Expert Witness Journal

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ISSN 2397-2769

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THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES

EXPERT IMPARTIALITY LITIGATION LESSONS DATA BREACHES -

Vol 1 Issue 26 - Northern Supplement 2019 - £5.00 €6.00

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The UK's leader in connecting litigators to experts like you We are largest database of experts in the country and, we supply experts details free of charge to solicitors, barristers CPS, media and legal professions.

OUR WEBSITE: www.expertwitness.co.uk Our website has a simple to use search facility that enables users to locate the right expert within minutes.

We have canvassed our users opinions and they have stated that they like the ‘ease of use’ and ‘speed of results’ that our site offers. We have been ranked top of google since 2006, this ranking is based on merit and not a paid for ranking and we constantly monitor our web statistics and look to improve.

SEARCHLINE: Let us do the searching for you To assist solicitors and legal professionals in finding the right expert, we run a free telephone searchline.

This is a telephone number where solicitors, barristers chambers, local councils, legal professionals and media can call and be provided with relevant experts details within 4 hours, (most calls are replied to within one hour.)

OUR DIRECTORY Our hardbacked printed directory is easy to navigate and runs to over 1,100 pages. Many clients still require a printed directory, there is still a demand for it, particularly amongst solicitors. Its easy to use design, lists experts and references over 42,000 areas of expertise OUR LATEST EXPERTS INCLUDE: Dr Peter Smallwood FRSC, Industrial Chemist. Cancer Legal Experts; A unique collaboration of first-class clinical Cancer Medico-legal Experts. Dr Arun Bagg, GP and Medico-Legal expert and Martec Environmental Consultants Ltd, Noise, Vibration and Acoustics Expert Witness Services.

E-mail: info@expertwitness.co.uk Website: expertwitness.co.uk Tel: 0161 834 0017 Fax: 0161 834 0018 Expert Witness@Searchline03

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ISSN 2397-2769

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THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES

Welcome to the Expert Witness Journal

EXPERT IMPARTIALITY LITIGATION LESSONS DATA BREACHES -

Vol 1 Issue 26 - Northern Supplement 2019 - £5.00 €6.00

Hello and welcome to this Northern edition of the Expert Witness Journal.

Inside this special issue we have a mixture of articles, featuring informative articles on many expert witness related subjects including, ‘Impartiality and Balance’, ‘CPR Part 35 A warning from the Bench’ a barristers view on expert reports. Plus articles on Litigation evidence, Data Breaches, Hot Tubbing and Noise Nuisance.

At Expert Witness we specialise in supplying the correct expert for the correct case.

We value the specialism and knowledge that our northern based experts have and understand their value.

If you require an expert, full details of all our experts are available on our website at www.expertwitness.co.uk, or give us a call on our free telephone searchline on 0161 834 0017. We aim to reply to every call within 2 hours.

We hope that you find this supplement an enjoyable read.

Please feel free to comment on any article or submit one for future issues.

Many thanks for your continued support.

Chris Connelly 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’.

All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Exper t 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.

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.

The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2019.

Expert Witness Publishing Limited, Unit 1/06, Ivy Business Centre, Crown St, Failsworth, Manchester M35 9BG

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SRA Reminds Solicitors to Adhere to their Litigation Obligations non-disclosure agreements which seek to prevent lawful disclosure of harassment or discrimination.

Solicitors have been reminded to adhere to all their professional obligations when engaged in litigation, and not to become “hired guns” just carrying out instructions that are in the best interests of clients.

“Those who cross the line into misleading the courts or abusing the litigation process should have no doubt that if we have evidence of this, we will take action.”

We have refreshed our Balancing Duties in Litigation paper, which accompanies the autumn update of its Risk Outlook. The paper updates the March 2015 report, discussing the differing duties owed by solicitors in litigation and examining the ways in which misconduct can arise.

Other key trends identified in the Risk Outlook update include: • A 43 percent increase in the number of money laundering reports (across the first three quarters of the year compared to 2017).

Citing examples, such as the use of non-disclosure agreements (NDAs) which expressly prevent lawful disclosure of issues such as discrimination, harassment or sexual abuse, the paper reiterates the profession must uphold all its obligations. These include always acting with integrity and upholding the rule of law.

• A 10 percent increase in the number of reports of misuse of client money compared to 2017 (now averaging 104 per month).

• A nine percent increase in the amount of work being carried out online.

Paul Philip, SRA Chief Executive, said: “Maintaining the correct balance between duties is not simple and all matters must be decided on the facts. Solicitors should of course advance their clients' cases, but they are not ’hired guns’ whose only duty is to that client.

“They also owe duties to the courts, third parties and to the public interest. It is important for solicitors to recognise their wider duties and never to rationalise misconduct on the mistaken basis that their only duty is to their client, for example by including clauses in

• Reports of email modification fraud, which in the past have tended to mostly concern conveyancing, are increasingly related to other areas of work, and now account for more than half of all these reports we receive.

The Risk Outlook autumn update can be found here: http://www.sra.org.uk/risk/outlook/risk-outlookautumn-2018-update.page The Balancing duties in litigation paper can be found here: http://www.sra.org.uk/risk/resources/balancingduties-litigation.page

Mr Chris Makin

Chartered Accountant, Accredited Forensic Accountant, Accredited Expert Witness, Accredited Mediator and Accredited Expert Determiner.

FCA FCMI FAE QDR MCIArb Mirfield West Yorkshire WF14 9SF Tel: 01924 495 888 Fax: 01924 494 421 Mob: 07887 660 072 Email: chris@chrismakin.co.uk Web: www.chrismakin.co.uk Membership: Forensic Community, ICAEW Investigation Committee, The Academy of Experts Support Member, ICAEW Ethics Advisory Committee, ICAEW

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Contents

Some of the highlights of this issue Events and Training

page 4

Expert witnesses - Impartiality and Balance

by Ben Zielinski

page 6

Expert Agendas - A Warning from the Bench

by Dr Simon Fox QC

page 8

Mesothelioma Reasonably Foreseeable Despite no Direct Evidence of Exposure by David Tait and Toni Ashby

page 11

Noise Nuisance and the Expert Witness

by Dick Bowdler, Noise Consultant

page 14

Top Litigation Lessons to be Learnt from Losing

by Rowan Turrall

page 18

Expert Evidence – Getting it Right

by Chris Kirby-Turner

page 20

SRA Digital Badge Launched

page 21

Morrisons Found Liable For Staff Data Breach

by Justin Govier

page 22

Preparing For a Hot Tub

by Dr Chris Danbury

page 23

Pressure Ulcer Litigation The Nursing Expert View - Mr Lister & Ms Johnson

page 26

National Operation to Retest Manipuliated Forensic Samples

page 32

Professor J. Peter A. Lodge

MD FRCS FEBS

Recognised internationally as an expert in surgery for disorders relating to the gallbladder, liver 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 look at my website www.peterlodge.com for more information but inquire by email: peter.lodge@nhs.net Telephone: PA +44 (0) 113 2185944 - Fax: +44 (0) 113 2185987 Address: Spire Leeds Hospital, Jackson Avenue, Leeds LS8 1NT

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Events Date: 11 Mar 2019 Location: London Address: London, London, Venue tbc

Inspire MediLaw Inspire MediLaw’s medico-legal conferences cover a whole range of medical and legal issues relating to clinical negligence. Our Medico-Legal conferences focus on providing medical knowledge for legal professionals with presentations by leading medical experts, lively discussion and debate and the latest case studies. With an interesting balance between medical and legal speakers our APIL CPD accredited conferences will be of interest to both claimant and defendant practitioners.

Date: 15 Apr 2019 Location: Birmingham Address: tbc Phone: +44 (0)24 7686 8555 UK Training enquiries: +44 (0)24 7686 8584 Email: contactrics@rics.org

Sancus

Expert Witness Training for Medical Professionals 17 January 2019 Oxford Spires Hotel Inspire's Expert Witness training is designed specifically to guide and prepare medical professionals in the essentials of medico-legal practice. This two day CPD course explains the practicalities of setting up a medico-legal practice, what to expect from instructing parties, the legal procedural rules that govern expert witnesses, successful report writing, preparation of joint statements with opposing experts, meetings with counsel and giving evidence in court.

Expert Witness – Courtroom Skills Training Are you prepared to be an Expert Witness?

If you are called as an expert witness, a courtroom can be an intimidating environment, for both lay and experienced witnesses. You may not have given evidence in court before as an expert witness. Even if you have, your courtroom experience may have left you uncomfortable at the prospect of doing it again.

How can Courtroom Skills training help you?

The Courtroom Skills training course prepares you for giving evidence as an expert witness or a professional witness. The course is an intensive, highly practical and experiential form of giving evidence training and can be adapted to meet your needs.

Consent in Practice 25 January 2019 Oxford Spires Hotel Inspire MediLaw’s comprehensive 'Consent in Practice' training course will provide medical professionals of all specialities with the essential knowledge, confidence and support needed to apply legal principles to your day-to-day practice.

Courtroom Skills training is delivered by Michael Williams, a practising barrister. You will benefit from his many years of experience in investigating offences and prosecuting or defending cases in courtrooms and tribunals. Our course is continually reviewed so you’ll always receive the most up-to-date guidance available.

Expert Witness Training for Medical Professionals 14 March 2019 Oxford Spires Hotel Inspire's Expert Witness training is designed specifically to guide and prepare medical professionals in the essentials of medico-legal practice. This two day CPD course explains the practicalities of setting up a medico-legal practice, what to expect from instructing parties, the legal procedural rules that govern expert witnesses, successful report writing, preparation of joint statements with opposing experts, meetings with counsel and giving evidence in court.

If you are a Healthcare professional or are in a related profession we have adapted this course especially for specialised area. Please click here for further information.

What does Expert Witness Skills training cover?

The day starts with removing the mystique which can surround courtroom processes. You’ll learn about the various roles of everyone involved as well as how to take the oath and deal with cross-examinations.

Inspire MediLaw, Merchant House 5 East St, Helen’s Street, Abingdon, OX14 5EG Phone: 01235 426870 Email: info@inspiremedilaw.co.uk Website: www.inspiremedilaw.co.uk

Other areas covered include: Understanding the adversarial process The practice and procedure of giving evidence Preparing to give evidence ‘Hot-tubbing’ of expert evidence The role and purpose of evidence-in-chief, cross-examination and re-examination Coping strategies The ‘Ten Golden Rules’

RICS Expert Witness Certificate Founded on the official RICS Professional Guidance, this blended learning programme will ensure you develop the core competencies needed to be an effective expert witness.

Date: Mon 4 Feb 2019 - Fri 10 May 2019 Time: 09:00 AM - 05:00 PM Venue: Birmingham, Birmingham.

As defence lawyers often focus on decisions made by investigators and managers, the course also includes guidance on making decisions and recording the thinking behind them. You’ll end the course by

Date: 04 Mar 2019 Location: Edinburgh Address: RICS, 125 Princes Street, Edinburgh, EH2 4AD EXPERT WITNESS JOURNAL

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undergoing or observing a simulated cross-examination exercise so you’ll know what to expect in the courtroom.

Discussions between Experts This course will provide experts with a comprehensive overview of what these discussions entail, possible pitfalls and the implications if best practice is not followed.

Who should attend Expert Witness Skills training?

The training will meet the needs of professional and expert witnesses who are to appear in courtrooms, tribunals or misconduct hearings. You’ll also benefit from the course if you are one of the following: Police, military or public sector investigator Police analyst Crime scene investigator Investigator Social worker Child care practitioner Human resources professionals

Concurrent Expert Evidence (Hot-Tubbing) An intensive one-day course, providing civil expert witnesses with the core skills and knowledge to give concurrent expert evidence in court.

Masterclass in Report Writing This masterclass is designed for experts who have already undertaken the Excellence in Report Writing. The course acts as a useful refresher and is designed to enhance your report writing skills to an advanced level.

Masterclass in Courtroom Skills The advanced masterclass is designed for expert witnesses who have already undertaken the Courtroom Skills. Experts should consider this course every 2-3 years to refresh and enhance their skills in giving evidence.

Courtroom Skills Training In House The Courtroom Skills training course can be delivered at an approved Sancus venue, or at your own premises for maximum convenience, for as little as £1,350 +vat (£1,450 +vat if within the M25 radius) for up to 12 delegates.

GDPR for Expert Witnesses Toolkit This toolkit will help you understand what the General Data Protection Regulations means to you as an expert witness and provide you with tools you are most likely to need to comply with the GDPR.

Contact us Unit 8G, Lockside Office Park, Lockside Road, Preston PR2 2YS Tel: 01772 282800 E-mail: enquiries@sancussolutions.co.ul. www.sancussolutions.co.uk/expert-witness-courtroom-skills-training/

To secure your place, either book online or call us on 020 7549 2549 or visit; www.bondsolon.com

Bond Solon Expert Witness Courses Excellence in Report Writing This course provides expert witnesses with the key skills to produce court compliant reports. Experts will learn how to produce quickly and consistently reports that are both court compliant and will withstand cross-examination.

Dr Elizabeth Soilleux Consultant Histopathologist MA, MB, BChir, PhD, FRCPath, European Board of Pathology, Cardiff University Bond Solon Expert Witness Certificate (Civil Law)

Courtroom Skills This one day course will provide expert witnesses with the core skills to effectively present opinion based evidence in court under cross-examination.

Practising consultant haematopathologist and autopsy pathologist in Cambridge.

Cambridge University lecturer and fellow/director of studies in medicine, Churchill College, Cambridge.

Cross-Examination Day A follow on day to the Courtroom Skills Training, this course enables expert witnesses to refine and enhance their skills in presenting evidence in court.

Expertise in: Haematopathology - histopathological assessment of

Civil Law and Procedure This course provides civil court experts with a comprehensive understanding of their requirements of CPR Part 35, Practice Direction 35, the Protocol for the Instruction of Experts and practice direction on pre-action conduct.

lymph nodes, bone marrow, thymus, spleen, lymphomas, leukaemias, myelomas, myelodysplastic syndrome, myeloproliferative disorders, benign conditions, including infections, molecular tests in haematopathology.

Autopsy (post mortem) pathology.

Criminal Law and Procedure This course provides criminal court expert witnesses with a comprehensive understanding of their requirements under Part 33 of the Criminal Procedure Rules.

Contact: Tel: 07798 643879 Email: expwitpathol@gmail.com

Family Law and Procedure This course provides family court expert witnesses with a comprehensive understanding of their requirements under Part 25 and 25A. EXPERT WITNESS JOURNAL

Website: www.expertwitnesspathologist.co.uk 60 Cow Lane, Fulbourn, Cambridge, CB21 5HB

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Expert Witnesses Impartiality and Balance

by Ben Zielinski - Senior Associate Shoosmith LLP In two recent but very different cases, there have been unusually strong criticisms of expert witnesses.

They highlight the need for any expert witness to be seen to be independent and impartial and for their evidence to be balanced and not one-sided.

Agilisys Ltd v CGI IT UK Ltd – balanced approach The case of Agilisys Ltd v CGI IT UK Ltd was a very different type of case. A commercial action in the Court of Session, it concerned the termination of a subcontract for the provision of information technology services to a significant public sector client.

Evidence from expert witnesses plays a crucial role in determining many disputes in different fields. For example, in personal injury cases, evidence from a medical practitioner will be required. Or in a commercial action where there are technical issues in question, the court may need evidence from an expert in the relevant field. Without experts to explain the medical, scientific or technical matters, a judge may be unable to understand properly significant aspects of the case and make appropriate findings about them.

The parties, the main contractor and sub-contractor, were in dispute about a number of issues that boiled down, broadly speaking, to which party was in breach of its obligations and responsible for various delays.

Each party relied on the evidence of an expert witness. Neither expert’s independence was in question.

However, the judge, Lord Bannatyne, formed a markedly different view of the two experts and their evidence.

Lord Bannatyne criticised the evidence of CGI’s expert witness in unusually direct terms. He stated: “I have come to the view that his evidence was onesided. His approach was I believe not balanced. In addition for various other reasons I believe his evidence was not acceptable.” Over the subsequent eight pages of his opinion, the judge set out numerous matters that had led him to that conclusion. He highlighted, in particular, the expert’s failure to consider whether CGI might have breached any of its obligations. It is also noted that, on one occasion, when faced with the realisation during cross-examination that part of his evidence had not in fact helped CGI, the expert switched from one position to another.

This was described as “highly unimpressive in the context of someone who is being offered as giving expert evidence.”

In our adversarial system of litigation, it is for each party to choose and instruct their own experts and adduce evidence from them. A party will naturally want their own expert’s evidence to support their position. Therefore, a party will generally only produce expert reports and call as witnesses, experts whose evidence is going to help that party’s position. However, if an expert is not impartial or gives evidence that appears one-sided, the evidence, although supportive of the party’s position, may turn out to be little or no worth, as demonstrated by two recent cases.

Armstrong v ERS Syndicate Management Ltd – independence and impartiality The first case, Armstrong v ERS Syndicate Management Ltd, was a low value personal injury claim. The pursuers relied on the evidence of a medical expert with respect to the extent of their injuries. They were awarded damages based on that evidence. The defenders appealed, arguing that the expert evidence should have been found inadmissible or, alternatively, should have been given no weight. The main reason was that the expert’s independence and impartiality was questionable because he had agreed to act of contingency basis, meaning that he would only get paid if the claims were successful. The Sheriff Appeal Court had little hesitation upholding this appeal and finding the expert’s lack of independence and impartiality rendered their evidence inadmissible.

By contrast, Lord Bannatyne noted that Agilisys’s expert “looked at the responsibilities of both CGI and Agilisys” and was “prepared to make criticisms of Agilisys”, which he said were “examples of the essential balance in her approach”. Given his contrasting impressions of the two experts, it is unsurprising that, where their evidence differed, the judge largely accepted the evidence of Agilisys’s expert and rejected that of CGI’s.

Conclusions Expert evidence is critically important to many cases.

When that is the case, parties need to make sure they have experts whose evidence supports their case.

However, as these two cases show, it is not enough to have an expert who will give helpful evidence. The expert must be independent and impartial and their

This resulted in the pursuers losing those elements of the damages awarded to them that were reliant on the expert’s evidence.

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evidence should be balanced and not one-sided.

Otherwise, the expert’s evidence may be given little credence or even, if the expert lacks independence, be held inadmissible.

Dr Andrew Logan Consultant Pain Management BA Hons (cantab) MBChB FRCA FFPMRCA

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

I write medicolegal reports related to pain management. This can relate to cause, prognosis and treatment of persistent pain and disability following injury or incident.

I also assess patients from the pain management perspective with regards to the costing of proposed comprehensive treatment and provide such treatment should it be required.

About the Author Ben Zielinski Senior Associate Ben is a senior associate in Shoosmiths’ dispute resolution team. Ben specialises in commercial disputes and is based in our Edinburgh office.

He is qualified as a solicitor in both Scotland and England & Wales. Ben advises on a wide variety of commercial disputes including, in particular, information technology and energy sector matters.

Contact: Dr. A Logan/Sharon Email: painconsultant@aol.com Secretary: Sharon 07763 783 601 Secretary email: cheyanne@inbox.com Tel: 07791 681 278

Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk

Address: Nuffield Health The Grosvenor Hospital Chester Wrexham Road, Chester CH4 7QP

Mr R Scott-Watson

BSc(Hons) MB BS LLB (Hons)(Open) Cert Av Med. Cert MR(2)CUEW DDAM FRCS(Ed)

RSW Medico-Legal Ltd Linked In: uk.linkedin.com/pub/richard-scott-watson/34/4bb/531/

Expert Witness in Orthopaedic Trauma. Disability Analyst. APIL Expert. MedCo accredited.

MEOL Approved Expert. Injury reports and Employment Tribunal reports (Equalities Act).

Waiting list 4-6 weeks. Urgent reports undertaken. Reporting since 1990. Over 22,000 reports.

Cardiff University Expert Witness Certificate 2014.

Fully trained in CPR, Court appearance (2 per year) and report writing.

Low velocity impact traffic accident cases accepted.

2018 Corporate Intl. magazine Global award ‘Orthopaedic Therapy Expert Witness of the Year in England’ Orthopaedic Expert Witness (UK) Leaders in law (LiL) 2017/18 2017 Global Law Experts 100. Orthopaedic Surgeon and Disability Analyst Expert of the Year - UK Winner: FORENSIC INSIDER Orthopaedic Award 2016; Lawyer Monthly Magazine Orthopaedic Expert Witness of the Year 2016; Forensic and Expert Witness E Magazine Medico Legal Award 2014/15 and 2016/17; Forensic and Expert Witness E Magazine Lifetime Achievement Award receiver for Trauma & Orthopaedics.

Home and prison visits undertaken Clinics in Stourbridge, Birmingham, Coventry, Bristol, Swindon and Oxford

Contact: Carol Couzens 7a Heath Lane, Oldswinford Stourbridge, West Midlands DY8 1RF Tel/Fax: 01384 441126 Email: carolcouzens@ymail.com

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Expert Agendas A Warning from the Bench

by Dr Simon Fox QC - No5 and Exchange Chambers “It certainly should not become routine to provide two versions which, as here, travel over much of the same ground.

That approach tests the patience of the experts (and frankly of the court); produces a lengthier joint statement; potentially increases costs and is simply not the best way to focus on the issues. I do not think that anything further needs to be said or done in this case. However, if this worrying trend continues, parties may find that courts begin considering costs consequences.” - Mrs Justice Yip commenting on the experts’ agendas in the recent case of Welsh v Walsall Healthcare NHS Trust 2018 EWHC 1917 QB.

Until recently that was pretty much it in terms of guidance to lawyers in preparing agendas. My experience of the last 20 years is that it has become common practice – - For each side to be partisan in the preparation of their respective versions of the agenda, trying to make sure that their version covers what they regard as their best points in the expert evidence;

Expert meetings and their agendas have been provided for under the Court rules for over 20 years, but despite this have until recently attracted little comment, guidance or case law.

- What should be the default position, of two agendas going to the experts, has become the standard position.

- Agendas have become longer and longer – I have seen some with 50 questions (and I suspect barristers are more guilty here than solicitors);

Mrs Justice Yip has issued a wake-up call for lawyers adopting such an approach. A judge who previously specialised in personal injury and and clinical negligence, Yip J has given those of us working in those areas a series of useful judgments on different topics since her appointment last year, but she has spoken in particular on the topic of experts’ agendas.

CPR 35 tells us simply – - A joint meeting is not mandatory and is at the discretion of the Court; - The purpose is to identify the issues between the experts; - The content of the discussion cannot be referred to at Court and the parties are not bound by any agreement which the experts reach.

Her most recent judgment - Welsh v Walsall Healthcare NHS Trust 2018 EWHC 1917 QB - was a bariatric surgery case in which the Claimant claimed negligence in the surgery and post-operative management in a gastric bypass operation, resulting in the 40 year old claimant having to undergo a reversal of the bypass and ileostomy with long term ongoing disability.

The accompanying Practice Direction and 2014 Guidance for Instruction of Experts add – - The purpose of the agenda is to help the experts focus on the issues; - The agenda must not be in the form of leading questions or hostile in tone;

At the liability trial (the Claimant won), of the joint statements, Yip J stated – “35. As I observed during the trial, the joint statements in this case were not as useful as they might have been. The difficulty was caused by the inability of the parties to agree a single agenda for the experts’ consideration. This is not the first time that I have expressed concern about this and counsel confirmed that it is a problem that appears to be arising more frequently. When I enquired as to why that might be, Mr Counsell, having sought instructions, referred to the model direction for clinical negligence actions which provide for the claimant’s solicitors and experts to prepare a draft agenda to be sent to the defendant’s solicitors and experts for comment and for the defendant to then agree the agenda or propose amendments within 21 days. Paragraph 13 of the model order says:

- The parties should cooperate in preparing the agenda; - The experts should set out the reasons for their disagreement; - The experts should not seek to settle the case.

Standard directions in clinical negligence cases give us some further guidance– - The Claimant prepares the agenda and sends it to the Defendant to agree or amend; - Parties should use their best endeavours to agree a final version of the agenda; - In doing so the parties should not argue over semantics or points that the experts can resolve themselves;

“7 days thereafter all solicitors shall use their best endeavours to agree the Agenda. Points of disagreement should be on matters of real substance and not semantics or on matters the experts could resolve of their own accord at the discussion.

- If they cannot agree one agenda, the default position is that both the Claimant and the Defendant’s version of the agenda should both be considered by the experts.

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to that discipline of expert. This takes some time, thought and careful drafting. If the Defendant turns a carefully crafted, clear and succinct agenda which will help the judge, into a lengthy dog’s dinner which will only confuse them, then the default position of two agendas remains the appropriate one.

In default of agreement, both versions shall be considered at the discussions.”

36. It was suggested that the form of the model order encourages more than one agenda to be sent to the experts. I cannot agree with this. The standard direction makes it clear that the solicitors are required to do their best to agree a single agenda. In the vast majority of cases, any disagreement ought to be capable of resolution through a bit of give and take. It may be appropriate to insert some additional questions into the draft at the defendant’s request. It certainly should not become routine to provide two versions which, as here, travel over much of the same ground. That approach tests the patience of the experts (and frankly of the court); produces a lengthier joint statement; potentially increases costs and is simply not the best way to focus on the issues. I do not think that anything further needs to be said or done in this case. However, if this worrying trend continues, parties may find that courts begin considering costs consequences.”

In respect of Yip J’s final comment of the risk of costs consequences if a party does not act appropriately in preparing an agenda, this was considered previously in the case of Cara v Ignotus, a case management decision by Master Yoxall on 7th October 2015 (reported on Lawtel) in which the Master did impose a costs sanction over an agenda.

In that case the Defendant asserted that the Claimant’s proposed agenda contravened para 9.3 of the practice direction to CPR 35 which states “The agenda must not be in a form of leading questions or hostile in tone.” Master Yoxall agreed with the Defendant that the questions were in contravention of the practice direction and awarded costs of the application against the Claimant. This illustrates the principle that an agenda should be drafted in a neutral manner and a partisan one will be sanctioned.

Yip J’s reference to this not being the first time she has criticised the lack of a single agenda refers to her judgment earlier this year in another surgical case Saunders v Central Manchester University Hospitals NHS Foundation Trust 2018 EWHC 343 QB. This was a claim for alleged negligence in the performance of an operation to reverse an ileostomy in which she stated of the experts – “their joint statement was disappointing. It was 60 pages long and did not fulfil the purpose identified in CPR 35PD 9.2 “to agree and narrow issues”. It seemed to me that the difficulty may have arisen not through the fault of the experts but in the way the agendas were drafted. I say “agendas” because, for reasons not explained to me, there had apparently been two separate agendas that the experts were required to consider. Both involved repetitive questions for the experts and far from producing a focus on the real issues, the result was a document that served only to confuse rather than assist.

So, what should lawyers take away from these recent judgments ?

I suggest – 1. Keep the agenda simple. Ensure it covers the key issues in the case, not peripheral ones. This means 10 questions, not 50.

2. Try to keep the wording balanced, neutral and objective – covering the points both parties need to be addressed and anticipating objections from the Defendant. This means it will not simply be a list asking the experts to agree all of your best points – that is the job of the closing submission at trial.

3. The Claimant should ask the Defendant, if they cannot agree it, to make as few amendments as possible - the fewer the amendments, the more likely one agenda can be agreed.

I can see no good reason why the parties were unable to agree a single agenda in this case. Perhaps greater input from Counsel may have assisted. The joint statement is an important document. It ought to be possible to read it and understand the key issues and each expert’s position on those issues. Sometimes less is more as far as the agenda is concerned. Parties should adopt a common sense and collaborative approach rather than allowing this stage of the litigation to become a battleground. Frankly, the approach to the joint statement in this case achieved nothing of value”.

4. They should also invite them, if they cannot agree it, to propose extra questions rather than changes to existing questions – these can be added to the end of theirs, effectively maintaining one agenda but avoiding the effectiveness of theirs being reduced.

5. Cooperate … The Claimant should be reasonable and cooperate with the Defendant as much as they can. They should demonstrate this in correspondence by offering concessions. They should justify any objection they have to any proposed questions.

They may need to refer to this on costs later.

So lawyers need to be careful in adopting the default position of a Claimant’s and a Defendant’s agenda both being put to the experts. However, the default position will sometimes still have its place.

6. ... But don’t capitulate. Lawyers shouldn’t feel that they have to agree at all costs, especially if it means replacing their carefully crafted ten questions which will explain the case perfectly to the trial judge (and anyone else who cares to read it) with a dog’s dinner which leaves the reader more confused about the case than enlightened. If they need to, they shouldn’t be afraid to revert to the default position anticipated by the standard direction – the meeting proceeds with

By stating “The joint statement is an important document.

It ought to be possible to read it and understand the key issues and each expert’s position on those issues” in my view Yip J is also making the point that the agenda should be drafted in a way that means that the joint statement derived from it encapsulates the key issues in the case.

Any person should be able to read it in 15 minutes and understand the case, or at least the case relevant EXPERT WITNESS JOURNAL

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the experts addressing both agendas, but they should be ready to explain it to the trial judge and the costs judge.

Mr Simon Fulford MBBS, FRCS (Eng), FRCS (Urol)

7. Don’t delay – the directions don’t give them much time to draft and seek to agree the agenda. In addition, if they want their expert to do a decent job, the least they can do is send it to them in good time for the meeting.

Consultant Urologist I have been Consultant Urological Surgeon at James Cook University Hospital, Middlesbrough since 2001.

I am also Consultant Urologist to the regional spinal injuries unit based at James Cook University Hospital which provides acute and long term care to patients with spinal cord injury from the whole of the North of England. In addition I have a private and medico legal practice based at Woodlands Hospital, Darlington.

8. Have a telecon with the expert the day before the joint meeting – this ensures that an otherwise poorly prepared expert has got the papers, has read them and is up to speed on the issues to be covered in the meeting, which is possibly the most crucial part of any case.

Within my clinical practice I specialise in neuro-urology (including spinal cord injury), urodynamics and reconstructive surgery for incontinence and bladder dysfunction. I regularly teach on national courses about these topics. I also regularly perform radical cystectomy for bladder cancer and pelvic exenteration for advanced gynaecological and colorectal cancer.

I also maintain a general urology practice.

9. Don’t interfere – once the experts start their discussion (by telephone or email exchange) they should leave them to it and politely decline any invitations to “approve” a draft statement.

Dr Simon Fox QC www.simonfoxqc.com

I have been preparing expert witness reports since shortly after appointment and have attended training courses in medico legal report writing. I have appeared in court as an expert witness. I currently receive four to six instructions per month including medical negligence and criminal cases. I have worked for both claimant and defendant and have acted as a single joint expert.

This article first appeared in the Avma newsletter, many thanks for permission to reprint.

Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk

BMI Woodlands Hospital, Morton Park, Darlington DL1 4PL T: 01325 341 700 M: 07855 312 901 E: simonfulford@nhs.net

Mr Roderick T A Chalmers

Mr John Hawkesford

Consultant Vascular Surgeon

Consultant (Oral Surgery & Oral Medicine)

MB, ChB, FRCSEd, MD, FRCS (Gen)

BDS (U.Lond), FDS, RCS (Eng)

Mr Chalmers is a teaching hospital consultant vascular surgeon with a wide range of expertise in arterial and venous surgery, including; thoraco-abdominal aortic aneurysm, abdominal aortic aneurysm, carotid artery surgery, hand arm vibration syndrome (HAVS) all aspects of lower limb ischaemia, varicose vein disease, lower limb ulceration and thorascopic sympathectomy.

Mr Chalmers has some experience in the management of vascular trauma.

Consultant in Oral and Maxillofacial Surgery to the Nuffield Hospital 1979present. Consultant in Oral and Maxillofacial Surgery and Oral Medicine to the Newcastle upon Tyne Hospitals NHS Trust 1979-present and Consultant in Oral Surgery to the Ramsay Health Group 2007-2012.

Providing medical reports relating to personal injury (road traffic accidents, sport and leisure injuries, industrial injuries, criminal assault) since 1974.

Specialist in Oral Surgery, Oral Medicine and Maxillofacial Surgery with special experience in injury of the jaws (mouth, teeth, facial bones and soft tissue injuries), complications following operations on the face, mouth, teeth and dental implants. Approximate split of cases undertaken 90% Claimant, 10% Defendant.

Contact: Lorraine Craig on 0131 242 3699 Tel: 0131 242 3587 Fax: 0131 242 1055 Mobile: 07768 277 835 Email: rod.chalmers@luht.scot.nhs.uk

Contact Westfield House, Bellingham, Hexham Northumberland NE48 2DP Tel: Secretary: 01434 221 123; Secretary (Fax): 01434 700 600 Mobile: 07798 607 928 - Fax: 01661 844 417 Email: john@hawkesford.onyxnet.co.uk Secretary: barbara@balockhart.com Area of work Newcastle upon Tyne, Durham & Northumberland

Address: Vascular Surgical Service Royal Infirmary of Edinburgh Old Dalkeith Road. EH16 4SU Willing to take instructions from the North of England

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Mesothelioma Reasonably Foreseeable Despite No Direct Evidence of Exposure John Samuel Thacker & Ors v. North British Steel Group plc [2018] CSOH73 Mrs Thacker died of mesothelioma in 2014. She had been employed in the office at the Atlas Steel Foundry in the mid to late 1960s. She had met her husband, an engineer, whilst working at the foundry.

Robin Howie, Occupational Hygienist, gave evidence for the pursuers. He gave general evidence about foundries being very dusty places to work. In his view Mrs Thacker would likely have been in the factory for several minutes at a time. By the time she was working there, the 1961 Factories Act was in force and a reasonable employer would have known about the harmful nature of asbestos dust. Guidance as to permissible concentrations of asbestos dust was available. A reasonable employer would have been aware of this guidance and would have ensured that it was complied with. The asbestos blankets were likely to be amosite felt or chrysotile webbing. Mr Howie provided likely exposure levels from working with the blankets of between 10 to 30 fibres/ml. Mrs Thacker's exposure would be less. On the basis she was 5 to 10 yards from those working with the asbestos blankets her likely exposure would be between 1 and 3 fibres/ml.

The case was taken to proof because the view was taken by the defender that there was insufficient evidence that Mrs Thacker was exposed negligently to asbestos in the course of her office duties. Mrs Thacker's statement was never provided to the defender. Her husband's statement, taken in connection with a claim brought by another former employee at the foundry, had been provided, but of course this did not deal with Mrs Thacker's employment or the manner in which she alleged she was exposed to asbestos. Two months prior to proof, an updated statement from Mr Thacker was provided, giving his version of events in relation to his wife's alleged exposure.

The defender had no factual witnesses of their own, but there was a note in Mrs Thacker's medical records to the effect that, when advised of her diagnosis of mesothelioma, she could not recall any asbestos exposure.

In cross-examination Mr Howie confirmed likely exposure of 10 to 15 minutes on several occasions each week would amount to an average daily exposure of 0.1 fibre/ml per day. As a consequence of this very low figure the defenders chose not to lead their expert witness as the evidence could not be improved upon.

At proof, Mr Thacker gave evidence that within the foundry, asbestos blankets were used to keep steel casings warm. He said that the asbestos blankets were "all burst". The dressing shop, where the blankets were used, was "right dusty". He and other workers knew there was asbestos in the blankets but were given no warnings or advice about this. They never wore masks but some workers tied handkerchiefs round their mouths because of the dust. There was no ventilation. His wife came into the dressing shop on most days of the week. She delivered memos and there was a "clock-in" device within the premises that she was required to check.

In submissions, defenders counsel argued that Mr Howie's evidence should be given no weight for three reasons: 1, He ought not to be treated as a witness to fact as he had no factual experience of the defender's foundry; 2, He had assumed the role of the pursuer's advocate in a manner which would exclude him from giving independent skilled evidence; 3, He did not have sufficient facts on which to properly base his opinion evidence.

Mrs Thacker's evidence came from a Thompsons paralegal who had taken her statement. Her notes were to the effect that Mrs Thacker had to go into the dressing shop with messages for the boss. She would speak to her father and uncle who also worked there.

Asbestos blankets were flung all over the place and were lying on the floor. Her father was a dresser and came home with his boiler suit on.

All three submissions were rejected by the Judge, Lady Wise, who accepted Mr Howie as a skilled witness, entitled to give the opinions he had.

A factual witness for the pursuer, Mr Hendry, gave evidence about the asbestos blankets and the amount of dust that came off them. He recalled Mrs Thacker coming into the dressing shop and said this would be more than once per week, perhaps three or four times each week.

2, That the use of asbestos blankets gave rise to substantial quantities of asbestos dust;

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Lady Wise accepted: 1, That asbestos dust was emitted into the atmosphere of the dressing shop which mixed with the steel dust which arose from the operations of the foundry;

3, That, at the point of release, the level of dust was substantial in terms of the second limb of s63(1) of the Factories Act 1961 (and was in any event above the hygiene standard).

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Another witness, James Brennan, another of Thompsons' clients, who did not know Mr Sweeney, gave evidence about the use of asbestos at the defenders premises.

Despite the defender arguing that any exposure would have been at a level which did not create any foreseeable risk of injury, Lady Wise found that dust levels would have exceeded acceptable limits and that Mrs Thacker was exposed to substantial dust. Such exposure was likely to contain asbestos dust above the maximum permissible levels of the time, at least at the point of release. The presence of substantial dust, irrespective of the extent to which it contained asbestos, triggered section 63 of the Factories Act 1961.

Robin Howie again gave evidence for the pursuers.

His report was predicated on the statement of Danny Watson, which was not before the Court, albeit Thompsons' paralegal had given his evidence with reference to his preparatory notes from taking that statement. Mr Howie had been given access to Mr Watson's statement.

By the standards of the day, a cumulative exposure of 0.1f/ml (which Robin Howie accepted) was unlikely to have been reasonably foreseeable as injurious in terms of the common law case. However, Lady Wise held that “the defender knew or ought to have known that any exposure to asbestos was likely to be injurious to Mrs Thacker� after 1965.

From the statements of Mr Watson and Mr Brennan, Robin Howie assessed exposure levels for those working in the vicinity of lagging operations of 240 fibres/ml for the preparation of monkey dung, 30 fibres/ml for its application, and 30 to 40 fibres/ml from cutting and handling freeform sections of asbestos. Mr Howie's view was that by 1960 an employer of the size of the defender, should have been aware of the dangers of asbestos exposure at those levels. Precautions should have been taken, including washing work clothes at the work place.

That precaution was taken, at a later date.

Having decided that the level of dust from asbestos blankets was substantial, the defenders were in breach of duty of the 1961 Act. Further, having found as a matter of fact that there was asbestos in the air generally (and thus Mrs Thacker breathed it in as a matter of fact), there was a material increase in risk.

Following McDonald v. National Grid, the finding that Mrs Thacker was exposed to substantial dust of any nature, shifted the burden to the defender to show that practicable measures were taken to avoid injury. The defender was unable to show that any such measures were taken, and breach of duty was established, as was foreseeability.

Mr Howie assumed that the deceased would have shaken out her husband's clothing two or three times each week, for between 5 and 15 seconds at a time.

He had assumed that any dust would have contained amosite, as the "lesser evil", when compared to crocidolite. His view was that Mrs Sweeney's exposure from 1965 and then up to the early 1970s increased her risk of contracting mesothelioma 40 fold when compared with the idiopathic risk to her.

Kay Gibson & Ors v. Babcock International Ltd [2018] CSOH78 The Gibson case concerned the issue of whether the deceased, a Mrs Sweeney, was exposed negligently to asbestos from her late husband's work clothes. Mrs Sweeney died in 2015, her late husband having passed away in 2008.

In submissions, Counsel for the pursuers stated that the Court had to do its best with the material before it. In his submission the Court could be satisfied on balance that significant quantities of dust containing asbestos were generated during the period of Mr Sweeney's employment with the defender and that as a result of his proximity to the dust, it would have got onto his clothing. Mr Howie's estimates of exposure were of assistance, but they were not really necessary.

Even if the only evidence was that asbestos was used in Mr Sweeney's work place to a significant extent, the Court's role was to take a view on whether or not a reasonable employer should have taken precautions. There was no evidence that any precautions had been taken until the early 1970s when the defenders began keeping their employees overalls within the work place. Again with reference to McDonald v. National Grid, a duty under the Factories Acts arose whenever a considerable quantity of dust was given off. It was not necessary to show that the quantity was considerable at the point of inhalation.

As with the Thacker case, there was no direct evidence of exposure. The pursuers again led the evidence of the paralegal at Thompsons who had taken a statement from the deceased prior to her death.

That evidence was that her husband had worked as an engineer fitter with Babcocks from the early 1960s for around 30 years and worked on construction of boilers. Mrs Sweeney knew that her husband came home with asbestos dust on his clothes. She lived with her husband from 1963 and for around 10 years washed her husband's work clothes regularly. She would shake them out at the back door and then wash them in her twin tub. At some point after 1973 Babcock started to wash her husband's overalls and provide him with clean ones.

Thompsons' paralegal also spoke to a former colleague of Mr Sweeney's, Danny Watson, and again gave his evidence at proof, as he had died between giving his statement and proof. Mr Watson confirmed that Mr Sweeney would have been exposed to asbestos from gaskets, rope and lagging. He didn't work directly with Mr Sweeney although he was in the same department.

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For the defender it was submitted that the evidence demonstrated no more than a possibility that Mr Sweeney had worked with or near asbestos, and that he had brought asbestos home with him as a result.

The evidence was so poor in quality that the Court was being invited to speculate as to where in the factory he worked; as to the likely level of any exposure 12

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the evidence was presented by the paralegals who took the initial witness statements. Commission evidence was not available. Affidavits were not available. The Courts were prepared to join the dots, albeit there were considerable gaps in the evidence.

to asbestos; how often he worked with or near asbestos; and whether he had been exposed to asbestos after 1965. It was likely that his clothes were dirty simply because he worked in heavy industry. Mr Howie was partisan. He was not a witness to fact, and could not speak to conditions in the defenders factory at the relevant time. Certain levels of asbestos had been accepted as tolerable in the past. The modern, zero tolerance approach to risk was a relatively recent development. Defender's Counsel emphasised the need for Courts to avoid any relaxation of the normal requirements of evidence in proof.

These decisions indicate that Robin Howie is regarded by the court as a reliable and persuasive witness.

l

The importance of ensuring that all historical factual evidence is retained and indexed is essential.

The only way to challenge cases where there is limited factual evidence provided by pursuers is by being in a position to lead contradictory factual evidence.

Insurers/defender law firms have, in some cases, been able to access appropriate information from prior claims.

l

Whilst the Judge, Lady Carmichael, criticised Thompsons for the lateness of the production of their evidence, she nevertheless ultimately found for the pursuers. Robin Howie had only been instructed less than 2 weeks prior to proof. Lady Carmichael regarded that as astonishing. She recognised the difficulties of proof in cases where industrial exposure took place a long time ago. However, Thompsons could have taken more detailed statements from the available witnesses. No attempts were made by Thompsons to seek to recover documentation or evidence from the defender. There should be considerable numbers of actions where there is no real dispute as to the likelihood of asbestos exposure, but Lady Carmichael recognised that not every case falls into that category. She advised that parties should be alert to identify cases which are likely to involve real dispute. She indicated that this required co-operation and candour on the part of those representing insurers. She stated that it would be unfortunate if disproportionate resources were required to be expended to prepare cases where there should be no real dispute.

l Finally, insurers should be cautious to challenge these cases on the basis of patchy evidence. Defenders are rarely provided with witness statements in Scotland. Efforts have been made over the years to encourage early and full disclosure of evidence, but these decisions do not support the insurers' plight in this regard. Insurers have been warned that they should only expend resources on cases which are likely to involve a real dispute as to exposure or liability.

By David Tait, Partner, E: david.tait@clydeco.com and Toni Ashby, Partner E: toni.ashby@clydeco.com www.clydeco.com

Lady Carmichael was satisfied that the risk of injury to the deceased was reasonably foreseeable to the defender. She was satisfied that Mr Sweeney would have worked in significant quantities of dust and that it would have got on to his clothing. In order to establish negligence, the pursuers would also have to prove that the defender failed to reduce the risk to the deceased to the greatest extent possible. The presence or absence of evidence about the actual level of exposure was of no particular significance in considering negligence. Lady Carmichael was satisfied that the defender failed to reduce the risk to the deceased.

There was no safe known level of exposure. Against that background, the employer's duty was to reduce the risks to the lowest level practicable. No precautions were taken so far as Mr Sweeney was concerned, and no precautions were taken to protect the deceased until the early 1970s. The defenders should have introduced precautions shortly after the end of 1965.

Mr Vincent Theobald-Vega Health and Safety Consultant FIIRSM, FRSPH, CMIOSH, MISTR, EurOSHM, BSc, MSc, PgDip, Cert Ed (LLS)

10 years as an HSE Inspector and 13 years in University safety prior to becoming a freelance consultant in 2012.

I have a wide a wide range of Health and Safety experience including specific expertise in: Accident Prevention; Asbestos; Construction; COSHH; Biohazards; Research areas and Laboratories; and many other areas.

Experienced investigator into accidents for criminal and civil cases, Undertook numerous prosecutions as an HSE Inspector, and assisted with the defence of cases as a safety manager and consultant.

Awards 2018 - Lawyer Monthly, Expert Witness Awards 2018 - Winner.

2017 - Lawyer Monthly, Expert Witness Awards 2017 - Winner.

2016 - Forensic Insider Health and Safety Expert Witness.

2015 - Forensic Industry e-Mag. award for health and safety.

What can we learn? l These cases were heard within a period of a few weeks of each other, albeit by separate Judges.

Inevitably the Judges must have conferred as to their decisions, which indicate that the standard of proof required in mesothelioma cases is very low. Much of EXPERT WITNESS JOURNAL

Contact: Safety 4 HEd LLP 7 Derwent View, Chopwell, Newcastle-upon-Tyne, Tyne and Wear NE17 7AN Tel: 07940 564 889 - Mobile: 07940 564 889 Email: vincent@safety4hed.co.uk - Website: http://safety4hed.co.uk

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Noise Nuisance and the Expert Witness

by Dick Bowdler, Noise Consultant - www.dickbowdler.co.uk to be a nuisance then the pursuer was entitled to some redress.

I have been an acoustic and noise consultant for nearly 50 years. My first noise nuisance case was in the early 1980s. We were in the Court of Session in Edinburgh with all the parties represented by senior and junior counsel. The case was brought by a private citizen living next to the Edinburgh Military Tattoo at Edinburgh Castle seeking interdict to prevent the Tattoo being held1. The defender was the Lord Advocate of Scotland. Our senior counsel became a court of session judge a few years later.

Although I had already given evidence in licensing hearings that often involved some assessment of nuisance, the Tattoo case (Webster v The Lord Advocate) was a steep learning curve. Since then I have been involved in many potential nuisance cases. Most of these never reach court either because the case is considered not strong enough or, more often, because a “deal” is reached.

In particular, my first lesson was that the role of experts is ancilliary in a nuisance case and they should not get too big for their boots – it is the court that decides what is a nuisance. Sometimes an expert’s evidence will dominate the case as they do in TV dramas but that is rare. As the Crown Court judge said in Roper2 “ . . . experts, do not decide the case.

If it were as simple as that we would not need to have heard from anyone other than the two experts in this case”. Lord Stott, in Webster agreed that the role of the expert was merely to test whether the lay evidence could be relied upon. He said “So viewing it I have found in Bowdler's evidence, even if taken with the qualifications suggested by Mackenzie, ample confirmation of my conclusion that the evidence of the pursuer and her witnesses was not an exaggerated reaction of the hyper-sensitive but represented the honest impressions of a cross-section of reasonable people”.

Webster was a good one to start my experience in noise nuisance because it clearly laid down the principles behind a nuisance action and the role of the expert. I represented the pursuer in this case and got criticism from friends who thought that it was wrong to try to stop the Tattoo which was an internationally renowned event. But my role as an expert was not to try to stop the Tattoo but to furnish the court with technical evidence to assist a decision. If it was found EXPERT WITNESS JOURNAL

Readers will notice my use of the words “interdict” and “defender” instead of “injunction” and “defendant” or “pursuer” instead of “plaintiff ”. This is because most of my work as a skilled witness has been in Scotland. Yes, in Scotland we are properly called “skilled” witnesses though most people now talk about expert and I will stick to that.

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The point I touched in my second paragraph – can the greater public interest in the defenders activities (in my case the international Edinburgh Tattoo) influence the decision on nuisance? In short, no, it cannot but it might affect the remedy. In the English case of Miller8 a neighbour applied for an injunction to prevent a village cricket club from striking balls into her garden. The appeal court, though finding it a nuisance, refused to grant an injunction because of the greater interest of the village inhabitants in enjoying their summer cricket; though it did award damages. In making the decision, Lord Denning said that the dictum that an Englishman’s home is his castle and is inviolate could not apply in that case. However, Lord Stott in his decision in the Scottish case of Webster said “Lord Denning's suggestion in Miller that an Englishman's home is no longer his castle cannot in my opinion apply to a Scotswoman's flat”. Anglo-Scottish rivalry is not confined to the sports field and politics!

What I am discussing here is what is called “private nuisance” in England. Public nuisance is a different matter and does not exist in Scottish law.

What is Nuisance?

Even after nearly 40 years of involvement with noise nuisance there are still points of law that can surprise.

Much of the case law is old but there are still important decisions being made which set a precedent.

We should start with what nuisance is generally. In Scotland the test for nuisance generally is slightly different from England and Wales. In Scotland the test is simply whether the noise is intolerable to a reasonable person. If the judge finds it is, then it is a nuisance.

In England and Wales two judgements will serve to define the test. Lord Neuberger in the Supreme Court judgement in Coventry v Lawrence3 said nuisance is an action “which causes an interference with the claimant’s reasonable enjoyment of his land, or to use a slightly different formulation, which unduly interferes with the claimant’s enjoyment of his land. . . . what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.” There is a more detailed discussion in the House of Lords decision on Hunter and others v Canary Wharf4 . In the recent case of R v Winvest Ltd5 and Another at Kirklees Magistrates Court the magistrate said “to be an actionable nuisance the noise would have to interfere to an unreasonable degree with the personal comfort of, or injure the health of, the reasonable persons use and enjoyment of their land – having regard to the ordinary comforts of human existence in the particular location. This is an infinitely variable test. Every case is fact specific”.

What is Noise Nuisance To appreciate the evidence in noise nuisance cases it is worth saying something about the role of the expert witness generally. I don’t intend to dwell on this because, as experts themselves, readers will be familiar with what I say. The best description is perhaps “Expert witnesses however skilled or eminent can give no more than evidence. . . Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the Judge or jury to form their own independent judgement by the application of these criteria to the facts proved in evidence”9. Although as experts we are sometimes called “witnesses of opinion” it is not acceptable for the expert merely to give an opinion; that is the job of the court. It is the expert’s job to explain to the court the state of knowledge in such a way that the court can reach an opinion.

The test in the Republic of Ireland is similar to that in England. The Supreme Court, in the case of Hanrahan v Merck Sharp & Dohme 6 set out the following: "It is clear from the authorities on the law of nuisance that what an occupier of land is entitled to as against his neighbour is the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances. It is difficult to state the law more precisely than that."

So, in a noise nuisance case the pursuer and other lay witnesses describe the sound they hear. They describe it in subjective terms and whilst they may say it is loud or very loud or that it wakes them at night, most of the description is of the character of the noise.

It is humming, whistling, grinding, pulsating, clattering and so on. Like “a train passing” or “a helicopter hovering overhead”. They may say that the noise annoys them during the day or even frightens them or wakes them up at night. On the other hand the expert may measure the noise level. She may rate or otherwise assess the characteristics of the noise.

There are standard ways of rating hums and whistles and impulsive noise such as hammering. So the expert may be able to put a numerical value on the noise and compare it with a standard that will say whether that number is likely to cause complaints or likely to be annoying. One expert may say that the lay witnesses’ description is entirely consistent with what would be expected when measured by one standard and another expert say that the description is not consistent by some other standard.

There is rarely much argument between lawyers as regards the basic definition of nuisance. It is the finer points of each case that make the difference. For example, can you come to a nuisance? If you move into a house next to a noisy factory and both the house and the factory have been there for more than 20 years without any complaints being made by the householder then you may have no right to claim the factory is a nuisance because your right is extinguished by prescription. On the other hand, if you buy a piece of land next to a shop that has been noisily making confectionery for more than 20 years and build a consulting room on it, as Dr Sturges did in 18797, then you may indeed have the right to claim it is a nuisance.

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In a recent (ongoing) case of wind turbine noise10 the Sheriff found that the complaint arose not just because of the volume of noise, but also “the fact that it can continue at a significant, intrusive level for lengthy periods; the character of the noise, whether it takes the form of rhythmic, repetitive 'blade swish' or any of the other, apparently less well understood, forms of turbine noise; the unpredictable manner in which the volume and character of the noise emitted by the turbines can change, or the noise can cease altogether, only to resume again in an equally unpredictable manner”

Further in Coventry the argument was put forward that the prior granting of planning permission to the defendant for the stadium and racing track deemed to be a noise nuisance had itself changed the locality.

In the original case, the judge held that the actual use of the Stadium and the Track with planning permission could not be taken into account when assessing the character of the locality for the purpose of determining whether the activities constituted a nuisance.

The court of appeal overturned this. The supreme Court said that it was wrong in principle that a planning authority should be able to deprive a propertyowner of a right to object to what would otherwise be a nuisance though it conceded that there will be occasions when the terms of a planning permission could be of some relevance in a nuisance case.

The type of sound and its context is also important.

In Webster there were three claims: first that the erection and dismantling of the stands totalling about four months (constructed each year with a specialist form of scaffolding) was a nuisance: second that the rehearsals with music (about eight over four days) were a nuisance: third that the Tattoo itself (about 20 performances) with music and explosions and gunfire was a nuisance. The pursuer won the first argument but lost the second and third. The erection and dismantling of the stands was judged a nuisance because of the duration and the character of the noise and in particular the banging of metal. The rehearsals were not a nuisance because of their relatively low number and the Tattoo itself was not a nuisance because the character of the noise was such that the pursuer “still stages parties at the flat to enable friends to enjoy the ‘nuisance’”. In any case, had the judge decided that the Tattoo performances themselves were a nuisance he would probably have ruled that the rights of the pursuer in this respect had extinguished by prescription because they had been going on in much the same way for more than 20 years. On the other hand, the erection of the stands was not subject to prescription because the method of erection had substantially changed in recent years to involve much more banging of metal.

So the development alleged to be a nuisance can be included as part of the character of the locality to the extent that it can be and is conducted so as not to be a nuisance.

Statutory Nuisance Nuisance is a long-standing common-law principle that has been used for around 800 years. However, in 1974 the Control of Pollution Act introduced the concept of Statutory nuisance. This still continues in the same form but incorporated into the Environmental Protection Act 1990. In fact many of the cases that I mention are statutory nuisance cases.

The test for Statutory nuisance is the same as that for common law nuisance but there are some differences in the procedures. The first is that action can be taken not only by the person aggrieved as in common law nuisance (in s82 of the Act) but by the local authority (s80). The local authority route is the most common way to deal with excessive noise. Local Authority action is nearly always instigated as the result of a result of a complaint. The Act gives the authority wide powers, in particular it can serve a noise abatement notice. Indeed, if it considers a statutory nuisance exists “the local authority shall serve a notice” under the Act (authors bold emphasis). In fact Council officers, usually environmental health officers, have unusual powers in statutory nuisance. They can serve a notice stating that a noise is a nuisance based on their own opinion, subject to possible appeal by the court.

There is another conundrum relating to noise nuisance was argued in Coventry all the way to the Supreme Court. That is the question of locality and in particular whether the grant of planning permission itself changes the locality. It has always been recognised that the nature of the locality is relevant – “it must be accepted that a certain amount of inconvenience, annoyance, disturbance and even damage must just be accepted as the price the pursuer pays for staying where he does in a city tenement”11. So what is not a nuisance in a city might be one in the country. In Coventry it was argued by the defendant that the stadium and motor racing track which was the subject of the nuisance claim should itself be taken into account in considering the locality. Lord Neuberger in the Supreme Court said “. . . in the present case, where the judge concluded that the activities at the Stadium and the Track were actually carried on in such a way as to constitute a nuisance, although they could be carried on so as not to cause a nuisance, the character of the locality should be assessed on the basis that (i) it includes the Stadium and the Track, and (ii) they could be used for speedway, stockcar, and banger racing and for motocross respectively, but (iii) only to an extent which would not cause a nuisance”.

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In R v Windvest at Kirklees Magistrates Court, six environmental health officers had been to listen to a wind turbine at various times and five of them had considered it to be a nuisance. The defendants were unmoved by this and believed that without any noise measurements to show that the level of noise was above a certain threshold, they could not possibly be shown to be causing a nuisance. The judge disagreed.

The subjective judgement of the neighbours and the six environmental health officers was sufficient. Interestingly, none of the six environmental health officers appeared to have been treated essentially as an expert witness but more like lay witnesses describing the noise though they did, in all but one case, express the opinion that it was a statutory nuisance.

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Having served a notice under the act, if that notice is breached “without reasonable excuse” the noise maker can be guilty of a criminal offence. Unlike an injunction in a common law nuisance case there is a defence of best practicable means against statutory nuisance. Best Practicable Means takes regard, amongst other things, to local conditions and circumstances, to the current state of technical knowledge and to the financial implications.

References 1, Webster v The Lord Advocate. 1985 SC 173, 1985 SLT 361, [1985] ScotCS CSIH_1 2, Roper v Tussauds Theme Park. [2007] EWHC 624 (Admin) 3, Coventry and others (Respondents) v Lawrence and another (Appellants) [2014] UKSC 13. On appeal from [2012] EWCA Civ 26 4, Hunter v Canary Wharf [1998] 1 WLR 434 House of Lords 5, R v Winvest and another

Specifying Abatement Measures In s82(2) of the Environmental Protection Act, if a sheriff finds there is a nuisance he or she is required to make an order to abate the nuisance. In common law nuisance the judge has to formulate the terms of an injunction. In either case there comes a point in any successful nuisance case, whether statutory or common law, that a form of words is required to tell the defendant what to do. One option is to tell them simply to “abate the nuisance”. In Webster that is more or less what happened. The terms of the interdict were worded to prevent the defenders making preparations for the Tattoo “in such manner as by reason of noise to create a nuisance”. The defenders returned to court to have this amended on the grounds that "in all cases . . . where interdict is granted by the court the terms of the interdict must be no wider than are necessary to curb the illegal act being complained of, and so precise and clear that the person interdicted is left in no doubt what he is forbidden to do"12. The Inner House of the Court of Session agreed and changed the interdict to “in such manner as by reason of metallic construction noise to create a nuisance” (authors bold emphasis).

6, Hanrahan v. Merck Sharp & Dohme [1988] I.L.R.M. 629 7, Sturges v Bridgman [1879] 11 Ch D 852 8, Miller v. Jackson 1977 Q.B. 966 9, Davie v Magistrates of Edinburgh. 1953 SLT 54, 1953 SC 34 10, Milne v Stuartfield Windpower. Aberdeen Sheriff Court 2018.

11, Watt v Jamieson - 1954 SC 56 12, Murdoch v Murdoch 1973 SLT (Notes) 13

Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk

Mr William Stuart Hislop

It may be that the order will simply say that the noise must stop and the offending machinery is to be taken away. Then it is easy, but in most cases the aim is to achieve a reduction of noise so that the impact is abated to the point that it is no longer a nuisance. A case is judged on the subjective evidence of the lay witnesses but it might not be reasonable to have a form of words that allowed the complainant to decide whether the nuisance had been abated – much as the complainant would most likely think it a good idea.

Generally one of two solutions can be adopted. First, a simple open order instructing the abatement of the nuisance, provided that the reasons for the nuisance are sufficiently defined so that “the person interdicted is left in no doubt what he is forbidden to do” such as the final interdict in Webster – this in effect leaves the question of compliance to the lay witness. Second, an order that translates the nuisance into quantifiable terms as in Roper where the judge set a specific noise limit that included character corrections.

BDS MBChB FRCSEd FFSTEd FDSRCSEd FDSRCPS

Consultant Oral and Maxillofacial / Head and Neck Surgeon Mr Hislop has been a Consultant Oral and Maxillofacial surgeon at Crosshouse Hospital, Kilmarnock since 1994 and is now also at the regional Maxillofacial Unit at the Queen Elizabeth University Hospital in Glasgow. He has been an Honorary Clinical Senior Lecturer at the University of Glasgow since 1995.

He specialises in head and neck ablative and reconstructive surgery for malignancy, salivary gland surgery and facial aesthetic and cancer surgery. He is experienced in dealing with facial trauma and also undertakes routine oral surgery.

Mr Hislop is currently carrying out approximately thirty medico-legal reports per year for both defence and prosecution.

Epilogue The Edinburgh Tattoo is still running every year at the same place and has been since 1950. The interdict which was granted was delayed for six months which allowed that year’s Tattoo to take place. The method of erecting the stands was changed, in part as a result of the court case.

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T: 01563 827 488 M: 07703 578 136 E: stuarthislop@supanet.com 44 Dundonald Road, Kilmarnock, Ayrshire KA1 1RZ

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Top Litigation Lessons to be Learnt from Losing

by Rowan Turrall, Senior Associate, Boyes Turner Sometimes a judgment comes along that serves as a template for how not to conduct litigation effectively. Imperial Chemical Industries Limited v Merit Merrell Technology Limited [2018] ticks every box in relation to presentation of the case, disclosure failings, discredited witnesses and partisan experts. The number of lessons that can be extracted from the case are too many to include in a single article so here is Part 1 covering presenting your case, disclosure and witness evidence. Part 2 will address the many issues with expert evidence which arose. “…inviting the court to think of a number, as long as it is lower than the one sought by MMT.”

Background This was not the parties’ first appearance before the court. This was a quantum trial which followed a trial on liability in 2017 and was the sixth judgment in the proceedings between the parties.

There were various documents submitted by the parties which attempted to explain the figures but these did not find favour with the judge who said:

The case concerned work performed by Merit Merrell Technology (“MMT”) for ICI at a paint manufacturing plant. The project took longer than originally anticipated and exceeded the initial budgeted costs. ICI withheld payments from MMT and in the liability judgment Fraser J found that ICI had decided that the best way to keep the project cost down was to push MMT to insolvency. Eventually it dismissed MMT from site alleging repudiatory breaches of contract.

“…I find this approach extremely unhelpful. It is a more sophisticated way of saying – the court has the trial bundle; here are the figures; please just get on with it.”

3. Don’t rely on evidence which is directly contradictory to findings made in a liability judgment Although the judge had made clear findings of fact during the liability trial, including a finding that MMT’s works were not defective, ICI’s witness, Mr Boerboom, continued to maintain this position in his evidence. This did not impress the judge. Although ICI’s counsel sought to suggest that “no disrespect was intended”, the judge remarked that this was “reassuring” but “not the point”.

ICI alleged that a large proportion of MMT’s work were substantially defective and sued MMT for the recovery of alleged overpayments. At the trial on liability Fraser J concluded that ICI had repudiated the contract. The quantum trial therefore focused on the value of MMT’s works as well as a counterclaim for damages.

4. Don’t ignore the contemporaneous evidence Documents which were created at the time of the events in question are usually extremely valuable evidence of what happened. Part of ICI’s witness evidence was described by the judge as being “wholly disingenuous…positively misleading and…directly contrary to the text of a vast number of contemporary emails…”

Lessons to be learnt 1. Don’t outstay your welcome In the liability judgment the judge stated that “further wasteful and expensive litigation ought to be avoided if possible.” That warning was unfortunately not heeded. The quantum trial was originally listed for 4 days but had to be extended to 8 days. This can’t have helped the judge’s views of the parties. He said:

On the other side of the fence the quality of MMT’s key witness evidence was assisted by the fact it was consistent with letters and emails he had written to various individuals at the time in question. MMT’s evidence was described as being “open” and “frank” as well as “accurate and reliable”.

“Some parties…seem to believe that the justice system will devote to them unlimited judicial resources to resolve each and every tiny point of disagreement...[The parties] have…consumed far more than their fair share of judicial resources already…”

When faced with witnesses whose testimony does not align with the contemporaneous evidence, judges can take an extremely dim view as to the veracity of their remaining evidence.

2. Present your case clearly When dealing with quantum the court needs to have a clear explanation of what figure each party considers is the correct one it should adopt. Here the judge described ICI’s approach as being:

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9. Direct evidence is key ICI’s case was based largely on seeking to undermine valuations which were made by the then Project Manager who had detailed knowledge of the works.

When presenting its case ICI did not produce any direct evidence from anyone who had actually been involved in the majority of the works in question or who knew something about the subject matter. On the other side of the fence MMT’s witnesses had been involved in the project at the relevant time, had a detailed knowledge of the works and were described as being “credible and honest”.

5. Don’t contradict earlier evidence you have given In the liability trial, Mr Boerboom on behalf of ICI said he did not know why the Project Manager had resigned. By the time of the quantum trial he had come up with an explanation. However, this did not help persuade the judge who said of the explanation that it was not: “…corroborated in any document whatsoever, and by now I have reached the point where I would not accept anything Mr Boerboom says about this project without some form of independent corroboration.”

This witness’ attitude to the facts was described as being “reprehensible” and bearing “remarkably little, if any, resemblance to the truth”.

10. Get on top of your disclosure There were numerous issues during the litigation in relation to disclosure including late disclosure of documents which had been in ICI’s possession.

6. Don’t penalise a party for taking advantage of its legal rights One of the reasons that Mr Boerboom gave for dismissing MMT from site was its decision to initiate adjudication proceedings against ICI. The judge described this attitude as “highly regrettable” and penalising a company for taking advantage of its legal rights.

One of the witnesses admitted he had kept notebooks but said these had not been asked for by anyone and had since been destroyed. This was not looked on favourably by the judge.

The conduct of ICI serves as a reminder of the need to ensure disclosure of documents is dealt with promptly and that individuals involved in disputes are advised of the need to preserve relevant documents. Here the judge said:

7. Know when it’s time to give up ICI abandoned its reliance on one of its witnesses half way through the afternoon of the last day (i.e. the 8th) of the quantum trial. The judge lamented that the abandonment of this evidence should have come earlier than it did. Had it done so it would have saved time, cost and court time.

“ICI during this litigation have not conducted themselves in accordance with their obligations on disclosure. Further, ICI have had their solicitors…make incorrect statements in evidence to the court on several occasions…These failures by ICI are highly regrettable and are entirely out of the norm for commercial litigation.”

8. Watch your witness statements This time it is not ICI but MMT that came in for criticism from the judge. In the liability trial, the judge gave a warning about MMT’s witness evidence which was described as being “curiously worded and extraordinarily brief.” In that trial one witness statement contained all of MMT’s evidence. The other two witness statements simply said they agreed with the first statement or identified certain passaged which could not be corroborated.

11. Don’t assume a Scott Schedule will help A Scott schedule can often be a useful way of setting out the parties’ respective positions. Here that was not the case. Both parties produced their own schedule because they could not agree on a single one. It’s not surprising that what was produced did not assist. The judge said: “…with the parties at daggers drawn over practically everything, the use of such a document would not be effective in terms of narrowing disputes and enabling a saving of costs.”

Faced with this criticism the first time round, MMT submitted witness statements for the quantum trial which were instead described as having “some peculiarities”. This time round MMT duplicated over one hundred paragraphs of evidence, simply changing the first person to the third person where needed and vice versa. This resulted in MMT being ordered to re-serve the witness statements, striking out the duplication. The judge gave a stern warning that all litigants should be alive to:

Critically here the judge had not given any direction for the parties to produce a Scott Schedule and there had been no agreement over the format of the schedule or what it should contain.

So what was the outcome of the case? You’ll need to wait for Part 2 to find out…

“Statements are not supposed to be drafted by those who equate length with substance, and regardless of expertise with the copy and paste functions of word processing functions, witness statements must be drafted in accordance with the Civil Procedure Rules.

Nor should such documents include lengthy quotations from contemporary documents…There is absolutely no good reason, in any case, for the regular and continuing failure to pay attention to the rules concerning witness statements.”

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Article by Rowan Turrall, Senior Associate, Boyes Turner. Many thanks for permission to reproduce.

For more information about how the Dispute Resolution team can help you please contact rturrall@boyesturner.com.

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Expert Evidence – Getting it Right

by Chris Kirby-Turner, Partner in the Construction & Engineering team at Thomson Snell & Passmore solicitors Construction disputes are often complex, meaning they often require expert evidence. Readers will undoubtedly know that a profession has evolved dedicated to preparing evidence for tribunals or courts.

have knowledge of the most reputable experts, and those who are right for your dispute.

Obtaining early expert and legal advice can increase the chances of early dispute resolution. This is especially likely where there are unusual or complex technical questions to be resolved.

Experts are an exception to the rule that witnesses cannot give opinions. Where a tribunal needs to determine complex technical issues, expert evidence is often vital to the parties.

An early instruction can avoid the cost of instructing experts to produce court compliant reports.

Complying with ‘Part 35’ of the Civil Procedure Rules (the rules that govern court procedures) is crucial. But preparing a full and detailed report can take time.

An early appointment can give your legal team the ammunition and preparation time to get a breakthrough in negotiations. Disclosing preliminary expert evidence can be helpful in the run up to mediation.

Avoiding common pitfalls Parties usually pay their own experts, but it should be remembered at all times that their duty is to the tribunal. Experts should be impartial.

But there have been cases over the years in which experts have acted as a ‘hired gun’ for the party paying their fees. The courts take a very dim view of those experts who do not understand or properly execute their role.

Taking advice to make sure you get the right expert to consider the right issues at the right time is essential. It will maximise the value of the expert evidence, and ensure you avoid common pitfalls.

In 2013, an expert in a dispute relating to the Liverpool Museums project came under fire for being partisan. It was said he was, “seeking to defend the indefensible for the benefit of [the architect]”.

A good expert witness can be very helpful, but a bad expert or a poorly instructed one can be extremely damaging to a claim.

This year there have been a selection of cases highlighting this point further: · An expert architect reporting to the Grenfell Tower inquiry was removed from the proceedings. Despite holding himself out as an Architect, he was not registered with the ARB. · In the case of Merit Merrill v ICI, the Judge referred to a ‘preponderance of partisan experts’. He said: “There are some jurisdictions where partisan expert evidence is the norm… this jurisdiction is not one of them”.

Chris Kirby-Turner is a Partner in the Construction & Engineering team at Thomson Snell & Passmore solicitors

· In a land valuation case, the tribunal took exception to an expert’s employer working on a contingency (no-win no-fee / percentage) basis. They said of the well-known multi-disciplinary practice, “it remains wholly unacceptable for an expert witness, or the practice for which he or she works, to enter into a conditional fee arrangement, without that fact being declared...”

Experts whose evidence is challenged in this way can be extremely damaging to an otherwise respectable case. Their evidence will lack credibility or may even be inadmissible. Costs will likely be unrecoverable, and considerable management time and money will be wasted.

Getting the most from your expert In some cases, appointing an expert can be as expensive as appointing the rest of your legal team. This is particularly true when complex technical questions and detailed facts need investigation. Therefore, finding the right expert is important.

A good lawyer working with an expert, can help maximise the chance of a quick resolution. They will know how to instruct the expert for best results. They will EXPERT WITNESS JOURNAL

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SRA Digital Badge Launched A new digital badge that responds to the public’s demand for better information on the protections people get from using a regulated law firm has been launched.

The badge, which has been widely requested by many firms, is part of wider reforms designed to help the public make more informed decisions when choosing a legal provider. New rules requiring law firms to publish information on price, services and their complaints procedures also come into effect today.

Under the rules, all regulated law firms will be required, to proactively publish information on prices they charge and what these include, across a number of common services: • For members of the public: conveyancing, probate, motoring offences, employment tribunals (claims for unfair or wrongful dismissal) and immigration (excluding asylum).

Online trials conducted earlier this year involving 1,899 people found that when searching for a legal service provider: • 79% felt more comfortable selecting providers that displayed a badge

• For businesses: debt recovery (up to £100k), employment tribunals (defending claims for unfair or wrongful dismissal) and licensing applications for business premises.

• 86% wanted to have access easy access to information on protections

All regulated law firms are also now required to publish online details of their complaint’s procedures, including explaining how and when a complaint can be escalated to us or the Legal Ombudsman.

Detailed guidance and templates designed to help firms understand and comply with the new rules are available on the SRA’s website.

• Consumers were 14% more likely to buy services from a firm displaying a badge than an identical firm that did not Underpinned by technology which means it will only display on websites registered to law firms we regulate, the badge will help firms differentiate themselves from unregulated legal services providers.

To view more information on the transparency rules, including for law firms how to get the SRA digital badge, go to: www.sra.org.uk/transparency

By clicking on the badge, website visitors will be able to access information outlining the protections offered to clients because the firm is regulated. This includes that the firm meets our standards, have appropriate insurance and access to the Compensation Fund, and that its clients can potentially raise complaints with us or the Legal Ombudsman.

FHDI Mrs Kathryn Thorndycraft-Pope Forensic Document Examiner Kathryn Thorndycraft-Pope is a Forensic Document Examiner, her expertise in in examining handwriting and documents to determine if they are genuine or fraudulent. She uses specialised equipment which can decipher alterations, erasions and indentations.

While use of the badge is initially voluntary, it will become mandatory for all SRA-regulated firms later in 2019. The badge and click through information will be available in both English and Welsh.

Kathryn started her career as a Forensic Document Examiner by joining the Identification Bureau of Grampian Police over 20 years ago.

After initial training which included a short experience at the Home Office in Birmingham, and training in all aspects of ‘Identification’ of the crime such as Scene of Crime, Forensic Photography and Fingerprints.

She was authorised as a Forensic Document Examiner by The Secretary of State for Scotland, to report on Handwriting and Document Examination, and attend Court as an Expert Witness. In 1998 she started her own Company - FHDI (Forensic Handwriting & Document Investigation) undertaking casework from all over the UK Europe and Worldwide.

Paul Philp, SRA Chief Executive, said: “All the evidence shows that people increasingly want to shop around before engaging legal support. They are interested in price, but also want information on quality and protections to be readily available. The more information is available, the more people are able to make good choices.”

Kathryn has given Expert Witness evidence on many occasions, including many High Courts, Sheriff and District Courts. She was involved in a case which made Scottish legal History when £100 million of cocaine was brought into the West Coast of Scotland. Kathryns’ expertise was vital in establishing the importers connections and proving their guilt. She also has media experience having appeared on BBC Scotland and Gaelic TV.

“By publishing prices, outlining services and displaying our new badge, regulated law firms will be able to set themselves apart from others and help potential clients to see the benefits they offer.”

December’s implementation of the transparency rules was first announced in June 2018, and further confirmed following Legal Services Board approval of the rules in August.

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FHDI The Coach House, 4 Fetteresso Castle Stonehaven, Aberdeen AB39 3UR - Area of work Nationwide Tel: 01569 764 508 Mobile: 07710 655 838 Email: fhdi@icloud.com Web: www.fhdi.co.uk

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Morrisons Found Liable For Staff Data Breach

by Justin Govier, Partner at IBB Solicitors The Court of Appeal has upheld a High Court ruling finding supermarket chain Morrisons legally liable for a data leak caused by a former employee which affected around 100,000 members of staff.

Experts underline that there is “very little [companies] can do to guard against a similar situation,” since such acts may not be mere negligence but wilfully and maliciously planned to hurt the firm.

The case marks the first class action suit for a data breach in the UK and saw over 5,500 Morrisons staff seeking damages from their employer after auditor Andrew Skelton leaked their personal information, including salary and bank details, online and to newspapers.

Judges in the ruling admitted that finding employers vicariously liable for any data breaches caused by staff could result in firms being ordered to pay “potentially ruinous amounts” in compensation.

However, they maintained that companies could protect themselves by “insur[ing] against losses caused by dishonest and malicious employees.”

Three senior judges concluded that Morrisons was “vicariously liable” for the offence, for which Mr. Skelton was jailed for eight years in 2015.

Retailer seeks further appeal to Supreme Court Employers are already advised to insure against their liability to pay damages for harm caused by employee negligence.

The food retailer could now be liable to pay compensation worth millions of pounds to its affected employees and has said that it will now apply for a further appeal to be heard in the Supreme Court. As the first ruling of its kind, the case is expected to set a significant precedent for companies across England and Wales. Employers may now be liable to pay vast sums to people affected by data breaches caused by individual staff negligence or overall failures of the corporation.

Under the doctrine of vicarious liability, employers are legally responsible for the acts and omissions of their staff, provided the staff member was acting in the course of employment. Beyond taking out insurance, companies should also take all steps as far as is reasonable to ensure that their systems and strategies to protect personal data are secure.

A legal representative for the claimants welcomed the verdict, stating: "The judgment is a wake-up call for business. People care about what happens to their personal information.”

Thorough processes should be in place for deleting personal data no longer needed, and those in a position to access sensitive information should be monitored closely. The bottom line in many cases however appears to be that companies will be held liable for the harm caused by employees wherever necessary to ensure that victims receive adequate compensation.

They maintained that it was only fair to “expect large corporations to take responsibility when things go wrong in their own business and cause harm to innocent victims.”

A spokesperson for Morrisons emphasised that the chain had “not been blamed by the courts for the way it protected colleagues’ data.”

Ruling could impact all UK employers Many lawyers have been quick to criticise the ruling as a dangerous precedent which opens the floodgates for companies to be forced to pay unforeseeable costs in compensation for data breaches beyond their control.

The spokesperson added that the retailer was “not aware that anybody suffered any direct financial loss” and believed it “should not be held responsible” for the criminal actions” of a former employee which “targeted at the company.”

One critic pointed out that the verdict “effectively achieved” Skelton’s “purpose of punishing Morrisons by making them liable for potentially millions…in compensation, through no fault of their own.”

Employment law advice for employers Find out how we can protect your business and your reputation from the acts and omissions of employees by calling us on 03456 381381.

Skelton deliberately leaked the data in act of revenge against the supermarket group after he was disciplined for operating an ecommerce business through the company’s mail room at its Bradford headquarters.

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Alternatively email your details to employment@ibblaw.co.uk. www.ibblaw.co.uk

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Preparing For a Hot Tub

by Dr Chris Danbury MB BS M.Phil FRCP FRCA FFICM Hot-tubbing, the process of expert witnesses from the same discipline providing concurrent expert evidence (as set out in paragraph 11 of the CPR practice Direction 35), is becoming more widely used.

Dr Chris Danbury, Consultant Intensive Care Physician has been instructed in cases reaching the High Court, Court of Protection, Coroner’s Court, Court of Appeal and Supreme Court. In this article he shares his experience of “hot-tubbing” and how expert witnesses can best prepare, and be prepared, for a judge-led joint examination.

Staying on topic The less structured and less formal setting of a judge-led joint examination can allow an expert witness to stray off topic. Legal counsel could usefully help experts prepare for hot-tubbing by reminding them of the scope of their evidence and that their duty is to the court and not as advocates for their instructing party.

With increasing focus on the length (and cost) of trials, the ‘hot tub’ looks like it is here to stay. For expert witnesses this means that court room skills need to be extended to prepare them for questioning, and being questioned by, the other expert as well as communicating clearly and effectively with the judge. The first time in the ‘hot tub’ doesn’t need to get an expert witness hot under the collar with a little support and forewarning from their legal counsel.

Expecting the unexpected For many expert witnesses the courtroom is not a familiar environment. Any expert worth their salt will have attended training in courtroom skills, with the focus historically on giving their testimony confidently and clearly under cross-examination. It can then be daunting to arrive at court to be told that the judge has given direction for ‘concurrent expert evidence’ or a ‘hot tub’. On the face of it, it doesn’t change the preparation an expert witness should and would do, although a thorough knowledge of current reviews and meta-analysis on the specific topic in hand will stand an expert in good stead in a ‘hot tub’. For legal counsel any forewarning gives a first-timer the opportunity to read up about the process and how it should work (recognising that as a ‘judge-led’ approach, it will vary from individual to individual). Some judges have a history of ‘hot tubbing’ and legal counsel could usefully identify that to an expert who is preparing for court.

Dr Danbury can be instructed through Medicolegal Associates on a range of cases involving intensive and high dependency clinical care settings.

Many thanks to Dr Danbury and Medicolegal Associates for permission to reproduce this article. www.medicolegal-associates.com

Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA

Chronic Pain Expert

Striking the right balance When ‘hot tubbing’ works well it provokes intellectual debate between experts. It is a good way to explore complex issues and seek to find common ground in the areas where two experts are not in agreement. From an expert’s perspective, there is a balance to be struck between confidence in one’s own opinion and having an open mind and being flexible if the other expert makes a valid point. A mutual respect between experts is key to the success of the ‘hot tubbing’ format, so an expert witness should not be deferential to a colleague who may be seen to be more senior.

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.

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.

A more junior expert should keep in mind that their view is still relevant, possibly more so if their clinical work is more extensive at the current time than their senior counterpart. Experts with experience, age and/or seniority on their side should not seek to undermine the other expert on that basis.

Contact:

Tel: 01625 526 665 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk Spire Manchester, 170 Barlow Moor Road, Manchester M20 2AF

EXPERT WITNESS JOURNAL

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Criminal Legal Aid: Welcome Boost for Trial Fees Must be Matched Across System to Avert Crisis Support for criminal legal aid trial payments must be balanced by boost for case preparation work to ensure survival of the criminal defence profession.

station to ensure solicitors are fairly paid for the work they have to do.

“There is a desperate need to increase fees for all of this other work if we are to have any hope of avoiding the imminent extinction of the criminal defence solicitor in some parts of the country.

Ministry of Justice (MoJ) plans to increase expenditure on a payment scheme for trial fees in serious criminal cases, such as robbery, rape and murder are a helpful first step in addressing the crisis in criminal legal aid, but the survival of defence solicitors is still at stake, the Law Society said.

“Defence solicitor have had no pay rises for over 20 years and this is driving more and more of them away from criminal defence work. Our data shows a looming crisis in the numbers of criminal duty solicitors.

The mean average age of criminal duty solicitor across the whole of England and Wales is 47, and in many regions the average age is even higher. In five to 10 years’ time there could be insufficient criminal duty solicitors in many regions, leaving individuals in need of legal advice unable to access justice.

Commenting on a government decision to improve fees for defence advocates, Law Society president Christina Blacklaws said: “Criminal legal aid lawyers – solicitors and barristers – are critical for ensuring that anyone accused of wrongdoing has a fair trial.

“We are pleased the MoJ has acknowledged the concerns we raised in our response to its consultation and has considered the analysis we commissioned from Professor Abigail Adams. The Ministry has not only made the changes the Law Society asked for, it has also agreed to bring forward the across the board 1% increase in rates.

“Solicitors urgently need ministers to give this crisis the same constructive attention as they have to the serious problems in relation to advocacy payments, the Flexible Operating Hours pilot – which now excludes criminal courts – and the rules surrounding disclosure of evidence.”

“However, advocacy in the Crown Courts is only one small part of the system. In light of the government’s plan to increase the expenditure on advocacy, we would urge the MoJ to restart discussions to try to formulate a revised approach to the Litigators Graduated Fee Scheme (LGFS), as well as the fees paid for work undertaken in the magistrates’ court and police

Christina Blacklaws concluded: “A thorough, independent review of the long-term viability of the criminal legal aid system is critical to ensure there is a stable supplier base of defence lawyers, to safeguard the rights of the vulnerable and to protect the reputation of our legal system.”

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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AI Will Free-up Solicitors Artificial Intelligence (AI) will free up solicitors from lower-level work to carry out more complex tasks, a new report concludes.

The Solicitors Regulation Authority (SRA) has published a paper which looks at innovations in technology affecting the legal service sector. The report shows that rapid developments in AI will mostly be focused on back-office functions, addressing out the less complex work.

Paul Philip, SRA Chief Executive, said: “There is no doubt that new technology has already improved the way legal services work. Latest surveys show that 30 percent of legal work is now delivered online and the business use of emails has speeded up many tasks. “Our report highlights the potential for technology to add further value in the workplace and we are looking further at how AI can enable the provision of high-quality legal services through the government Pioneer Fund award. Many firms are already exploring the possibilities and I would urge all law firms to consider how technology can help you and your business.�

This will allow solicitors to focus on more complex parts of a case or increase their capacity to engage with clients and potential clients.

Using AI for legal services could also see firms reduce their costs as overheads for ‘virtual’ parts of a business are lower. And attitudes about using new technology will change as it becomes more commonplace.

The paper also outlines the quality of legal work carried out by computers. While it is not 100 percent accurate in various tests, it has never proven any less accurate than work carried out by humans. In some cases, it is more so. However, while in one test it took real-life lawyers 92 minutes to complete a task, AI finished the job in 26 seconds.

Various reports have been published elsewhere on the attitudes of the profession towards the use of technology, and other areas of innovation, and the progress that is being made.

The SRA have dedicated pages for those looking to find new ways of working, with the aim of increasing access to justice, competition and choice for clients.

The paper on technology and the SRA Innovate pages can be found by visiting their website: www.sra.org.uk

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Pressure Ulcer Litigation The Nursing Expert View - Mr Lister & Ms Johnson completed by nursing staff shortly after admission and throughout the patient’s journey.

A common complaint we are instructed (by the Claimant or Defendant in a civil action) to review and consider as nursing experts, is the development of pressure ulcers (also known as pressure sores) whilst a patient was under the care of registered/qualified nursing professionals.

This assessment stage is fundamentally important and often where the nursing care falls down.

Commonly, we find that nurses fail to appreciate the patient’s medical history and clinical circumstances, and do not score them correctly.

One of the leading nursing expert witness practices, Apex Health Associates, reports around 20-30% of its work involves considering evidence and providing opinions with regards to the development and management of pressure ulcers. Patients developing pressure ulcers is a significant problem that should not be underestimated - NHS Safety Thermometer reported that from April 2014 to the end of March 2015, just under 25,000 patients were reported to have developed new pressure ulcers, and on average 2,000 pressure ulcers are newly acquired each month within the NHS in England.

Another common error is that the nurse identifies the risks correctly (using the scoring system) but then fails to calculate the final score accurately.

This is often clinically significant because many of the organisation’s policies provide pathways dependent of the score reached. Hence, an incorrect score often takes a patient down an incorrect pathway.

Moreover, it is our experience that there is sometimes an over-reliance on scoring systems and a lack of clinical judgment employed. Validated scoring systems are an excellent tool but the nurse should always remember that they are there only to act as guide and to assist them with their clinical assessment.

Pressure sores are areas of tissue that are damaged by excess pressure, shearing or friction forces. They can occur in any patient and are not restricted to the elderly, frail or dying. Severe pressure sores can be horrific injuries and can have life changing effects.

Often people imagine a pressure sore as being merely a reddened area or a small wound. In our experience, pressure sores can be, in extreme cases, severe wounds involving muscle, tendon and bones.

2. Skin inspections The recommendation of NICE ‘Pressure ulcers: prevention and management’ (guidance CG179) recommends those who are assessed to be at high risk of developing a pressure sore should have a skin assessment completed on admission and at least daily.

The management of the sore (wound) is outside of the focus of this article, but significant pressure sores can take a significant amount of time to heal (if ever fully) and therefore it is essential that both nursing and medical staff understand the importance of prevention.

In clinical practice a failing is (1) for the nursing staff not to carry out and document an assessment, or (2) not to conduct and document a thorough skin assessment including all of the criteria within the NICE guidance (skin integrity, colour changes or discoloration, variations in heat, firmness and moisture) or (3) not conduct an assessment of all areas of skin that are susceptible to pressure i.e the tips of the scapula, elbows, sacrum, heels, back of head, knees, iliac crest (hip bones), tops of toes, knees, ears, cheeks, ankles, trochanter, ribs, shoulders.

As with any clinical negligence case the nursing expert examines and considers the evidence to determine if (1) the nursing care equated to a breach of duty and provide an opinion as to whether (2) the breach/es caused (or materially contributed to) the injury complained of.

3. Care planning (prevention) A good thorough care plan should be produced. The nurse needs to consider the risk assessment and the reasons as to why their patient may be at risk of developing a pressure ulcer. In very general terms, factors should include, but are not limited to:• The patient’s presenting medical condition • The patient’s ability to move and sensation • Moving and turning (pressure relief/off loading) • Hydration and nutritional status • Outcome of the skin assessment • Drugs and medication • Patient preference and comfort

There are several areas that experts will pay particular attention to when considering this area of care:1. Risk assessment (identification of those at risk) All NHS Trusts, nursing and care homes will have policies and procedures for the assessment of patients in determining if they are ‘at risk’ of developing pressure sores. Often these policies and procedure documents are well written and clear with pathways for the nursing staff to follow.

Organisations will often employ the use of a validated scoring system (such as the Waterlow, Braden or Norton risk assessment scoring system) to be EXPERT WITNESS JOURNAL

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• Use of equipment (such as specialist mattresses) and devices • Patient education • Infection surveillance and management

8. Refusing patient Assuming a patient has capacity to make decisions they have the right to refuse any medical or nursing treatment. The key issue here is whether the patient has been told of the risks and consequences should they choose to refuse. Conversations should be documented in the patient’s medical and nursing notes. We find that a patient’s refusal is documented but the medical or nursing staff have not documented the explanation of the consequences of their decisions.

The plan should be accurate and clear as to the interventions prescribed and how and when evaluations will occur.

The common mistakes here are nursing colleagues not conducting a sufficiently robust assessment and missing elements that require planning. Moreover, when a patient’s clinical condition changes the care planning sometimes falls below a reasonable standard because the patient is not reassessed and care plans are not reviewed/updated.

9. Documentation In most of the cases we are asked to consider, documentation is (by far) poor and below a reasonable standard. The planning, delivery and evaluation of nursing care should be clearly and logically documented. Often we find a lack of care planning, poor evaluation, or risk assessments partially or not completed.1

4. Enactment of the care plan Following the assessment of the patient and prescription of care it then needs to be carried out according to the said plan. If nursing care is not carried out to plan (without good documentation as to the variance) then this is likely to fall below a reasonable standard.

10. Repositioning Repositioning is often described by nursing staff as pressure area care.

Patients develop pressure damage when the tissues are injured because of pressure impairing blood supply. To prevent injury, it is imperative that a robust and sufficient repositioning regime is considered, prescribed and enacted. This regime should be carried out, as per the care plan and any variance should be clearly documented and the regime/care plan re-evaluated (as required). In practice the frequency of repositioning or the position are not documented as per the regime. In most cases the repositioning is documented as a tick.

We often find that nurses will not adhere to the prescribed care plan and fail to document the reasons for the variance or update and change the care plan.

5. Evaluation Throughout the patient’s journey there should be evaluations as to the prescribed care, and, importantly, the effectiveness of the prescribed care. Once the care has been evaluated the care plan should be amended accordingly.

Here, we often find that a care plan is prescribed but the effectiveness of the care is not considered and the care plan is not evaluated.

Commonly, within the clinical arena, forms and documents are used to record the position of a patient. These forms can be described as many things but include: turning charts, repositioning forms, ward rounding charts & pressure area care/SSKIN charts. The reasonable standard is for these charts to be completed accurately and contemporaneously.

6. Correct use of equipment The amount of pressure relieving equipment available on the market is immense. It is often difficult for practitioners, who may move between organisations, to maintain competence with the standard equipment used for pressure relief as this can vary considerably. Accordingly, it is important for practitioners to ensure they understand the equipment available and its uses. Often we find that nurses have not used the correct equipment for their patient and have not sought the advice of senior or specialist staff.

NICE guidance suggests and recommends that adult patients who have been assessed ‘at risk’ to change position every 6 hours and those assessed as ‘at high risk’ to change position every 4 hours. However, the nurse within the clinical arena will make their assessment and prescribe their care accordingly. It could be that the nurse prescribes more frequent turns having examined the patient and forming an opinion that this is required. In practice nurses will often change the position of a bed ridden patient from side to side, alternating with the patient lying on their back. One method of reducing pressure on a susceptible area i.e hips and trochanters is to use the 300 tilt using cushions under the support surfaces to relieve the pressure. When patients are sitting in chairs, pressure area care and repositioning can be merely allowing the patient to stand (or be hoisted), allowing pressure to be relieved and therefore blood to circulate to the high-risk area.

7. Patient education Patients need to be given sufficient information and education as to the risk of pressure ulcers and actively involved in the planning of their care. They should be educated as to preventative strategies and encouraged to self position. We find that nurses often do not involve the patients in the planning of their care and educate them in preventative strategies. A leaflet on pressure ulcer prevention should be given to the patient/carers to re-enforce the verbal information given.

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In order to monitor healing or deterioration of the sore/ulcer clear documentation should be produced.

The location, size, temperature, exudate levels, depth should be recorded. In clinical practice it is now common for photographs to be taken and these should be labelled with the date, patient’s name and the location of the ulcer. The ulcer should be regularly reviewed for signs of improvement or deterioration. A care plan should be produced (or current plans updated) to include the management of the ulcer/sore.

The prevention of pressure sores by frequent repositioning of patients is a widely accepted practice and nurses commonly reposition at risk patients every 2 hours. However, this is based on a myth that Florence Nightingale took 2 hours to reposition every injured soldier on her ward (Crimean War, 18531856), thereby reducing the number of pressure injuries that occurred. Then, in 1961, a research study

by Kozlak, which examined a 2-hour turning schedule, also found this reduced pressure Injuries (Krapfl & Gray, 2008). This led to the belief that all at risk patients should be repositioned every two hours. Today we realise that every individual's risk is different and each individual should be repositioned according to need (Hampton and Collins 2003).

In the care plan/s, the nurse should deal with the following:• The outcome of the risk and skin assessment and general health status

The simplest method for this is to examine the tissues and see any reddening as warning that pressure injury is inevitable if action is not taken to relieve the pressure (Hampton and Bree-Aslan, 2009).

• Repositioning and pressure relief (off-loading) regime/frequency to be implemented (what can they do for themselves and what needs to be done for them).

11. Devices for prevention of pressure ulcers In all circumstances the nurse should adhere to the Local NHS Trust policy.

• Reference to any manual handling assessment and safety whilst moving • Patient preference

NICE (2014) and EPUAP (2009) suggests a high-specification foam mattress should be used for all patients admitted to hospital and only if this is deemed not sufficient to redistribute pressure, should consideration be given to the use of a dynamic support surface. In practice the use of a high specification mattress in conjunction with a good pressure ulcer prevention care plan including strictly adhered to repositioning schedules based on skin assessments will prevent tissue breakdown.

• Nutritional status and action plan (as required /needed) • Referral for specialist involvement (if required) for example to the TVN team, dietician, physiotherapy team and medical teams • Use of equipment • Patient and carer education and involvement • Identify care evaluation time points • Charts and other aids to be used (e.g. rounding, SSKIN or turning charts)

Consideration of a high-specification foam or equivalent pressure redistributing cushion for adults who use a wheelchair or sit for prolonged periods is essential. Patients who are at risk of heel pressure damage should be supplied with specific off loading devices. In practice there is seldom sufficient forward planning regarding the use of seating devices and heel protectors.

• Any wound care products or dressings to be used • Frequency of wound care products or dressings being prescribed • The frequency of wound care reviews and goals • The need (if appropriate) for referrals to experts such as the Tissue Viability Nurse or dietician and any medical tests or investigations required

The selection of seating devices should be individualised and take in to consideration • body size and configuration • the effects of posture and deformity on pressure distribution • mobility and lifestyle needs

• Patient and family education • Future planning (such as discharge planning) • Management of any pain and discomfort (as required) • Nutritional assessment and requirements (as

Although chair cushions should be inspected daily this is rarely documented in the care plans or highlighted as part of the care plan especially in chair bound individuals.

In practice the tissue viability teams would advise as to the most appropriate surfaces for patients.

required) • The requirement for the use of any barrier creams In practice we find that this information is rarely found in one document. Parts of the plan of care can be found in the pressure ulcer prevention care plan and some in a wound care care plan or sometimes on the SSKIN documentation. There is no standardised practice with regard to the care planning for pressure ulcer management or care planning.

12. Pressure Ulcer management Once a pressure ulcer has been identified it should be accurately graded according to the accepted grading system used throughout the UK (NPUAP/EPUAP).

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• how to carry out a risk and skin assessment

Problems can be encountered on discharge with GPs and District nurses not informed on occasion of any pressure damage or the need for dressing changes or specialised equipment

• how to reposition • information on pressure redistributing devices • discussion of pressure ulcer prevention with patients and their carers details of sources of advice and support.

13 Nutrition In order to aid the healing of a pressure sore/ulcer it is essential that the nutritional status of the patient is assessed and considered. Many institutions will use a nutritional assessment tool: one commonly used tool is the ‘MUST’ tool

The Law (Ms Sylvester) Mistakes happen and with the Duty of Candour now in place, there is a positive duty on the medical profession to inform patients when something has gone awry with their treatment.

When a nurse is concerned about the nutritional status of their patient it is common practice for the nurse to instigate a ‘food diary’ (or similar) monitoring the amount of food and drink that the patient is taking.

Negligence remains the main legal pathway for patients to seek recompense for their injuries. As outlined above, pressure sores can leave patients with long term injuries, which affect their daily lives.

One of the problems we regularly identify is that the staff caring for the patient do not use the tool correctly and calculate a wrong result.

Establishing negligence is a complicated process and involves the collation of medical records and usually, the instruction of experts in the relevant fields of expertise.

14. Referral to specialist teams Nurses should refer to their local policies as to when and how they make referrals for specialist advice (such as the tissue viability team). In general terms, it is common nursing practice to seek the involvement of tissue viability teams once pressure damage has progressed past a Grade 2 injury if hospital acquired or if the patient is admitted to hospital with a grade 2 or above pressure ulcer.

In order to establish negligence, the following must be proved in each and every case: 1. a “breach of duty” has occurred. In legal terms, Claimants must prove that they received care that no reasonably competent clinician/nurse/medical professional would have given; 2. an injury or worse than expected outcome has occurred; and

If a nurse is concerned about a patient’s nutritional status it is common practice to refer the patient to a dietician and trust policies will inform the nurse at what nutritional score this should occur.

3. the breach of duty caused or materially contributed to the injury. This element is called “causation”.

Cases relating to pressure sores often relate to failures to adequately risk assess a patient and take steps to ensure patient safety. Cases can also relate to inadequate and infrequent patient monitoring, failures to turn a patient in the bed, incorrect placement of a bandage or plaster and inadequate quality and/or inappropriate bed/ mattress or chair.

Regarding moving and handling and mobility issues it is good practice to involve physiotherapists and occupational therapists to ensure patients practice safe transfers and independent mobilisation. In practice this is not consistently completed and very rarely is a home assessment completed to ensure that a safe discharge can be actioned.

To assist with establishing a claim, it will be necessary to analyse the relevant medical records, including nursing charts and risk assessments, to establish the facts, together with obtaining factual witness statements from the Claimant and any witnesses.

15. Education NICE 2014 Pressure Ulcer Prevention states that all healthcare professionals should receive education regarding: • provide training to healthcare professionals on preventing a pressure ulcer, including:

Independent expert evidence may be required, to assist with identifying whether the treatment provided, fell below an acceptable standard of care. The experts then assist by considering whether the negligent treatment caused or worsened the injury sustained.

• who is most likely to be at risk of developing a pressure ulcer how to identify pressure damage • what steps to take to prevent new or further pressure damage

Case Study: Kingsley Napley was instructed by an adult Claimant, R, who underwent cardiac surgery.

As a result of poor post-operative care, he sustained grade 4 pressure sores to his heels and coccyx, which resulted in long term nerve damage, foot drop and chronic regional pain syndrome.

• who to contact for further information and for further action.

Provide further training to healthcare professionals who have contact with anyone who has been assessed as being at high risk of developing a pressure ulcer.

Training should include:

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had a number of red flag symptoms, which should have resulted in him being managed as a high risk patient for developing pressure sores.

Many thanks to;

Ms Susan Johnson Senior Tissue Viability and Wound Care Nursing Expert Apex Health Associates

R was awarded significant damages to assist him with daily living and to purchase (much needed) aids and equipment required as a result of the negligent treatment.

Cases such as R highlight the devastating effects pressure sores can have on patients and the long term implications to health and an individual’s way of life.

Mr Scott Lister Medico-Legal Nurse Consultant, Nursing Expert & Non-Practising Solicitor – Apex Health Associates

References Scott Lister. Accurate Record Keeping. Independent Nurse.

April 2016.

NHS Thermometer - https://www.gov.uk/government/publications/pressure-ulcers-applying-all-our-health/pressureulcers-applying-all-our-health

Ms Laura Sylvester – Senior Associate Solicitor – Kingsley Napley Solicitors London

Hampton S & Bree-Aslan C (2009) Pressure Care (Part 2) The importance of Assessment. Nursing & Residential Care 11(1): 12-14 Krapfl LA & Gray M (2008) Does regular repositioning prevent pressure ulcers? Journal of Wound Ostomy & Continence Nursing 35(6) 571-577 Hampton S. Collins F (2003) Tissue Viability: The prevention, treatment and management of wounds Whurr publishers. London

218A High Street, Epping, Essex, CM16 4AR Telaephone:0203 633 2213 Email: info@apexhealth.net Website: www.apexhealth.net

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Success Fees and Expert Evidence in the Upper Lands Tribunal A recent Upper Tribunal decision has emphasised the importance of the independence of expert witnesses reflecting, if stopping short of adopting, the position in the courts, where the evidence of an expert acting under a contingency fee will only very rarely be considered (Gardiner & Theobald LLP v Jackson).

The Upper Tribunal also confirmed that in accordance with the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 it was the duty of an expert to help the tribunal and that duty overrode any duty to the instructing client and implied a duty to act impartially and independently.

They considered that it was entirely unacceptable for an expert witness to fail to declare that the firm he worked for was instructed, even on a related matter, on a success/contingency fee basis which gave them a financial interest in the outcome of the proceedings.

The Background Gardiner & Theobald LLP instructed a firm of surveyors to advise them in relation to the 2010 ratings review as it impacted on their properties. The instruction was covered by a global retainer letter on a success-related fee basis, where a reduction in the rateable value was achieved.

The Implications Whilst the Tribunal didn’t say outright that the use of a success-related fee arrangement would automatically bar an expert from acting (in fact, making arguments as to access to justice in favour of them), it was very clear that, where such an arrangement is in place, it should be disclosed at the earliest possible time in the proceedings (including at pre-action stage). This may have significant consequences given the front loaded approach required in the Check, Challenge, Appeal process for dealing with rating

Subsequently a dispute arose in relation to the rateable value of one of those properties and this was referred to the Valuation Tribunal and subsequently the Upper Tribunal. One particular surveyor was then appointed to act as an expert witness, outside the terms of the global retainer, on a fixed fee basis. However he also continued to represent the company under the terms of the retainer.

During the course of the ratings proceedings the surveyor declared, twice, that he was not instructed on a success-fee basis. Gardiner & Theobald LLP removed him as an expert on the basis of this declaration and the Upper Tribunal called a hearing specifically to deal with the issue of the nature of his instruction.

Further, it is now clear that when instructing experts, either in the tribunal or the court, care should be taken to ensure independence at risk of having the expert’s evidence discounted and/or in terms of costs.

As a result, and as a matter of best practice, where possible there should be a separation between any assistance being given on a wider basis and the specific requirements of providing expert evidence. This will have a cost consequence to what is already a process that requires considerable, early, outlay of funds.

The Decision At that hearing the Upper Tribunal found that, as a result of the success-related fee arrangement co-existing with the fixed fee arrangement for the expert evidence, and on the basis of the broad language used in those agreements, the declaration given by the surveyor in his capacity as expert witness was incorrect.

They also found that it breached the RICS Practice Statement, which requires that a surveyor should not be remunerated under a conditional fee agreement.

Finally, the Upper Tribunal made clear that whilst this decision was given in relation to a ratings matter it would apply equally to compensation cases.

By Emma Pinkerton - Partner +44 20 7367 2065 emma.pinkerton@cms-cmno.com www.cms.law

the hampden consultancy Building services (mechanical & electrical) consulting engineers Expert witnesses / Expert advisers / Expert assessors Since 1993 we have specialised in assisting clients in resolving technical and contractual problems with respect to mechanical & electrical engineering services that can (and often do!) occur on many construction projects, whether during the pre-contract or construction phases, or indeed post-contract.

As such we have been retained either as expert advisers, party-appointed experts or as single joint experts in respect to disputes between building owners/end-users & their contractors or between contractors & their sub-contractors concerning technical and/or contractual aspects related to mechanical & electrical engineering services. We have also acted for clients in issues involving professional negligence of M&E consulting engineers.

Please call Bob Swayne EngTech AMIHEEM for an initial discussion without obligation on 01494868868 or 07768497005 or visit our website on www.thehampdenconsultancy.com for more details.

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National Operation to Retest Manipuliated Forensic Samples Continues Following a Randox Testing Services (RTS) report to Greater Manchester Police of alleged data manipulation within their laboratory processes, a team of experts identified that thousands of cases had been affected and a major national retesting programme was commissioned.

The National Police Chiefs’ Council (NPCC), working with the Forensic Services Regulator (FSR), the Crown Prosecution Service (CPS), the Home Office and the Association of Police and Crime Commissioners (APCC), has identified more than 10,500 cases across 42 force areas that may have been affected by manipulation.

National Police Chiefs’ Council Lead for Forensics, Chief Constable James Vaughan, said: “The integrity of forensic science is a fundamental part of our criminal justice system and we are working tirelessly to minimise the impact of this serious breach of standards.

“Managing the process for retesting over 10,500 potentially affected cases has been a major national police operation. We will continue this process until we can assure the public that we have retested samples in every case where it is necessary and possible.

The alleged manipulation came to light in January 2017 when RTS, during an internal investigation, uncovered irregularities and reported the details to Greater Manchester Police and the appropriate regulatory authorities. A criminal investigation was subsequently launched and as a result two men – a 47-year old and a 31-year-old – were arrested on suspicion of perverting the course of justice. They have been re-bailed until 10 January 2019. Six more people, two woman and four men, have also been interviewed and under caution, although all but one of those have since been eliminated from enquiries.

“We’ve retested nearly 90 per cent of the highest priority cases. Of the cases retested three per cent have resulted in different outcome and a further four cases referred to the court of appeal – these are all road traffic cases.

“Unfortunately, the retesting process has been slower than we had either hoped or anticipated, as a result of the limited specialist and independent capacity within the forensic marketplace.

Of the 10,500 cases identified, nearly 4000 have been retested or submitted for retesting and 2300 cases have been struck from the retesting process as they have been deemed unlikely to result in a change to the criminal justice outcome.

“Alongside the APCC and the Home Office, the NPCC are leading the work to bring other independent forensic testing suppliers into the supply chain to speed up the process.

Of the highest priority cases, nearly 90 per cent (approx. 800) of cases have been retested, with the rest to be completed by April 2019.

“We have requested that local forces and coroners review the relevancy of toxicology to each affected case, so we can concentrate our efforts where they are most needed.

Of the 2700 cases which have been fully revisited, approximately three per cent (a minimum of 90) of outcomes were affected. All 90 are road traffic cases, of which 50 were discontinued by the CPS and 40 had a conviction overturned following the case being reopened under s.142 of the Magistrates Court Act, which gives Magistrates’ Courts a power to reopen cases to rectify mistakes.

“This has succeeded in reducing the number of high priority cases, and has also led to around 2300 cases (approx. 22 per cent) being struck from the retesting process as they have been deemed unlikely to result in a change to the criminal justice outcome.

Four additional road traffic cases have been taken to the Court of Appeal, with one case being overturned, one resulting in a reduced sentence, one appeal being unsuccessful and the fourth still to be decided.

“I expect this re-evaluation process to reduce the timescales for completing the retesting programme, but our conservative estimates are that all relevant road traffic cases will be complete by mid-2019, and all other cases where toxicology was pivotal will be done by December 2019.”

The NPCC has employed an independent expert to analyse the retest results, with more than 1000 cases already being closely examined to ensure the quality and accuracy of the retesting work.

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