: Sequelae of post traumatic scarring • Burns management: Sequelae of disability following burns injury, scarring and surgery.

• Medical negligence in Cosmetic Surgery

According to consultant plastic surgeon and BAAPS President-Elect Simon Withey; “With target reduction in health spending of £12 billion, the onus is rightly on the surgical profession to prove that funding in this area will produce savings. Can we now afford to ignore evidence-based guidelines?”

His work involves the treatment of patients with hand injuries, burns, soft tissue and facial injuries, breast surgery, scars and deformities, skin cancer and cosmetic surgery.

He is on the GMC’s specialist register in Plastic Surgery and is a member of the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS), and member of the society of expert witnesses.

Mark Soldin concludes; “If a post-obese person is off work with mobility, skin infections and hygiene problems, suffering with stress and isolation, on their way to putting the weight back on again and risking Diabetes costing the taxpayers tens of thousands, suddenly that one-off intervention which will get them back on their feet doesn’t seem so expensive after all.” ■

Tel: Email: Web:

0121 507 3455 atulkhanna@doctors.org.uk www.atulkhanna.co.uk/expert_witness.html

Dr Ian Starke

Consultant Physician in Stroke Medicine, Medicine for the Elderly and General Medicine MSc, MD, FRCP (Lond), FRCP (Edin)

Mr Jeffrey S Hillman

Dr Starke has been a practising Consultant Physician in General Medicine, Medicine for the Elderly and Stroke Medicine at University Hospital, Lewisham and Guy’s, King’s and St Thomas’ School of Medicine since 1988.

Consultant Ophthalmic Surgeon MB ChB DO FRCS (Edin) FRCOphth I am a Consultant Ophthalmic Surgeon and was an NHS Consultant at St James's University Hospital and Hon Senior Lecturer in the University of Leeds for 25 years and continue in private practice. My interests are general ophthalmic medicine and surgery with special interests in cataract surgery, intraocular lenses and glaucoma as well as trauma and medical negligence.

Dr Starke undertakes expert examinations and reports for fitness to practise and potential litigation cases in stroke medicine, geriatric medicine and general medicine.

I have been preparing reports supported by Literature references for over 20 years. Between 1992 and 2014 I have advised in 1240 cases, 69% for Claimants' solicitors, 28% for Defence solicitors and 3% on joint instruction.

Contact: University Hospital Lewisham Lewisham High Street, London SE13 6LH Tel: 0208 333 3379 Fax: 0208 333 3381 Email: ianstarke@nhs.net

He provides expert examinatons and reports for solicitors, immigration and HM prison services. He is able to assess clients within or outside London.

I have a rapid response facility for cases with tight time constraints.

Contact: 135 Wigton Lane, Leeds, West Yorkshire LS17 8SH Tel: 0113 268 9601 Fax: 0113 237 0884 Email: Jeffeye@btinternet.com Website: www.mrhillman.com

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Meteorology in Legal Cases

by John Coates-Greetham, Forensic Meteorologist with over 30 years experience 1984-2014 On being instructed by a solicitor, the forensic meteorologist carries out an investigation into the weather over a few hours, days and on occasions over many months or even years. One such case used daily rainfall data over a forty year period.

From the records, witness statements and other sources the meteorologist gives an opinion on any matter concerning the weather that affects the case.

For example it may be a question of how much rain fell, how strong the wind was, what time ice formed.

On some occasions a forensic entomologist needs to know the weather over a number of days. on one occasion the temperature and humidity was used to assess the effect of the weather on the development of fly larvae in a body lying in the open.

Why do the courts need an expert in meteorology?

Although meteorology is an every day science, in that almost everyone understands the terms, fog, snow, rain, hail etc. the forensic meteorologist is required to examine weather records and offer an opinion based on the weather data and the science. This, almost always, involves preparing the equivalent of a weather forecast, (backcast ). He is required to explain to the court why, when and where the weather occurred and how it affected the incident.

The weather is a matter of record and is well documented, not only in the weather records, but in the case of severe weather events and often road traffic accidents, in newspapers, on television, in witness statements, etc. Although there is a time element involved, the changes of the various weather parameters in terms of time are fixed. It is therefore a problem of spatial separation of the weather events at the nearest weather stations and the weather at the site of the incident that the expert has to consider. The opinion is based on weather data from a variety of sources, the internet, the Met. Office, witness statements, the media and on some occasions CCTV from the site of the incident.

The role of the meteorological expert witness is the same as any expert witness: To give an honest and unbiased opinion based on sound scientific principles with supporting data and references to published work and years in the field of meteorology.

The meteorologist's part is to describe to the court, by means of a written report and if required verbally in the witness box, the evolution of a weather event.

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Instructions should include all the information available where the weather is referred in the form of statements, photographs, CCTV if available.

Coates-Greetham was started by John Greetham after a career in the Met. Office spanning thirty seven years 1951 to 1988. Starting as an observer then forecaster and eventually in 1986 head of the legal enquiry section as a Senior Scientific Officer. Over the last 30 years in the private sector, reports have been submitted in both civil and criminal cases. Cases have covered a very wide spectrum from murder, rape to minor traffic offences, on the civil side, personal injury, road traffic accidents and building delays covering many months. His first court appearance was in 1984 one month after joining the enquiries section.

The case was one of murder. A taxi driver was killed when a rock was thrown off a bridge during the miners strike of 1982. A policeman had given evidence that he saw the accused by bright moonlight on a cloudy night with light drizzle. His evidence was withdrawn.

Although meteorological evidence is not vital in many cases, occasionally it is very important. Such a case was R V Agis. Mr Agis was the designer of a large plastic multicoloured structure through which the public walked listening to music. The structure was tied down by ropes pegged into the ground. He was charged with manslaughter as well as breaking health and safety rules. The structure lifted off the ground in a park at Chester-le-Street injuring twenty or so people and killing two. Meteorological experts were employed by the prosecution and defence..

The case was heard in the Newcastle Crown Court.

The expert for the prosecution gave as his opinion that the cause of the accident was a strong gust of wind which should have been anticipated. CCTV was available throughout the day. The day was very hot, sunny with very light winds until about one minute before the structure rose vertically into the air. Trees near the structure suddenly showed violent movement whilst other trees further away were generally still. Some of the nearest weather stations did show quite strong winds at times, others light winds. The site of the incident was much more sheltered from the prevailing wind than the weather stations and CCTV from the site showed very little wind.

Reports, prepared by Coates-Greetham, have covered the weather in Bangladesh, The West Indies, Bulgaria, Romania and at 37,000 feet over the Eastern Atlantic just off West Africa, 14,000 feet near Chicago, and other cases at flight level concerning injuries to cabin staff due to turbulence. â&#x2013;

The meteorologist ( Coates-Greetham ) acting for the defence disagreed with the prosecution expert on the wind theory. The defence expertâ&#x20AC;&#x2122;s theory was that the top surface of the plastic structure became very hot.

This caused air to rise over the structure in a strong thermal and the structure was sucked off the ground.

The sudden increase in wind over the nearest trees supported this theory as air rushed in to replace the rising air. In the event the expert for the defence was not called to give oral evidence. It appears that the CCTV evidence was conclusive in destroying the wind theory. The jury could not agree on a verdict and Mr. Agis was found not guilty of manslaughter but guilty of breaking health and safety regulations on a majority verdict.

In Goodes v E. Sussex C. C. ( House of Lords Appeal June 2000 ) the weather too was important. The claimant skidded on ice whilst overtaking and crashed into the wall of a bridge and suffered severe injuries.

A weather report showed the high probability of the presence of ice on road surfaces which would have been obvious to drivers due to hoar frost on grass and trees. The claimant lost in the high court won the appeal court and lost in the House of Lords.

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Roberts & Johnstone – What’s the Verdict?

by David Cowan BSc, BArch, RIBA, Chief Executive, Cowan Architects Compensation in any life-changing personal injury case aims to provide a fund that runs out on the day the claimant dies. An impossible task, one would think, but all the same the ultimate aim for all such compensation packages.

this would provide a windfall profit to the claimant's estate.

The introduction of Periodical Payments (used extensively since Eeles v Cobham Hire Services to protect the claimant from the inflation of annual costs such as care) has altered the balance. While the benefit to the claimant is that even if periodical payments prove not to meet precisely 100% of the claimant’s need, he can be certain they will provide a very high proportion of it, year in, year out during his lifetime, the downside is that in the absence of a lump sum there is no longer a sizeable fund to raid.

This philosophy, however, falls apart in one circumstance – assessing the appropriate compensation that is required for someone who needs to move to a larger and more expensive house to accommodate their needs.

The problem lies in the large capital sums required and the fact that on the claimant’s death the enhanced value of the property creates “wind fall” profit for the estate.

There are a number of other circumstances where the Roberts v Johnstone formula is problematic especially for a claimant faced with a short life expectancy. The expert can happily advise that a 65 year old claimant or a severely disabled child move to a more suitable bungalow but the reality is that while their needs are similar the shortened life-expectancy of the pensioner could give them only 10% of the money that they require to purchase a suitable new home. The problem is compounded because house prices are now much higher than they were in 1988, particularly in the South East. The result is that in these circumstances the Roberts v Johnstone calculation produces only a fraction of the sum required to purchase the accommodation which claimants need. The remainder of the purchase price is then normally taken from compensation intended to cover other needs such as loss of earnings, therapies, equipment and even care. The consequence is that this money cannot be used for the purpose intended by the parties or the Court when the award was made and some of the claimant’s needs are left unmet.

This goes against a basic tenet of the law which endeavours to ensure that there is no ‘profit’ from a Court award (because a property purchase is an asset with value, rather than an expense) - but only to award enough to meet the needs of the claimant for as long as the claimant requires – and no longer.

In any compensation claim, the prime piece of case law affecting housing is still Roberts v Johnstone, a 1989 House of Lords judgement which establishes the convention for the calculation of compensation for the additional accommodation needs of claimants with severe disabilities. In this, their Lordships considered it appropriate to award an annual sum based on the loss of interest that the claimant would suffer if they had to use their own money from the award to fund their housing requirements. The compensation is currently based on 2.5% per annum of the additional capital required, because the courts assume that if the money were invested elsewhere, the claimant would achieve a real net rate of return of 2.5% per annum. This annual amount is then multiplied by a figure which is determined by the number of years for which the property will be required (ie the claimant’s life-expectancy). Their Lordships concluded that it was inappropriate to award a capital sum calculated as the difference in cost between the existing property (where the claimant and/or parents live) and the new house (required to meet the claimant's changed needs) since EXPERT WITNESS JOURNAL

Conventionally, it was necessary to raid some, or all, of an award for general damages to meet the capital needed for the property. This solution means that general damages will not remain available as an accessible contingency fund. Likewise, the award for future loss of earnings, which is also a potential source of capital for property, does not necessarily remain intact.

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Given there is a consensus that Roberts v Johnstone does not always provide the best solution, it is necessary to consider what alternatives are available.

The main ones include:

that in a 2009 claim in the Ipswich area the claimant was able to re-purchase the property originally purchased for the eponymous Sandra Roberts. This property had originally been sold to them for just under £40,000 in 1989 and was resold for a figure closer to £350,000 in 2009. In this particular case, if the defendant had purchased the property, there would have been a surplus that could then have been reinvested in the Health Service.

Option 1 – Full funding by the defendant.

Option 2 – Defendant purchases the house.

Option 3 – Claimant rents a property.

Option 4 – Defendant pays mortgage costs.

One can understand the claimants preferring to distance themselves from the defendant, but a potential benefit of a continuing relationship between the two parties is the intelligence that already adapted properties are coming to the market. A ‘recycling’ of such properties could reduce the on-going expense of constantly adapting new properties and subsequently re-instating them to their pre-adaptation state in order to maximise value.

In all the options there are pros and cons. In the full funding option, the defendant provides the funds to purchase the property and would have their interest recorded.

There are two possible variants. In one, any wind fall profit at the death of the potential claimant is ignored on the basis that the State is refunded its existing costs through the additional Inheritance Tax levied (although this would not go to the NHS). In the other, the defendant’s interest is recorded so that they can be refunded their investment on the claimant’s death.

Problematically, the claimant has to live in a house owned by the organisation responsible for their condition and their family becomes potentially homeless when they die.

Whilst the principle established in Roberts v Johnstone was that the additional cost to the claimant of purchasing a suitable property over and above their existing living expenses should be recompensed, the concept of a deduction for preexisting family living costs has been eroded by a series of judgements.

In the second option, the defendant purchases the house and undertakes the adaptations. Cowan Architects has worked on a number of house purchases and adaptations for claimants in these circumstances, and I’m aware that this has been authorised by a number of insurers. However, it again reinforces the on-going relationship with the defendant and would create a considerable drain on NHS funding if there were no commercial borrowing available as an alternative.

In Iqbal v Whipps Cross Hospital, the family were in receipt of housing benefit and the Judge concluded that if the state was already making the contribution to the family's living there was little point in moving it from one departmental budget to another. In consequence there was no deduction to take account of the family's current living expenses.

Also, as the law currently stands, the basic structure of Roberts v Johnstone has only limited application to those claimants who are below the age of consent or without mental capacity. The situation has been further developed by the property being purchased entirely by a Trust in the claimant’s name where they are either a minor or without capacity and there has been considerable legal argument as to the appropriateness of any deductions and whether it is correct for the parents to live in effect for free.

In Option 3, the claimant could rent a property with the defendant paying the rent. This was used in Ryan St George v The Home Office but relies on the acquiescence of the landlord to the alterations to their property as well as an extended lease to protect the involvement of both parties when they have undertaken considerable and costly adaptations.

The last option offers the claimant a capital sum for a deposit and the defendant pays the mortgage for the remainder of the claimant’s lifetime. The property is the claimant’s on death and therefore the claimant’s estate is still left with a windfall either through the loan being paid off with a repayment mortgage or an increase in value leaving an asset to the family.

I appeared as a witness in the case of Whiten v St Georges Healthcare NHS Trust where the Judge recommended that the ultimate property to be purchased for Leo was to be entirely at the defendant's expense and that, as the property was Leo’s and given the disruption to their lives that the family had already suffered, it was reasonable for them to live at no cost in the new property. While it may be considered that they could be asked to pay “rent” to live in his home, this was unenforceable, and could lead to him ending up ‘out of pocket’. She concluded that up until the age when he would, uninjured, have acquired his own property, there should be no deductions.

A couple of years ago, I was a member of an informal working party that prepared a report on funding ‘Short Life-expectancy’ cases submitted to the Civil Justice Council, we concluded that there were potential advantages for both claimant and defendant in investigating the different options dependent on the individual circumstances. It is interesting to note EXPERT WITNESS JOURNAL

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In more recent 2015 decisions in both Robshaw v United Lincolnshire Hospitals NHS Trust and Ellison v University Hospitals of Morecombe Bay NHS Foundation Trust, the presiding judge reinforced this interpretation of the law, allowing the totality of all the claimant’s housing costs, up to an age when they would have lived independently as an adult, to be paid by the defendant, bringing in a deduction for their “uninjured” living costs only after that age.

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In conclusion, there are a number of alternative proposals that have been floated, based on either the defendant providing funds to purchase the home outright or through various funding options as touched on above. While it is fair to say that Roberts v Johnstone is not necessarily equitable in all cases and there is likely to be some adjustment to the approach in the future, there are a number of potential solutions that will, for now, be more appropriate than the others in differing sets of circumstances. It remains interesting to see how this conundrum develops and it will be necessary for all interested parties to keep a close eye on new judgements to see how it evolves. ■

Building Pathology; Defects Analysis & Diagnosis

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Mr Chris Roberts BSc Est Man, MRICS As Managing Director of Lamberts Chartered Surveyors he is responsible for the handling of Complaints and Negligence matters and has first-hand experience of mediation and negotiations.

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Specific areas of Expertise include negligence in lending valuations and Leasehold Reform Act matters.

He achieved the Legal Experience Training Advanced Professional Award in Expert Witness Evidence in June 2012.

'ĞŶĞƌĂů WƌĂĐƟĐĞ ^ƵƌǀĞLJŽƌ Nick Holman FRICS ACI Arb nholman@vickeryholman.com 01752 273833

Contact details: Lamberts Chartered Surveyors Edward House, 2 Wakley Street, London EC1V 7LT Email: chris.roberts@lambertsurv.co.uk Web: www.lambertsurv.co.uk Tel: 0207 520 2306 Fax: 0207 837 5790 Mob: 07831 363679

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Arbitrating Construction and Engineering Disputes

by Martin Burns RICS, Head of ADR Research and Development The 1st of May 1998 marked the low point in the UK construction and engineering arbitration sector. It was the day the Housing Grants, Construction and Regeneration Act 1996 came into force, and adjudication started on its inexorable rise to become the pre-eminent method to determining contract disputes.

In the years that followed, the number of arbitrations fell off a cliff while adjudication flourished. In 1995, RICS appointed around 400 construction arbitrators; in 1998, only about 40 arbitrators were appointed, compared to 23 adjudicators. Last year, 10 arbitrators were appointed by RICS compared to nearly 900 adjudicators.

The decline in the popularity of arbitration actually began long before adjudication came on the scene.

Even in the 1980s the process of arbitrating disputes had become inordinately slow and immensely expensive. Parties, particularly those that were involved in low-value disputes about relatively unsophisticated issues, had become disenfranchised from arbitration.

Sir Michael Lathamâ&#x20AC;&#x2122;s 1994 report â&#x20AC;&#x2DC;Constructing the Teamâ&#x20AC;&#x2122;, described the construction and engineering

sectors as so rife with disputes, and so lacking in effective methods to resolve them, that any new process would have been welcome.

Along came adjudication and also, significant improvements in litigation procedures developed through the Technology and Construction Court (TCC). By early 2000s relatively straight-forward disputes could be dealt with in a matter of weeks through adjudication, and more complicated and high-value disputes, which require a greater examination of facts and law, were being dealt with by a highly effective court and specialist judges who were conversant with construction and engineering matters.

But ever changing demands by users have seen an emerging appetite for arbitration once again. The costs of going to court have increased phenomenally in recent times and the Jackson Reforms have given rise to a desire for less onerous cost regimes. Adjudication is not seen as an alternative to the TCC because it is so quick and timetable dependent to the extent that complex and intricate disputes have no proper or thorough investigation. It seems that there is space between adjudication and the TCC that could once again be filled by arbitration.

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It would be fatuous to suggest that the arbitration process, which had become loathed in the 1990s, would once again be acceptable to the industry without undergoing some sort of innovation and re-engineering.

knowledge obtained over many years. There is little doubt that arbitration is making a comeback in construction and engineering and that the market wants construction and engineering professionals to resolve their disputes.

It’s fair to say that a new approach to arbitration in the UK is long overdue. Growing criticism of the use for adjudication for large and complex disputes by parties who naturally wish to avoid the increased costs and formalities of litigation certainly justifies looking at a different approach to arbitration. What is needed is not just an arbitration system that is better, but one that is entirely different. In other words, the reintroduction of arbitration is not just a matter of doing old tried and untrusted things better, but actually doing things materially differently, by creating an arbitration procedure and a panel of quality arbitrators that genuinely breaks new ground.

Parties want arbitration services which not only give access to high quality arbitrators drawn from the surveying, engineering and legal professions, but they also demand high-quality customer service standards which target parties’ expectations in terms of quality, standards and overall client experience. A modern arbitration service needs to be structured to address the concerns of previous years. Arbitrators should be supervised to ensure they use the powers given to them under the Arbitration Act 1996 to robustly manage costs.

The arbitral process should be (and be seen to be) faster and cheaper than the courts, and at the same time arbitration must be better than adjudication by allowing a detailed examination of the issues.

Arbitration should routinely result in decisions that are commercially sensible and better value than judgments by the courts.

The results of an online survey of lawyers and claims consultants conducted by RICS, and discussions held with a number of legal advisors to parties in disputes, suggests that while costs and the length of time it takes to get resolution remain key issues for parties when deciding on a method to get their disputes resolved, there is nevertheless a growing demand for more comprehensive deliberation of issues.

Underpinning a new arbitration regime for construction and engineering sectors, should be a panel of high quality arbitrators representing a variety of professions, all of who should be independently trained and assessed to ensured they are up-to-date with relevant law and practice and able to discharge the role of arbitrator sensibly and without delay. ■

The highly technical nature of construction and engineering disputes, and the demands for commercially-focused outcomes, means parties are increasingly keen to refer to decision-makers who have genuine technical expertise and subject-matter

Martin Burns - December 2015

RICS Expert Witness Training This training will equip experts with the knowledge, practical skills and confidence to prepare for and conduct an expert meeting effectively.

What will you learn?

• The benefits of using an agreed agenda • How to prepare using the case preparation model • Using the topic box model to structure the meeting and as a way to effectively question the other expert • The reasons for areas of agreement and disagreement • How to work effectively towards the Joint Statement and how to draft it.

To find out more: t 024 7686 8584 w rics.org/expertwitnesstraining e drstraining@rics.org

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High Flyers Craig Lippett explains the rules, regulations andtraining needed to fly unmanned aerial vehicles organisations, and with 10 more being approved each week they could number 2,500-3,000 in another two years.

The exponential expansion in the use of unmanned aerial vehicles, or drones, is transforming the way a wide range of industry sectors conduct their business, none more so than the survey community.

To become certified, a company must obtain a CAA Permission for Aerial Work (PfAW), which allows the holder to work for commercial gain and also sets the operational limitations. The key document in the PfAW submission is the Company Operations Manual, which outlines how flying activity will take place, what drones will be used and the safety principles employed. An organisation must be insured for drone operations.

However, the pace of technological advancement has outstripped the evolution of regulations, an issue that continues to provide challenges to operators who wish to fly in more complex environments to meet the needs of their customers.

The majority of those entering this new sector have little or no experience, many simply being established professionals such as surveyors, inspection engineers, asset managers, agronomists and archaeologists. The principles of operating a drone are new so each organisation must learn quickly.

Flying test Pilots must undergo a certification process offered by national qualified entities on behalf of the CAA. They must undergo theoretical training (or demonstrate an acceptable means of compliance such as a private pilot licence (PPL) and a competency assessment, in the form of a practical flying test.

Across Europe, each country has broadly similar regulations, although the transfer of qualifications and operating permissions between states is not harmonised.

This full certification process is offered by the National Qualified Entities (NQE) that have emerged in recent years to deliver on behalf of the CAA.

The UK Civil Aviation Authority (CAA) has adopted a â&#x20AC;&#x2DC;light touchâ&#x20AC;&#x2122; approach to drone regulation, with the aim of finding the line between managing risk to the public while enabling the industry to grow.

The theory element is normally classroom based, over two to three days (although can be as little as one day) and focuses on regulation, airspace considerations, how a drone works, how to set up a flying site, conducting pre-site surveys and risk assessments.

Two years ago there were 260 organisations certified to operate drones in the UK, with 1,600-1,700 qualified remote pilots. Now there are 1050 EXPERT WITNESS JOURNAL

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The culmination is a flying test, during which the candidate is given a representative flying task and demonstrates their ability to plan, set out a flying site, perform basic flying skills and show how they react to emergency situations to assess their competency.

The UK has a high population density (second only in Europe to the Netherlands and Belgium) and a lot of the available work, especially in support of the construction industry, can be found Craig Lippett is Operations Director at Skycap and has contributed to various UK CAA working groups on small unmanned aircraft systems in built up areas. The CAA has recently released the operational safety case concept. This enhanced permission requires the applicant to demonstrate a greater level of safety but could mean an easing of the usual limitations.

If successful, the pilot is certified to fly the configuration and weight category of the drone tested. For example, if it was a Phantom 3 UAV, then the pilot could fly four, six or eight engine rotorcraft up to a weight of 7kg. Between 7kg- 20kg, the remote pilot is automatically qualified for the below 7kg category.

For instance, the standard lateral distance of 50m might be reduced to as little as 10-15m if the applicant can show the correct level of risk mitigation.

The next step is completion of the operations manual, which is submitted to the CAA together with evidence of pilot competency and insurance, and approximately two months later the organisation can expect to be issued with its PfAW.

This can be demonstrated by more comprehensive pilot training, greater safety features on the drone and more safety elements built in to the operational procedures. In general, the more safety features submitted, the greater the reduction in operational limits, and therefore, the wider the choice of work for the operator.

The vast majority of companies that hold a PfAW are concerned with basic aerial imagery for marketing, inspection and high-end production video.

Joining the armoury Although initially slow to recognise the benefits, the survey community is now embracing drone technology as an additional, essential tool in its capture armoury. Sophisticated drone technology means that a survey professional can find it easier and cheaper to get a sensor in a point in time and space to capture the raw data they need.

Only 15-20 enhanced permissions have currently been granted, which puts the holders in a select club of those who can perform work that the vast majority of certified drone companies cannot. In this sector, as in others, it pays to stand out from the crowd.

For surveyors, drones are not the answer to every problem but employed in the right way they fulfil a useful function. And as sensors develop, the future holds some exciting visions.

Drones come in all shapes and sizes, but the class below 20kg make up almost all current certified organisations. They can be rotorcraft (a helicopter with multiple rotors, usually four, six or eight engines) or fixed wing. These fly like conventional aircraft with forward motion generating lift to keep the platform in the air. They can be hand, bungee or rail launched and often employ features such as parachutes to ensure a safe landing.

What about miniature pocket-sized drones that can be taken out and thrown in the air? They could survey a 50ha area in 20 minutes in all weathers with data uploaded to the cloud to be processed and delivered to the client two to three hours after capture â&#x20AC;&#x201C; all with no direct human interaction.

Perhaps not as far away as you think. â&#x2013;

With safety in mind, all drones must have (and be able to demonstrate) failsafe features that automatically bring them back to their launch point in the event that the radio link between the remote pilot and the platform is lost.

Craig Lippett is Operations Director at Skycap and has contributed to various UK CAA working groups on small unmanned aircraft systems Craig.lippett@skycap.com

The proliferation of drone use means that awareness by the general public has grown and news pieces about near misses with airliners keep them in the forefront of safety consciousness.

The rules enable a remote pilot to operate to 500m radius from the launch position and up to 120m (400ft) above the ground, keeping the drone in sight at all times. A margin of 50m must be maintained from people, cars and buildings unless they have been briefed and pilots cannot fly over large groups of people or congested areas â&#x20AC;&#x201C; by definition, villages, towns and cities.

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This article originally appeared in the RICS Land Journal, many thanks to Craig Lippett and the RICS Land Journal for permission to reproduce.

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Trees: The Key to Securing a Long-term Investment

by Mark Chester - Cedarwood Tree Care Trees are generally recognised to be one of the longest-lived features within our landscape, whether this be the urban environment or rural settings. Get it right and we can have an asset for decades and centuries to come, to be enjoyed by those who plant them, and future generations. However, with the newly-planted urban tree typically failing to live for two decades and as many as 25% of all newly-planted trees dying within 2 years, something is evidently wrong. If a tree is a focal point, then with its decline, all of the investment in infrastructure is lost or has a reduced impact.

several times this size can increase significantly further. Allowance needs to be made for this growth if the tree is not going to out-grow the setting and either be felled or require regular pruning to ensure it fits the available space. This may sound obvious, but I find that it is a factor often overlooked by planning professionals who are less familiar with trees than the arborist.

A key consideration is the timescale of a development, and how this may affect trees being planted. Once completed, residential developments can remain relatively unchanged for many decades and even centuries, allowing time for trees within the landscape, even the slower growing species, to mature and become established. In such situations, it can be effective to plant species which live for 100 or more years. Selecting ornamental trees, which typically live for only several decades, is generally a lost opportunity, as it is less likely that dead specimens will be replaced.

We increasingly live in a world of short-term priorities, in which planning for five years hence can be viewed as the long term. Indeed, in the world of planning, one which frequently involves trees, there is often consideration for only the first five years of a developmentâ&#x20AC;&#x2122;s life. However, trees function in a timespan of decades and centuries. Many of todayâ&#x20AC;&#x2122;s mature specimens were here before we were born, and will out-live us. A longer-term perspective is required in order to secure the mature trees of tomorrow.

For a retail environment, where major changes to landscape and infrastructure can be anticipated sometimes within a decade or less, impact is more important, and a tree which takes fifty years to fully mature is unlikely to be allowed the luxury of such time.

One factor to be considered is how a tree will relate to the landscape around it in the coming decades. Will it have sufficient space to fully develop? Will it be able to adapt to the climate? Will the characteristics it presently presents remain beneficial to those living within its sphere of influence? How often does a land owner desire a quick growing evergreen hedge to screen an eyesore, not appreciating that the hedge will continue to grow rapidly after the desired height has been reached? The tree planted as a 2-3m tall specimen, or even as a larger semi-mature specimen EXPERT WITNESS JOURNAL

The setting in which a tree will be planted and become established should be a major factor in species selection. Alder is fast growing, can attain heights of more than twenty metres, tolerates both drought and flood, and the harsher environments typically found in urban settings. It is ideal for car parks and industrial settings. However, the shading 80

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caused by a mature specimen makes its use in residential areas a more delicate proposal.

Manchester, where Birch trees were planted on a road frontage of a busy local road, showed a significant reduction in air pollutants from passing traffic reaching homes nearby. They can reduce run-off by as much as 60% and temperatures can be reduced by up to 20C.

There are situations where a larger tree would detract from the local enjoyment of the setting. In such situations, selecting smaller trees such as Rowan and the Whitebeam, whilst not as long-lived or as substantial as the Alder, can contribute locally. If a tree is to remain as a longer-term asset, enhancing the local environment, then the contribution needs to remain positive. Shading in a car park or communal area can be welcome. Heavy shading in gardens, and damage from roots, especially near to homes, can lead to requests to prune or fell, an investment of unfilled potential, a wasted opportunity.

Trees can make a financial difference. They are associated with urban regeneration and enhancing the quality of life in urban settings. The i-Tree project which has surveyed trees across urban areas such as Birmingham, London and New York, has demonstrated that the tree population in these areas can be worth hundreds of millions of pounds. The survey in London, completed during 2015, found some 8.4 million trees which provide some £132 million in annual benefits such as carbon sequestration and reduced energy costs from cooler air. This does not include the capital value of the trees or the cost of replacing them. In New York, the i-Trees survey found that for every dollar invested in managing the tree population, there was a return of more than four dollars.

The process of enabling a tree to realise its potential as an investment should begin before the tree has been purchased. An appraisal of the site is needed to establish constraints and define the desired outcome.

Why are we planting this tree? What outcome are we seeking? What will the tree need in order to become established? Something as seemingly obvious as irrigation being overlooked can render all other considerations irrelevant.

One of the challenges is that trees are often unseen, and their benefits not fully appreciated. As a result, we as tree enthusiasts take every opportunity to share the message of the benefits. One element I look to promote is how many situations can be enhanced by tree planting. There are the settings that may seem more obvious, such as amenity spaces including gardens. There are also many places where trees can add considerably, but which may not seem so obvious. These include car parks and pedestrianised areas. I call it ‘planting trees in impossible places’.

One site where I have surveyed the trees for several years has seen major redevelopment during this period. Surveying the trees at the end of a particularly hot and dry September (2014), I noted some newly-planted Birch in raised beds. Birch are sensitive to the roots becoming dry. They have shallow roots and focus on growing rapidly and producing vast quantities of seeds. These trees were already showing signs of drought stress and there was no evidence of watering infrastructure. The effect of gravity on drainage also seemed to have been overlooked.

In the past decade, much work has been done to develop subterranean infrastructure which can sustainably support trees and other plants within hard surfaces. The growing media (it doesn’t necessarily have to be soil) needs to be protected from compaction. There also needs to be space for sufficient media; it will need to sustain the trees for the long term. It also needs to be sufficiently robust to support the traffic above ground. This enables trees to be planted in the middle of car parks and high streets. They can enhance new developments and contribute to a better environment.

Birch can recover, and with prompt intervention, a second flush of leaves can be grown. For this group, however, the damage had already been done. An excess of water can be as damaging, if not more, than the roots drying out. Water displaces oxygen and causes anaerobic conditions to develop. Tree roots do not contain chlorophyll, and so need oxygen to function. A system that enables carbon dioxide to be removed and replaced with oxygen in the soul will better equip roots to thrive.

Last year, I was able to assist a factory owner working to convert an area of waste ground to a car park for his expanding business. The site contained some trees which had been planted as part of landscaping back in the 1970s, and whilst they were mature, and contributed to a setting with little other green cover, showed the signs of limited management. The trees were crowded and there were few individual specimens I considered worth retaining. It wasn’t practical to retain existing trees within the site and provide optimum parking spaces.

There are two elements to securing the long-term investment with trees: creating the opportunity and conditions, and ensuring that the trees selected are suited to the situation and structurally and physiologically equipped for the challenges they are likely to face. Trees contribute so much to the local setting, providing shade, cooling the air through the shading and evapotranspiration, infiltrating water to reduce surface run-off, screening eyesores and providing focal points. Research by Professor Roland Ennos in EXPERT WITNESS JOURNAL

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The local planning authority, understandably keen to enhance the tree cover in a very built up area, sought to have a new tree planted for every good one which needed to be removed. This could have become a problem, which may have threatened the viability of the proposals, with space being limited. However, combining careful design with the subterranean infrastructure, it was possibly to incorporate new trees within the layout, and keep all of the parking spaces required. The trees were carefully selected to enhance both the immediate site and the local setting. I do encourage tree planting wherever possible, with the use of smaller, ornamental specimens where space is at a premium. Larger trees are often more valuable in terms of longevity and contribution, for example, being more visible. However, as mentioned earlier, there may not be the space for them, and they are not always welcome. In such scenarios, I find it is preferable to plant smaller trees that fit the setting than no tree.

This brings me to the second key factor, that of ensuring the tree is suited to the setting. There are two important elements: design and production. If either of these elements has not been fully considered, the best of intentions can easily be thwarted. For example, a colleague of mine who specialises in selecting the optimum tree for each setting, recalled a development in a coastal setting, where trees were afforded a high priority, with care being taken to allocate space, generous provision for growing media and irrigation, and designing the trees to complete the locality.

One key issue had been overlooked. Beech trees were chosen as the main feature. Unfortunately, they dislike salty conditions, and should not be chosen for coastal settings. These particular trees were unable to become established in the setting, and died in their first year, rendering all the investment in infrastructure, and of purchasing, planting and maintaining the trees, void. Choosing trees which thrive in coastal settings would have ensured the aim of establishing good tree cover was met.

My experience is that, all too often, the process of selecting the tree is given lower priority than other elements, such as site design and street furniture. One thing to remember when a tree dies is that the cost of the lost is often more than just the physical cost of the tree concerned. This would typically be several hundred pounds. When a tree has been planted in a hard surface, whether a footpath, car park or similar setting, there is the additional cost of creating the planting pit to accommodate the tree. The cost of opening up a tarmac surface can be several times greater than that of the tree, and it is not always possible to plant a replacement.

To be suitable for the setting, we first need to evaluate the site, looking at: • Ground conditions (is there open ground for trees, or will they need to be accommodated within the new built infrastructure?)

• What is the aspect? Where is the prevailing wind coming from?

• Will the site experience extremes in temperature and soil moisture? Some sites can be flooded periodically, and then experience droughts.

• Is there existing tree cover? Is this going to be retained, in part or in all?

• Are there key views to protect, screen or enhance?

• Are any focal points to be created?

• Are there local limitations, such as coastal air, frost pockets and strong prevailing wind? These can require tree selection from a list of those particular suited to thriving in such settings.

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The final factor, which is arguably the most important, is the condition of the trees to be planted. As I mentioned in my opening paragraph, as many as 25% of newly planted trees die within the first two years following planting. One of the factors is the quality of the tree that leaves the nursery. It is shocking that some trees are dead when they leave the nursery, and others are utterly ill-equipped for the conditions they will face when planted in the landscape.

Not all problems are hidden away in the tree. Some issues are very evident, and I encourage clients to inspect trees either prior to despatch or on delivery.

I have encountered issues relating to trees that should never have left the nursery, including several involving trees purchased at some cost from a local garden centre. Structural weaknesses do not necessary become problematic until a tree has become mature.

Several years ago, I was asked to assess a specimen conifer which had broken at the base. It was situated on a boundary, and relations with the neighbour were not as amicable as my client wished, and there was concern that the damage may have been malicious.

Before taking the matter further, he wished to establish whether there was a natural cause to the damage. The tree had been purchased in a container from a local garden centre. I recognised that root girdling had occurred. If a plant is kept in a container for too long, it becomes root-bound. Roots then begin to grow around the inside of the container, and then around the trunk. If allowed to continue, the roots can restrict the growth of the trunk, which can then snap. This particular tree was doomed to fail before leaving the garden centre. Whilst my client lost a tree, he had the reassurance that the cause was natural and avoided aggravating the situation with the neighbour.

Guidelines identifying best practice for nursery production were published in 2014 (BS8545:2014, ‘Young Trees from Nursery to Independence in the Landscape’). There is guidance in the development of healthy roots, the formation of a good, open crown with a strong central leader, the requirements of a sustainable planting pit and options for staking. The British Standard benefits from best practice ideas and research from the past decade or so guiding the recommendations.

One of these has been the development of chlorophyll fluorescence data for assessing vigour in trees. Whilst this technology has been used since the 1970s especially for the cut flower industry, the recent development has focused on nursery trees.

Collaboration by the research specialists Bartlett’s and Barcham Trees has produced a benchmark library of data covering more than 200 species of trees.

Equipment has been developed which enables readings to be taken in the field in a non-invasive manner. These readings can then be compared to the benchmark for the species to identify the chlorophyll activity of a healthy tree.

The reading measures the efficiency with which chlorophyll in the tree leaf is able to absorb sunlight.

Like a human, whose alertness and productivity can be reduced by ill health such as flu, a tree with physiological problems will operate at reduced efficiency. What is exciting is that the chlorophyll assessment can detect changes which are not evident externally. A tree which has been sprayed with a herbicide may not show signs of the damage for 48 hours, which can be too late for treatment. Drought stress can take up to 21 days to show.

Principle Consultant

Mark Chester BSc (Hons); Tech. Cert. (Arbor.A.); MIOH; F.Arbor.; C.U.E.W.; C Env.

Mark has experience in Tree Preservation Orders, boundary disputes, amenity tree valuations, planning permissions and tree works.

He can provide feasibly assessments, support mediation and produce technical reports, and can guide your case through to a court hearing. Mark has undertaken specific training in cross examination and has an excellent track record of successful courtroom witness cases.

Dr. Glynn Percival, who runs the research centre for Bartlett’s, shared with me an experience where he ran the test on nursery trees delivered to a site for planting in the landscape. The trees looked healthy, but the chlorophyll test indicated drought stress.

Glynn concluded that the trees lacked the vigour to become established, and suggested that the order be returned to the supplier, who, needless to say, was not happy with the proposal. Glynn had to wait for 21 days before the effects of the drought stress showed in leaf senescence. This was in the early days of product development, and he was relieved to be proved right.

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Mark Chester holds the Cardiff University Law School Bond Solon Civil Expert Certificate, enabling him to provide Expert Witness support for court cases and tree disputes, including Tree Preservation Order breaches and compensation for tree damage. A recent case summary described Mark as "a very impressive and authoritative witness."

Contact Details Telephone: 01981 570426 Mobile: 07888 838360 Email: enquiries@cedarwoodtreecare.co.uk Website: www.cedarwoodtreecare.co.uk

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I mentioned, when referring to BS8545:2014, that a tree on the nursery should have a strong central leader. This does not necessarily form naturally.

Whilst in a forest setting, where there is competition for light and resources, there is pressure to gain height in order to reach the canopy, for many trees grown for amenity, there may be little competition for resources, and space for side branches to become established. This often leads to poorly developed branch unions. These are structurally weak, and vulnerable to breaking, especially during inclement weather. The consequences of failure can be significant, and not just the potential loss of the tree.

The good news is that restorative pruning can be undertaken on even established trees, ensuring that the investment is not necessarily lost due to earlier oversight.

Trees contribute to our quality of life for generations ahead. They can cool the air, clean the air and enhance our general well-being. Much of the cost occurs in the early years. Whilst many trees do fail, with care and an informed approach, those suited to the situation will readily mature to become established specimens providing a return on the investment for decades and potentially centuries to come. â&#x2013; Mark Chester Tree Consultant, Chartered Arboriculturist

Electrical Investigations

Dr Antony Anderson CEng FIEE Electrical Consultant and Expert Witness Investigates and reports on causes of electrical system & machine failures including alleged automobile cruise control/electronic throttle control malfunction (uncommanded sudden acceleration) Capability Statement on electrical failure investigations Offers ideas and solutions the improve design/manufacturing processes

www.antony-anderson.com 26 Westfield Drive, Gosforth, Newcastle upon Tyne, NE3 4XY Tel +44 (0) 191 285 4577 Email: antony.anderson@onyxnet.co.uk

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Wood: Manâ&#x20AC;&#x2122;s Oldest Building Material.

If Only We Knew How To Use It!

by Roger Galpin, The Wood Shop Consultancy The amount of water in wood rises and falls in response to changes in temperature and humidity, so it is not possible to prevent wood from expanding and contracting in service. However, this movement can be minimised by drying the wood to a level that it is likely to achieve in service, referred to as its equilibrium moisture content. As an example, indoor furniture would be expected to have a moisture content of around 8-10%, whilst garden decking can be expected to attain an equilibrium of around 16% moisture content; this level would be subject to seasonal variations, becoming higher in winter and lower in the summer.

Summary The uses for timber are almost endless. Its excellent environmental credentials, and widespread feature in makeover programmes and lifestyle magazines, architectural press etc. has lead to something of a renaissance for wood in recent years, a trend which seems set to continue.

However, to make the most of the unique appeal of timber in our homes and buildings, we need to be aware of its natural characteristics which, if overlooked, can cause projects to fail and disputes to arise.

Beginners Guide to Timber Technology As one of the oldest materials known to man, wood has provided us with fuel wood, pulp and paper, utensils, furniture and a first class, environmentally friendly building material. So, given our familiarity with timber, why is it that some attempts to use it can result in expensive litigation?

One other significant factor related to moisture content is the susceptibility of timber to decay. Wood destroying fungi, often responsible for timber decay in buildings and wooden structures, require timber to have a moisture content in excess of 22% for a prolonged period in order for them to become established and sustain their attack. However, a higher moisture content is one of the factors required by the fungi for optimum growth. For example, the true dry rot fungus, Serpula lacrymans, favours a moisture content of around 30-40%, while many of the wet rot fungi require a moisture content of around 50%.

In some cases, it would seem that it is our very familiarity that is the problem. So often, our failure to specify the correct species, treatment and condition of the timber can result in problems later. Likewise, poor manufacture, installation or incorrect maintenance can also result in timber projects falling short of expectation. As a consequence, it is often not the timber itself that is at fault but the way in which it is used.

Moisture content is of course just one factor when considering using timber. There is a wide range of industry standards and guidelines relating to timber specification to ensure that the correct timber is used in respect of durability, strength, appearance, movement characteristics etc.

An understanding of some of the basic properties of timber will help to ensure that it is used correctly, whether it is for a multi-million pound building or a weekend DIY project.

The following case studies illustrate what can go wrong if care is not taken with specification, material selection and manufacture.

One of the most important and yet least understood factors, is that of moisture content.

Timber contains a large amount of water when it is freshly felled and it needs to be dried so that it can be used without excessive shrinkage and distortion. The amount of water in a piece of wood is referred to as its moisture content. This is expressed as a percentage of the dry weight of the piece, not of the total weight; hence it is possible to have moisture contents in excess of 100%.

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Case Study 1 In line with the growth in popularity of wood flooring, the client wished to combine the traditional appeal of 200mm wide oak floorboards with modern under floor heating.

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the low moisture content required for such an end use. The specification also failed to recognise the difficulties in installing solid, wide section floorboards over under floor heating where either narrower boards or flooring made from an engineered, or multi-layered, construction would have been more appropriate.

Case Study 2 As part of a barn conversion project, the client specified bespoke oak windows and doors which were designed, manufactured and installed by a local joinery company. Shortly after the owners had moved into their dream home, they unfortunately experienced various problems with the joinery. This included doors that jammed, windows that leaked and frame sections that had cracked.

Following a detailed examination of the joinery, the issues arising were found to relate to the manner in which the oak had been seasoned by kiln drying and its moisture content at the time of manufacture.

Oak has been used for centuries for external joinery and is detailed as being a suitable species in the relevant British Standard. However, it is considered to be a refractory species in relation to its drying characteristics, regarded as being difficult to dry, with a tendency to check, split and honeycomb.

One of the other characteristics of oak is that it has pronounced medullary rays. Whilst these are of decorative value, as in “silver figure”, they also present a plane of weakness along which rupture of the timber may occur if dried too quickly, which

Above top, Using a moisture meter to determine condition of oak flooring. Below, Timber stacked ready for kiln drying Following installation, the client began to notice gaps developing between the floorboards coupled with distortion of the boards themselves. A dispute subsequently arose over the fitness for purpose of the flooring, in respect to its specification, its manufacture from a solid section, and its condition at the time of installation.

The architect’s specification referred to the correct British Standard but detailed the recommendation for intermittent heating of 10% to 14% moisture content, rather than a more appropriate condition of 6% to 8%.

By considering the known movement characteristics of oak it is possible to first establish the existing condition of the flooring and then to determine by calculation the original condition of the flooring at the time of installation. It can then be established whether the flooring complied with the specification.

In this case, it was found that a 4% reduction in moisture content due to drying out of the flooring in service had resulted in shrinkage of 2mm across each of the 200mm wide boards. Not only had this resulted in unsightly gaps between the floorboards but distortion of the boards themselves.

Whilst the condition of the flooring was found to have complied with the specification, the specification itself was found to be at fault as it did not take account of EXPERT WITNESS JOURNAL

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results in fissures radiating out from the centre of the log, or pith, across the growth rings.

The difficulty is that these fissures may not be apparent at the time of manufacture but with external joinery can subsequently appear as a result of movement in service when subject to the elements of the weather.

In this case, it was also found that the timber had been dried to a level that was too low for external use. When subject to wetter weather, the wood components expanded which resulted in some distortion as well as swelling of the doors and windows. Not only did this have an adverse effect on their operation but in some cases they were no longer weather-tight.

The extent of fissuring and excessive movement exhibited by the joinery was considered to render it not fit for purpose and it had to be replaced.

Above, Poor quality oak used focused for window manufacture recommendations of the relevant Standards and would not therefore be considered fit for purpose. ■

Case Study 3 Promoted by numerous garden makeover programmes and lifestyle magazines, the growth of the timber decking industry in the UK in recent years has been dramatic (from less than £5M in 1998 to a projected £200M by 2018 according to industry sources).

About the Author Roger Galpin is a graduate in Timber Technology and is an Associate of the Institute of Materials, Minerals & Mining (Incorporating the Wood Technology Society, erstwhile Institute of Wood Science). He has been involved with the technical issues concerning wood products for over 30 years, and, and has prepared hundreds of reports in relation to the use of timber and wood products, particularly in construction. His daily involvement as an industry consultant enables him to provide an

In this case, the householder had enlisted the “expertise” of a decking company to install a simple ground level deck in his garden. After only 3 years, excessive deflection was noted to one end of the deck.

The householder found that the supporting joists appeared to have rotted where they had been partially built into the ground, necessitating the replacement of the deck.

Although there is currently no formal British Standard specifically for decking, there are various industry guidelines as well as formal standards concerning the use of timber in external situations.

In this case, where timber was used in ground contact, it must be either of a naturally durable species or otherwise pre-treated with preservative applied by pressure impregnation; this is a commercial treatment process and should not be confused with brush applied treatments.

Non durable species such as European whitewood and redwood (spruce and pine), are commonly used for decking and must be pre-treated with the correct levels of preservative in respect of their end use.

In this case, untreated timber was used in a high hazard situation where it rapidly attained a high moisture content that enabled decay fungi to flourish, with the result that the joist sections failed in a relatively short period of time. The timber used, in its untreated condition, did not comply with the EXPERT WITNESS JOURNAL

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opinion based on current best practice as well as providing technical information on wood products.

He has been involved as an Expert Witness for over 25 years, and has attended many of the training courses, promotional events and conferences that have been run by professional bodies within the legal industry; most recently in 2015 when he was certified as an Expert Witness by Cardiff Law School having completed the Cardiff University Bond Solon Expert Witness scheme. As such he is conversant with the requirements of CPR 35 and has gained a broad experience in preparing legal reports, dealing with solicitors, conferences with counsel and giving evidence in court.

Mr Galpin can be contacted via www.timberconsultancy.co.uk, by email: roger@thewoodshop.biz, or by telephone: 01480 469367.

Picture opposite, Although the basics are sometimes overlooked, we have learnt to do some amazing things with wood!

Improving NHS Productivity in Elective Care will Reduce Costs and Cut the Time Patients Spend in Hospital The NHS could increase productivity in elective care significantly and cut the length of time patients spend in hospital, if it takes up recommendations in research by Monitor.

Mr Daniel Lewis Consultant Orthopaedic Surgeon

The regulator has set out a series of practical steps that hospitals can take to improve clinical outcomes and reduce the amount of money spent on Ophthalmology and Orthopaedic services by between 13% and 20%.

MBBCh, MRCS, FRCS Ed (Tr & Orth)

Mr Daniel Lewis is a Consultant Orthopaedic Surgeon based in South Wales. He has a broad experience of both elective and trauma orthopaedics. He personally sees approximately two thousand patients in the outpatient setting annually, with a wide variety of orthopaedic complaints and injuries.

The research, developed with the Royal College of Ophthalmologists and the British Orthopaedic Association, has looked into the efficiency and productivity of elective services at a range of NHS providers, as well as at 5 international centres.

His specialist area of interest is lower limb surgery, especially that of the knee.

A result of close collaboration with providers, the report and its detailed appendices describe where and how elective teams can concentrate their efforts to maximise quality and efficiency, from first consultation to follow-up after operations. The results include benefits for patients, such as shorter hospital stays.

He has experience of many aspects of knee surgery, including general knee trauma, sports injuries, ligament reconstruction, as well as full and partial joint replacement.

Contact: Dr. Daniel Lewis Tel: 08445 617 152 Email: info@csortho.co.uk Web: www.csortho.co.uk Cardiff Sports Orthopaedics Spire Hospital Cardiff, Croescadarn Road, Cardiff CF23 8XL Area of work South Wales and Nationwide

Monitor intends to do further work with foundation trusts to support providers in the implementation of the recommendations in the report. â&#x2013; EXPERT WITNESS JOURNAL

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FOSFA

by Pierre de Jager, Consultant Chemist CWA International Ltd. The worldwide consumption of edible oils can broadly be divided into two main areas, i.e. food and non-food use. Edible oils, apart from being used as a food source, can also be used in the oleochemical sector for the production of personal products such as shampoos and soaps and for industrial applications such as the manufacture of paints and chemical intermediates. Additionally, as indicated above, oils and fats are used in the production of fatty acid methyl ester (FAME) components which can be used as a blending agent in the bio-diesel fuel sector.

The bulk transportation of edible oils by ocean tanker vessels is a well established international trade encompassing a wide range of plant and animal oil/fat products. Carriage aboard tankers is regulated by the International Maritime Organisation (IMO) and commercial aspects are governed by international contract bodies such as the Federation of Oils, Seeds and Fats Associations Ltd (FOSFA) and the National Institute of Oilseed Products (NIOP).

The majority of edible oil products are shipped from the major oil producing countries such as Malaysia, Argentina, USA and EU to areas where demand is highest including, more recently, the increasing demand of emerging countries. Further, demand for edible oil products has also been driven by the increasing utilisation of oils and fats in the manufacture of bio-fuel production, which is nowadays seen as a renewable fuel source.

Oils and fats intended for human consumption require care when transported by sea and generally during storage and custody transfer operations.

International food trade has, of course, existed for thousands of years but until relatively recently food was mainly produced, sold and consumed locally.

Over the last century the amount and variety of food traded internationally has grown exponentially; the term â&#x20AC;&#x2DC;food-milesâ&#x20AC;&#x2122; has become familiar. Standards and Guidelines for the carriage and storage of food products are provided by the World Health Organisation (WHO) and Food and Agricultural Organisation(FAO) of the United Nations in the Codex Alimentarius. The latter publication outlines harmonised food standards and practices for the protection of product quality and consumer safety.

Food hygene principles outlined in Codex Alimentarius are adopted worldwide and in commercial terms edible oil and fat cargoes are shipped, as mentioned previously, under contractual terms issued by such bodies as FOSFA or NIOP which are in accordance with the requirements of Codex Alimentarius for the safe carriage of the goods.

Global production of edible oils has increased year on year with a global production of 175 million metric tonnes recorded for 2014/2015; palm and soybean oils making up the largest constituent parts of the edible oils consumed1.

It is currently estimated that approximately 85% of edible oils and fats traded worldwide are shipped under FOSFA contracts. The benefit for using standard contractual terms is that there is a reduced potential for misunderstanding leading to costly disputes between the trading parties. The use of a central contract body also allows for a common jurisdiction and language to be used throughout the trading process and the contract issuing body also provides mediation and arbitration services should dispute arise.

1

FOSFA Contracts The Federation of Oils, Seeds and Fats Associations Ltd. (FOSFA), is a professional international contract

Statistics obtained from Statista

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issuing and arbitral body concerned with global trade in oilseeds, oils/fats and related oleo products, such as FAME. Standard form contracts are offered for goods shipped under various trading terms for a variety of seeds and vegetable/marine/animal oils and fats.

Some thirty contracts are offered for the trading of oilseeds which include the ‘major’ products such as soya, groundnuts, sunflower, rapeseed etc. together with generalised contracts for ‘Oilseeds’. More specialised contracts are issued for goods such as flax, linseed, sesame, cotton seeds etc. FOSFA issues twenty two contracts for vegetable/marine/animal oils and fats and in same way for oilseeds, some are specific to certain trades and others generalised, for example:-

Oils and Fats in Bulk for Edible and Oleo-chemical Use’. Qualifications include, amongst other things, being classified by a recognised Classification Society.

Due to the catalytic nature of copper, cargo tanks and the associated containment system (pumps, heating coils, pipework etc) must be free of copper-alloys. For ships with coated cargo tanks, the coatings must be approved for the carriage of foodstuffs and be in good condition with minimal rust and no closed blisters or loose splits. Tank hatches must be staunch and all internal structures in the tanks are self draining.

The Master of the vessel must issue a ‘FOSFA Combined Masters Certificate’ which warrants that the vessel meets the above qualifications and declare the last three cargoes carried in the cargo tanks, which must not include leaded products. The Master must also declare the tank cleaning methods used to cleanse the tanks.

Contract No 52: Sunflower seed Oil in Bulk European Ports – FOB Terms Contract No 53: Vegetable and Marine Oil – FOB Terms Contract No 54: Vegetable and Marine Oil – CIF Terms

The Member Superintendent must issue a ‘FOSFA Certificate of Compliance, Tank Cleanliness and Suitability of Ship’s Tank’ for each cargo tank to be loaded which warrants that each cargo space was visually inspected and deemed suitably clean to accept the nominated cargo. Last, second and third last cargoes are reported and declared to be not a substance appearing on the current ‘FOSFA List of Banned Immediate Previous Cargoes’ and that the tanks comply with other restrictions beyond the immediate previous cargoes as set out in the ‘banned list’. Alternatively, as might be required under the terms of some contracts the immediate previous cargo must be a substance appearing on the FOSFA List of Acceptable Previous Cargoes with other restrictions beyond the immediate previous cargoes as set out in the ‘acceptable list’.

Contract No 80: Crude Unbleached Palm Oil – CIF Terms (Issued in conjunction with MPOA) Contract No 81. Palm and Palm Kernel Oil Products (Issued jointly with PORAM, MEOMA) In view of the complexity involved in the carriage of bulk oils and fats, and to ensure that all the trading parties remain satisfied throughout the custody transfer chain, FOSFA issues guidelines and prerequisites to be met by the trading parties, ships engaged in the carriage of the cargoes, the cargo superintendants and laboratories associated in the shipment process.

Cargoes carried under FOSFA contracts are independently surveyed by approved ‘Member Superintendents’ who comply with the FOSFA ‘Code of Practice for Member Superintendents’. Shipments are conducted according to practices set out in the COP which, amongst other things, stipulates the pre-shipment approval of cargo tanks, measurement ascertainment required to quantify the cargo when loaded to, or before discharge from a tanker and the sampling requirements to accurately determine the quality of the goods. The sampling requirements are comprehensive and include the procedure by which samples are drawn, the specification of the sampling equipment itself, how many and size of samples drawn and the locations in the custody transfer chain at which they are taken. Even the materials from which the sampling bottles are fabricated are specified.

The Certificate of Compliance also confirms that the Member Superintendent has checked ship’s records to confirm the declared tank cleaning methodology provided in the Combined Masters Certificate, has inspected tank hatches and closures and, so far as possible, ship lines/pump and heating system and which latter were found to be copper-free and suitably clean.

FOSFA, in seeking to maintain cargo quality during bulk shipment, developed the lists of ‘acceptable’ and ‘banned’ previous cargoes during the 80’s/90’s as a result of industry concerns following a series of contamination incidents. These were attributable, in part, to advances in scientific analysis methods giving improved limits of detection for ‘foreign’ substances.

The banned list of previous cargoes was drawn up to ensure that products and chemicals which are known to be toxic and persistent are not shipped prior loading FOSFA contracted cargoes.

Insofar as shipowners are concerned, the vessel must comply with ‘FOSFA Qualifications and Operational Procedures for Ships Engaged in the Carriage of EXPERT WITNESS JOURNAL

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This has proved to be a very successful strategy and contamination incidents by ocean carriers are now a comparatively rare occurrence. As indicated above, trading parties do not necessarily have to stipulate that last cargoes should not be on the ‘banned list’, there are very many cargoes carried aboard tankers that are neither on the FOSFA banned or acceptable lists. The fact that a last cargo may not be described on either the acceptable or banned lists would not make that specific tank unusable for loading a FOSFA cargo, providing that the trading parties mutually agree to its acceptance. However, the trading parties can also, by inclusion of the so-called ‘AS9 clause’ within their contracts, stipulate that the immediate previous cargo has to be on the FOSFA ‘acceptable list’. This provides extra quality assurance as the acceptable list only includes safe food compatible products.

INTERNATIONAL CWA International is experienced in all aspects of expert witness work including giving evidence at hearings worldwide Within the four key industry sectors of Oil, Gas & Chemicals, Food & Dry Commodities, Metals & Minerals, and Marine & Ports, we have a proven track record of identifying the causes of incidents both onboard ships and on shore. In addition we offer fire investigation expertise.

Our reports are prepared for litigation and arbitration.

Most of our senior consultants have given expert witness evidence in the High Court and at arbitration worldwide. We also assist in mediations. Our work in this area is supported by extensive in-house resources, including a database of thousands of case studies.

Since 1978 CWA has investigated over 7,000 incidents with claims ranging in value up to $14 billion. We have also prepared expert witness work for several hundred cases.

Some ‘soft oils’, such as soya bean oil, do not require heating during transport, however, more saturated oils/fats typically must be carried at elevated temperatures in order to keep them liquid and sufficiently mobile to enable pumping at reasonable rates of flow. In the absence of cargo heating instructions from Charterers and/or Shippers, the relevant ‘FOSFA Heating Instructions in Respect of Bulk Shipment of Oils and Fats’ shall be followed and the temperature of the cargo recorded on a daily basis. The FOSFA heating recommendations provide voyage min/max temperatures and additionally temperature at discharge min/max requirements for no less than thirty seven products including various refined palm oil fractions, each with differing thermal requirements.

24/7 Response on +44 (0) 20 7242 8444 Fax: +44 (0) 20 7242 7555 E-mail: cwa@cwa.international Website: www.cwa.international CWA International Ltd, Balmoral House 9 John Street, London WC1N 2ES

Specifications of edible oils The main quality parameters associated with edible oils depend upon the type of oil shipped and whether it is a unrefined crude product or an already fully or partly refined product. FOSFA contracts that are specific to products such as, say, Contract no.80 for Crude Unbleached palm Oil or Contract no.58 for Olive Oils and Olive Pomace Oils will incorporate specific (and very different) quality specifications.

Maximum heating rate of 5°C/24 hours is stipulated in order to prevent thermal ‘damage’ to the quality of the oil. Insofar as is practical, top and bottom tank temperatures should be maintained at the same temperature but never at a differential greater than 5°C. Recommended voyage temperature for any oil is always lower than the recommended discharge temperatures, the elevated temperatures enabling expeditious cargo handling operations.

Notwithstanding, the quality of edible oils are frequently described by some or all of following quality parameters:• Free fatty acid content (FFA) • Moisture and impurities (M&I) • Colour (Lovibiond) • Melting point • Iodine value (IV) • Saponification value

Whilst FOSFA does not provide any recommendations as to temperatures during loading operations it is stipulated that Shippers should ensure that the temperature of the oil during delivery into the tanks of a ship is that at which the oil is usually handled and that where heat is applied, the temperature of the oil in no case exceeds that given in the heating recommendations i.e. the discharge temperatures.

Specification limits are stipulated in the FOSFA sales contract, which, in turn, is often based on the local manufacturers’ specifications, which for palm oil are PORAM, the Palm Oil Refiners Association of Malaysia or MEOMA, Malaysian Edible Oil Manufacturers Association. Similarly, a typical soyabean oil specification is issued by ABIOVE, Associação Brasileira das Indústrias de Óleos Vegetais.

The use of elevated temperatures is limited during handling due to the fact that certain cargo degradation mechanisms such as FFA formation and oxidative rancidity increase at elevated temperatures.

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Background to basic refinery methods The general composition of edible oils comprises one molecule of glycerol combined with three molecules of fatty acid to yield a molecule called a fatty acid 91

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triglyceride ester (sometimes called a lipid) A figurative illustrating a triglyceride molecule is shown below (Figure 1).

filtration, resulting in the reduction in colour and moisture of the oil.

Deodorisation is the final step involving heating the oil, typically to 200°C, whilst applying a vacuum and passing steam through the oil. This is done to facilitate the removal of any volatile odoriferous molecules that might taint the product.

Upon completion of same, the oil will be classified as refined, bleached and deodorised or RBD, a prefix commonly seen when describing edible oil grades on Bills of Lading.

Physical Refining Physical refining is an alternative to chemical refining and is a method where the removal of FFA is facilitated by distillation at high temperature and low vacuum. In the same way as chemical refining, the deodorisation step is used to remove any volatile components by using heat, vacuum and steam, with steam being used as the stripping agent.

Figure 1. “Typical” fatty acid triglyceride ester shown above.

A lipid having a high degree of unsaturation (C=C bonds) is typically described as being an oil and is usually a liquid at ambient temperatures. In contrast, fully saturated lipids are typically solids at room temperature and are described as being fats.

The application of steam will reduce the FFA concentration of the crude oil due to the volatility of the FFA. The secondary oxidative products, such as aldehydes and ketones that are formed by the breakdown of hydroperoxides are also removed by the same process.

Refining of edible oils and fats is a necessary step in the production of wholesome products suitable for consumption with the main objective being the removal of impurities and other products that adversely affect the quality, specifically the appearance, taste and stability (shelf life) of the product.

The deodorisation step is followed by bleaching using an absorbing agent, and which reduces the colour of the crude oil usually to an acceptable light straw yellow. Physical refining has largely overtaken chemical refining methods due to superior yields, reduced energy costs and the avoidance of producing largely unwanted soapstocks – instead more commercially useful acid oil is produced as a by-product.

There are two basic types of refining that can be applied to crude oils and fats: • Chemical refining • Physical refining

Difficulties associated with shipment of FOSFA contracted cargoes Cargo Mishandling / Overheating As stated above, FOSFA provides recommended temperature ranges for laden voyage and discharge operations and, whilst no temperature ranges are prescribed per se for loading operations, FOSFA does stipulate that shippers should not exceed during the delivery operation that given in the heating recommendations i.e. the discharge temperatures .

The main difference between the two methods is the method employed to reduce Free Fatty Acid (FFA) content, a key quality parameter in all refined edible oils. Certain oils will require the removal of phospholipids (e.g. soya bean oil) and waxes (eg sunflower oil) requiring additional treatment stages, however, in general both refining methods result in removal of metals, colour pigments and insolubles from the crude oils.

Whilst the use of elevated temperatures for certain edible oil grades during loading operations is necessary to ensure the product viscosity remains within practicable limits, it can and does result in the cargo remaining above the FOSFA recommended voyage temperature for a considerable period of time; sometimes for a tropical passage for the duration of carriage. As can be seen from the below graph which represents an actual voyage for a parcel of Palm

Chemical Refining Removal of FFA is facilitated by the addition of an alkali; generally caustic soda. The addition of alkali causes, by reaction with FFA, soaps to form, the mixture separating into an aqueous and a nonaqueous lipid phase. The aqueous phase containing the soaps and impurities from the oil is then separated by decanting or centrifuging the mixture.

This stage of refining is followed by bleaching and EXPERT WITNESS JOURNAL

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Stearin, the vessel was loaded with cargo at a temperature above the FOSFA recommended lower discharge limit of 55°C.

Figure 3. Typical fatty acid.

In same way that the presence of excessive amounts of water is detrimental to cargo quality, so is the application of excessive amounts of heat to edible oils.

Oxidative rancidity is the process by which the constituent triglycerides are broken down by the addition of oxygen into the triglycerides. Accelerants of oxidative rancidity include exposing the oil to elevated temperatures for a prolonged time period and/or rapid increases in temperature above the FOSFA allowed 5°C per 24 hours.

Figure 2. Graphical representation of cargo temperature over time.

From the temperature graph it can be seen that the cargo only reached the FOSFA recommended carriage temperatures some 18 days after loading, with the vessel not applying any heat whatsoever to the cargo. If taken at face value and in view of the fact that carriage of edible oil at elevated temperatures increases the rate of cargo degradation, an allegation of heat mismanagement by the crew was alleged by Cargo Interests. This is however, not the case.

Further conditions that would cause acceleration in oxidative rancidity would include exposing the oil to trace metals, such as those commonly found in sea water, where trace metals such copper and iron are most likely to accelerate the production of FFA. This process, in same way as hydrolysis, leads to an increase in FFA and also to an unwanted increase in the concentration of hydroperoxides.

The crew has no practical means of cooling the cargo and therefore the length of time for which the cargo is carried at elevated temperatures is solely attributable to the cargo temperature at the point of loading and the surrounding seawater temperature, both of which are outside vessel’s control.

The further breakdown of hydroperoxides leads to the formation of aldehydes and ketones, two chemical compounds that are very odoriferous and produces unpalatable ‘off’ taste and odours in the oil causing the cargo to become unusable in foodstuffs industry. The oil may be re-refinable but not in all cases, depending upon the extent of ‘damage’.

Due care is, however, required when heating the cargo to ensure that the FOSFA stipulated 5°C/24 hour limit is not exceeded and that excessive cargo tank temperature gradients are avoided. Intense, rapid applications of heat can result in significant damage to cargo quality. Accurate temperature records of the cargoes and ambient air/seawater are essential in order for Owners to defend against claims of this type.

Whilst increases in FFA and peroxide concentration are regarded as a problem when the end use is food related, on basis of palatability factors, it is not considered a problem if the end use is intended for saponification processes, i.e. soap manufacture or for utilisation in the oleochemical industry, which in any event requires the ‘splitting’ of the triglyceride to yield the FFA’s.

Effects of water and heat on edible oils The effect that water has on the cargo depends to a certain extent on whether the water is fresh or sea water. Whilst the addition of both fresh and seawater leads to an increase in FFA formation in edible oil cargoes, the presence of seawater would further catalyse the formation of FFA molecules due to the presence of additional trace metal species.

Reprocessing of edible oils with elevated FFA and moisture concentrations to wholesome oils fit for human consumption is possible, providing that no organoleptic (smell and taste) taint is permanently imparted to the oil. This option often presents a more cost effective mitigation route than when compared to salvage sale in the oleo-chemical or bio-diesel sectors.

Such increases in FFA concentration are due to water initialising a hydrolysis reaction, resulting in the breakdown of the triglyceride molecule. The breakdown of triglycerides leads to the formation of FFA and a diglyceride, a phenomenon known as hydrolytic rancidity. A figurative representation of FFA formation is provided below (Figure 3).

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Inherent vice A certain degree of FFA formation is to be expected during the course of any well managed voyage. It is sometimes the case that a fully refined cargo might be delivered to a ship with the closely specified FFA content of the cargo at maximum or some value close 93

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thereto. Typically, a fully refined palm oil is specified with FFA = 0.10% wt maximum. Instances are known where the cargo was received aboard the ocean carrier with FFA content of 0.09 % wt. Increase of the FFA of such a cargo to levels during a Malaysian/ Indonesian voyage to Europe would inevitably result in the cargo being found to exceed the 0.10% wt max specification which can lead to some (but not all) receivers lodging a claim against ship owners. More reasonably, certain receivers routinely lightly rerefine the cargo, without recourse to the carrier, recognising the inevitability of the FFA increase.

Outturn losses associated with high melting point cargoes Physical loss of product by retention aboard the vessel can occur for cargoes requiring heating in order to keep them liquefied, especially in instances of cold climate discharge conditions.

In these circumstances, attention has to be paid to the correct heating of the oil bulk and to the final stages of discharge where prompt discharge rate prevents the cargo ‘freezing’ when the cargo level falls below the heating coils. Attention to ballast operations is necessary to avoid cold adjacent bulkheads to heated cargo tanks, causing excessive ‘clingage’ to vertical surfaces, and the flow of cargo to the aft located pumps should be optimised by adjustment of vessel’s trim and list. Lines should be promptly blown clear in the event of stoppage in order to prevent complete line blockage. Manual ‘sweeping’ of the tanks should be preformed, if allowed.

Some Cargo Interests who ship especially sensitive highly refined products (eg: Palm super-olein) will make provision for vessel’s cargo tanks to be ‘inerted’ with pure nitrogen for the voyage duration. This has the effect of excluding oxygen and thus reducing oxidative deterioration of the cargo. Failure of the ship to maintain the inert over-pressure atmosphere can result in justified claims for cargo ‘damage’.

Cargoes likely to be problematic in this regard are the ‘high’ heat cargoes which have high slip melting points, such as palm stearin, some tallow grades, palm fatty acid distillate and Palm acid oil.

Contamination Contamination incidents onboard ships by means other than water and over-heating arise principally as a result of unwanted admixture of dissimilar oils, say, by pumping of coconut oil into palm oil. This is a very unwanted instance of mixing oil based upon lauric fatty acid with oil based upon palmitic acid.

These very dissimilar oils require strict segregation as the admixture is nearly impossible to separate by normal refining methods and the blend is unusable.

About the Author Pierre de Jager is a Consultant Chemist in the Oil and Chemicals Department at CWA International Ltd. The main matters on which he advises are related to preserving contractual quality of various edible oils, petroleum and petrochemical products, where he would typically be employed following contamination incidents involving such products. As part of any investigation, he will identify the type of contaminant, the provenance of the contaminant and how the product can be restored back to a marketable condition in the most cost effective manner. In addition to post mortem analysis of contamination events, he also attends on site at the material time in order to expedite resolution and mitigation of such contamination events.

Contamination by last cargoes, whilst now relatively rare, does still happen. Contamination by last cargoes from the FOSFA ‘banned list’ are nowadays virtually unknown, however, contamination by cargoes not mentioned on either of the banned or acceptable lists can and does occur. This might be due to failure of the ship to remove residues of the last cargo from vessel’s containment system. Surface deposits of last cargo on the cargo tanks surfaces are unlikely to exist, as the tanks are visually inspected by the FOSFA Member Superintendent, and would be rejected if visible residues were present. However, visual inspection is understandably limited for vessel’s pipelines and pump internals where residuals might exist.

About CWA International Ltd For more than 35 years CWA has been providing a first-class consultancy service to clients involved in international trade of commodities, including those active in shipping, insurance and reinsurance, as well as their legal counterparts.

Detection of contaminants can nowadays be performed by modern analytical techniques to hitherto unachievable limits of detection. This places an increased burden upon ship owners to remove traces of last cargo to ever smaller extents and eventually the question is raised as to the significance of any alleged contamination in the face of detection ability that can often be in the parts per billion concentration range and have no meaningful effect upon the intended end-use of the goods.

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Our departments possess specialist knowledge of all aspects of their respective industries including technical, scientific, logistical, commercial and market factors, making them well equipped to advise on causation, quantum, mitigation, and environmental impact.

We only deploy well-qualified experienced staff, including chemical and mining engineers, petroleum

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chemists, food scientists, risk analysts, master mariners and cargo surveyors, to provide technical advice on risks, damages and loss across the international trade of commodities including production, handling, storage, marine transportation, and distribution.

We undertake forensic investigations worldwide, typically onsite after the incident or remotely through the study of the available documentation and evidence. Our senior consultants regularly assist with dispute resolution, giving expert evidence in the High Court, in arbitrations worldwide and in mediations. We regularly provide technical assistance on unfolding incidents and operate on a 24/7 basis, 365 days a year, to provide urgent specialist advice to clients exposed to high damage incidents or faced with potential costly escalation. ■

Intertek Production and Integrity Assurance - P&IA (formerly CAPCIS LTD) is a recognised global authority in the fields of materials engineering, corrosion control, integrity management and failure investigation. It provides a diverse range of industries with independent technical consultancy, expert witness and specialist testing services. Headquartered in the UK, it has a network of offices and laboratories around the world and can provide services on a global basis.

Intertek P&IA Bainbridge House, 86-90 London Road, Manchester, M1 2PW UK

For more information on our expertise and services offered please visit our website at www.cwa.uk.com or call 020 7242 8444 to discuss your needs.

Tel: +44 (0)161 933 4000 Fax: +44 (0)161 933 4001 Email: production.assurance@intertek.com Mike.broadhurst@intertek.com Web: www.intertek.com

Intertek and NIRAS Appointed as Marine Consultants for Viking Link Interconnector Intertek, a leading global quality solutions provider, and NIRAS, a global offshore specialist, have been appointed by the National Grid Viking Link Limited (National Grid) and Energinet.dk (Energinet) as Marine Consultants to support with the permitting of Viking Link -- a proposed major international offshore infrastructure project linking electricity networks in Great Britain and Denmark.

the submarine cables for Viking Link in all four territories - Danish, German, Dutch and British waters. The scope of services include: cable route optimisation, marine survey support, preparation of the Environmental Impact Assessment (EIA) and Habitat Regulations Assessment (HRA), and stakeholder engagement across all jurisdictions.

Intertek and NIRAS have extensive environmental and permitting expertise in the UK and Denmark.

Further input support will be provided by Witteveen+Bos Consulting Engineers B. V. and IfAÖ (Institut für Angewandte Ökosystemforschung GmbH) for specialist advice relating to Dutch and German waters.

The project is being jointly developed by National Grid through National Grid Viking Link Limited and its other subsidiaries, and Energinet.dk, the Danish transmission system operator. Viking Link is a proposal to build a high voltage direct current (HVDC) interconnector between Denmark and Great Britain using subsea and underground cables, which also crosses German and Dutch territories.

Currently at initial development stage, the interconnector is expected to be 600 to 700 km in offshore cable length and have a capacity of 1,400 MW. Viking Link is scheduled to be operational in 2022.

Frank Beiboer, Managing Director of Intertek Energy & Water Consultancy Services, said: “We at Intertek are pleased to have been selected by National Grid and Energinet and look forward to working closely with their project team to develop this major international offshore infrastructure project. Our power cable track-record spans more than 15 years and 10 interconnectors.” ■

As Marine Consultants, Intertek and NIRAS will have overall responsibility for the delivery of all consent application material to permit the installation of EXPERT WITNESS JOURNAL

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