THE EXPERT WITNESS THE JOURNAL FOR EXPERT WITNESSES AND INSTRUCTING PROFESSIONALS
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Editorial Passing the torch The nineteenth Annual Bond Solon Expert Witness Conference 2013 at Westminster was a fitting end to the year. Once again Mark Solon brought together a number of heavyweights to clarify life after Jackson and the new legal landscape. Litigation funding was a key theme and the keynote address from The Hon Mr Justice Ramsey emphasised the early engagement of experts and the need to bring a thorough understanding of the issues to enable tight budgeting. Chairman of Underwoods Solicitors, Kerry Underwood investigated Costs Management Orders and Costs Budgeting in greater detail with “The end of a piece of string” speech, stating that a new mindset was needed to meet new challenges. Andrew Hopper QC honed in on Ethical considerations for Expert Witnesses such as pressure from parties, concerns about reliability, and the risk of stepping outside one’s area of expertise. Clearly, the expert’s work is cut out, but if you stick to your knitting, the future is bright for professionals with the right credentials and training. Family, criminal and commercial developments were covered in greater detail in other sessions and it was left to Michael Mansfield QC to round off the day’s proceedings with his usual wit and verve. A victim in his own right (the human rights Barristers’ Chambers has closed down and reformed as a direct result of the Government’s public funding cuts), his speech bemoaned the death of legal aid and rallied attendees to come together to shape a fairer future. The torch is clearly being passed. Des Griffin Editor
Contact Editorial: info@expertwitness.co.uk All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Expert Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal. The publisher does not accept responsibility for advertising content. The information in this magazine does not constitute a legal standpoint. Printed in England 2013. The Expert Witness Journal Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products. No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’ The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. ABC audit applied for 2013.
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Does Aspirin Improve Survival Rate In Prostate Cancer? Men with prostate cancer who take anticoagulants like aspirin in addition to radiation therapy or surgery may be able to cut their risk of dying of the disease by more than half, according to a new study. "Evidence has shown that anticoagulants may interfere with cancer growth and spread," said Dr. Kevin Choe, lead author of the study and a radiation oncologist at University of Texas Southwestern Medical School in Dallas. This adds to existing evidence supporting its benefits in colorectal cancer. The study looked at patients who had undergone either radiotherapy or surgery for prostate cancer and found that anticoagulants were associated with a reduced chance of death at 10 years (8% compared with 3%). The majority of these patients were taking aspirin (84%). Researchers evaluated data from the Cancer of the Prostate Strategic Urological Research Endeavor (CaPSURE) database to investigate the effect of anticoagulation medications (aspirin, warfarin, clopidogrel and/or enoxaparin) on the risk of dying from prostate cancer among men whose cancer has not metastasized. The study involved 5,275 men whose cancer had not
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spread beyond the prostate gland (localized prostate cancer) and were treated with surgery or radiation, two of the most common treatment modalities for prostate cancer. Of these patients, 1,982 were taking anticoagulants. Patients were classified as having high-, intermediate - or low-risk disease. Results of the study show that the use of anticoagulants among prostate cancer patients treated with either surgery or radiation reduced the risk of dying from the disease from 10% to 4% at 10 years. The risk of developing bone metastasis was also reduced. In addition, findings reveal that the benefit appeared even greater among patients diagnosed with high-risk prostate cancer. This is significant since patients with high-risk disease have the most aggressive cancer, with a high likelihood of dying from the disease, and the treatment options are currently limited. The study also found that the benefit was most prominent with common aspirin, compared to other anticoagulants .â–
Dr Colin S B Roch-Berry Consultant Clinical Oncologist LLM, MB, BS, FRCR I have been in cancer work for 38 years. Specialist interests in gynaecological, breast, lung, gastrointestinal, rectal, thyroid and prostate cancer. Experience in modalities of: Radiotherapy - damage, overdose/underdose and accident, Chemotherapy misuse and overdose, Lung Disease - mesothelioma and industrial lung disease. I have been trained in the legal aspects of report writing and on average I receive 20 new instructions from solicitors per year. I am a fellow of the Royal College of Radiologists and a member of the British Medical Association, European Society for Therapeutic Radiology and Oncology, American Society of Clinical Oncologists, British Oncology Association, Medical Legal Society. Tel: 01242 862 703 Fax: 01242 862 703 Email: roch-berry@doctors.net.uk Widdecombe, Badgeworth Lane, Badgeworth Cheltenham Gloucestershire GL51 4UH
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Contents Expert Witness Conference - Overview by Mark Solon
Page 05
Digital Forensics by Mr J Butler, Geode Forensics
Page 11
Boundary Location by Des Griffin Expert Witness Journal Editor
Page 14
Q & A Mr Stuart Roy
Page 17
Restoring Quality of Life by Des Griffin Expert Witness Journal Editor
Page 18
New Guidelines in MI Care by Des Griffin Expert Witness Journal Editor
Page 20
Dental Consent by Dr Joesph Fell
Page 24
Medical Negligence a GP’s Perspective by Norman Wallace
Page 26
The Patella by Dr Ian Forster
Page 31
Normal Variations in Gait by Dr Charles Essex
Page 33
An Introduction to Orthotics by Chris Drake
Page 35
The Use of Orthotics by Wener Herbst, Ability Matters Clinic
Page 38
Testing the Reliability of Evidence by Dr Koch, Dr Holden & Dr Willows
Page 40
Peripheral Issues which may Impact on Psychiatric Assessments by Dr N Cooling
Page 47
Human Rights in MOD Claims by Des Griffin Expert Witness Journal Editor
Page 51
PTSD Hurts Young Soldiers Most by Des Griffin Expert Witness Journal Editor
Page 54
Antique Firearms by Mark Mastaglio. FFC
Page 56
Commission Psychological Opinion Directly by David Pike, Educare
Page 59
Value in Art by Andrew Acquier
Page 60
Diamonds Gemstones and Jewellery by Dr Richard Talyor
Page 62
Navigating A Career Path by John Sephton
Page 66
The £112 Billion Cost of Brain Disorders by Des Griffin Expert Witness Journal Editor
Page 71
New Mother, What to Do and What Not to Do in Early Weeks by Dr Bashir Qureshi
Page 73
Trampolining Great Fun or Danger? by Dr Robin Walker
Page 75
Why Golf Should have Need for the Expert Witness? by N Fletcher
Page 77
Horse Ownership A Legal View by Dr Nigel Roddis
Page 79
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The Journal is written by experts for experts, instructing solicitors, barristers and legal professionals To subscribe at the special introductory offer of £12.00 for a year’s subscription Please call 0161 834 0017 or e-mail info@expertwitness.co.uk WINTER 2014
Will ‘Slip and trips’ Claims Escalate with Higher Footfall? Public liability claims likely to increase due to increased footfall and wintry weather According to leading insurer Zurich, Christmas cheer brings with it attendant ‘slip and trip’ fears for shopping centre managers. The Christmas period is traditionally the busiest time of year for shopping centres – with December 28 expected to be the most hectic day of 2013, as shoppers this year are estimated to spend at least £2 billion more than in 2012 over the festive period – but more shoppers can also mean more accidents. Add in the traditional inclement wintry weather for this time of year, which can mean many thousands of shoppers traipsing water into shopping centres, and it is obvious why these complexes must be extra vigilant over the period to prevent a surge in ‘slip and trip’ claims. Zurich advises that regular inspection and cleaning regimes, making sure grit is put down in outside areas and car parks – for which the centres are responsible – during icy periods and grit supplies are adequate, and putting up warning signs inside for wet floors can all go a long way to preventing accidents.
Importance of keeping records Zurich advises that having a documented procedure in place and adhered to will help a shopping centre when it comes to defending any claims made. “A shopping centre doesn’t need to impose a cleaning or inspection regime touching on perfection,” said Craig Halliday, Claims Inspector at Zurich. “The court’s view that inspections should be carried out with reasonable frequency was first addressed in the 1970s following the case of Ward v Tesco Stores. “The Occupiers’ Liability Act only requires that reasonable care is taken to avoid visitors sustaining damage or injury therefore you don’t need to inspect the floor every two minutes. “The frequency of inspections just has to be whatever you have determined is reasonable with reference to the risk assessments and safe systems of work devised for the EXPERT WITNESS JOURNAL 04
shopping centres. If you are able to provide the documentary proof of the cleaning and inspections carried out, it provides the evidence that all reasonable care has been taken.” Craig added: “It may seem self-evident, but it is sometimes ignoring the simple things that can lead to problems. “For instance, replacing or cleaning the matting in door wells is important at this time of year as they become fairly useless if they are soaked and this means shoppers will just bring even more water into shopping centres. “Similarly, checking the weather reports to ensure grit is distributed prior to icy weather or snowfall and ensuring there are adequate supplies of grit will all help to reduce the potential risks.”
Presenting a robust defence A sound risk management regime can also limit the amount of successful attritional slip and trip claims. “If a shopping centre is adhering to its processes, then, should a claim arise, we can present a robust defence to the vast majority of cases and that in itself is going to have a positive impact on the claims experience in relation to cases successfully defended,” said Craig. Employer and public liability cases up to £25,000 are now being dealt with through an electronic portal following the recent Ministry of Justice reforms to civil litigation, but the insurance industry is still digesting the financial impact of the changes – which are aimed at reducing personal injury claims costs by delivering compensation at proportionate cost – that came into operation on July 31 for liability claims. “There are now reduced timescales on decision making, which makes it especially important to be able to collate evidence and documentation quickly as there are cost implications,” said Craig. “But we are still in a slight period of flux at the moment given the recent changes and we need to see whether the reforms impact on the volume of claims received as we move forward.”
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Conference 2013 Overview The 19th Bond Solon Annual Expert Witness Conference By Mark Solon The 19th Bond Solon Annual Expert Witness Conference, sponsored by Expert Witness and held in London on 8 November, was dominated by change. Although it is too early to assess the impact of the Jackson reforms implemented in April 2013, there was uncertainty about whether they would reduce costs as intended. It was widely felt that cuts in legal aid were certainly reducing access to justice. Meanwhile, family courts are braced for upheavals next year and the conference saw the launch of the new standards for expert witnesses in the family courts in England and Wales. Sir Vivian Ramsey, judge in charge of the court estates, gave the keynote address. He has been closely involved in implementing the Jackson reforms, which are having a significant impact on experts in the civil courts, in particular relating to costs control. The new test of proportionality means that judges will no longer allow fees that are disproportionate to the amount in dispute or complexity of the case, even if the time spent would appear to be reasonable. Fees must be approved in advance by judges, who will be less lenient with parties who delay cases and who do not comply with the court’s orders.
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Sir Vivian pointed out that it was important for experts to maintain dialogue with instructing solicitors – for example, if new issues or extra burdens of work appeared during a case, then it was in theory possible to raise the budget ‘after discussion if appropriate’. The need for budgeting, costs estimates and isolation of the key issues at the start called for ‘interplay which I suggest hasn’t generally taken place before between solicitors and the experts to get it right and make sure assumptions apply properly at the beginning.’ Kerry Underwood, chairman of Underwoods Solicitors, gave a contrasting speech, declaring: ‘The Jackson reforms are a shambles…Virtually any attempt to reduce costs has the opposite effect.’ He had some crisp words of advice, including: ‘Remember to put a fee for preparing the budget.’ It’s not all bad news though: ‘The days of having to wait until the end of the case for your fee should be over,’ he said - although you may be well advised to offer a discount in exchange for early payment. Asking for payment upfront, however, might prompt solicitors to wonder, ‘Is your expert really necessary?’
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As a solicitor, he warns that ‘when it comes to budgeting you need to work with us as we are your clients.’ And if a client says that they will engage the lowest-bidding expert, his advice is: ‘Don’t work with them.’ For exhaustive advice on costs and funding, go to his blog http://kerryunderwood.wordpress.com Jason Tucker, solicitor and Reader in law at Cardiff University Law School’s Centre for Professional Legal Studies, gave an update on procedure, practical issues, key cases and legislation in civil, criminal and family courts – including a look at the meaning of ‘necessary’ in the context of the Revisions to the Family Procedure Rules: ‘Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings.’ Sir James Munby, President of the Family Division, had said: ‘The test of what is “necessary” sets a hurdle which is on any view significantly higher than the old test of what is “reasonably required”.’ Andrew Hopper QC, a solicitor advocate and ‘the oracle of all things relating to solicitors’ disciplinary proceedings’ according to the legal directory Chambers UK, spoke about ethical considerations for expert witnesses in terms of pressure from parties and lawyers; accuracy and reliability of instructions; concerns about the conduct or competence of an opposing expert; and the danger of stepping out of one’s area of expertise, particularly when subject to entrapment by cunning cross-examination. Sir Alan Ward spoke about what he termed ‘the depressing subject of litigants in person’ (LIPs). Sir Alan, who retired in February 2013 after nearly 24 years as a judge, 18 of those in the Court of Appeal, described LIPs as ‘a crowd of migrating starlings.‘ ‘Justice will be ill-served indeed by the emasculation of legal aid,’ he commented, pointing to the ‘chaos which LIPs manage to create’ now that legal aid is ‘in all reality no longer available for ordinary men and women.’ ‘What do we do with this breed of person?’ he mused, reflecting that his advice to one LIP to ‘stay cool and get a life’ triggered a formal complaint. Banning LIPs, although ‘a splendid idea, would be an invasion of a fundamental right to free access to court.’ Sir Alan hinted that some judges, struggling with case management conferences and getting LIPs to focus on the issues, had reached the point of ‘nervous breakdown and early retirement.’ Relying on lawyers to work pro bono is not realistic, he believes. McKenzie friends tend to be ‘well-meaning but involved by reasons of their own bitter and unhappy experience in court.’ He shudders at the recollection of ‘the inarticulate LIP who cannot string three words together.’ In general, he EXPERT WITNESS JOURNAL 06
considers: ‘Most of them are sad and a few of them are mad.’
Launch of standards for expert witnesses in family proceedings Lord McNally, Minister of State for Justice and Deputy Leader of the House of Lords, introduced the joint Ministry of Justice and Family Justice Council response to the consultation on standards for expert witnesses in family proceedings. He began by emphasising that expert witnesses were vital for the administration of justice, then brought up the need for change: ‘The Family Justice Review found that experts were sometimes unnecessarily and inappropriately instructed leading to increased complications and delay...We are determined to make more appropriate use of experts and to raise the quality and standards of expert reports.’ Changes to the Family Procedure Rules came into force in January 2013, a precursor to some of the provisions of the Children and Families Bill currently going through Parliament. He commented: ‘These measures ensure that expert evidence should be commissioned only where necessary to resolve the case justly. The court should seek material from an expert witness only when that information is not available, and cannot properly be made available, from those already involved…The Family Justice Review also recommended that agreed quality standards should be developed for expert witnesses in the family courts. …I am pleased to say that, today, we are launching the joint Ministry of Justice and Family Justice Council response to the consultation.’ ‘…The standards will help to ensure that experts providing evidence to the family courts in proceedings relating to children have a recognised level of qualifications, skills and experience consistent with the provision of good quality advice to the court. They will sit alongside – and not conflict with – other profession-specific standards and regulatory arrangements. We intend to implement the new standards in April next year alongside many of our other family justice reforms.’ As Sir Rupert Jackson’s report on the costs of civil litigation pointed out, one of the principal complaints about expert witnesses was that many expert reports were too long and often addressed irrelevant issues. Lord McNally said: ‘The Civil Procedure Rules restrict expert evidence to that which is reasonably required to resolve the proceedings and expert evidence can be restricted by the Court.’ Gloom descended as Lord McNally said: ‘As you know, a new set of fixed fees and hourly rates were introduced in late 2011 that codified for the first time the rates that could be paid to individual expert witness types. With some limited exceptions, these rates are set to be reduced by a WINTER 2014
further 20% before the end of the year. This follows the most recent consultation on legal aid reform and ensures that the rates represent value for money and reflect more closely the rates paid elsewhere for such services.’
report has an impact on three key areas: standards to be applied in assessing duty of care, the values and principles of the NHS Constitution, and the duty of openness, transparency and candour.
Sir James Munby, President of the Family Division, delved further into the new standards for expert witnesses in the family courts http://www.bondsolon.com/Media/Default/ Articles/experts-standards-consultation-response.pdf. He was joined by Joe Murphy, Family Justice Policy, Ministry of Justice, and Dr Heather Payne, Chair of the Family Justice Council Experts Working Group.
The second involved developments in whiplash claims following two reports on whiplash: a) Reducing the number and costs of whiplash claims: A Government response to consultation on arrangements concerning whiplash injuries in England and Wales
The standards are intended to help vulnerable children by raising the quality of expert evidence in family courts and ending unnecessary delays. It is Bond Solon’s view that experts may have concerns about two of the standards, however. Firstly, ‘the expert should seek appropriate feedback from the legal representative regarding the outcome of the case, and the value and weight placed on the expert’s own evidence. Where a party is not represented, the expert should seek feedback on the outcome of the case, and consider seeking other feedback bearing in mind that a litigant in person is likely to have limited experience of court processes. This is an essential part of the overall quality assurance of expert witness practice, for individual professional reflection and development.’ Frankly, we think this requirement to seek feedback may be pie in the sky. Solicitors are already being asked to work more quickly for less money. Unless the solicitor is being paid to give feedback, he or she is unlikely to do so. It is impossible for the judge to give feedback as it might provide grounds for an appeal if the expert is denounced. The expert’s peers are equally unlikely to have the time or the resources to give feedback. It is in the interests of the child for the matter to be dealt with expeditiously, but many experts have day jobs and already find it hard to comply with court time limits.’ Another requirement is for the expert to have undertaken appropriate training, updating or quality assurance activity relevant to the role of expert in the family courts in England and Wales within the last year. ‘Appropriate training’ is not defined, however. The new standards being set, which are minimum standards, require investment in thorough training which is independently assessed. Andrew Andrews, Director of Medico-Legal Group, Bond Solon, talked about two crucial developments this year. The first was the impact of the Report of the Mid Staffordshire NHS Trust Public Inquiry, February 2013, chaired by Robert Francis QC (www.midstaffspublicinquiry.com). The EXPERT WITNESS JOURNAL 07
b) Cost of motor insurance – whiplash: A Government response to the House of Commons Transport Committee. Mark Stobbs, Director of Legal Policy, the Law Society, discussed developments for expert witnesses in criminal law. These included the Law Society’s current policy on legal aid; the Legal Aid Agency and tendering; and criminal law reform and regulation. Audley Sheppard, partner at Clifford Chance, discussed developments in commercial law, including changes in arbitration, expert conferencing and good as opposed to bad practice. Master Rowley, Taxing Master of the Senior Courts, aka Jason, gave a meticulous rundown of costs in austerity, looking at what costs judges now require from experts, useful tips and budgeting and time records, including the all-important table of guideline hourly rates. He gave a handy list of bad reasons for asking for more money: underestimating; taking longer than you thought you would; the opponent failing to abandon points which need experts’ contributions; the expert failing to follow the timetable; having to attend court every day. It really is essential to be prepared. Michael Mansfield QC concluded proceedings with a heartfelt lament about what he calls the death of legal aid and urged experts to rally to its defence. In a more hopeful mood, Michael Mansfield then presented Cardiff University Law School Bond Solon Expert Witness Certificates to seven of the experts who had completed the course this year: Robert Cochrane, Dr Duncan Dymond, Dr Johanna Flack, Steven Nock, Margaret Richardson, Michael Saab and Dr Ravinder Varaich. He pointed out that certification was ‘important for people who’ve been on the job a long time – you have to sit back and think, am I doing it right? You need to go back to the drawing board and re-examine how you do your report, how you are subject to cross-examination, whether you WINTER 2014
know the procedure. That’s the advantage of Bond Solon training – you’re brought up to date.’
In Bond Solon’s 2012 survey, however, more than half (55%) reported an increase.
Dentist Dr Ravinder Varaich commented: ‘The certificate meant a great deal to me both personally and professionally. It’s enabled me to ensure that I’m very professional in my report writing and giving the court the best report possible.’
No surge in requirement for single joint experts When it comes to working as a single joint expert – encouraged by the Jackson reforms to save time and money – most respondents reported that the demands for such work had either stayed the same (62%) or fallen (20%) in the twelve months up to November 2013.
Dr Duncan Dymond, consultant cardiologist, decided to get the qualification because he realised that expert witness work was taking him out of his comfort zone, from report writing to being exposed to ‘barristers’ tricks’. He said: ‘From reading a lot of reports which I have to look at when I’m doing cases, it’s quite clear who knows how to write a report and who doesn’t. The certificate has given me confidence and I think credibility.’
Hourly rates broadly static Hourly rates show no dramatic change. The average hourly rate for report writing was £174 for the twelve months up to November 2013, compared with £162 for the previous year. The lowest rate (£30) is unchanged from last year. The highest rate has increased from £480 to £500. About two-thirds of respondents (64%) said their rates had stayed the same.
The Bond Solon Annual Expert Witness Survey Out of the 353 people who attended this year’s conference, 165 returned their views on the latest legal developments. The key findings are as follows: Jackson reforms will not increase access to justice Although the point of the Jackson reforms is to increase access to justice by streamlining litigation and cutting costs, about two-thirds of respondents (67%) felt that this would not work in practice – a dispiriting response in the light of the cuts to legal aid. Jackson reforms will either increase or decrease costs – that’s official There was a lot of uncertainty on this issue, with only a minority of respondents (38%) believing that the Jackson reforms would attain their goal of cutting costs. They were balanced by the don’t knows (35%), with 1% not answering. Twelve per cent thought that there would be no change to costs and 14% thought that costs would rise. Budgeting: only a minority think this will reduce costs Budgeting at the outset of a case is a key cost-cutting measure, but only 31% of respondents thought this would succeed in practice. Twenty-one per cent thought that budgeting would increase costs and maybe this is not just wishful thinking: a requirement to itemise experts’ projected expenditure, in order to submit an accurate estimate, might actually lead to more elements of work being taken into account. There is also a need for the legal team to isolate the main issues at the beginning of a case, and that process in itself may incur costs if experts are required to help. No surge in instructions More than half the respondents (54%) said that they had received either fewer or the same number of instructions during the twelve months leading up to November 2013. EXPERT WITNESS JOURNAL 08
Anxiety about litigants in person The cuts to legal aid are expected to increase the number of LIPs. Only a minority of respondents (24%), however, had ever accepted instruction from an LIP. Their comments suggest that most regretted the experience. Complaints about LIPs included not being paid – although, to be fair, solicitors’ firms also earn criticism in this area, even when they manage to stay solvent. Other comments included lack of structure, irrational behaviour, distressing, dreadful, lied to the other expert, disaster, much more time-consuming and forgot to turn up. The most commonly repeated word was nightmare. To balance this, though, their experiences are by definition restricted to the type of LIP who instructs an expert; there are other kinds of LIP who either carry out their own research or are themselves expert in some way. Some typical remarks from the survey are as follows: “Difficult to control. They appear to have difficulties with understanding ‘independence’ of expert witness. They want to pay minimum cost for report – then have lots of questions and do not want to pay.” Both parties were litigants in person. “The experience was difficult. There was no structure to the proceedings and both sides were completely unreasonable. The amount under dispute was minimal and it should never have gone to court.” “A nightmare as I assessed him as having a personality disorder. I received hundreds of emails and hand-delivered mail through the letter box at all hours. In my opinion he was a risk to his children… It was hard to discuss these issues as we could not even have professionals meeting without him being present. WINTER 2014
And the grim reality for too many LIPs nowadays: “Client had no choice but to be an LIP as she was mother of child in Special Educational Needs and Disability Tribunal. Legal aid not available. Family couldn’t afford legal representative. Mother poorly treated by panel members. Awful.” There were exceptions though. One witness reported: “Excellent. Much better than dealing with solicitors. Another pointed out: Depends upon background of litigant. Some good, some bad.”
Life at the coal face Experts were asked to describe their experiences of being in court. They are only human, so they relish praise from judges but dislike probing cross-examination (Standing blinded by the light hearing questions coming out of the daze. And: Fed up about being out-manoeuvred!) Feeling undervalued is common: Main ongoing gripe is being called to court and either not required or kept waiting extensively. Another example: The start of the case was delayed because the legal teams decided to do some horse-trading. I and my counterpart experts were sent to the canteen to wait. Five hours (and much coffee) later we were still there. We went to find someone but everyone had gone. The case had been settled and no one had bothered to tell us. Even the traditional doctor in the house can feel under-appreciated: Resuscitating the claimant half way through her
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evidence while all else in the court carried on as nothing was happening. And: I had to step down from the witness box, stand with my back to the jury, bend over and point at my ischial tuberosity. The respect of witnesses cannot be taken for granted: Witness accusing me of using the same prostitute that he did. Clearly confusing me with someone else. Solicitors come in for criticism: Having to repeatedly chase solicitors to pay me, even after six months or more. They never pay interest. Solicitors’ failure to understand the expert’s role can be a problem: My knuckles were rapped by my instructing solicitors when, at the request of both parties, on the day of trial I met with my opposite expert to produce a joint report which clearly did not favour their case – although in my opinion we had come to a sensible view. And not just solicitors: Being told I was a “hired gun” by a judge when I was an independent expert and the expert on the other side was the defendant’s accountant. Finally, one expert may have stumbled across a useful manoeuvre: Having to replace my hearing aid battery in court when being cross-examined. Although Jackson wants to speed up litigation, it can be helpful to have an equivalent stratagem up your sleeve to secure a little thinking time when the going gets tough. Mark Solon Managing Director - Bond Solon Email marks@bondsolon.com www.bondsolon.com
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Scottish Forensic System is More Adaptable In an article on Police Oracle, Nic Brunetti reports that the head of Forensic Science in Scotland says he can implement new practices immediately – unlike England and Wales.
Mr Nelson told PoliceOracle.com that the Forensic Service has gone “without a hitch” since Police Scotland arrived with scientists, police and prosecutors working together closely to assess each others’ needs as required.
Forensic science provision is now more adaptable in Scotland than in England and Wales – and maintaining a public service for the police can be sustained in the long term, the head has said.
Following the 2012 closure of the Forensic Science Service (FSS) in England and Wales, forces and private Forensic Service Providers (FSPs) have been responsible for provision.
Director of the Scottish Police Authority’s (SPA) Forensic Service, Tom Nelson, said the country’s “crime scene to court” model was a better fix all round for officers and prosecutors.
But this has been criticised for being too “fragmented” – with samples and their case files being passed between forces and FSPs according to the tests required. It also reduces the opportunity for scientists to work with officers from the crime scene all the way to the court room on the same cases.
The single national service, which has been in place since 2007, provides all the police’s forensic provision – including DNA profiling – which is no longer carried out by the public sector in England and Wales.
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Mr Nelson said the advantage in Scotland was that samples stayed within one system, even if in different laboratories around the country. ■
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Digital Forensics by Mr. John Butler, BSc, MBA, FBCS, CEng, C.ITP, FHEA Computer Forensic Specialist Geode Forensics Ltd Digital forensics is a youngster in forensic terms but is growing rapidly. Originally the term meant extracting files, email or key text from PCs but now it encompasses mobile phones, sat-nav systems, cameras, game stations, music players and tablets as well as a huge expansion of applications across all platforms - from Web access and email to peer-to-peer file sharing systems, chat or instant messaging and social media. Data moves seamlessly between PCs, smart phones and networked data storage (the 'cloud') and covers all aspects of peoples' private and business lives. When it is not recording what we are saying or doing it is logging where we are. Forensic tools advance too and the best tools can generate a comprehensive review of the contents of a device. The skill lies in knowing where to focus the search for the significant nuggets of information in what would otherwise generate an unmanageable and unhelpful several thousand page report. Much digital forensic evidence is perishable. Call logs can disappear from a phone (and ultimately from service provider records), Facebook postings and web pages can be removed and deleted files and messages can be overwritten with fresh data. These days it is hard to imagine a case where digital evidence has nothing to contribute and a few minutes considering how to secure important information early in a case can avoid missed opportunities later on. Focussing proactively and promptly on the task produces the best evidence. EXPERT WITNESS JOURNAL 11
Not everyone is comfortable with technology and a common reaction is to shy away from the opportunities that digital evidence can provide on the basis that it is difficult to understand or impossible to present to a court. It is true that what goes on behind the scenes in a PC or phone network is blindingly complex but so is what goes on in the engine of a car. It doesn't stop anyone driving one. The role of the expert should be to help to deal with the complexities and leave the client free to concentrate on the significant evidential issues in the case in about who did or said what, where and when. Digital evidence is more amenable to review than might be imagined. It is not a quick process (programmes like CSI have a lot to answer for here) but much forensic equipment is portable and the lab can usually be taken to the evidence. Also the first step in forensic examinations is usually to prepare an evidentially safe forensic image or digital snapshot of evidential items and though locating and viewing the original evidence can be a complex process, the resulting forensic image can reside with the forensic investigators which makes subsequent access to it straightforward. The best forensic tools and state-of-the-art equipment keep up to date with the demands of the technology but their full potential is only exploited by people with skill and experience. �■WINTER 2014
Neighbourly Advice and Guidance from RICS RICS are holding an in-depth examination of the current issues around boundary management, dispute legalities and surveyors acting as expert witnesses in London on the 21st of January 2014. Surveyors can learn how to deliver best practice in neighbourhood boundary, agreement and access issues, ensuring certainty around the technicalities of evidence management, responsibility and legislation to carry out professional duties and ensure client care. This seminar will provide surveyors with the opportunity to look at the most recent Guidance Notes on the issues that support their work in this sensitive, dispute-ridden area to make sure they avoid risk, maintain standards and execute with due diligence. Two Guidance Notes will be discussed; the 3rd edition Boundaries and Legislation in England and Wales and the 4th edition Surveyors Acting as Expert Witness. Through
case studies and interactive sessions, surveyors will have the chance to address the most pertinent matters concerning planning, lease management, and boundary issues relating to shops, offices, industrial units impacting on business practice. The Guidance Note and best practice in boundaries within England & Wales will touch on: • Boundaries: procedures for boundary identification, demarcation and dispute resolution in England and Wales 3rd edition 2014 • Updates on best practice in boundary practice • Access management and the issues of the expert inspection The afternoon will feature an Interactive session on neighbour disputes and the role of the expert witness. • Access and common scenarios in commercial property disputes
BARRY J CROSS FCIOB FRSH MRICS MCIH Chartered Building Surveyor
A chartered building surveyor for the entire United Kingdom PRODUCTS & SERVICES Expert Witness reports for construction disputes Claimant and Defence Expert Witness – Civil and criminal litigation on Housing Construction and Environmental Health matters Single Joint Expert Reports Damages claims under Section 11 of Landlord & Tenant Act 1985 and Defective Premises Act 1972 Section 4 Building Pathology Accident Reports Structural Reports Inspection and reports for domestic kitchen, bathroom and window installations Specialist Damp and Fenestration Reports Construction consultation and dispute mediation Homebuyer reports, Red Book & Retrospective valuations for residential properties %$55< &5266 ,6 $1 $&&5(',7(' (;3(57 21 &21680(5 0$77(56 $1' +$6 $66,67(' $1' $33($5(' )25 7+( %%& 21 5(&(17 &21680(5 352*5$00(6
Grenville House, 322 Stratford Road, Shirley, Solihull, West Midlands B90 3DN Telephone: 0121 693 1993 Fax: 0121 693 1994 Mobile: 07970 026386 Website: www.barryjcross.co.uk EXPERT WITNESS JOURNAL 12
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• Best practice in neighbour disputes (both commercial & residential) • Issues linked to OS mapping tolerance The session will finish with Legal updates and practical advice in expert witness scenarios for neighbourhood disputes • Case law updates • Expert witness advice, documentation and due diligence • Getting evidence across • Technicalities of evidence • Understanding what has weight • Correct behaviour and approach in the courtroom scenario
Expert Engineers Wide-ranging engineering expertise Report writing in clear English Extensive courtroom experience
These sessions will be interspersed with a Q&A and interactive discussion headed by Andrew Thompson, Neighbourly Matters Lecturer, Built Environment at the University of West London. ■ RICS training will equip experts with the knowledge, practical skills and confidence to prepare for and conduct an expert meeting effectively. For more informatiom please their website at www.rics.org.
Any country Any discipline Any dispute resolution process www.cadogans.com | 0141 270 7060
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“T” Marks on Plan not Decisive of Boundary Location A recent posting by Owain Rhys James at Civitas Law in relation to Lanfear v Chandler shows the proper approach to take in boundary disputes. L brought proceedings against C relating to a boundary dispute. As a result of an earlier decision a car port had been erected by C with supports placed on L’s land. Given that trespass, the judge ordered its removal. The judge concluded the proper positioning of the boundary line after considering the state of the properties when they were first sold by the developers in 1971, the terms and the plans of the original sale; and witness evidence. The transfers were inconclusive. Aspects of the expert evidence were accepted. The judge considered the location of a fence on the plans. In his view the location on the ground countered any inferences which could be drawn from “T” marks on the plans were countered by the fences actual location. C appealed on the basis that the terms of the transfer, when taken together with the use of the “T” marks, was a sufficiently clear identification of the boundary. The Court of Appeal dismissed the appeal. The 1971 transfers in relation to both properties were largely identical. The scale and accuracy of the plans meant that a survey could not accurately identify the boundary line. The use of extrinsic evidence was part of construing the transfer documents and was not an alternative to the construction of those documents. Interpreting the transfer documents could not be substituted by simply looking at the topographical features on the ground. The clearer the terms of the transfer the stronger the case for giving it primacy over any inferences drawn from the position on the ground. “T” marks were well-recognised as indicating ownership however there needed to be balancing exercise to determine whether their inclusion on a plan were determinative. The court had to balance the presence of the “T” marks against other relevant terms of the conveyance, the plan and any evidence on the ground. It was not the case that the presence of “T” marks gave rise to a presumption in law that boundary features belong to the adjoining landowner as such a presumption would pre-empt the court’s balancing exercise and process of construction. On the facts of the present case the difference between the position on the ground and the EXPERT WITNESS JOURNAL 14
references in the transfer document created an ambiguity. The court had to clarify that ambiguity by virtue of the above balancing exercise. The judgment usefully outlines the proper approach to take in boundary disputes. Where there is a discrepancy between plans and the position on the ground it will be almost inevitable that there is therefore a need to clarify that ambiguity by interpreting the relevant documents. Neither the position on the ground nor relevant markings on plans are determinative of the boundary line and the court must rule on the true location of the boundary on the basis of all the evidence available to it. Owain is a barrister at Civitas Law. He joined following the successful completion of his pupillage in September 2013, having previously worked in the Litigation department at Hugh James solicitors. He accepts instructions in all of Chambers' practice areas with a particular interest in property, commercial and public law.
T R U R O • P LY M O U T H • E X E T E R Healthcare • Commercial • Licenced Property • Leisure • Architectural Design • Party Wall & Supervision
• Rating
• Development • Landlord & Tenant
• Refurbishment • Lettings
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• Compulsory Purchase
• Project Management
t: 01752 261811 w: www.vickeryholman.com e: nholman@vickeryholman.com e: dvenn@vickeryholman.com
WINTER 2014
Aerial Views Inform Historical Boundaries Historical aerial photographs are being used by a Lincolnshire Council to provide evidence in planning disputes and public enquiries. Purchased by South Kesteven District Council the OldAerialPhotos have been used to provide evidence of unauthorised land use and to locate the exact position and extent of historical boundaries. Supplied by aerial mapping company Bluesky the photographs are accompanied by a Letter of Authenticity stating the images have not been altered from their original state and were exposed on the date stated – an essential feature for legal proceedings. “We have used historical images from Bluesky on a number of occasions as they provide crucial evidence in a wide range of cases including unauthorised land use, illegal garden extensions and unauthorised buildings” commented Mick Clift, Planning Enforcement Officer at South Kesteven District Council. “The pictures complete with Letters of Authenticity, are easy to interpret and provide appropriate visual and factual evidence of the dates when the photographs were taken especially in Public Inquiries regarding planning investigations. This has proved invaluable when dealing with such litigious cases.” The imagery supplied by Bluesky to South Kesteven District Council forms part of an historically important archive that includes some of the earliest commercial aerial survey images, military photographs from World War II and many national archives. Offering a record of most major UK cities and towns, transport and utility infrastructure and commercial property developments, the images are an invaluable resource for anyone with a personal or professional interest in local studies, genealogy, boundary disputes, environmental land use research or town planning. EXPERT WITNESS JOURNAL 15
In legal proceedings it is essential that all parties have confidence in the evidence placed before them. In the case of aerial photographs, such as those used by South Kesteven Council, this confidence must extend to the fact that the photographs have not been altered from their original state and were exposed on the date stated. The Letter of Authenticity supplied by Bluesky states that photographic prints and scans provided by OldAerial Photos.com are scanned from original negatives or provided as an original digital image. OldAerialPhotos.com also guarantee that they are not altered or manipulated in any way and can be fully authenticated with date and time of exposure. “In all our dealings with Bluesky we have received excellent service,” concluded Mr Clift. “The OldAerial Photos team are always willing to help locate a site and identify a suitably dated image and our orders are dispatched on time.” Bluesky International Limited is a UK based specialist in aerial imaging and remote sensing data collection and processing. Bluesky has unrivalled expertise in the creation of seamless, digital aerial photography and 3D landscape/cityscape visualisations. Bluesky also runs a national mapping centre, providing digital maps, site plans, satellite imagery, aerial photography and ultra high resolution imagery of cities and towns. Bluesky International Limited The Old Toy Factory, Jackson Street, Coalville Leicestershire LE67 3NR Tel: 01530 518528 www.bluesky-world.com
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MASS Responds to AXA Report MASS welcomes but also questions AXA's contribution to the debate on whiplash which featured in our last issue. MASS is a non-profit making national association of solicitors who specialise in road traffic accidents, representing the accident victim. Formed in 1991, it promotes the highest standards of legal services through education and representation in the pursuit of justice for the victims of road traffic accidents. In welcoming AXA’s contribution , it has reservations and in a recent release it observes that “ this report is highly biased and is largely based upon statistics that are either inaccurate or out of date, but are certainly highly selective”. The full riposte questions validity and independence as outlined in the following extract: The result is a report that promised enlightenment but delivers only a blinkered view of the issue. For instance, the report makes much of the French example claiming whiplash accounts for 3% of all bodily injury claims. This figure is from 2004. ABI research published earlier this year found that there had been a 1000% increase and is now 30% of personal injury claims in France. Such basic errors give little confidence in the validity and independence of the other statistics used in the report. International data is not easy to obtain and we would welcome further insight into other markets. There are real dangers in trying to draw direct comparisons across different legal systems which have alternative structures, classifications of injuries and systems of award. Other countries may have a smaller proportion of whiplash claims, but this is likely to mean that genuine accident victims are not compensated and cannot access the support and rehabilitation services that they need. There is no simple test for whiplash - it is a soft tissue injury that cannot be seen on an x-ray or MRI scan. Any injury you can see on a scan is damage to the bones or supporting structures, rather than the tissue, so it seems disingenuous to recommend that one of these expensive diagnostic tools should be required for every whiplash case. The Quebec Task Force system was developed in the context of treatment recommendations rather than eligibility for compensation. It has always been viewed with a high degree of scepticism due to its weak evidential base. Excluding Grades 1 and 2 EXPERT WITNESS JOURNAL 16
from the compensation process would prevent all but a very small proportion of genuine injuries from receiving damages. Ultimately this will push the cost from the at fault driver's insurer to the taxpayer. All treatment costs will be borne by the NHS and the benefits system that would have to support claimants unable to work as a result of their injuries. Every injury is different and cannot be bucketed with others in an overly simplistic grading system. Every injury must be assessed by an experienced medical professional who knows what to look for and what questions to ask each patient. These nuanced assessments are essential for stamping out fraud and MASS has long advocated a system that requires a medical examination before any compensation is paid. Their experience is crucial in helping us to address fraud and they provide the best assessment of the severity of an injury. ■
Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA
Chronic Pain Expert 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 2014. 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.
Contact person:
Jane Griffiths (Medico Legal Manager) Tel: 0161 485 1881 Mobile: 07885 913 912 Email: expertpainreports@gmail.com Suite 5, Wilmslow House, Grove Way, Waterlane, Wilmslow Cheshire, SK9 5AG
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Q&A In this issue we interview Mr Stuart Roy MB ChB â&#x20AC;&#x201C; FRCS (Trauma & Orthopaedics) 1. What are your main specialities? Lower limb and sports surgery, particularly of the knee. General trauma with an interest in complex injuries of the knee. 2. What is your background? I qualified from Bristol University then, after my houseman year I studied for an MPhil at Cambridge University. After my Basic Surgical Training, I gained a place as a specialist registrar on the All Wales rotation. My final year of orthopaedic training was on fellowship in Adelaide gaining further experience in Lower limb and Sports surgery. I have represented Wales in rugby at all age levels and had my senior cap at the the World Cup in South Africa in 1995. 3. What type of medicolegal work do you do? I am happy to see instructions involving most aspects of personal injury as I see these injuries on a weekly basis and have over 14 years experience in general trauma.
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4. How do you balance this with your clinical work? I tend to devote a separate clinic to my medico-legal work. 5. How has your interest in rugby developed your sports injury insights? After receiving my cap I ruptured my ACL and missed 2 seasons. I had previously torn a meniscus. I not only appreciate what sports people have to do as far as training/playing is concerned but I know first hand how frustrating it is to be injured. 6. What are the advantages of your work with the Cardiff Centre of Excellence for Orthopaedic Care? It allows close communication with colleagues with different interests, podiatry and physiotherapy. Patients appreciate this co-ordinated team work.
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Restoring Quality of Life How the commitment of Asons Solicitors changes lives Along with Facebook, and Charity Muggers, picking up the phone to hear a monotone voice say “Have you had an injury within the last three years…..” has become an inescapable reality of modern life; posing a challenge for law firms striving to avoid such clichés. At Asons Solicitors they aim to set themselves apart, and while they advertise via radio, newspapers, and service stations, they draw the line at interrupting someone’s day-to-day life with an invasive phone call. Founded just five years ago, Asons Solicitors have grown from a three man outfit to a multi-disciplinary law firm, which employs over 200 people. Noted for settling personal injury and industrial disease cases, they recently achieved the Customer Service Excellence Award, commending them for their levels of client service. Through the diligence of a hard-working team of Industrial Disease specialists, Asons have achieved notable settlements for a number of hearing loss cases, with long and varied histories, ranging in severity. Earlier this year, Asons settled a case for a council worker who suffered irreversible damage, after being exposed to the excessive noise levels of joinery machinery.
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Commenting on the claim, Emma Simcox-Oliver, Head of Industrial Disease, said that: “The claimant suffered greatly with his hearing loss – he was often unable to hear alarms or his telephone ringing and this impacted tremendously upon his daily life. The claimant was very often embarrassed in social situations and tended to avoid crowds as a consequence and he also suffered from intermittent tinnitus, which would sometimes keep him awake during the night”. “The Council owed the claimant a duty of care to safeguard his health whilst in their employ and they failed to do so; the claimant was exposed to excessive levels of noise which contravened the recommendations within The Factories Act 1961. The claimant should have been provided with adequate hearing protection and subjected to a hearing conservation programme, both of which never occurred.” “Asons were able to secure a settlement for the claimant’s occupationally induced deafness of £9750.00, which contributed to the costs of tinnitus counselling, hearing aids and supportive devices, substantially improving the claimant’s quality of life”. Such cases demonstrate how compensation can help improve a sufferer’s quality of life, and such a notion has been further reinforced by the personal injury cases Asons Solicitors have handled. WINTER 2014
For example, earlier this year, a personal injury claim was made, where the client was involved in a serious road traffic accident. A third party driver negligently caused a head on collision, leaving the client, and his family, lucky to be alive. Initially, the injuries sustained were life threatening. The client was rushed to hospital, where he was treated for over 2 months. He suffered a magnitude of serious injuries, including - a fractured wrist, several broken ribs, punctured lungs, a fractured right leg and wrist, and severe tissue injury to his head and arm. Following the accident, the client was immobile, and required extensive care to nurse him back to health. Initially he was wheelchair bound, however, with determination, he has improved to a level where he can walk for thirty minutes, aided by crutches. Commenting on the case, senior solicitor, Mr Munir Majid, stated: “When I first spoke to our client he wasn’t even sure if he could pursue a car accident claim. I was glad I was able to advise him otherwise, and help him through what was an extremely traumatic ordeal, which not only affected him but also his entire family. Thankfully matters were resolved quickly, without the need of Court proceedings.”
“It is important that seriously injured clients obtain specialist help from lawyers, and it particularly crucial that the solicitor they choose has specialist experience in these types of cases. As experts we can assist them with rehabilitation, but also be progressive in litigation, allowing our clients to move on with the rest of their lives." Mr Majid’s hard work paid off, and following intense negotiations, the client’s offer was finalised to a total of £103,500; compensation which will finance his on-going care, as well as future rehabilitation costs. With the concept of ‘Compensation Culture’ often scrutinised in the media, firms advertising services for personal injury claims are often demonised. Despite this, Asons solicitors are proud to be considered specialists in such fields, and considering the aforementioned cases, and the difference compensation will, and has, made to the clients lives, it should be easy to understand why. Asons Solicitors is a one of the largest Law firms based in the North West. The practice started in 2008 and with strong growth through diversity and teamwork, the business now provides extensive Legal Services and guidance to clients across the UK. Asons is truly different, and manages its business accordingly – striving to be a business services firm with a core competence in law… ”not your traditional law firm”.
Dr J Harry E Baker Consultant in Rehabilitation Medicine & Spinal Injuries BSc, MB BS, LLM, FRCP.
Consultant to University Hospital of Wales NHS Trust (at Rockwood Hospital) since 1985. Particular areas of expertise spinal injuries (acute management and rehabilitation), head injury, rehabilitation, amputee rehabilitation, pain states in relation to foregoing. Experience includes advising on accident site handling (NHS and VAS ambulance services) and in relation to prevention and handling of recreational spinal injury. Reports prepared for quantum, for causation, for negligence especially in relation to aquatic, equestrian, motorsport and recreational injury; immediate handling post accident; medical negligence. Experience in preparing reports, conferences, giving evidence in Court, single joint expert, post Woolf reforms.
Tel: 02920 578 091 or 02920 554 167 (inc link) Fax: 02920 553 034 Mobile: 07970 636 493 Email: milfield@aol.com 56 Bridge Street, Llandaff, Cardiff, South Glamorgan CF5 2EN
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New Guidelines in MI Care and Hypertension As reported in the BJC, The National Institute for Health and Care Excellence (NICE) is updating its guidance to improve the care of people who have survived a myocardial infarction (MI). The draft guideline, published recently for public consultation, contains a number of new recommendations and aims to improve the care received by patients in England and Wales.
available, meaning that the preventative impact of an oily fish diet could be minimal. The draft guideline does, however, continue to recommend that people who have had a heart attack eat a Mediterranean-style diet.
The draft guideline, originally published in 2007, centres on stemming the progression of vascular disease as well as preventing further MI. It expands on previous recommendations for programmes to help people recover after an MI, including interventions which aim to ensure more people take up and complete cardiac rehabilitation programmes.
Updated recommendations in the draft guideline also include those on the use of drugs after an MI. These reflect new findings on antithrombotic therapy, as well as the use of angiotensin-converting enzyme inhibitors and beta blockers.
Major changes in the treatments given immediately after an MI, particularly the use of interventional procedures such as primary percutaneous coronary intervention rather than drugs, have also been considered in the updated guideline. The draft guideline no longer recommends eating oily fish, or taking omega-3 fatty acid capsules or omega-3 fatty acid supplemented foods specifically for the prevention of further heart attacks. New evidence shows the risk of further cardiovascular events, such as MI or stroke, is very different today because of the new treatments now EXPERT WITNESS JOURNAL 21
Equally significant, new joint guidelines for hypertension were published recently by the European Society of Hypertension (ESH) and the European Society of Cardiology (ESC). They recommend several significant changes to hypertension treatment including: • A single systolic blood pressure target of 140 mmHg for almost all patients • An increasing role for home blood pressure monitoring, alongside ambulatory blood pressure monitoring • Greater emphasis on assessing the totality of risk factors for cardiovascular and other diseases, such as organ WINTER 2014
damage, diabetes, and other cardiovascular risk factors. These need be considered together before initiating treatment, and during follow-up • Special emphasis on specific groups, such as patients with diabetes, the young, the elderly, and drug treatment of the over 80s. Women are considered separately. Consideration is given to new treatments such as renal denervation for resistant hypertension, which is described as “promising” • New guidance on how and when to take antihypertensive drugs. The report indicated no treatment for high-normal blood pressure, no specific preference for single-drug therapy, and an updated protocol for drugs taken in combination. The guidance takes a liberal attitude to choice of first step drugs, noting the evidence that the beneficial effect of hypertension depends largely on blood pressure lowering. Rather than presenting a hierarchy of drugs (a generic 1st, 2nd, 3rd choice and so on), the approach taken promotes individualised treatment, i.e. to help physicians to decide which drugs to give in which clinical/demographic condition. The new guidelines, which replace the 2007 edition, were launched at the ESH congress in Milan, Italy, with simultaneous online publication in the Journal of Hypertension, European Heart Journal and Blood Pressure. ■
Dr Maurice Pye MB BCh BSc Hons MD Hons FRCS London
Consultant Cardiologisty I am a Consultant Cardiologist with more than 15 years experience. I have a wide experience in all aspects of cardiology, particularly ischaemic heart disease (angina, heart attacks), interventional Cardiology (balloon angioplasty /stents), heart rhythmn disorders and pacemakers.
I have produced medico-legal reports on behalf of Claimant and Defendant for the courts for over 10 years Nuffield Hospital, Haxby Road, York, North Yorkshire YO31 8TA Contact Jane Moss Tel: 01904 715191 Fax: 01904 715192 Mob: 07713 627418
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Dr Duncan Dymond MD FRCP FACC FESC
Consultant Cardiologist Dr Duncan S Dymond has been a consultant cardiologist at St Barts Hospital, now a part of Barts Health NHS Trust since 1987. He has been undertaking expert witness and medico-legal work for more than 5 years and has completed his Cardiff University Bond Solon expert Witness course. Dr Dymond currently completes 1-2 medico-legal reports per week, for personal injury and medical negligence, with roughly a 65/35% split claimant/defendant. He has also completed expert witness work for the general Medical Council, the Medical Defence Union and the Crown Prosecution Service as well as accepting private instructions directly for solicitors. He has also provided medio-legal opinions for cases in Singapore.
T: 0207 079 4260 E: dymondheart@hotmail.co.uk W: www.drduncandymond.co.uk 84 Harley Street, London W1G 7HG
Dr Khalid Mahmood Consultant Cardiologist MB ChB MRCP (UK) Mr Khalid Mahmood is a Consultant Cardiologist and the clinical lead for cardiology at The Solihull Hospital in the West Midlands. He has experience in Non Invasive and Invasive Cardiology including a lead role in the Transoesophageal Echocardiography service, supportive roles in stress Echocardiography, pacemaker clinics and cardiac CT service. Mr Mahmood is proficient in permanent pacemaker insertion, cardiac catheter work, diagnostic catheterisation (left and right heart) and has experience in interventional cardiology. Mr Mahmood has clinical governance expertise as lead in quality control of transoesophageal echocardiography. He is involved in audit, informal appraisals with senior colleagues and attendance at grand rounds/MDT meetings.
Tel: 07795 460 224 Email: khalidmahmood99@hotmail.com Spire Parkway Hospital 1 Damson Parkway, Solihull, West Midlands B91 2PP
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LSB Extends Legal Powers to Legal Executives The Legal Services Board (LSB) has approved applications from ILEX Professional Standards (IPS) to regulate Chartered Legal Executives exercising litigation and related rights of audience independently, as well as new rules for regulating immigration advisers. It follows approval for IPS to regulate independent probate and conveyancing practice rights.
and IPS expects to begin accepting applications from CILEx Fellows in the summer. That will benefit thousands of law firms who currently have unnecessary bureaucracies in place to sign-off on the work of experienced Chartered Legal Executives, including those working as fee-earners and partners.
The suite of applications was submitted by IPS in 2013 on behalf of the Chartered Institute of Legal Executives (CILEx). Their approval recognises the parity between CILEx members and other legal professionals, as well as IPS’s capability to regulate new areas.
IPS will be able to start authorising legal practices offering litigation and immigration services when Parliament has granted powers to set up a compensation fund and to intervene in practices. The LSB has confirmed it will approve IPS’s rules for establishing a compensation fund once Parliament has awarded the relevant powers.
The descion is seen as a major step for consumer choice, for parity between the professions, and for increasing career opportunities in law. The ability for individual Chartered Legal Executives already working in a regulated entity such as a law firm to conduct litigation, exercise rights of audience and provide immigration services without supervision requires no further approval,
Currently, CILEx members are able to conduct many reserved legal activities only under the ‘supervision’ of an authorised person, most commonly a solicitor. IPS says it will apply in due course for CILEx to be able to license alternative business structures managed or owned by non-lawyers. That application, like the present one, will need to be approved by the LSB. ■
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Dental Consent by Dr Joseph Fell, Dental Surgeon BDS
The term ‘informed consent’ is used in many situations but it can be a misleading term as it implies that consent is purely about the provision of information rather than a patient’s understanding of its meaning and relevance. Communication between patient and Dentist can often break down or be misunderstood and that is where problems can arise. There is an inter-dependent relationship between the patient and Dentist that requires both parties to communicate effectively.
‘I start with the proposition that the law which imposed a duty to warn on a doctor has , at its heart, the right of a patient to make an informed choice as to whether, and if so when and by whom, to be operated on’ Sir Dennis Henry - UK Appeal Court Decision (Chester versus Ashfar ) ■
A recent case comes to mind. An 18 year old girl was referred by her orthodontist to an oral surgeon for the surgical exposure of an un-erupted premolar tooth prior to commencement of orthodontic treatment. The patient attended for an out-patient appointment whence the operation and sequelae were explained and the patient consented to the treatment. However, she then requested because of her disproportionate dental anxiety that this treatment should be carried out utilizing intravenous sedation. Due to the time constraints of the NHS another appointment was given for a pre-treatment assessment. At this appointment the patient after due discussion consented to the sedation and also signed a consent form for the extraction (not exposure !) of the premolar tooth. The surgeon had misread the referral form and had –assumed that due to the previous appointment that the patient understood the treatment proposed. At the surgical appointment the surgeon did not confirm with the patient the proposed treatment plan and the premolar tooth was duly extracted. This resulted in a poorer and longer orthodontic outcome and a very unhappy patient. The patient had not not realized that she had consented to the extraction and not the exposure as the operation had not been fully explained. Communication had broken down, informed consent had not been obtained, treatment had been jeopardized and a monetary settlement was agreed between the surgeon’s defence society and the patient. EXPERT WITNESS JOURNAL 24
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GPs "Under Pressure" From Patients Seeking Dental Advice GPs across the UK are feeling under increasing pressure because too many patients are visiting their surgeries – rather than a dentist – with concerns about oral health issues, according to a national survey. The poll conducted by ComRes, which interviewed 1,007 GPs, found that 87 per cent of GPs believe that too many patients are turning to them for oral health advice instead of a dentist, which is increasing pressure on general practices. The polling, released during Mouth Cancer Action Month, by the Association of Dental Groups (ADG), also showed that 96 per cent of GPs feel more needs to be done to encourage patients to visit a dentist for oral health related issues. David Worskett, Chair of the ADG, said that with GPs already under huge pressures, the results highlighted the necessity of doing more to make sure that patients had a better understanding of who to go to for dental related issues. With mouth cancer rates rising to over 7,500 new cases every year, and early detection vital, it is more important
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than ever that patients get the right care quickly. if you have any concerns about oral health related issues, be it a toothache or a long-term ulcer, you should be visiting your dentist rather than your GP. This will also relieve pressure on the NHS, Latest figures show that mouth cancer cases exceeded 7,500 in 2012, and cases are expected to rise further. There have also been notable rises in incidence in younger people and in females. Certain lifestyle habits can increase the risk of mouth cancer, such as smoking or chewing tobacco, or drinking alcohol above recommended levels. Infection with human papillomavirus (HPV) increases the risk of some types of mouth cancer, and too much sun exposure may also raise the risk of lip cancers. The ADG has released a free educational tool for dental health professionals to help improve early detection and treatment outcomes. The tool is available at the ADG’s website, www.dentalgroups.co.uk.. ■
WINTER 2014
Medical Negligence A GP’s Perspective by Dr Norman Wallace, Medicolegal Advisor
Modern primary care has evolved in many directions and in some senses is almost unrecognisable from what it was in previous years. The standard of medical negligence however remains the same. In Scotland that standard is as described in the Hunter v Hanley judgement of 1955 and is best summarised in Lord Clyde’s judgement – “Is the course adopted one that no GP of ordinary skill would have taken if he had been acting with ordinary care?” Whilst the emergence of guidelines has made it slightly easier to determine what is normal practice it is often by no means easy to determine when a GP has fallen below that standard. I have over 30 years experience in primary care and have been giving independent expert GP opinions since 1993. Over the years I have come to recognise that there are several patterns emerging in claims of medical negligence against GPs.
Out of Hours Whilst out of hours care is now much more organised than previously it does mean that the service is not familiar with the patient and there are risks in the triage system which has now become a necessary part of the delivery of out of hours care. Telephone Triage Whilst telephone triage can be an effective tool, there is little doubt that this is a higher risk activity in terms of misdiagnosis or mismanagement than face to face consultation. Computer Algorithms I have had the uncomfortable experience of listening to several tapes of patients who are clearly unwell asking for help which seems to have been largely ignored by the triage nurse who has been slavishly trying to follow a computer algorithm and appears to be oblivious to the anguish of the patient. This discomfort is exacerbated by knowing that the patient dies within a few hours.
Risk factors for negligence claims in primary care Unrecognised Deterioration This is best summarised in my experience by the phrase “second bite of the cherry”. Often a patient is reviewed, frequently by another clinician and their deterioration is unrecognised. I have always advised trainee GPs to try to avoid presuming that the previous diagnosis or course of action was correct and to review the case from the initial presentation. Sessional Work Modern general practice is largely delivered by doctors working a variety of sessional commitments. Continuity of care can be difficult to establish. When the GP is unfamiliar with the patient or the case the risk of misdiagnosis is subsequently higher.
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Nurse Practitioners and Paramedics Whilst nurse practitioners and other paramedicals are invaluable in several sub-specialities, their training is essentially not one of diagnosis and can lead to significant judgement errors. I suspect that this will also apply to â&#x20AC;&#x153;physician assistantsâ&#x20AC;? as it often takes many years of experience to develop the clinical acumen necessary to manage patients. Failure to Visit or Consult Whilst every patient contact does not merit a face to face consultation, the likelihood of a claim for medical negligence is greatly increased when the patient is not seen. An example of this might be the diagnosis of a leg swelling being due to cellulitis when in fact it was an underlying DVT. Such a misdiagnosis is understandable when a clinical examination has taken place but hard to defend when the patient has not actually been seen. Failure to Refer One of the most common complaints can be an alleged delay in referring to secondary care when the patient has repeatedly consulted. This of course is one of the burdens of general practice, having the wisdom to know when a referral for a specialist opinion is appropriate. System Failures Modern general practice requires to develop relatively sophisticated systems. There are however several opportunities for significant error. This might be : The filing of abnormal results without notification to the patient The loss of a specimen The misdirection of a specimen e.g. testing a urine specimen for infection and not glucose in a suspected diabetic The lack of monitoring of repeat prescriptions and appropriate medication review.
Common scenarios for a misdiagnosis In my experience there can be delayed or wrong diagnosis in the following conditions: Peripheral vascular disease producing critical ischaemia Unrecognised sepsis Transient ischaemic attacks and stroke Disc prolapse producing the cauda equina syndrome Thromboembolism Meningococcal disease Asthma Difficulty swallowing Ectopic pregnancy Gastrointestinal haemorrhage due to non-steroidal anti-inflammatory drugs Subarachnoid haemorrhage Abdominal pain due to peritonitis, perforation or obstruction Ischaemic chest pain diagnosed as dyspepsia Lung cancer diagnosed as chest infection Learning difficulties masking serious underlying disease Red eye being diagnosed only as conjunctivitis Suicide risk not being adequately assessed Sinister causes of rectal bleeding or haematuria not being considered
Dr Norman Wallace Independent Expert General Practitioner BSc, MBChB, MRCGP Dr Wallace was a Principal in General Practice from 1980 to 2011. He has wide clinical experience and was Senior Partner in an eight doctor practice and a Trainer from 1984. (Whinpark Medical Centre - www.whinpark.org)
Language and Cultural Barriers The likelihood of a claim of medical negligence is in my experience heightened by the patient and the doctor belonging to a different culture or having a different first language. Record Keeping Most GP records are now computer generated and whilst they are now entirely legible they are often necessarily quite brief and reliance is increasingly placed on what is normal practice with a lack of recording of negative findings. This can make it difficult to defend a GPs assessment of a patient.
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He has an interest in medico-legal matters having previously been a police surgeon with Lothian and Borders police force for nine years. He gives independent expert opinions in cases where there is alleged medical negligence and has helped the Procurator Fiscal Service investigate sudden deaths by providing independent GP reports and giving evidence at Fatal Accident Inquiries.
20 Craigs Bank, Edinburgh EH12 8HD Tel: 0131 334 8833 Mob: 07800 634 733 Email: normanwallace@btopenworld.com
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Rare Conditions I find the phrase “when you hear hoof beats then think of horses not zebras” very helpful but unfortunately in primary care relatively rare conditions can present and they can be difficult to recognise. Such conditions can include: Haemolytic uraemic syndrome due to e-coli 0157 HIV infection Paediatric tumours such as neuro or nephroblastoma Neurofibromatosis Cystic fibrosis Tuberculosis Haemachromatosis Epiglottitis Toxic Shock syndrome Leukaemia Lyme’s Disease Ruptured spleen In reviewing many of these cases my overwhelming sensation can be “there but for the Grace of God go I” but there are occasions when I do certainly feel that the care offered to a patient has been below that of an ordinarily competent general practitioner acting with ordinary skill and care and will not hesitate to give that opinion. On the other hand there are occasions when I have been able to support a GP who has made an unfortunate but not negligent mistake or judgement. ■
Dental clinical negligence and PI reports with long-term treatment costs Unlike medicine, dental reports are different since 92% of all dental care is carried out in the High Street, it is measureable both quantitatively and qualitatively and many treatments are elective.
Edgar Gordon MSc DDS BDS MGDS FFGDP
33 Arden Road Finchley London N3 3AB Telephone: 020 8346 1411 Email: egordon@dentmedneg.demon.co.uk
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Mr Tamas Barabas Orthopaedic Surgeon MD Specialist in Orthopaedics and Traumatology Specialist in Orthopaedics and Traumatology since 1991. Qualified as an MD in 1985. Medico-legal reports. Member of the Academy of Experts and the UK Register of Expert Witnesses. Personal Injury Claims. Road Traffic Accidents. Whiplash Injury and Back Pain. Skeletal Trauma. Well established medico-legal practice since 1998. Appointments/reports in 2 - 4 weeks after instructions. Comprehensive medico-legal service on Orthopaedics and Trauma. Contact: Mr T G Barabas Tel: 07754 722 402 Fax: 01282 474 444 Mobile: 07710 258 050 Email: TamasBarabas@aol.com Address: Orthopaedic Department Burnley General Hospital Casterton Avenue, Burnley BB10 2PQ
Mr John Michael Porter Consultant Plastic Surgeon MS, FRCS, FRCS (Plastic Surgery)
The Droitwich Spa Hospital St Andrews Road, Droitwich Spa Worcestershire WR9 8DN Tel: 07932 337 812 Email: benara.rahman@hotmail.co.uk
Mr Porter has attended medicolegal training courses from 1996 until 2002 and in 2012. He was an NHS consultant plastic surgeon from 1991 to 2012, with interests in breast surgery, hand surgery and skin cancer. He was in private practice from 1996 to 2008. Mr Porter undertakes personal injury and clinical negligence work, within his areas of special expertise. He possesses the Bond Solon Cert MR Part 1 certificate. Mr Porter is available at Consulting rooms in Droitwich and Wolverhampton. WINTER 2014
The Risk Adverse Expert Witness Gary Horswell of Ntegrity Professional Insurance outlines your options With “Jones v Kaney” removing the historic immunity of expert witnesses, many in the professional indemnity insurance market wondered if the case would mean that experts would increasingly be targeted with claims. Whilst the level of claims is currently low, our contacts within specialist claims handling solicitors have already reported dealing with cases involving: • An expert who failed to recommend further specialist reports. • A solicitor seeking to involve the medical expert if they are found liable for an unsuccessful outcome for their client. • A personal injury case expert who made a wrong call and did a complete about turn at trial. Additionally, experts have sued for unpaid fees and then received a counterclaim alleging negligence. The potential quantum involved can be substantial, running into hundreds of thousands of pounds in some EXPERT WITNESS JOURNAL 29
instances. Even if the claims have no merit, Jones v Kaney enables a counterclaim to be brought.
How are Experts protecting themselves now? Experts are drawn from a wide cross section of professional backgrounds and the approach taken by them in protecting themselves against the risks they face differs. It is quite common for expert witnesses to provide services through a corporate vehicle thereby obtaining the protection of a limitation on liability. Others though, particularly in the medical professions, offer services by trading in their own name, despite the risk that operating as a sole trader potentially exposes the expert’s entire personal wealth to the risk of legal liability claims. Some will have insurance provided by the policies covering them as employees or principals. Others will arrange their own personal policies allowing them to individually determine the breadth and scope of cover. Some still undertake this work with no insurance at all but this will become an increasingly untenable stance as more instructing solicitors are now confirming the existence of cover when engaging experts. WINTER 2014
What can you do to protect yourself? 1. Consider your most effective legal entity for trading as an expert witness Does a sole trader form give you an acceptable level of personal protection when weighed against other benefits? Would a corporate structure with the potential limitation of liability be better suited to your circumstances? It may pay to take advice on the overall legal and accounting issues. 2. Use a terms of business agreement We recommend taking legal advice on the drafting of terms of business, liability clauses and the processes to adopt in order to maximise their efficacy. This helps you to be clear about your responsibilities to your clients at the outset of the relationship. 3. Undertake expert witness training. You will already be completing CPD to keep your knowledge up to date. We believe strongly that expert witness training is the most effective risk management measure you can adopt, both in your current field of expertise and in the role of an expert witness and legal process. Bond Solon provides an excellent suite of training options and we have worked with them to persuade Professional Indemnity Insurers to offer significantly discounted insurance premiums for experts who have completed the following courses; The Bond Solon Expert Witness Report Writing Course. The Cardiff University Law School Medico-Legal Foundation Certificate. The Cardiff University Law School Bond Solon Expert Witness Course.
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The insurance premium discounts available to experts who have attended these courses are substantial. Medical professionals for example have found recently that the premium savings achieved in the first year actually covers the cost of attending the Medico-Legal Foundation Certificate. 4. Make sure you arrange professional indemnity insurance. Why take the risk of being uninsured? Premiums are currently low and offer protection from unexpected costly legal claims. In the current climate, it seems likely that more clients may submit a negligence counterclaim when pursued for outstanding fees. Even if a claim against you has no substance, having a policy in place to pay for the cost of your own legal defence is reassuring, and if it should succeed then you will not be facing a crippling settlement alone.
If you would like to know more contact: Gary Horswell, Managing Director Ntegrity Professional Insurance Tel 01454 252 842 Email gary.horswell@ntegrity.co.uk Online insurance quotations for those who attend the courses above - please visit: www.ntegrity.co.uk/quote-and-buy-insurances/bond-solonexpert-witness-insurance
WINTER 2014
The Patella - A Cause of Many and Confusing Symptoms by Dr Ian Forster Consultant Orthopaedic Surgeon The patello-femoral joint is a common cause of pain especially in young girls. The anatomy of the joint means that it is always under muscle pull from all directions as it is not captive within the joint. The patella rides in front of the knee. Unlike other joints the connection between the patella and femur depends on how the joint has developed during growth. The patella rides in a groove in the femur whose shape can be flat or deeply grooved. This will of course greatly affect the stability of the joint. When we stand the hips are further apart than our knees. This means alignment of the femur to the tibia is not straight and that there is always a substantial force displacing the patella to the outside. Displacement and dislocation of the patella is therefore common and a cause of pain. Examination of the knee by a knee expert usually shows any malalignment, the prescence of fluid showing injury/inflammation,and the position of the patella during knee flexion. This would show if the patella remains in the femoral groove on flexion and whether when pushed the patella is capable of being dislocated and therefore unstable. Such conditions are commonly seen in GP Surgeries and A and E Departments. The treatment would be Xray Splintage and referral on for specialist treatment. Pain from the kneecap is usually felt right in the front of the knee and comes on after running or other high impact sport. It is less likely after cycling or swimming and low impact exercises are advised to treat and prevent such pain. The patello-femoral joint is thought to have a finite limit to the amount of stress it can take.This was shown by Scott Dye many years ago. This stress is a multiple of the force applied by the time it is applied whether on one occasion or repeatedly. The difficulty is that this limit is extremely variable and not predictable. The result is that over time the articular cartilage deteriorates and wears. The condition is usually described as Chondromalacia Patella. The damage to the articular cartilage can range from
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slight softening to complete full thickness loss. Clearly the greater the damage the worse the long term prognosis but symptoms donâ&#x20AC;&#x2122;t co-relate with the degree of damage. Often there can be considerable symptoms but little in the way of loss of cartilage. The treatment of CMP (chondromalacia patella) starts with an accurate and careful assessment to find the cause of the pain. The possibility of malalignment and patella maltracking makes a great difference to the treatment. After assessment,by either a physio or orthopaedic surgeon, treatment would be by physio to realign the patella. This would include improving the inside muscles (vastus medialis obliquus). In any knee disorder the outer muscles (vastus lateralis) are so much stronger that with loss of knee function the medial muscles degrade rapidly and always need work to bring them up to scratch. This would correct some maltracking but to complete the recovery stretching the tight lateral structures and taping the patella into a more normal position are required. This is a slow process taking 3 months plus. Exercise such as cycling might be advised but not running which should be avoided for the future. Conservative treatment like this should always be tried first. If not successful then referral on for possible surgery should be considered. WINTER 2014
Tight Laterally
Loose Laterally
Lateral Tilt
EXTENSION
FLEXION
Before surgery a further examination/assessment should be carried out. After this Xrays will usually be taken. 3 views are necessary, AP standing( from the front) Lateral (from the side) and a Skyline view. This is a view of the patellofemoral from below to show shape and alignment of the joint. Usually an MRI scan will be taken, which includes a series of images especially for the PF joint. After all investigations, and possibly further physio, surgery may be advised. Arthroscopy can assess the knee also for degree of damage and alignment of the patella. If the patella is held too far laterally the outer (lateral) tissues can be released.
The continuing pain after surgery is a regular cause of medicolegal action. An expert needs to look in detail into all aspects of such a case.
This often causes swelling and major bruising for up to 6 weeks which can be interpreted by patients as a surgical failure and they often seek legal advice if this happens. Patients should be advised of this possibility prior to surgery. Pain can continue and such a procedure may precipitate a Chronic Pain Syndrome. This is also an area where legal advice is regularly requested.
Generalised joint hypermobility can be a cause of failure of surgery. Its important to rule out inflammatory arthritis as a cause although this would be rare. Generalised widespread pain from a cause such as fibromyalgia can have a huge effect on the result of knee surgery.Such a condition and pre-existing Neuropathic pain (CRPS) would make a surgeon very reluctant to operate. He or she would continue conservative management for as long as possible. Under such circumstances there is high risk that the patient may be worse and a smaller chance of improvement. Detailed and well documented counselling is required.
If the patella is unstable or a lateral release doesnâ&#x20AC;&#x2122;t work there are a number of realignment procedures which can be helpful. All of these procedures need an extensive and long rehabilitation. Results of trimming of the articular cartilage and realignment surgery are very variable. Consent involves detailed counselling over several occasions. Recovery is often prolonged. There is the problem of Neuropathic pain or Complex Regional Pain Syndrome which most commonly occurs after patella surgery. This causes severe continuing pain after surgery which is not caused by the surgery (except indirectly) and is difficult to treat.
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Areas of dispute would include whether an accurate assessment was carried out, whether sufficient non operative treatment was undertaken and whether the correct surgery was carried out. When pain continues after surgery it is tempting to repeat the MRI and do another arthroscopy. However if this is done too soon after surgery (within 3-6 months) or too often this could become a cause of complaint.
The outcome of operating on the patella is very difficult to predict. It is often a cause of medico legal action. This is best avoided by careful and well documented assessment, by detailed and documented councelling and excellent surgery and rehab. It is important to be sure to convey the limitations of treatment. â&#x2013;
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What are Normal Variations of Gait in Infancy? by Dr Charles Essex Consultant Neurodevelopmental Paediatrician MB, ChB, FRCPCH, DO, DCCH, Cert Ed Parents are understandably very pleased when their child starts walking. It is a visible demonstration that the child is making progress and growing up. The average age of walking is 12-13 months, but therefore, by definition, half the children are walking before this age, whilst half are walking after this age. Parents will often describe their child as “he was late walking” when closer questioning reveals that the child started walking at, say, 15 months. Perhaps a more useful indicator might be the 90th centile for walking. Different figures are quoted, such as 18 months old but this author prefers approximately 21 months as the 90th centile for walking. However that would still leave 10% who do not meet that milestone but clearly 10% of children do not have a neurological or orthopaedic problem. Are there other signs that can indicate whether a child who is ‘late to walk’ has a significant problem? Upper motor neurone signs may suggest a central lesion. These signs include increased reflexes, increased muscle tone, ankle EXPERT WITNESS JOURNAL 33
clonus and up going plantars. Low motor neurone signs are generally the opposite – decreased reflexes, decreased muscle tone, and flaccid weak muscles. There are numerous normal variations, the majority of which fortunately improve with time (although they may not disappear completely.) When an infant is starting to walk, his gait is usually wide based with the feet turned slightly outwards, giving a more stable base. They do not develop the heel to toe gait (landing on the heel, rocking on the sole of the feet, and then taking off on the toes) until around 3-4 years of age. During that time however there can be many reasons why parents become concerned and bring their children to medical attention. Flat feet are very common in infancy, in fact almost the norm. Lax joints, a normal finding in young infants, mean that the inside of the foot can rest on the floor. A pad of fat on the medial side of the foot also obscures the arch of the foot. WINTER 2014
finally adopt their final position. Many adults however continue to be knock-kneed or bow-legged, but much less so than when they were infants and young children. Rickets can present with bow-legs but in young infants the features may be more likely to be swelling of the wrists, swelling of the rib-cage where the ribs join the costal cartilage and a prominent forehead. An X-ray of the wrist can show a pathognomonic picture and blood should be taken for calcium and phosphate (both of which may be low] and alkaline phosphatase [which is usually significantly raised.) Extending the great toe towards the shin may make the arch of the foot appear (Jack’s sign.) Getting the child to stand on tip toes, perhaps by reaching up to be picked up by a parent can have a similar effect. Unfortunately flat feet have historically led to a whole range of interventions and restrictions such as exercises, insoles for shoes, special boots, and not being allowed to play sport or join the army, etc. Unfortunately some of these persist even though there is no evidence base, costing the health services huge amounts of money and the parents and the child distress, time off school or work, and exclusion from activities.
Toes-in and toes-out are also common variations. Rarely is it the foot which has the abnormal posture but rather the [benign] twisting of the bones can be in the femur or tibia, or occasionally in the foot itself. The vast majority of toes-in and toes-out gaits improve with time although, as above they may not resolve entirely. There is no sound evidence that any intervention improves matters quicker than Nature doing its job over time although it may satisfy the parents’ and professionals’ need to feel that they are doing something. ■
The only caveat is rigid flat feet. This is when the medial arch does not appear when standing on tip toes or when the great toe is extended as above. This can be due to orthopaedic abnormalities of the bones of the feet or, rarely, underlying medical conditions. It is probably wisest to ask for a further opinion for these children. A proportion of children start walking on their toes. This is curious as it is not very efficient, is more unstable and ultimately more uncomfortable. However when distracted the child can often put his feet flat on the floor. Provided the child is neurologically normal (see above) and the foot can be flexed to 90 degrees or even beyond, albeit possibly with some gentle but firm pressure, then it is very unlikely that this represents any underlying abnormality. Again there is a caveat. If the calves feel particularly firm and bulky, when the ankle is at 90 degrees or if the child develops toe walking later then one has to consider possible conditions such as muscular dystrophy or a sensorimotor neuropathy such as Charcot-Marie-Tooth disease. Bow-legs and knock-knees are also normal variations. Many infants have bow-legs until around 2-3 years of age. These can then become slightly knock-kneed and then EXPERT WITNESS JOURNAL 34
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An Introduction to Orthotics by Chris Drake Consultant Orthotist, Dip OTC, BAPO, CUEW If you are involved in Personal Injury or Medical Malpractice claims then it is highly likely that a significant number of the claimants in your cases will benefit from orthotic management. The first thing I’m sure you will hear about orthotics is when an orthopaedic surgeon may suggest that the claimant may benefit from footwear or an insole, they may even go one step further and recommend that an orthotic report is commissioned. The orthopaedic surgeon may make a brief passing comment on the need for orthotic treatment or may give a more detailed orthotic opinion with regards to the specific orthotic prescription. The question is when the need for orthotic treatment is highlighted what next? I’m sure if you have not used an orthotic expert before you may ask a number of questions: • • • •
What is an orthosis? What is an orthotist? Can I just get a shoe maker to do this? Don’t physiotherapists and orthopaedic surgeons deal with this? • Where do I find an orthotic expert? In this brief article I’m hoping to give you a basic overview of what orthotics are, how they work, what they do and also the role of the orthotist. An orthosis has been defined by the International Standards Organisation (ISO 8549-1,1989) as: “An externally applied device used to modify the structural or functional characteristics of the neuro-muscularskeletal system” An orthosis when fitted to an individual should provide one or more of the following: • Correct or prevent a physical or structural deformity • Reduce pain • Improve mobility or performance • Stabilise a joint or joints • Accommodate and support existing deformities • Reduce the risk of further injury • Enhance rehabilitation
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The practice of orthotics is a holistic one which treats the whole body and crosses every age group. They are used to treat many different types of injuries and conditions which include neurological injures as well as traumatic musculoskeletal injuries. To ascertain what level of orthotic treatment will be appropriate you will need to instruct a qualified orthotist and one who is registered with the Health & Care Professions Council (Orthotists regulatory body). The orthotist will be able to assess the individual fully and give an opinion regarding the correct type oforthotic prescription. Following clinical assessment they measure, design and fit an appropriate orthosis and will also be able review its effectiveness and adjust the prescription accordingly. The devices fitted will range from specialised footwear
If yyou ou n need eed a rreport eport o on nas specialist pecialist s subject ubject tthen hen m make ake s sure ure y you ou instruct instruct a Specialist Specialist Chris Drake, Chris Drake, Dip Dip OTC, OTC, BAPO, BAPO, CUEW CUEW Consultant Orthotist and Orthotic Expert Witness C onsultant O rthotist a nd O rthotic E xpert Wi tness Chris C hris h has as 30 30 years years of of experience experience in in the the field field of of orthotics orthotics and and over over 18 18 years y ears of of medical medical legal legal reporting reporting experience. experience. As As well well as as his his in-depth in-depth knowledge principles and he k nowledge of of orthotic orthotic p rinciples a nd practice practice h e has has specific specific expertise expertise iin: n: Post Post trauma trauma orthotic orthotic rehabilitation rehabilitation Neuro-rehabilitation Neuro-rehabilitation Complex Complex disabilities disabilities Orthopaedic Orthopaedic conditions conditions Adult and Adult a nd paediatric paediatric orthotics orthotics Lower biomechanics Lower limb limb b iomechanics Lower Lower limb limb orthotics orthotics Complex ffoot oot a nd a nkle conditions conditions Complex and ankle Foot orthotics orthotics Foot Specialised o rthopaedic a nd b espoke footwear footwear Specialised orthopaedic and bespoke He has He has a wealth wealth of of experience experience acting acting as as Orthotic Orthotic Expert Expert for for the the claimant, claimant, defendant expert. He has Expert Witness d efendant and and as as a single single joint joint e xpert. H eh as undergone undergone full full E xpert Wi tness with Bond Solon and holds Expert Witness ttraining raining w ith B ond S olon a nd h olds tthe: he: Certificate Certificate of of E xpert W itness Accreditation Law A ccreditation (CUEW) (CUEW) iissued ssued by by Bond Bond Solon Solon and and Cardiff Cardiff University U n iv e r s ity L aw School. Registered S chool. R egistered with with the the Health Health & Care Care Professions Professions Council Council (HCPC). (HCPC). Consulting C onsulting at: a t: 1 152 52 Harley Harley Street, Street, able able to to travel travel throughout throughout the the UK UK for when for cclient lient vvisits isits w hen required. required. Orthotic O rthotic Experts Experts Ltd Ltd 52 5 2 Beresford Beresford Avenue, Avenue, Surbiton Surbiton Surrey, 9LJ Surrey, KT5 KT5 9 LJ Tel: +44 7721-514568, Tel: +4 4 ((0) 0) 7 7 2 1 -5 1 4 5 6 8 , Fax: +44 20 7192 Fax: +4 4 ((0) 0) 2 07 192 3339 3339 E-mail: E-mail: iinfo@OrthoticExperts.co.uk nfo@OrthoticExperts.co.uk
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Specialised Footwear
Corective Insoles
(Orthopaedic footwear), foot orthoses (corective Insoles) to highly complex lower limb and upper limb devices. Orthoses can be custom designed to the individual’s requirements or be pre-made stock items which can be tailored to an individuals need. The main function of an orthosis is to provide biomechanical support and correct dysfunctional biomechanics and all orthoses in some way or another rely upon Newton’s 3 laws of motion. For those who have forgotten their school physics they are in brief as follows: 1st Law: A physical body will remain at rest, or continue to move at a constant velocity, unless an external net force acts upon it. 2nd Law: The net force on a body is equal to its mass multiplied by its acceleration. 3rd Law: For every action there is an equal and opposite reaction. The type of mechanical forces an orthosis will utilise are normally a combination of: • 3 Point Pressure (Application of 3 points of force upon an object to control its position, rotation and stability) • Levers (The distance between two opposite forces which causes the creation of a moment, turning force • Pressure (The continuous physical force exerted on or against an object by something in contact with it • Ground Reaction Force (The force exerted by the ground on a body in contact with it) The Orthotist will have undergone extensive training. The current academic course is a 3 year full time honours degree course, which contains a period of clinical placement working in the private sector or within the NHS. They have amongst other topics knowledge in the following areas: • Anatomy – Structures, muscles and joints of the body • Physiology - How the body functions • Pathology - Nature and causes of human disease • Biomechanics - Understanding of the forces acting on the body internal or external • Clinical assessment EXPERT WITNESS JOURNAL 36
Knee Stabilising Orthosis Images courtesy of: The London Orthotic Consultancy Ltd
• Gait analysis, normal and pathological – The study of human walking • Material science - Material performance and properties • Orthotic science – The design and application of orthotic devices • Footwear – The design, manufacture and clinical application of all types of footwear including custom orthopaedic footwear Knowledge of human biomechanics and deeper understanding of more complex mechanics allows the orthotist to fully understand the effect any orthosis may have on an individual and the implications of orthotic treatment in the short and long term. They will have access to technical information on a wide range of orthotic designs and also commercially available orthoses that are not readily accessible to other professionals. Many orthopaedic conditions especially those as a result of trauma can benefit from orthotic treatment.in some from or other. The orthosis maybe temporary or permanent in nature. The Orthotist is trained to deal with many conditions and has an understanding of the practice of orthopaedics, nature of trauma, rehabilitation, physiotherapy techniques, rheumatology, neurology and other conditions such as diabetes. The essential part of the Orthotist’s work is assessment of the individual’s specific problem. Following detailed assessment of their condition based on clinical history, full examination and in many cases a level of gait analysis the Orthotist is able to formulate an orthotic prescription. Following this the prescription which at first maybe based on biomechanical need must then be reviewed to ensure it fits in with the individual’s personal needs on a daily basis. What may seem the ideal orthosis following biomechanical assessment may not be the best choice or the most suitable for the user. The measurement/casting, fitting and adjustment of the orthosis is the responsibility of an orthotist alone. The Orthotist will oversee the manufacture of the orthosis and they will also educate the client on the use and fitting of their orthosis which is vital to ensure correct function.
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The orthotist has an understanding of not only the medical side of the individualsâ&#x20AC;&#x2122; needs but also has information on the costs involved in the supply of orthoses. This is vital to allow them to provide full accurate quantum reports. It is essential if you are going to receive a complete well rounded expert report which gives you a complete picture on the orthotic needs of an individual you should only rely on recommendations from a qualified registered orthotist. Chris Drake Dip OTC MBAPO, CUEW Consultant Orthotist & Expert Witness Orthotic Experts Ltd Consultant Orthotist and Director/Owner of Orthotic Experts Ltd a specialist Medical Legal and Immediate Needs reporting practice. I have extensive experience and specialist skills in orthotic principals/practice and also computerised diagnostics, in lower limb biomechanical dysfunction and posture defects which I have gained over 30 years of clinical practice. I qualified in 1983 and initially worked in the private sector until 1991. From late 1991 to 2005, I held the post of Principal Orthotist and Head of Orthotics at Queen Maryâ&#x20AC;&#x2122;s Hospital NHS Trust, London SW15. In 2005 I formed a private clinical practice
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The London Orthotic Consultancy Ltd where I was Managing Director and Principal Consultant Orthotist until 2012. I have lectured on Orthotics both nationally and internationally, published papers on orthotic principals and orthotic design. I have also contributed to book chapters on the role of the orthotist and orthotic management. I have been involved in the training of undergraduate orthotic students for a large part of my professional career. Membership: Registered with the Health & Care Professions Council (HCPC), The British Association of Prosthetists and Orthotists (BAPO) The Royal Society of Medicine. Length of Practice: Has been practicing as a fully qualified Orthotist since 1983. I have been involved in Medical Legal Reporting for over 18 years and produced numerous reports on many types of injuries and conditions. I have experience as an expert witness for the defendant, claimant and as single joint expert.
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The Use of Orthotics Following Personal Injury by Werner Herbst, Clinical Director - Ability Matters Clinic info@abilitymatters.co.uk - www.abilitymatters.co.uk The field of orthotics covers the assessment and prescription of a vast range of devices (called orthoses) which are generally defined as ‘a medical device to support or supplement weak joints and/or limbs’. Orthotic devices are used on almost all parts of the body from specialised helmets to custom foot supports and orthopaedic shoes. Additionally orthotic devices are often used temporarily post-operatively and can be used to prevent future injuries or to improve the outcome of surgical interventions. Case study to demonstrate the use of orthotics Mrs A is a typical, active, 53 year old, mother of 2 in full time employment. She lives in London and mostly used public transport to commute to her office job in central London. She played tennis twice a week and had a busy family and social life. EXPERT WITNESS JOURNAL 38
On 11 March 2012 whilst going to work Mrs A was involved in a road traffic accident where she was a pedestrian. She got knocked down by a vehicle that jumped a red traffic light. This resulted in a compound right tibia and fibula fracture 10cm distal to the knee centre. After a lengthy stay in the hospital Mrs A was discharged. Mrs A used a pair of crutches to ambulate for two months after the accident. The fracture caused permanent damage to the peroneal nerve on the right leg, leading to a drop foot on that side. Mrs A is unable to actively lift her right foot in dorsi-flexion in combination with some loss of sensation around the dorsum part of her foot. The injury had a substantial impact on Mrs A’s lifestyle as she struggled to walk any distance for any length of time. WINTER 2014
This had an impact on her commuting to work and ultimately resulted in her giving up employment. Her orthotic needs were as follows: Mrs A visited a private orthotic clinic where she was supplied with a custom Ankle Foot Orthosis (AFO). In addition to this Mrs A was also supplied with a dynamic carbon AFO. This allowed Mrs A to improve her gait, walk longer distances and spend more time walking and standing. She also did not get as tired when using the orthotic device. Common uses of orthotics for personal injury cases The nature of personal injury cases often means that there are short or long term biomechanical challenges faced by patients as they attempt to return to their normal lives prior to the personal injury. These challenges are often considerably lessened and sometimes completely overcome with orthotic intervention. Some of the more common uses of orthotics following personal injury are: • Custom Total Contact Insoles (TCIs) – prescribed for plantar faciitis, leg length discrepancy, biomechanical inefficiency, over pronation, metatarsalgia, knee pain
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• Ankle Foot Orthoses (AFOs), Dynamic Carbon Ankle Foot Orthoses - prescribed following injury to lower leg resulting in a drop foot, inversion, eversion & hyperextension • Custom Footwear & Custom Corrective Insoles prescribed following injury to lower legs, foot deformities, leg length discrepancies, diabetic footwear, severe over pronation/supination How an Orthotist can help a solicitor in cases of personal injury Where personal injury occurs as a result of negligence, an orthotist can support a claimant or defendant solicitor in establishing the immediate and ongoing orthotic needs of the patient or provide an expert opinion on a specific issue relating to orthotic treatment or devices. An orthotist can also accurately estimate the costs relating to necessary orthotic treatment and prescription of orthotic devices. ■ Werner Herbst Clinical Director - Ability Matters Clinic 0800 072 3122 info@abilitymatters.co.uk - www.abilitymatters.co.uk
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Testing the Reliability and Validity of Evidence The holy grail of ‘certainty’ by Dr Hugh Koch, Chartered Clinical Psychologist Dr Neil Holden, Consultant Psychiatrist Dr Jon Willows, Chartered Clinical Psychologist “It is the easiest thing to pretend, and I have no doubt that many whiplash claims are invented, and many more are exaggerated” - Bill Braithwaite (2013.) The courts in the UK, Canada and USA are increasingly looking to accurately assess the credibility of claimants, and whether evidence is reliable and valid. A medico legal expert frequently interviews a claimant to establish the injury, psychological or physical, that has occurred, and whether this is attributable to the index event. Seven key medico-legal questions are shown in Table 1 (Koch, 2005 & 2011). Interview information, witness statements and medical and occupational medical records, provide the expert with an array of ‘data’ which he/she diligently considers in order to arrive at the most logical opinion.
Table 1: The Key Medico-legal questions 1) What, if any, injuries or medical conditions resulted from the claimants’ accident? 2) Are there injuries and conditions consistent with attributable to this accident? 3) Are there any symptoms that relate to pre-exiting conditions, and to what extent have these been exacerbated by the accident or made the claimant vulnerable to the accident related injuries? 4) What was the course and duration of these injuries and medical conditions to date were these within the expected range? 5) Was any absence from work in light of the injuries sustained reasonable? 6) What treatment has already been received and/or is likely to be needed in the future for these conditions? 7) What is the likely extent and duration of any continuing disability?
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The opinion is then ‘tested’ via claimant response, lawyer clarification and debate, followed by between-expert discussion, before occasionally being tested in Court. Throughout this process there are two factors which the expert must grapple with to arrive at a ‘best-fit’ opinion – reliability and validity.
“Listening to the claimant’s description of feeling low, I had several dilemmas facing me – how depressed is depressed (severity), what and why did this start (causation), what backs this up (validity) and, putting all the evidence together, was my opinion consistent with that of “ten other similarly experienced experts” (certainty.)”
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The reliability of a diagnostic process refers to its replicability, or the stability of its diagnostic outcomes that is, similar results should be obtained from one assessment to another of the same subject, both over time (assuming no real change) and with different evaluators.
Validity is the degree to which a diagnostic process assesses what it purports to assess. The validity of a diagnostic process is closely bound to the validity of the diagnostic framework it operationalizes, process, encompassing much more that measurement or psychometrics (Antony and Barlow 2002). For example, if the concept of the diagnosis of the particular condition in those circumstances in ICD10 or DSM-IV is flawed, this will fundamentally undermine the validity of the diagnostic process. This may be particularly true when symptoms are presented in the context of litigation. Both these processes are to some degree involved in the medico-legal situation in that ultimately it is only the Court/Judge who has the right to determine fact, ‘truth’ and certainty (see Figure 1 below).
response needs a follow-up series of questions in respect of whether the problem is falling asleep, waking up, lack of restorative sleep or disturbance by mental activity or physical pain. Structured and semi-structured interview formats help clinicians focus their data collection and increase the reliability and validity of their opinion. However, experienced clinicians do not need to solely follow a prescribed structured scheme as they will learn their own questioning pattern, often known as the phenomenological approach. The use of DSM IV and ICD 10 classifications of mental disorders have significantly improved the reliability and validity of diagnosis of emotional distress, where symptoms can be aligned to a ‘best fit’ diagnosis which can be communicated and discussed between expert and with the Court. However, the Courts should be encouraged to compensate individuals according to disability (i.e. actual loss) and disruption rather than, purely a technical diagnosis. Within the interview, the clinician listens for descriptions of symptoms which appear unsound or unreliable. The most common indicators of unreliability are shown in Table 2 below.
Reliability Table 2: Indicators of unreliability
C E R TA I N T Y Validity
Use of Structured Interviewing To assess the presence and level of psychological symptoms or disorders a comprehensive interview should be carried out. The experienced clinician screens areas for investigation based on: • Open ended clinical interview. • Self-report biographical and factual information. • Specific closed questioning for enhanced focusing. Presence of symptoms must be accompanied by evidence of severity and duration of symptoms. Clearly the statement “I don’t sleep well now” can refer to several different types of sleeping pattern. Were this being assessed by a very simple check box approach, a ‘tick’ would appear in the positive box and an opportunity for further information would be missed. Instead the positive EXPERT WITNESS JOURNAL 41
(a) “Blanket” problems and gross symptoms claiming - Almost all areas of enquiry produced claiming discomfort. (b) Selective Recall Poor recall of pre-accident traumas (e.g. previous accidents or minimising of pre-accident stress). - Difficult acknowledging evident recent improvement in distress or functioning. (c) Magnifying Recall - Use of a single example only to reflect apparent consistent and sustained distress (e.g. when I drove the first time after the accident it was awful). (d) Discrepancy between self-report and other evidence - between client and GP information. - between client and work information. - between client and relative information (e) Production of rare or common symptoms - Claiming unusual, strange, atypical or preposterous symptoms. - Claiming symptoms which are experience by most of the general population (e.g. losing objects, forgetting names occasionally).
Thorough clinical interviewing and data gathering The expert clinician, like the expert lawyer, develops skills over time in “listening” to available information and organising a “picture” of an individual containing:WINTER 2014
(a) facts about the trauma and its after effects;
Use of neuropsychological and psychometric tests
(b) the individual’s perception of his/distress (physical and psychological);
Claimants often present with neuro-cognitive complaints, irrespective of any cerebral impact or damage. These include memory, concentration, problem-solving and general distractibility. In addition to a clear and succinct clinical and functional description of these difficulties, a neuropsychological assessment is frequently sought to provide statistical, organised and more objective opinion about the severity of neuro-cognitive impairment. In addition, some tests used are also helpful in assessing “effort and engagement” – it is important to know that an individual has provided full and appropriate effort throughout the assessment (e.g. word memory test, visual scanning test.)
(c) significant other’s perception of the individual (e.g. family, other experts, GP); (d) an appraisal of reliable behavioural data on ability and disability; “I can’t lift things” or “I can’t drive” must be backed up by examples of previous behaviours which are now avoided (partially/totally) and frequency of such avoidance to reflect level of disruption. (e) ‘Networking’ with other experts and/or available reports to try and not only present one expert view, but also facilitate a development of the overall picture of an individual across clinical disciplines/functions (e.g. orthopaedic, neurological or psychological). In the case of psychologists and psychiatrists, both use one or other of the two classification schemes available to them: The two diagnostic classification systems of DSM-IV (TR) [or DSM-V] (American Psychiatric Association) and ICD-10 (WHO) allow clinicians (psychologists and psychiatrists) to assess two aspects of trauma – the type of reaction (e.g. stress, anxiety, depression) and levels of severity (acute/chronic and sub clinical or not clinically significant). This has crucial implications for both prognosis and treatment, and quantum assessment (Koch & Kevan 2005). Certain diagnoses, such as post traumatic stress disorder (PTSD) and chronic pain, need extra careful assessment as they have very significant effects on occupational, social and psychological functioning and also have higher quantum implications. The use or application of one of the two main clarification systems (DSM-IV (TR) or (ICD-10) is an ‘Expert System’ i.e., the criteria need to be considered in a dimensional manner (i.e. along a continuum) and in conjunction with clinical judgement and other objective information. It should be noted that, although similar, these are not interchangeable and in certain areas provide contrasting approaches to the classification of conditions (e.g. pain can be approached descriptively (DSM) or by causation (ICD-10).
“My client does avoid car travel – this disrupts her life - surely this is a specific phobia DSM-IV.300.29?” – This statement needs to be set in the context of neck pain (preventing driving anyway) absence of car to drive, no need to drive and evidence of hire car provision and driving. EXPERT WITNESS JOURNAL 42
Questionnaires and rating scales are predominantly used to assess consistency of reporting across different areas by claimants. For example, a claimant who at interview describes severe depression, yet on testing denies the typical symptoms of depressed mood is probably illustrating a use of ‘magnified’ language not consistent with psychological disorder. In addition to the above, some tests purport to specifically address fabrication of symptoms. These are an additional aid to the clinician in building up the widest picture:1. Minnesota Multiphasic Personality Inventory (MMPI) ‘F’ scale – This consists of similar questions asked in different ways which ‘truthful’ clients would answer consistent on and/or without exaggeration or ‘false positives’. 2. Gough Dissimulation Scale (1957). 3. Gudjonnsen Suggestibilty Scale (1996). All such test data needs careful interpretation They have been the subject of research attempts at validation in the legal context; many often quoted tests (e.g. Beck DI, Beck AI, HADS, Hamilton, Impact of Events etc.) are not validated in the legal context for diagnostic purposes and need to be used with caution in order to avoid misleading the Court. When a claimant presents his/her case for scrutiny, initially via interview with medical-legal experts, it is difficult to disentangle the validity, reliability and truthfulness of the alleged injury and its circumstances. In ‘testing the evidence’ the information given must be examined critically to establish if it is consistent with the possible diagnosis and causation. It is difficult for a Judge, or two medico-legal parties, to articulate with precision, the complex interaction of various versions of index event related issues. Validity, reliability, credibility and truthfulness and
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certainty are overlapping concepts. They have all become somewhat confusing terms, not well defined and interpreted differently on different occasions. The more precise variables such as there are defined, the more utility they have. Cases in which challenges involve one or more of these variables must be mounted on substantial, clear evidence and not merely speculation or personal intuition (Murray and Jamieson, 2011). Collateral evidence (disinterested witness or contemporaneous medical) is often the key to ascertaining credibility and certainty.
Credibility involves the assessment of the trustworthiness of a claimant’s testimony based upon the veracity or sincerity of the claimant and the accuracy of the evidence provided – this includes consistency of recall, harmonization with independent evidence, reasonableness of testimony, and the claimant’s general demeanour and presentation. A distinct problem arises in this area when physical causation is disproven. This leads to the conclusion that causation is psychological – whether conscious or unconscious. Ascertaining which type of motivation pertains is crucial to a valid assessment and opinion.
Evidential Reliability – the legal perspective When assessing evidential reliability, the Law Commission (2011) states that experts should have regard to a number of factors including: A) The extent and quality of the data on which the opinion is based; B) If the opinion relies on an inference from any findings, and whether the opinion explains how safe or unsafe the inference is; C) If the opinion relies on the results of the use of any method (for instance, a test or survey), whether the opinion takes proper account of matters, such as the degree of precision or margin or uncertainty, affecting the accuracy or reliability of those results; D) The extent to which any material upon which the opinion is based has been reviewed by others with relevant expertise and the views of those others on the material; E) The extent to which the opinion is based on material falling outside the expert’s own field of expertise e.g. organicity of pain. F) The completeness of the information which was available to the expert, and whether the expert took account of all relevant information in arriving at the opinion. G) Whether there is a range of expert opinion on the matter in question; and if there is, where in the range of opinion lies and whether the expert’s preference for the opinion proffered has been properly explained. The law communion are developing further the concept of the ‘Reliability Test’ in assessing evidence; such test are also know already in the USA (Daubert test in supreme court; Frye test in federal court).
Credibility and Truthfulness Ultimately the outcome of a Personal Injury case will turn on whether the claimant has been, or seen to be, truthful in the presentation of their claim. EXPERT WITNESS JOURNAL 43
Untruthfulness and malingering both require a degree of intentionality, more than just unreliability or inconsistency. As the evidence for dishonest, conflicting responding increases, so the level of likely untruthfulness increases. The clinical assessment of malingering is complex and requires multiple sources of converging evidence. Experts have an ethical responsibility to report assessment results fairly, accurately and objectively. ‘Malingering’ is a term used by many which, according to DSM-IV (TR) (V65.2) involves four criteria to be considered: 1. Is the information being gathered part of a medico-legal context. 2. Is the claimant suffering an ‘Antisocial Personality Disorder’ (or has antisocial traits). 3. Is there a discrepancy between the self-report complaints/system and other more objective findings. 4. Is there a lack of cooperation or effort?
“Her evidence of inability to drive her car due to intense fear was inconsistent with surveillance evidence showing her driving her children to/from school every day”. As above, the concept of malingering can be confused with specific psychological disorders such as chronic pain disorder and somatoform disorders where seemingly unreliable data is motivated by unconscious and involuntary processing rather than intentional fabrication. Inconsistencies or discrepancies in the patient’s self-reported symptoms include:1. Self-report history with documented history. 2. Self-reported symptoms are discrepant with known patterns of brain functioning. 3. Self-reported symptoms are discrepant with behavioural observations. WINTER 2014
4. Self-reported symptoms are discrepant with information obtained from collateral informants. 5. Evidence of exaggerated or fabricated psychological dysfunction.
Over reliance on self-report information Self-report information is an important aspect of any psychological evaluation. Mental health professionals often proceed on the assumption that clients will provide an honest and complete description of their symptoms. However, this sort of forthrightness cannot be taken for granted. Assessment of malingering is crucial; failure to examine patterns of dissimulation can render an assessment redundant. Clients provide information about their truthfulness from the very start of the litigation process. Written communications, telephone conversations and face-to-face meetings provide invaluable information concerning a client’s motivation to be open and honest. Truthfulness like most other behaviours is a continuum as shown below:Telling the truth validity and reliably
Selective truthfulness and lying
On this continuum claimant’s commonly display the following characteristics: -
crutches/sticks or other aids appropriately. How have they been in the waiting room? Cognitive testing (at a clinical level) can also be revealing. Can they perform normally on tests of attention and concentration whilst complaining of severely curtailed attention? Are they able to remember? If they cannot, is this in accord with the full account that they have just given? Is there evidence of exaggeration, such as with poor immediate recall or the so-called ‘Ganser questions’ (Factitious Syndrome).
Comparison of claimant history and symptoms with GP records The expert is typically presented with several different sources of medical and occupational records. However, frequently the most useful is the GP medical journal of attendance (typically computerised for more recent years). This gives the expert the opportunity to compare what the claimant has disclosed either through interview or witness statement about: a) their condition and b) their GP attendance. (Koch and Mackinnon 2004); Koch & Lillie (2006). One key question remains: whether the Claimant would attended their GP for diagnosis and treatment if they had a clinically significant psychological injury? Some clue to this can be found in their previous records; if they previously attended for psychological problems, there is unlikely to be a post index incident reason why they have not attended unless their condition is very mild or absent.
The Mental State Examination
A formal GP chronology (typed and complete as far as possible) is essential to enable the experts on both sides to sensibly and logically, answer pertinent questions in a non-partisan, objective manner. What does the pattern of attending indicate about: • Pre-accident status • Immediate post accident experience • Diagnostic and treatment provided • Other factors cited (related or unrelated) • Duration of symptoms and treatment?
Many expert assessors undervalue the mental state examination, mixing it with the patient’s history of presentation and account of symptoms. However, the mental state of a subject offers a plethora of objective information about an individual, which can then be compared with their subjective account.
“His allegation of continuing high levels of pain was inconsistent with only one attendance at his GP in the 24 month since he returned to factory work”.
The objective assessment of mood allows comparison with the individual’s account of their affect. Are they depressed? Do they laugh if the interview becomes light-hearted? Do they only cry when discussing their depression? Is this emphatically understandable or part of crude ‘play-acting’? Are they demonstrably restricted by pain, or do the present histrionic pain behaviour. Do they use
Despite some gender differences (male/female) with emotional expression and symptom disclosure, one would expect “on the balance of probabilities” that any individual with a significant psychological injury would attend their GP, in the first instance, for help and guidance. This comparison is therefore essential to provide information on the validity and reliability of the claimant’s circumstances.
1. Omission of key information. 2. Exaggeration of information (i.e. depth, quantity, severity) and over generalising. 3. Inconsistency of approach between two or more areas. 4. Suggestibility for producing erroneous accounts under interviewing or interrogatory conditions.
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Careful exploration, in interview, of the claimant’s decision-making and rationale, with regards to whether or not they sought professional support, can be particularly illuminating in relation to this issue. Consideration of the response also provides further insight into the way in which the claimant perceived, construed, evaluated and ‘managed’ their post-accident injuries.
Testing certainty via joint opinion discussion The aim of the joint discussion is to help the court clarify levels of agreement and disagreement between two experts on opposing sides. In doing so, it encourages the testing of robustness of the evidence, in terms of its reliability and validity. It is an invaluable process which clarifies pre-accident vulnerability, pre-existing symptoms, range of diagnostic opinions, post accident duration and attribution, and prognosis.
How can reliability and validity be enhanced? Ultimately, any ‘certainty’ of evidence depends on whether the it is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time. Findings of credibility and reliability require a comprehensive and critical examination of the evidence as a whole – not only one element to the exclusion of others. When investigating characteristics of reliability and validity in claimant’s interviewing content and style, there are several aspects of the patient history which are addressed: • Pre accident condition and psychosocial context. • Index trauma and peri-traumatic context (soon after). • Immediate short term reaction and level of disruption. • Natural improvement. • Prognosis and change/treatment expectations. The current litigation process increases ‘evidential certainty’ as it progresses. The typical ‘trail’ (Figure 2) is shown below:
During this process, there is a search for the ‘best fit’ opinion. With regards to increasing objective and contemporaneous information, if all Claimants are expected to have attended their GP or equivalent at the earliest possible time post-index accident, this would provide a contemporaneous and independent record from the GP of physical or psychological injuries and causation. It seems suspicious when the trail of complaint only begins with the commencement of litigation. It should be remembered that it is encumbent on the claimant (or his/her representatives) to “prove” the case of attributing injury to index event. However, the role of single event trauma can be over emphasised and co-existing psychosocial factors which are unrelated to the trauma may be both critical and under estimated. It is important to place and compare the claimant’s overall ‘picture’ into the context of epidemiology, normality and what is called a ‘default mode’ or ‘real world perspective’ (Gill, 2008) – in plain English, what sort of reaction would be expected to be found in the general population. This must be particularly the case when dealing with adjustment reactions/disorders, or where a whole family complain of the same psychopathology.
“I am struck by the inconsistence between Mr X’s testimony in medico-legal interviews and GP record chronology. He displays pre-accident symptoms and exaggerates current severity. He over attributes symptoms to the index accident and for which there are other explanations”. – Judge B (Balance) Act.
Figure 2 Claimant Statement
claimant –obtained medical report
GP record review
claimant legal Team Analysis
defendant obtained medical report
defendant team analysis
Joint opinion
Mediation or Court hearing
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In this context it is important to remember and apply the ‘But For’ test to decide objectively the relevance of pre-index event history. However, claimant’s may have difficulty recalling their history comprehensively, thus making the expert’s ability to apply the ‘But For’ rule difficult and consequently, less reliable.
Conclusion The Expert is explicitly placed in the role of impartial, neutral and objective assessor of evidence, as stated in the Statement of Truth, and their opinion will be subject to further scrutiny and review. The Expert is therefore driven to consider the evidence before them, and their synthesis of it, in such a way that the ‘best fit’ test must hold true for their conclusions from multiple perspectives. This will be applied in different ways in different medical specialities. In striving to achieve this, the Expert must analyse all of the information available to them in such a way that they are constantly seeking to triangulate the data and to assess the degree to which the evidence ‘hangs together’. If it does not, then this must be their next focus of enquiry and
warrants comment within the body of any report produced. It follows, as part of the process of assessment, that it is incumbent upon them to state their view of the degree to which the data does fit together and the degree to which the conclusions reached are reasonable, based on consistent data (that is ideally collected from multiple sources) and within the range of expected reactions to traumatic events. Experts can liaise with the Law Communion and other appropriate bodies to develop tests of reliability and validity which make sense in practice both in general and in specific specialities. This burden of responsibility will, rightly, continue to propel experts to pursue the ‘holy grail of certainty’. In so doing, the nature and process of ‘best practice’ in assessment will continue to develop and evolve.
References Antony, M. M and Barlow, D. H. Ed (2002) Handbook of Assessment and Treatment Planning for Psychological Disorders. Guilford Press, New York Gill, D (2008) Proving and Disproving Psychiatric Injury. Medico-Legal Journal. 76,4,143-155. Murray, A. L and Jamieson, M (2011) A Tangled Web – Credibility in P.I. Cases. CDL. Koch, H. C. H and Kevan, T (2005) Psychological injuries. XPL.St Albans. Koch, H. C. H (2011) All in the mind. Legal and Medical, 25. Koch, H. C. H and Mackinnon, J. G (2004) GP Records and the Medico-Legal Process. P.I. Compensation. August, 10-12 Koch, H. C. H & Lillie F.J (2006) GPs: The Primary Port of Call. Legal and Medical, November, 11. More information can be detained for the 1st author at www.hughkochassociates.co.uk
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My Experience of Important Peripheral Issues Which May Impact on the Psychiatric Assessment of Cases of Mental Trauma: Suggestions for Lawyers and Medico-legal Experts by Nick Cooling, Consultant Psychiatrist Since the late 1980â&#x20AC;&#x2122;s, I have provided expert psychiatric reports on cases of traumatic stress victims of major disasters, casualties of war, multiple terrorist events, aeroplane and road accidents, accidents in the workplace and, in recent years, an increasing number of victims of sexual abuse in care-settings and in wider society. The mix of cases has varied over the years, but the steady flow of human suffering and emotional stress never abates. It is relentless.
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I have had the privilege of providing opinions for many high-profile cases, including the Hillsborough Disaster, the Sowerby Bridge Disaster, the Bradford Fire Disaster, the Harrods Bomb, the Omagh Bomb Case and the Childers Fire Disaster in Australia. Most of my work has been in the United Kingdom and the Republic of Ireland, but I have also provided opinions in the United States, Australia, Holland and South Africa.
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It is well-recognized that individuals vary widely in their psychological response to injury or life-threatening trauma. Many escape such situations with their mental health intact, but others develop disabling and prolonged symptoms of mental illness. Not all of them recover. My interest in the study of mental trauma stems from my early childhood in Northern Rhodesia (Zambia), where we lived just across the border from the Belgian Congo, the scene of repeated atrocities. We also had holidays in Kenya, which was riven with conflict and slaughter during the Mau-Mau uprising and then later Southern Rhodesia became a theatre of war. I became interested in how the adults coped with these adversities. I learnt a lot from the Bemba people, whom we lived amongst. My earliest memories are of travelling in a Land-Rover in the bush, visiting Nyasaland. I have always been aware of the luck and opportunity I had in being able to gain a full education in this country, unlike many of my black classmates whose education ceased after primary school. I am not a keen follower of football, but on the 15th April 1989, I was watching TV coverage of the FA Cup semifinal match between Liverpool and Nottingham Forest. I watched with a mounting feeling of horror as the crush developed, eventually causing the deaths of 96 people and injuries to 766 others. Some years later, I was asked to provide expert evidence for the test-case in respect of psychiatric injuries sustained by the parents of two of the victims. I never had to attend Court. Compensation was awarded and I learnt an important lesson. I had become aware of evidence suggesting that repeated attempts might have been made by the authorities to conceal what happened. I was unsettled by the information I had seen during my long preparations, before providing my report for the Court, but I also knew that my over-riding duty was to provide an opinion on the medical facts of the case and to undertake this duty impartially, maintaining my professional balance. My concerns about what really happened in that disaster were outside my area of expertise. It was not until 2012 that I learnt that the Hillsborough Independent Panel had concluded that no Liverpool fans were responsible for the deaths and attempts had been made by the authorities to conceal or alter crucial evidence. No surprise to me, but then my narrow role was to provide two psychiatric reports. The other issues were not my province. My life as a psychiatric expert became much busier after Hillsborough and the next important lesson I learnt was that some of these cases go on for years. The role of a EXPERT WITNESS JOURNAL 48
psychiatric expert can be challenging and prolonged. The psychological aftermath of Hillsborough is still with us, partly as a consequence of the sense of injustice felt by the victims. This is likely to have damaged their long-term adjustment to what happened. My next experience of providing marathon psychiatric evidence was for the Omagh Bomb Case. The Omagh bombing took place on Saturday August 15th, 1998. 29 died and about 220 were injured. Some of the injuries were horrific. Some of the families of the victims formed the Omagh Support and Self-Help Group. Later, a group of victims and relatives privately funded a civil compensation case against five individuals and I was asked to provide the expert psychiatric evidence. This proved to be a protracted process, lasting years and it involved repeated visits to Northern Ireland. The eventual outcome was that the Claimants won their case in Belfast. It was a landmark case, which set an important precedent, because the victims successfully sued for compensation from alleged members of the Real IRA. I gave evidence for two days. I was cross-examined by five barristers, each in turn. As I made my way out of Court, one of the barristers quietly said to me ‘Just remember, doctor, that the IRA never forget and they never forgive.’ Talk about shooting the messenger! Perhaps giving expert evidence is not entirely devoid of personal risk, if there are individuals who really do not wish to hear the medical facts of a case. Omagh provided me with a prolonged opportunity to examine long-term outcomes in cases of post-traumatic stress disorder and I was able to observe how good social and community support can promote recovery. In my view, the work of the Victims’ Support Group was enormously helpful. As the Channel 4 promotion for the television film ‘Omagh’ noted ‘the families of the Omagh Support and Self-Help Group have been in the public eye throughout the last five years, pursuing a legal campaign, shortly to come before the courts, with far-reaching implications for all of us...’ Another crucial lesson I learned in Omagh was that in providing expert evidence in high-profile cases, it is important to keep a low profile and to make it clear to everyone concerned that your responsibility is simply to provide medical evidence to the Court. There was no other psychiatric expert for the Omagh case, so my complete impartiality had to be self-evident. My long involvement with the Omagh victims made me much more aware of the importance of looking carefully WINTER 2014
for psychiatric co-morbidity in cases of post-traumatic stress disorder, because unrecognized and untreated co-morbidity affects long-term outcome adversely. Depression, anxiety disorders, obsessive-compulsive disorders, somatisation symptoms and substance misuse are often encountered and need treatment in their own right. Part of the responsibility of an expert is not only to make the diagnosis, explain causation and prognosis, but also to provide the Court with a description of what best-practice treatment might involve. On June 23rd, 2000, the Childers Palace Backpackers Hostel fire was set by Robert Paul Long, who was subsequently sentenced to life in prison. Nine women and six men died. I provided psychiatric evidence on many of the survivors. What struck me about the survivors was their lack of psychological strategies to help them understand and overcome the psychological trauma they had sustained. Most were young people enjoying a ‘gap year’ of travel. Many had limited or no experience of being abroad and they were utterly unprepared for the situation of finding themselves in a timber hostel, where an arsonist made a determined attempt to incinerate them. These youngsters needed a lot of help, but help was not always forthcoming in the years which followed. Again, I felt that part of the medical evidence which needed to be presented to the Court was a description of the kind of treatment which ought to be available, so that it could be costed into the final settlement. The initial social support offered to the victims was very helpful and in particular, the Princess Royal’s visit to Childers on July 2nd, very shortly after the blaze, was perceived by the victims as an important validation of the trauma and suffering they had so recently suffered. Similarly, HM The Queen’s visit to Omagh represented a very important gesture of support for all the victims of the Troubles in Northern Ireland. Normally, I can maintain my professional composure, but when she stood on the exact spot on Market Street, where the bomb detonated, I burst into tears. The relatives and victims were similarly moved. This brings me to an important lesson for lawyers and doctors involved in this work, because it is crucially important to recognize that dealing with this kind of emotional trauma may well make impacts on your own mental health. One needs to think about professional and personal support mechanisms. This was brought into sharp focus for me when, years later, I made an unscheduled visit to Hillsborough, between two
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assessments in Sheffield, because I wanted to have a final look at the Leppings Lane stand, as a tribute to the victims. The security staff let me walk across the pitch. Suddenly, the horror of everything I had seen came into sharp focus and I had a panic-attack. I don’t usually suffer from phobic anxiety, so I made a swift exit. Psychological trauma can leave an imprint, even for experts, so I have learnt to have a complex supportnetwork. Peer group, psychotherapy supervisor, other experts and family. My mother is also a doctor, a retired General Practitioner and medico-legal expert. For years, on both sides of the border in Ireland, I have undertaken psychiatric assessments. My mother studied Obstetrics in Dublin, not long after the War. When I told her that I was taking the Omagh Case, she quickly said ‘Well, Darling, I’m old and dispensable, but you have evidence to give to the Court. I’ll come with you. I want to be your human-shield. Do what you want to do, but I’ll be there for you, to provide support and, if you ask me, advise.’ She did that and we had many happy trips. Similarly, my psychiatric colleagues have provided ongoing and helpful support, over many years. Nowadays, thanks to our wonderful legal system in Britain, victims of disasters have the possibility of redress and treatment. This has not existed until recent times, in many parts of the world. The way in which the legal system in this country has recognized the suffering of victims and integrated medical understanding and assessment, with its own endeavours, provides a template for many countries. My experience has been that the British legal system has shifted the agenda in terms of the description of traumatic events, diagnosis and outcome. I think that careful assessment of victims gives far more back than it takes, but working in this area is stressful, unpredictable and experts, as well as lawyers, need to plan their own sources of social and psychological support. Multi-tasking and coping with change is part of the job. One thing which always remains in my consciousness is that there are only two pathways for victims of trauma. You can be a victim, or a survivor. The choice is yours. Nelson Mandela knew about this area of human experience. Psychological recovery is about forgiveness, however hard the insult, but you don’t need to forget. Patients, lawyers and doctors all need to learn this lesson. ■
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Dr Nick Cooling Consultant Psychiatrist MBBS, MRCPsych, Dip Clin Psych Dr Cooling specializes in cases of personal injury and he has considerable experience in the assessment cases of post-traumatic stress disorder, anxiety, depression and other psychiatric disorders resulting from major disasters, work-place accidents, road traffic accidents and medical negligence. Dr Cooling provided the original expert psychiatric evidence for the Hillsborough Disaster, the Omagh Bomb Case and the Childers Fire Disaster, in Australia. He has provided expert opinions for the Bradford Fire Disaster, the Paddington Rail Crash, the Sowerby Bridge Disaster and multiple terrorist events. He has assessed cases in Holland, the United States, Australia, South Africa and the Republic of Ireland. Dr Cooling has provided expert evidence for the Irish Redress Board, in cases of physical and sexual abuse. He is often instructed in cases of alleged sexual abuse. Dr Cooling provides assessments of Mental Capacity, organic mental disorders, brain injury and he provides opinions for Employment Tribunals. In addition to personal injury cases, Dr Cooling undertakes prison assessments, including parole reports and mental health evaluations. Dr Cooling provides opinions for insurance companies, government departments, local authorities, police forces and pensions agencies. He maintains a large medico-legal practice with 40% claimant cases, 40% defendant cases and 20% joint instructions.
Contact: Secretary Kate Coley Email: nickcooling4@aol.com Tel: 01626 873 466 Fax: 01626 873 466 Mob: 07773 225 330 or 07792 947 356 Address: Hill View Cottage, The Strand, Ringmore, Shaldon, Teignmouth, Devon TQ14 0ES
Human Rights is Main Weapon in MOD Claims Britain’s Armed Forces are under threat from a sustained legal assault which could paralyse the effectiveness of the military with catastrophic consequences for the safety of the nation, according to the UK’s leading think tank.
The costs of litigation have now risen out of proportion with forecasts, with the number of claims brought against the MOD totalling 5,827 in 2012-2013, towards which a total of £130m has been earmarked for litigation purposes.
A new Policy Exchange report, The Fog of Law, co-authored by Tom Tugendhat and Laura Croft, shows how the application of civilian norms to military conduct has led to a surge in legal claims against the Ministry of Defence (MOD).
The report says that the main weapon used in legal challenges to UK military operations is the European Convention on Human Rights (ECHR). Although the ECHR had applied since September 1953, the Human Rights Act (HRA) in 1998 gave individuals the ability to
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appeal directly to domestic courts. This, combined with two operations, Afghanistan and Iraq, saw a rise in actions brought through domestic courts, and judicial precedents are set to cause more. Claims include: • Ali Al Jedda v the UK (2011). The claimant was arrested travelling from London to Iraq in 2003 on suspicion of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq (a charge that he denies). He sued the government using Article 5 of the Human Rights Act, a claim dismissed by the UK Supreme Court but overturned by the ECHR. • Smith and Others v Ministry of Defence (2012). This case arose out of the deaths of soldiers using Snatch Land Rovers and Challenger II tanks in Iraq. The Supreme Court ruled that British troops remain within the UK jurisdiction and so fall under the Human Rights Act even when deployed on active service abroad. • Ahmed al-Fartoosi, the leader of the radical Shia cleric, Moqtada al Sadr’s militia. He is in the process of suing the government for compensation alleging abuse during his captivity in Basra. He claims he was denied his rights under the ECHR. In the past, those serving in the Armed Forces were protected from prosecution under Combat Immunity while the Law of Armed Conflict ensured that the minimum harm was done to all affected by conflict. However, recent legislation and judicial findings have extended the domestic common law claims of negligence and civil claims of duty of care to the combat zone. These constraints have led to confusion among commanders undermining their interaction with allies and affecting the combat capability of the services. In the long run, the report says that the rise of ‘legal creep’ could pose a “mortal threat to the culture and ethos of the military which cannot be easily reversed.” The report warns that the, “extension of law risks catastrophically weakening the UK”. It says that it may not be long before either a foreign power or sub-state forces begin to sponsor legal actions as a way of paralysing the Armed Forces through legal process. If the costs of litigation continue to rise, the MOD will have to ask the Treasury Reserve to fight legal as well as military action, or risk having procurement and vital funds for UK service personnel diverted. EXPERT WITNESS JOURNAL 52
The report makes a number of recommendations including: • The government should introduce legislation to define Combat Immunity to allow military personnel to take decisions without having to worry about the risk of prosecution. • Parliament should legislate fully to exempt the MOD from the Corporate Manslaughter and Corporate Homicide Act 2007. • The UK should derogate from the ECHR during deployed operations. Instead the government should define the Law of Armed Conflict (LOAC) as the relevant body of law to govern operations. • Legal aid should be removed from lawsuits brought by non-UK persons against the government in line with the Ministry of Justice’s current proposals for reform. International Human Rights Law International Human Rights Law (IHRL) is the body of law designed to promoteand protect the rights of individuals, and operates at a domestic, regional and international level. In Britain this includes the European Convention on Human Rights 1953 (ECHR), the Human Rights Act 1998, and the International Bill of Rights – including the International Covenant on Civil and Political Rights 1966. The rights contained in these statutes and conventions are broadly similar (the Human Rights Act 1998 incorporates the European Convention on Human Rights) and include the right to life, prohibition on torture and slavery, right to liberty and security and right to a fair trial. The ECHR is described as a “living instrument” (Tyrer v UK [1978]), and this initial report begins the analysis of its evolution and the ways it affects the British armed forces – in particular through its increasing extra-territorial application.
Views on the Report "The recent publication by Policy Exchange of The Fog of War provides a penetrating analysis of the way in which the law has developed and reaches the conclusion that, “recent legal developments have undermined the Armed Forces’ ability to operate effectively on the battlefield”. If this is correct, we must question whether it is time for a change in the law." Lord Faulks
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"The changes since the Human Rights Act 1998 and the assurances given then and the recent Supreme Court ruling show that this issue still has legs and will run and run unless remedies are devised and provided. This said, what proactive approach might be taken? The Policy Exchange think tank, which has been mentioned several times, argued in its study entitled The Fog of Law that such legal mission creep could paralyse the effectiveness of the military. It came up with seven options for tackling this problem. I floated two, Crown immunity and combat immunity, in my topical Question last month." Lord Craig of Radley
"The recent report by the Policy Exchange called The Fog of Law, to which a number of noble Lords and noble and gallant Lords have referred, was therefore a timely contribution to the discussion and raised a number of very important questions. It was written by authors with a great deal of hands-on experience of military planning and operations, so its conclusion, “recent legal developments have undermined the armed forces’ ability to operate effectively on the battlefield”, deserves respect and careful consideration." Lord Astor, Parliamentary Under-Secretary of State, Ministry of Defence
"If noble Lords wish to consider all this in more detail, I, too, recommend the Fog of Law pamphlet produced by Policy Exchange. One of the authors, Colonel Tom Tugendhat, was wounded in Afghanistan and knows what he is talking about. Whether we disagree with it—and I do not—I believe that many hundreds of servicemen and servicewomen support what he says. That is what they feel." Lord Guthrie of Craigiebank
The full report is available at www.policyexchange.org.uk Policy Exchange is the UK’s leading think tank. It is an educational charity whose mission is to develop and promote new policy ideas that will deliver better public services, a stronger society and a more dynamic economy. ■
DR. GEORGE STEIN MRCP M.PHIL FRCPSYCH
CONSULTANT PSYCHIATRIST Medico Legal Reports Covering most of adult general Psychiatry Areas Covered include: Personal injury, Accidents, Psychiatric consequences of injury and psychiatric consequences of medical negligence, Anxiety, depression and personality disorders. A subspeciality is family law: and the psychiatric assessments of Mothers in care proceedings. Patients seen at London Bridge and Hayes Grove Priory in Bromley Contact Tel : 07789424209 e-mail: georgestein86@gmail.com A quick efficient service at reasonable rates
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PTSD Hurts Young Soldiers Most Vince Bramley was a machine-gunner with 3 Parachute Regiment at the night-time battle of Mount Longdon in the Falklands War. He describes it as ‘combat at very close quarters, hand to hand, eye to eye, very bloody stuff’ and recalls the scene at the top of the mountain after the battle in the early hours of the morning: ‘It wasn’t until daylight, when I ran into the bowl on the summit and saw the number of dead people there, including my own friends and colleagues, that the shock hit me. Nobody touched me, but it was as if somebody had punched me in the stomach. And I just went into a state of shock. … ‘I remember looking around at some of my friends who had survived as well and were inthis bowl, and I hadn’t realised until then that I wasn’t the only one crying. And there were Argentines who had been taken prisoner, and they were crying as well. I think all of us were shocked at the extent of what we’d done to each other. And then you begin to realise you’re not the rough, tough British paratrooper that the programme of training had made you out to be. You realise you’re human, and you have human feelings, and that the men beside you are no different.’ Extract from ForcesWatch ‘The Last Ambush’ Report. October 2013
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Young soldiers recruited from disadvantaged backgrounds are substantially more likely than other troops to return from war experiencing problems with their mental health, says a wide-ranging report published in November by human rights group ForcesWatch. The report “The Last Ambush: Aspects of mental health in the British armed forces” draws on over 150 sources, including 41 British military mental health studies, as well as testimony from veterans. It shows that, compared with older personnel, younger recruits are significantly more likely to suffer post-traumatic stress disorder (PTSD), to drink at levels harmful to health, and to behave violently on their return from war. Young recruits from disadvantaged backgrounds are at greatest risk. Citing studies of large, representative samples of the armed forces, the report finds that: • 8% of Iraq War veterans who enlisted without GCSEs or Scottish Standards met the criteria for post-traumatic stress disorder (PTSD) after their deployment, compared with 4% in the armed forces as a whole and 3% in the general population. Personnel without GCSEs typically enlist at younger ages. • 26% of personnel aged 18-24 were found to be drinking at levels harmful to health, which is twice the 13% average for the armed forces and more than three times the 8% rate found among civilians of similar age. • 24% of Iraq War veterans in the lowest ranks, who are typically the youngest, reported behaving violently in the weeks following their homecoming; the average rate across the armed forces was 13% . The rate of violent offending among Iraq and Afghanistan War veterans after their deployment was twice what is was before they enlisted. • Over the past 20 years, the suicide rate has been 82% higher among male soldiers under 20 than among civilian men of the same age. The suicide rate among former armed forces personnel aged under 20 has been nearly three times as high as that in the same age group in the general population (between 1996 and 2005). Given that there remains a stigma in the armed forces attached to reporting mental health issues and most studies do not assess personnel fully anonymously, the true prevalence of mental health problems is likely to be higher than these figures suggest. As a group, younger personnel from adverse childhood backgrounds are both more vulnerable to war stress and over-represented in front-line Infantry roles where exposure to traumatic experiences is greatest, the report explains. EXPERT WITNESS JOURNAL 55
Recruits who enlist at age 16 or 17 are channelled in disproportionate numbers into the Infantry, becoming deployable to war as soon as they turn 18. Although it accounts for just 14% of the armed forces, in the last five years the Infantry received 32% of all new recruits aged under 18 (compared with 24% of adult recruits). The Infantry has suffered a fatality rate in Afghanistan some seven times that seen in the rest of the armed forces, says the report, and those who enlisted into the Army at 16 have been at greatest risk. In contrast, personnel who enlist as adults and hold stronger qualifications join a wider range of roles; they are therefore, in general, less exposed to traumatic stress in warfare. The report calls for the policy of recruiting from age 16 to be reviewed so that the greatest burden of risk is not left to the youngest, most vulnerable recruits to shoulder. Raising the minimum age of recruitment to 18 would ensure that recruits share the risks more equally and that they assume them at the age of adult responsibility . The report notes that the UK is the only state in the European Union to recruit from age 16 and one of only 19 worldwide; most state armed forces now recruit only adults. David Gee, the report’s author, said: ‘When it comes to the trauma of warfare, recruits from the poorest backgrounds face a “perfect storm” of pre-existing vulnerability and greater battlefield exposure. Recruiting 16 year olds into the Infantry puts the most vulnerable group in roles most exposed to trauma when they turn 18 and are sent to war.’ The report discusses why some veterans are more psychologically affected than others. It shows that a combination of recruits’ pre-enlistment situation, military factors such as rank and exposure to combat, and the support available to veterans when leaving the forces, all affect mental health in the long-term. Although younger recruits from disadvantaged backgrounds are more likely than others to experience mental health problems regardless of their war experience, traumatisation in warfare is the main explanatory factor for their greater psychological burden, as a number of British and US studies have shown. ‘The Last Ambush? Aspects of mental health in the British armed forces’ is a ForcesWatch report written by armed forces researcher David Gee – a researcher based in London. He has studied armed forces personnel issues since 2007 and authored or co-authored a number of influential research reports. ForcesWatch scrutinises armed forces recruitment practices and proposes changes in policy aimed at better serving the interests of young people. ■ You can download the fully annotated and statistically referenced Report from their website www.forceswatch.net
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Good Evening Sir Is that a Gun in your Pocket or … is it an Antique Firearm? by Mark Mastaglio B.Sc.(Hons) FFSSoc, The Forensic Firearms Consultancy (FFC) Ltd What is an antique? This is a thorny old question that has vexed collectors and legislators alike. With the passing of time objects that only relatively recently seemed modern become period pieces and collectable. Browse an auction house catalogue and you will probably come across relatively modern pieces that are now touted as antiques. As a rule of thumb some people think that to qualify as an antique the object must be 100 years old, but this does not really stand up to scrutiny - what is the difference between a piece of Lalique glass made in 1914 and 1915 – is one an antique and the other not? Why does this matter you may ask, well, if you have an old firearm that you say is antique but the police disagree with you, and you are convicted of possession of a prohibited weapon, then you might be spending 5 years or more at Her Majesty’s Pleasure. Of course genuine firearms crime is a serious issue for society and convictions rightly carry heavy sentences. However there are many examples of individuals who EXPERT WITNESS JOURNAL 56
believed they possessed a genuine antique firearm who have been prosecuted for illegal possession of a firearm. The unlawful possession of a prohibited weapon, as defined by section 5(1)(aba) of the amended Firearms Act 1968, such as a handgun, is an offence of strict liability and carries a mandatory, minimum sentence of 5 years imprisonment. However an in-depth knowledge of both the primary legislation, case law and the forensic science issues can lead to a successful Defence concerning antique, historical or technical interest status as defined by section 58 of the 1968 Act and section 7 of the Firearms (Amendment) Act 1997, respectively. How does firearms legislation accommodate the concept of antique firearms? Unhelpfully the Firearms Act 1968 does not define what an antique firearm is, but section 58 does provide for an exemption from control for antique firearms, it states: WINTER 2014
Nothing in this Act relating to firearms shall apply to an antique firearm which is sold, transferred, purchased, acquired or possessed as a curiosity or ornament. Without a statutory definition of antique the Police, Crown experts and the CPS tend to rely upon guidance provided by the Home Office. The latest advice is encapsulated in chapter 8 of the Home Office publication, Guidance on Firearms Licensing Law published in November 2013. In a nutshell the Home Office advice makes the obsolescence of the design of the gun and the commercial availability of ammunition the crucial factors in the decision process as to the applicability of the section 58 exemption. The Home Office, has listened to the Association of Police Officers (ACPO) and the ruminations of the old Firearms Consultative Committee, and base their approach on what they consider the overriding need to keep viable firearms out of criminal hands. Their reasoning is that it is best to restrict the possession of guns, irrelevant of their age, for which ammunition is still produced in significant quantities. To this end the Home Office guidance gives a list of what they regard as obsolete calibres, that is sizes of ammunition which are either not manufactured anymore
or are available in tiny numbers, any gun chambered in one of these calibres would be regarded as antique. This official approach is different from a lot of our continental neighbours who, not unreasonably, regard age as the deciding factor in assessing antiquity. Dictionary definitions of antique use phrases such as “old fashioned”, “bygone days” and “belonging to, made in, or typical of an earlier period” in general they do not refer to functional obsolescence. Essentially they refer to an object that represents a previous era or time period in society and its development. The Home Office approach is not law. When someone is arrested with an old gun and the Defence is that it was possessed as an antique being held as a curiosity or ornament then the burden is on the Crown to prove it is not an antique. This follows from R v Burke [1978] 67 Cr. App. R. 220. The Defence needs to adduce expert evidence identifying the firearm in question as a possible antique. The meanings of the words curiosity and ornament are also not defined in law but it can be taken that they have their normal literal meanings.
FORENSIC FIREARMS CONSULTANCY CONSULTANT FORENSIC SCIENTISTS www.forensicfirearmsconsultancy.com
FFC offers bespoke, customer-led solutions to all firearms and GSR-related investigations. Forensic Firearms Consultancy (FFC) Ltd is an innovative company led by two world-renowned experts. During their time at the UK Forensic Science Service (FSS), Mark Mastaglio and Angela Shaw became the most senior scientists working in forensic firearms and gunshot residue (GSR) respectively. It is the only UK-based private consultancy offering this level of expertise, experience and worldwide reputation in firearms and GSR. FFC can undertake work at every level of forensic firearms and GSR examinations and has extensive experience of complex, sensitive cases from across the globe. The FFC directors are two of the most senior and experienced practitioners in the UK, with over 35 years of firearms and GSR court reporting experience. FFC’s Expert Witness service includes: ❖ Examination of the full range of cases, from the alleged illegal possession of firearms and ammunition to complex interpretation of fatal shooting incidents ❖ In-depth knowledge of firearms legislation involving complex classification issues – an insider’s knowledge of firearms law policy ❖ Civil or criminal case investigation ❖ Court attendance ❖ Potential for accidental discharge ❖ Trajectory reconstruction analysis, including scene visits ❖ Determination of the type of gun used ❖ Determination of how many guns used ❖ Range of fire determination ❖ Interpretation of autopsy findings, including autopsy examination attendance ❖ Interpretation of GSR findings (incorporating SEM-EDX results) ❖ Critical analysis of GSR contamination issues If you need immediate advice, please contact either Mark Mastaglio on +44 7919 217 848 or Angela Shaw on +44 7919 392 397. Otherwise please email us at: enquiries@forensicfirearmsconsultancy.com. Our website is at: www.forensicfirearmsconsultancy.com
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Examples of guns examined by FFC Ltd that were possessed as antiques. Ammunition is not covered by any antique exemption within the legislation and the possession of live cartridges requires a firearms certificate. The Police and CPS tend to regard possession of ammunition with an antique firearm as having the effect of removing the gun from the section 58 exemption. This seems to be applied irrespective of circumstances with Crown experts relying on the presence of compatible ammunition to show that the gun was not being held as a curiosity or ornament. This is a leap of faith that exposes possible prosecution or contextual bias. The presence of ammunition is not prima facie evidence of intent to discharge the ammunition in the antique firearm; it may be that the individual wishes to possess it to give completeness to their collection. However there have been examples where criminals have tried to exploit the section 58 exemption and have used commercially made or modified ammunition with otherwise antique firearms. The law needs to be applied so that those in possession of antique firearms with criminal intent are convicted whilst those with no such intent are protected.
Determining whether or not antique status applies to a firearm requires the input of a truly impartial firearms expert who is capable of interpreting the technical nuances, age and provenance of the gun in question within the context of the historical development of firearms, primary legislation and case law. At the Forensic Firearms Consultancy (FFC) Ltd Mark Mastaglio has many years experience in assessing the status of possible antique firearms and a proven track record in assisting in cases using the section 58 exemption. His evidence on antique status has resulted in charges being dropped and acquittals at trial in a range of cases involving guns dating from the 1870’s to the Second World War. ■ © Forensic Firearms Consultancy (FFC) Ltd. 2013
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Why Not Commission Psychological Opinion Directly? by David Pike MSc AFBPsS CPsychol HCPC Registered Consultant Clinical Psychologist In the light of the Jackson reforms it is clear that early prediction of the need for expert evidence at the outset is a key factor in the costing of personal injury cases. Predicting all the expert evidence that will be needed should reduce the time taken for litigation, identify any treatment needed much earlier and project a reputation for efficiency and expertise. It has long baffled me that if a Claimant reports they suffered pain as a result of an accident then medical evidence is sought but an assessment of psychological damage is only sought if a Doctor says it is needed.With all due respect to their expertise, Orthopaedic surgeons will speculate about ‘functional’ psychological issues if the physical symptoms described do not match organic explanation (sometimes with suspicions about motives) but, in my experience, they can also report the presence of such symptoms because they are sympathetic people who think to ask about depression or flashbacks and then acknowledge the need for specialist opinion here. If they ask the right questions then Claimants will tell them. Why cannot legal people do so as well? One solicitor told me “we don’t understand these things”. Well why not learn? Personal injury solicitors read psychological reports all the time; surely the issues that come up so often could be asked about. The mind is not an alien territory, we all have one – just as we all have a body. We all have had experience of pain and most of us have experience of the emotions of shock, bereavement or loss. It is not rocket science to ask “do you have difficulty sleeping”, “do you feel down all the time?” or “are you anxious when you are passenger in a car?” Clearly expert opinion is needed to put such statements into context, particularly if there is a previous mental health history, and to attempt to quantify the extent of the damage but, as I was advised as a young psychologist, “If you want to know what the real problem is, ask the patient, they may just tell you!”
have to be professional boundaries but I bet solicitors do not realise how inadvertently therapeutic they can be by just listening to the details of what happened. How much better if they could translate any concern they feel by commissioning a psychological opinion as quickly as possible, rather than waiting for the rather more hit or miss approach of having a Doctor do it for them. I do have experience of some GP reports that indicate a resolution of psychological symptoms within a matter of weeks when, on proper assessment a year later, it is clear that a catastrophic full-blown PTSD was actually present. Getting the need for a psychological opinion from a Doctor trained to assess the body is not always a good option. How much psychological distress is actually missed because the Doctor does not notice it? I am sure that, with the appropriate psychological briefings to give them confidence in this area, solicitors would be able to justify to the Court why they are going to seek psychological opinion without needing to wait for the ‘authority’ of a medical recommendation. This could both speed up the process of litigation and reduce psychological losses by getting appropriate treatment before damage becomes set in and potentially very difficult and expensive to treat. David Pike MSc AFBPsS CPsychol HCPC Registered Consultant Clinical Psychologist www.educarepartners.com info@educarepartmers.com
One legitimate concern solicitors may have is that if they open the floodgates they will be swamped by the Claimant’s distress and they are not equipped to be a counsellor and are not the right person to give advice outside their expertise. Of course this is true and there EXPERT WITNESS JOURNAL 59
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The £112 Billion Cost of Brain Disorders Disorders of the brain, including dementia, stroke, and mental health issues, cost the UK around £112 billion annually, a new report says. The figure includes direct medical costs as well as indirect costs such as lost productivity due to absence from work or early retirement. The research, led by scientists from the University of Cambridge, University of Hertfordshire and Imperial College London, is the most recent and comprehensive study conducted on the costs and prevalence of brain disorders in the UK. Professor Barbara Sahakian, one of the lead researchers from the University of Cambridge and President of the British Association for Psychopharmacology, said: “Given the ageing population, the prevalence and cost of UK brain disorders is likely to continue to increase, adding additional pressure on the NHS and social services, particularly in regard to the cost of institutionalised care.” The study reveals that in 2010, the year for which the most recent data is available, there were approximately 45 million diagnoses of brain disorders in the UK, including 8,196,000 cases of anxiety disorder; 5,268,000 cases of sleep disorder; 1,878,000 cases of addiction; 3,937,000 cases of mood disorders such as depression and bipolar disorder; and 2,396,000 cases of somatoform disorder, illness that cannot be attributed to a physical problem. Additionally, there were 26,000 cases of brain tumour and 18 million cases of headache requiring medical attention. EXPERT WITNESS JOURNAL 60
The researchers estimated that the total UK cost of disorders of the brain in 2010 was £112 billion. Because of limitations in data for some disorders, which was therefore not included, the scientists consider their total estimate of the cost to be conservative. The five most expensive disorders were dementia, costing £19 billion a year; psychotic disorders (£14 billion); mood disorders (£16 billion); addiction; and anxiety disorders (around £10 billion each). Indirect costs associated with patients' productivity losses, totalling £52 billion, accounted for 46 per cent of the overall cost. The total cost of social care for brain disorders was estimated at £30 billion and direct healthcare costs another £30 billion. Funding gap for research The annual cost of dementia on the health and social care system was estimated at £10.5 billion, more than the cost of cancer, coronary heart disease and stroke put together. However, despite UK government recommendations saying health research priorities should be informed by the impact of disease on the population and economy, research funding for cancer – which amounts to £590 million – is much higher than investment in psychiatric and neurological conditions. Dementia research receives just £50 million a year and stroke £23 million. WINTER 2014
The neuroscientists and clinicians behind the current study are advocating a transformation of how funding is allocated to more closely reflect the economic burden of disease. Professor David Nutt, a lead author of the report and Edmond J Safra chair in Neuropsychopharmacology at Imperial College London, said: â&#x20AC;&#x153;Clinical and economic challenges posed by brain disorders require coordinated effort at an EU and national level to transform the current scientific, healthcare and educational agenda. Diseases need to be ranked according to their economic burden to help more efficiently allocate current and future research funds.â&#x20AC;? The researchers argue that brain disorders involve disproportionally high indirect costs, such as lost productivity, and relatively low direct health and social care costs. This means that the application of more effective treatment has the potential to considerably reduce the overall economic burden to society and improve patient quality of life, in addition to reducing healthcare costs. They believe this is a clear argument for investing in research that leads to a better understanding of how to most effectively prevent, diagnose, treat and manage brain diseases. Professor Sahakian added: â&#x20AC;&#x153;No group of chronic diseases costs the world more than brain disorders, with one third of the adult population suffering from a mental disorder every year. However, although brain disorders affect more people than cancer and cardiovascular disease, they receive significantly less in research funding.â&#x20AC;? The scientists also highlight an impending crisis in drug development. Major pharmaceutical companies have withdrawn from key areas of preclinical and clinical neuroscience research. Professor Naomi Fineberg, a lead author of the report from the University of Hertfordshire and Hertfordshire Partnership University NHS Foundation Trust stated: â&#x20AC;&#x153;It is very important that there is novel drug development as a key component of research in order to find effective treatments for all patients thereby allowing them to have a better quality of life and to return to their normal activities at work and at home.â&#x20AC;? The findings were published in the Journal of Psychopharmacology. The work was supported by the British Association for Psychopharmacology, European College of Neuropsychopharmacology, the European Brain Council and the Wellcome Trust. â&#x2013; Reference NA Fineberg et al. â&#x20AC;&#x2DC;The Size, Burden and Cost of Disorders of the Brain in the UKâ&#x20AC;&#x2122; Journal of Psychopharmacology 2013 EXPERT WITNESS JOURNAL 61
Brain Disorders in the UK Annual Costs Disorders of the brain, including dementia, stroke, and mental health issues, cost the UK around ÂŁ112 billion annually 1. Dementia ÂŁ19.1 billion 2. Mood disorders ÂŁ16.6 billion 3. Psychotic disorders ÂŁ14.4 billion 4. Addiction ÂŁ10.1 billion 5. Anxiety disorders ÂŁ10.1 billion 6. Stroke ÂŁ7.3 billion 7. Headache ÂŁ6.1 billion 8. Mental retardation ÂŁ5.2 billion 9. Traumatic brain injury ÂŁ4.9 billion 10. Sleep disorders ÂŁ4.9 billion 11. Personality disorders ÂŁ4.2 billion 12. Somatoform disorder ÂŁ3.0 billion 13. Child/adolescent disorders ÂŁ2.4 billion 14. Multiple sclerosis ÂŁ2.3 billion 15. Parkinson's disease ÂŁ2.0 billion 16. Epilepsy ÂŁ1.4 billion 17. Neuromuscular disorders ÂŁ1.1 billion 18. Brain tumour ÂŁ660,000 19. Eating disorders ÂŁ110,000
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Value in Art by Andrew Acquier, FRICS Chartered Art and Antiques Surveyor What does ‘value’ mean? Is it always one thing? Does it matter? Well, it varies – no and yes. There are two principal bases of valuation:A) For sale in the open market. These usually fall into the following six categories:1) Probate: there is no such thing as a probate valuation. However, Revenue and Customs instruct valuers to produce a market value for the purposes of probate. This should reflect the hammer price at public auction and not a forced sale. If the item is particularly specialist, then the value at an appropriate specialist auction is sought. By commissioning and using such a valuation as the basis for sale at auction, the executor of an estate covers his back and minimises the chance of any claim by the beneficiaries that he has not secured the best net return on their behalf and will consequently be sued. 2) Contentious probate; This often arises as a dispute over title or where the basis of value is differently assessed by opposing parties. For example, a recent case involved the wife and the mistress of the deceased arguing about the value of paintings left in the husband/lover’s estate.
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Research indicated that one artist, a living Frenchman, sold through American galleries for between prices ranging from $9,000 to $35,000. However, when offered for auction, similar works only made between £300 and £600, wherever they were sold in the world. So, in a sense, both mistress and wife were correct, just arguing on different levels of value. Which was more important – ownership of the paintings at an agreed value or selling them and using the money elsewhere? That was up to them to sort out with the aid of their legal advisers. 3) Divorce: I often act as a Single Joint Expert, carrying out a market valuation accepted by both husband and wife as the basis for an equitable division. Although this is usually in the form of an expert witness report, it is rare for a subsequent court appearance to be required for the valuer. However this sometimes occurs when acting for only one party. 4) Distress: This usually involves bailiffs, some of whom also act as auctioneers. Art seized includes items from bankruptcies and goods seized as a result of criminal activity.
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5) Asset: Art used not to be regarded by the big banks and lending institutions as an asset class. Times have changed. It is now increasingly common practice for private individuals, trustees and companies to seek to raise capital on their art. During the last two years I have been involved in an asset valuation, including a Turner oil painting, on which a client was attempting to raise monies to pay for a West Country manor house. Loan to value is generally around 50%. Often art is held in secure store whilst the loan is outstanding. 6) Contentious claims. These usually involve authenticity or quantum, where the importance and consequent value of a piece of art is open to different interpretations.
B) For insurance. Valuations fall into the following four categories: Pre-loss valuation 1) These are carried out for private individuals, companies and trusts. They include the contents of private houses or selected items, such as paintings or jewellery valued at over a certain figure to replace at retail prices. This figure used to be as low as £500, now it is often £2,000, sometimes £15,000 or even £50,000, depending on the particular policy wording. 2) Trustees are responsible for the insurance cover on the items over which their duty of care extends - this involves the production of an inventory and valuation for this particular purpose, usually accompanied by the inclusion of thumbnail images, as many trustees never physically see the items for which they are responsible and a picture always helps. I am currently involved in a rolling series of high net worth valuations which updates collections of furniture, silver, pictures, ceramics and books held in an English private house by an off-shore trust. Post loss valuation: 3) Theft . Where an existing valuation exists, insurers will use those figures in the event of a claim. These are called agreed values and can only be altered by an updated valuation. Where no existing valuation exists a loss adjuster may well be appointed to settle the claim on behalf of the insurers. The insured can hire an independent valuer or loss assessor to help them establish an independent resolution. The adjuster and assessor are usually both given some latitude to reach an agreement to satisfy both parties. The claims are based on retail replacement figures, unless previously agreed otherwise by the insured. 4) Total or partial loss may be occasioned by fire, flood, natural disaster or in transit. Valuers are then called in to assess the extent of the damage as to whether or not the item is a total write-off. It may be that the item can be EXPERT WITNESS JOURNAL 63
repaired, if so, there is still an ‘intrinsic loss of value’ to be taken into account. For example an oil painting may be ripped but restoration will not completely mask the damage. Collectors/the art and antiques trade will downgrade damaged items and pay less for them. The difference between the replacement value of an item in pre-loss condition and its value after it has been restored is called the ‘intrinsic loss of value’. A fair insurance pay-out will take this into account. Another factor is that many insurers choose to have items remade rather than replace them in the retail market. This will particularly apply to pieces no longer regarded as stock. For example a silver candelabrum bought from most retail shops would now have to be ordered and remade as a special commission, but an insurer can approach a silversmith direct to produce a piece for a trade price, a fraction of the retail cost. Unfortunately, as far as surveyors are concerned, insurers have tended to muddy the water when they have assumed that market value is the same as replacement value. It is not. The first is wholesale, the second retail. However arts surveyors have been encouraged by our professional body, the RICS, to make it absolutely clear to everyone, whether a solicitor or an insurance broker, in the certificate of valuation forming the last page of any inventory and valuation, as to the exact purpose of the work, so that any misunderstanding can be avoided. If it is a market valuation for the purpose of sale at public auction, we say so; if it is a market valuation for the purpose of replacement through usual retail channels, we say so. This avoids any confusion. When matters end up in court The judge will need assistance from the expert in making a fair assessment; this necessitates the provision of an expert witness report, which, although paid for by the client, is for the attention of the court as a completely objective statement. In the world of art and antiques, expert witnesses are usually instructed to value for sale in the open market – this is usually interpreted as sale at public auction. To be an ‘expert’ implies that the individual has knowledge in depth, which always needs to be kept up to date. I feel that I need to spend a day a week in attending auction previews, noting sale results and visiting shops and galleries to check retail prices. Computer information is not enough – the expert art and antiques witness has to view and handle items himself. Buying Art So, what to buy? Maybe, before spending money on a painting, and if at all worried about its value going up or
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down over the years, the potential purchaser should check on the health of the artist, whether he is still working or has decided to retire, whether he is working towards a new exhibition, whether his eye sight is any good. An example of ailing health impacting on the art produced is the late work of Claude Monet (1840 – 1926), who continued to paint impressionist works in his garden at Giverny during a time when cataracts affected his sight and resulted in him using an increased variety of red tones. An operation three years before his death corrected his sight and he used more blue, repainting some, but not all, of the redder works. Should these later works be as prized as his earlier works? Certainly they come on to the market less frequently, most of the paintings being sold up to now being dated before 1900. On the other hand, student works by established artists are seldom worth more than a small percentage of their mature work. Even an early collage by Damien Hirst, given to a fellow student who gave Hirst cheap lodging whilst at Goldsmith’s College, sold at auction for £32,000, a fraction of the prices made by his later original pieces.
If you remember the 1960s, Cork Street in London’s West End was the main location for the principal galleries selling contemporary art. The owners considered that if 20% of the new artists whose work they were selling were household names (at least in arts households) a generation on, then they were doing their job correctly in introducing fresh artists of quality to the arts buying public. However, by the turn of the century, much had changed. Charles Saatchi started a series of Young British Artists shows in 1992 and consolidated this with ‘Sensation’, an exhibition of works owned by him, at the Royal Academy in 1997, which heralded a new age. These works set out to question and shock in new ‘sensationalist’ ways. The selling galleries, largely led by White Cube, first in Duke Street, St. James’s and later in Hoxton Square, expected the large majority, and hopefully all, of their promoted choices to make a significant impact immediately, leading to a longer term increase in values.
Traditionally the value of an artist’s work increases after his death, but recent years have produced many whose work sells at high prices whilst they are alive and it is too early to guess how history will judge or appreciate them. Certainly those with an established track record at auction, such as Lucian Freud, who died in 2011, have seen prices rise in the short term. But all art sold at auction and through the galleries is subject to whims and trends. The Victorian landscapes, particularly of Scotland, that were so popular in the mid to late 1980s are generally much cheaper now. They are out of vogue. Contemporary art collecting can be a minefield. Last year I valued a collection by the artist (Alan) Charming Baker, one of our leading surrealist/street style artists, working somewhat in the manner of Banksy. I have recently completed a second valuation for another client including several works by the artist, both originals and signed prints. Even in the year since the first valuation, prices of the prints have risen considerably. An example of one, dated 2008 and in an edition of 85, originally sold for £280 in a gallery and was resold at auction in December 2012 for £1,900. Baker has struck a chord with celebrity art collectors and his palatable yet subtly edgy ‘street’ style puts him at the fore (for now).
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With established artists galleries caught on quickly. In 1997 the Annely Juda Gallery put on an exhibition of small oil paintings by David Hockney entitled; ‘Flowers, Faces and Spaces’. These were priced at approximately three times the amount sought for similar works sold by Hockney previously. They all sold within days. A new benchmark for the price of the artist’s work had been set. With the rapid expansion of interest, contemporary art dealers were able to persuade their artists to produce not only a steady stream of original work, but also a large number of limited edition prints.
are taught that the highest marks to be scored for coursework are for projects that deliberately reference the work of previous artists, so long as they explain what motivated a work and where they consider it leads them. Is there any place for originality? It is certainly not encouraged. What indeed would constitute true originality in media where anything goes? Was Picasso acknowledging that there is nothing new in art?
Here there was a radical change in the way such prints were sold. The tradition had been that with a limited edition of 75 prints, often on hand-made paper, the first would be sold at, say, £200, the second at £205, the third at £210 and so on, until the edition was sold out, not only increasing the return to both artist and gallery, but giving a good indicator of the desirability of that artist’s work for the future. Now that galleries could see greater interest and a wider opportunity, print runs were expanded, produced on cheaper paper and priced at a uniform cost. When the edition sold out and demand was still evident, a second edition might be produced with minor variations to sustain demand. No more tiresome recording of individual purchases to determine value. So is a print from an unlimited edition worth buying? Many argue that it is then just a signature on a piece of paper. and that the exclusivity has gone.
Perhaps we should not forget that the most popular art is not always the greatest art, however well received in its day. William Powell Frith (1819 – 1909), probably most famous for ‘Ramsgate Sands, Life at the Seaside’ (1854), ‘Derby Day’ (1858) and ‘The Railway Station’ (1865), all works with multiple figures depicting many layers of society, was the first artist to sell over a million prints. But the popularity of the Impressionists and the advance of photography resulted in a rapid fall in the interest in his work.
Certainly there has been a change to the method of producing limited edition prints. Some artists, once they feel that their market is well established, are now choosing to become more exclusive with smaller limited editions, some as low as ten, set at higher prices, which sell out quickly and add to the exclusivity of buying that particular artist’s work.
And where does this place Damien Hirst’s shark, Tracey Emin’s bed or Rachel Whiteread’s solid house?
I have always thought that the most satisfying art, and therefore arguably the best, is contained in a piece that gives the viewer fresh pleasure each time he observes it. Lesser art is more of a one-off shot and gives nothing new on a second view. One good piece of advice is not to get over-concerned about the ‘value’ of what you want to own. Perhaps you shouldn’t buy anything you don’t like. If it does gain in price over the years, regard that as a bonus. If you need advice before buying, ask someone with no vested interest. Ask an arts surveyor. ■
References This maximising of returns by selling volume is borne out by the way Damien Hirst produces elements of his work and echoes the approach of The Factory in New York, the studio set up by Andy Warhol between 1962 and 1984. Hirst has become so popular that he had to employ a number of assistants to help him produce his work, including his spin and ‘colour chart’ paintings. So how important is originality in assessing the quality of a work of art? How does this help determine its value? Picasso, paraphrasing T.S. Eliot, said :” Bad artists copy. Great artists steal.” So who is a great contemporary artist? Coming to an intelligent conclusion is not helped by the way art is currently taught at the colleges, where students EXPERT WITNESS JOURNAL 65
(1) http://www.rics.org/Global/RICS-Red-Book-2014-global-UK.pdf (2) http://news.sky.com/story/868487/charming-deal-sees-moneyroll-in-for-artist (3) http://timescolumns.typepad.com/stothard/2013/06/is-it-all-overfor-cork-street.html (4) http://en.wikipedia.org/wiki/Sensation (art exhibition) (5) Eliot,T.S (1921) The Sacred Wood: Essays on Poetry and Criticism. New York.Alfred A. Knopf
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Diamonds Gemstones and Jewellery … It’s All Just About Value Isn’t It? by Dr Richard Taylor PhD Consultant jewellery valuer, diamond and gemstone expert witness for Taylor & Co consultants, and a Honorary Research Fellow at The University of St Andrews. Diamonds gemstones and jewellery often become the subject matter in legal proceedings because of their inherent value. So is the value the only criteria the law should be interested in? Is there more than one value that can be correctly applied to a diamond or a piece of jewellery? If there is more than one value how do you choose which is appropriate? Are there indeed other factors that need considering? What is the Purpose for the examination and report? The precise circumstances surrounding the need for an expert report on jewellery or gems is of profound importance. ‘Where in the supply chain?’ is an important aspect to be considered. To illustrate this an example of diamond values at different points in the supply chain is considered, an uncut diamond at the mine head might have a value of only a few hundred pounds when cut and polished the same diamond’s value may have risen to a thousand pounds. This same diamond when set into a piece of jewellery and retailed with the addition of sales taxes and profit margins could have a retail value exceeding £10,000. When assessing the value of stolen items it is essential, the appropriate value from the supply chain is used. Many retailers when quoting a loss will quote their ‘retail selling price’ when in fact the loss is the ‘cost price’ of the item. This can be significant when value is a consideration in setting the tariff. EXPERT WITNESS JOURNAL 66
Provenance Where is the value? The item or the documents that accompany it. The word provenance comes from the French word provenir, meaning, “to come from”, provenance encapsulates many things including prior ownership, or it can relate to the origin or manufacture of a historical gem or jewel. Provenance can also be important in establishing authenticity. The significance of provenance has many implications illustrated by looking at recent events and the issues. Elizabeth Taylor the famous actress was well known for her impressive Jewellery Collection, following her death the collection was sold at a Christie’s Auction in New York in December 2011. Amongst the collection sold was the ‘La Peregrina’ Pearl the pearl was purchased by Richard Burton as a Valentines gift for Elizabeth, who subsequently commissioned Cartier in 1972 to make ruby and diamond and pearl necklace into which the pearl was set. Prior to Elizabeth Taylor’s ownership the pearls history extended back to the late 16th Century, having documented exchanges between several Royal Courts in Europe. Christies gave a pre-sale estimate of between $2M-3M based primarily on the intrinsic value of the item, at auction it sold for four times the pre-sale estimate at WINTER 2014
$11.8M. The exceptional price achieved attributed to the Elizabeth Taylor provenance. The ‘provenance’ as a proportion of the total value therefore represents over 75% of its total sale value. In a very different context provenance has become an issue for rough diamonds. The Kimberley Process (KP) a joint governments, industry and civil society initiative to stem the flow of conflict diamonds or blood diamonds– (rough diamonds used by rebel movements to finance wars against legitimate governments). The scheme uses a chain of approved and verified documentation to prove the provenance of rough diamonds the scheme has gained international recognition, such that rough diamonds without the requisite Kimberley documentation cannot be traded in any of the 80 participating countries. Any value placed upon rough diamonds that has no valid Kimberley documentation would be highly questionable. The valuation of items with important documentary provenance are valued based on the value of the intrinsic item combined with the additional value arising from its provenance. Therefore, removal or loss of the provenance can significantly reduce the value of an item.
Different types of valuation, how much difference can they make? Many different types of valuations exist that can be applied to an item jewellery or gemstone, including insurance replacement value, that can reflect new replacement, second hand replacement, and antique replacement, Probate, division of assets, security or loan, capital gains tax, sale by private treaty, and facsimile replacement value. The important issue to understand is that very significant variations in values can exist between these different definitions. An item valued at £100.00 for probate could frequently be found to have a insurance replacement value in excess of £1000. A common scenario when the question of which valuation type should be used is when jewellery and gemstones are part of an estate of mixed assets for division. This issue is commonly encountered within financial settlements for divorce or family division following death. One approach commonly encountered is simply to use a probate or open market value on the jewellery or gems, considered to represent the cash equivalent value as required for tax purposes. The question is however, is this always appropriate? Consider an estate valued at £100,000 to be divided equally between two beneficiaries. £50,000 is in cash and or readily convertible investments and the other half of the estate is a collection of fine jewellery and gemstones with an already assessed probate/open market value of £50,000. EXPERT WITNESS JOURNAL 67
If one party demands all the jewellery, and both parties are advised it is an equitable division, leaving the other party with the ‘cash’. Later the party with the cash learns the jewellery has been valued for insurance replacement for £500,000 and questions the advice given. In these circumstances it is not unreasonable to question the appropriateness of the valuation used. Alternatively considering a similar estate only this time the value of the jewellery was an insurance replacement value of £50,000 with one party demanding the cash proportion. Subsequently to the ‘equitable’ division the beneficiary receiving the jewellery decides to liquidate the asset only to find the maximum she can achieve at sale is £5,000.
Identification The correct identification of gems and jewellery is fundamentally important and significantly affects value and is becoming increasingly challenging. This concept is best illustrated by looking at the many challenges currently facing the gem and jewellery industries. Over the last 20 years, synthetic diamonds have been increasingly entering the diamond market creating challenges for identification and discrimination. There exists at present a significant shortfall in both equipment and skilled technicians to police the market adequately. Synthetic and natural diamonds are indistinguishable without highly specialised
Dr Richard Taylor Consultant Jeweller Gemmologist Valuer Diamond Expert BSc (Hons) FGA DGA FNAG FIRV MAE FHEA FGS MIOP
I specialise in the following:- Valuations of Jewellery, gems, and diamonds. Gem and diamond testing, Expert in the valuation of Watches, Silver, Antiques and Coins. For the purposes of Insurance, Sale, security, probate, division of assets, divorce. I have extensive experience in quality assurance and consumer complaints. Experience of Jewellery Retailing:- Stock valuation, Stock control systems, Trading standards. I frequently lecture on both gemmological and mineralogical subjects around the country and internationally. Jewellery Manufacturing:- Stock valuations, Stock control systems, Trading standards. I have a recognised international expertise in diamonds and gemmology I undertake legal aid funded instructions Taylor & Co 10th Floor, 88 Wood Street, London EC2V 8BS 10 Shelton Hall, Shrewsbury SY3 8BS Areas of work London Shrewsbury, Nationwide & Worldwide Tel: 01743 363188 Fax: 0208 528 1746 Mob: 0780 198 5883 Email: rpt5@st-andrews.ac.uk Web: tayloredvaluations.co.uk
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laboratory equipment and the expertise of skilled scientists. Standard gemmological equipment are inadequate to enable discrimination in almost all cases. In recent years new gemstone treatments have been developed that have significantly impacted the gemstone market, for example the beryllium treatment of sapphires, the glass filling of rubies, and titanium diffusion of sapphires. These treatments in some cases extremely difficult to identify can give an enormous improvement to the appearance of the stone. It is essential identification of these treatments takes place, this discrimination is frequently beyond the abilities of traditional gemmological testing equipment, and requires significant scientific training and access to sophisticated laboratory facilities. The difference between an untreated and treated stone can be measured in orders of magnitude. A treated gemstone being worth less than a one hundred pounds compared to a untreated natural stone with the same appearance worth tens of thousands of pounds.
How to select the right expert? Similar to many other specialisms qualifications, appropriate experience, and a commitment to CPD is a prerequisite. What is different now for a jewellery and gemstone expert is the need for access to specialised scientific training and sophisticated laboratory facilities that 15 years ago would have not been considered necessary. â&#x2013;
Clinical, Forensic & Child Risk Assessments Pre/Post Sentence Reports Life Review Panels Therapy, Anger Management Intellectual Functioning (IQ) UK Wide Coverage Private and Legal Aid Short Notice - Quick Response Midlands Psychological Services Quayside Tower, 252-260 Broad Street Birmingham, B1 2HF Tel: 0121 224 3051/Fax: 0121 224 3252
Email: mps@midpsych.co.uk
www.midpsych.co.uk EXPERT WITNESS JOURNAL 68
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G8 Health Experts Agree to Fight Dementia On 11 December leaders of health services and scientists from the world’s leading economies met in London to discuss a co-ordinated approach to combat dementia – the first G8 summit on a specific illness since HIV. The summit was called by the UK as part of its G8 presidency and saw agreement on a package of measures to tackle the growing global health, social and economic crisis of dementia. Currently 36 million people across the world have the condition and the World Health Organisation predicts that numbers will nearly double every two decades. The summit brought together health ministers from Canada, France, Germany, Italy, Japan, Russia, the UK and USA to discuss how they can co-ordinate efforts and shape an effective international solution to dementia. Dementia is having a growing affect on families, carers and health systems around the world and requires long-term health and social care support. Experts believe if countries, biopharmaceutical companies and businesses collaborate more effectively and share information, research and knowledge it would result in significant advances and better support for people living with the condition. Speaking at the Summit, Prime Minister David Cameron said: “It doesn’t matter whether you’re in London or Los Angeles, in rural India or urban Japan – dementia steals lives; it wrecks families, it breaks hearts and that is why all of us here are so utterly determined to beat it. “In generations past, the world came together to take on the great killers. We stood against malaria, cancer, HIV and AIDS and we are just as resolute today. I want 11 December 2013 to go down as the day that the global fight-back began.” The UK has already said it aims to double its annual research funding to £132m by 2025. As a result of the summit on dementia, leading nations have committed to developing a cure or treatment for dementia by 2025 at the G8 dementia summit. The countries agreed to: • Set an ambition to identify a cure or a diseasemodifying therapy for dementia by 2025 – backed by a commitment to together significantly increase the amount spent on dementia research and increase the number of people involved in clinical trials and studies on dementia.
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• Establish a new Global Envoy for Dementia Innovation, following in the footsteps of global envoys on HIV and AIDS and on climate change. The Global Envoy will bring together international expertise to stimulate innovation and co-ordinate international efforts to attract new sources of finance. • Develop an international action plan for research – in particular to identify current gaps and how to fill them. • Share information and data from dementia research studies across the G8 countries to work together and get the best return on investment in research. • Encourage open access to all publicly-funded dementia research to make data and results available for further research as quickly as possible. In a précis of the communique issued after the summit, the Department of Health said that greater investment in research, focusing research where there is more to learn and greater sharing of data will mean everyone understands more and can move towards better treatment and cures – in the same way that medicine has made great strides in tackling diseases like HIV and cancer. However, simply increasing spending on dementia research will not be enough, which is why there will be an action plan on how the G8 countries will work together to fill the gaps and opportunities in dementia research with the ultimate aim of finding a cure or disease-modifying treatment by 2025. Meanwhile, the Care Quality Commission (CQC) plans unannounced inspections of the care of dementia patients at 150 institutions across England. The CQC said it would look at what needed improving, how to cut hospital admissions from care homes and ways to help people with dementia maintain their physical and mental well-being. The participant countries will come together throughout 2014 to build on the commitments agreed at the summit. In March the UK will hold an event on how to get greater investment and finance in innovative care. This will be followed by an event in Japan on what new care and prevention models could look like and an event hosted by Canada and France on industry partnerships between academe and industry. The G8 countries will then meet in the US in February 2015 with other global experts, including WHO and OECD, to review the progress that has been made on this research agenda. ■ WINTER 2014
Mind Maps: Stories from Psychology Stories of how psychological disorders have been treated over the past 250 years is the focus of a new BPS supported free exhibition, Mind Maps: Stories from Psychology, which opened at the Science Museum in December 2013. Divided into four episodes between 1780 and 2014, the exhibition will look at key breakthroughs in scientistsâ&#x20AC;&#x2122; understanding of psychological wellbeing and the tools and methods of assessment and treatment that have been developed from Mesmerism to Cognitive Behavioural Therapy (CBT) to recent advances in understanding brain function and activity. The exhibition will be illustrated through a rich display of objects from the Museumâ&#x20AC;&#x2122;s world-class medical collections as well as artworks and archive images. Among the key stories covered in the exhibition are: â&#x20AC;˘ The pioneering use of electricity in the 1780s to understand nerve activity and its use in treating conditions such as paralysis, epilepsy and melancholia. The exhibition will showcase research tools used by Italian doctor Luigi Galvani â&#x20AC;&#x201C;- which have not been on public display for over a century. â&#x20AC;˘ Sherringtonâ&#x20AC;&#x2122;s cat reflex model. Nerve scientist and Nobel Prize winner Charles Sherrington was fascinated by the way cats kept their balance while negotiating obstacles at speed. This model was used to illustrate how the catâ&#x20AC;&#x2122;s eyes, whiskers, neck, legs and tail continued to work together even when the â&#x20AC;&#x2DC;highestâ&#x20AC;&#x2122; portion of its brain had been removed. â&#x20AC;˘ The constant interchange of ideas and equipment between the treatment of nervous conditions and research into the function of individual nerves. The exhibition includes the work of Sigmund Freud â&#x20AC;&#x201C; showing the transition from studying the basic elements of the nervous system to more holistic approaches to treating the mind. â&#x20AC;˘ The advances in War-time radio, radar and computer technology which provided opportunities for researchers to measure the activity of 10,000s of neurons within the brain â&#x20AC;&#x201C; or brain waves. Visitors will be able to see the first depth EEG recording of brain waves made in the UK, 1958 and gain an insight into controversial treatments for psychological disorders such as Electroconvulsive therapy. EXPERT WITNESS JOURNAL 70
â&#x20AC;˘ The story of the PET (positron emission tomography) scanner â&#x20AC;&#x201C; the first-generation brain activity scanner. PET scanners were the first of their kind to detect â&#x20AC;&#x2DC;hot spotsâ&#x20AC;&#x2122; of nerve activity within the brain. â&#x20AC;˘ The latest treatments for phobias, anxiety and stress, such as Cognitive Behavioural Therapy and the use of Avatar therapy forindividuals with schizophrenia. President, Dr. Richard Mallows, said: â&#x20AC;&#x153;I am delighted that the Society has had the opportunity to work with the world renowned Science Museum to support the development of this exhibition. It will be an excellent opportunity for a wide-ranging audience to get an insight into psychology and our fascination with the mind.â&#x20AC;? 'Mind Maps: Stories from Psychology' is free, open to the public and will run for nine months. Opening Hours: 10.00-18.00, Monday-Sunday at the Science Museum, Exhibition Road, London, SW7 2DD. â&#x2013;
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Navigating a Career Path How John Sephton became an employment law expert. John Sephton has an exciting CV. A former Naval Officer he undertook challenging frontline appointments at sea, as well as in Headquarters ashore, and in the Ministry of Defence. In the latter phase of his Naval Service John specialised in Human Resource Management, achieving Chartered Fellowship of both the Chartered Institute of Personnel and Development and the Chartered Management Institute. Upon leaving the Royal Navy in 2009 he established his own company to practice as a mediator, business coach and increasingly an Employment Expert. Like most career paths, the start did not fully determine what came afterwards. Following a degree in Chemistry at Exeter University in 1979 John joined Britannia Royal Naval College Dartmouth with a view to training as a Fleet Air Arm Pilot. Although having gained his “wings” and moving on to fly the Sea King, in terms of personal experience things didn’t go his way and with the lure of science never far away John moved into the specialist area of meteorology and oceanography qualifying as a forecaster in 1986. Thereafter he served at sea in aircraft carriers and frigates. In the latter he specialised in military oceanography and acoustics taking part in anti-submarine patrols in some of the most environmentally inhospitable parts of the world towards the end of the Cold War. Returning ashore, John undertook appointments in training, the staff college and the Ministry of Defence leading a research programme jointly with the UK Meteorological Office and the Royal Navy, as well as forging links with organisations developing and utilising satellite technologies for environmental forecasting. Thereafter, a command appointment followed as the Commanding Officer of the Royal Naval School of Meteorology and Oceanography based at the Royal Naval Air Station Culdrose in Cornwall, which John describes as a halcyon time with his family accompanying him for the first time in his naval career. Early in the “noughties” and entering the final phase of his naval career John moved into the Directorate of Naval Personnel Strategy. Initially this was as a Senior HR Manager as the Warfare Officers’ Branch Manager, a job in EXPERT WITNESS JOURNAL 71
which he developed, maintained and monitored the implementation of strategic plans and policies to manage and resource 2500 personnel from junior to senior leaders and managers. During this job amongst other tasks John focused on the following: • Identifying the need to re-shape workforce elements to respond to future business requirements – a major process that included computer modelling, as well as liaison with many stakeholders. For example, providing the strategic personnel input into the development of a specialist Intelligence skill-set that included working with a multi-disciplinary team to roll-out the strategy, including career and promotion profiles underpinned by training; • Advising and guiding on the strategic elements of career, succession and talent management policy, as well as selecting personnel for longer service and promotion; • Developing and applying reward strategies to combat outflow and retain shortage skills; • Orchestrating a regular Job Evaluation programme and advising the judging panel in complex and contentious matters; and • Preparing and presenting personnel information to inform collective decisions to redund personnel on medical and performance grounds; in addition, supporting the litigation of complex cases, such as accidents, deaths in the workplace and alleged wrongful dismissal. For the final two years of his naval service John held a post that to anyone outside of the Armed Forces had the title DNPS-SO1 Coherence but probably isn’t far off being something like an Assistant Director Strategic Workforce Development. In this post John led and directed a team of 30 to develop and implement strategic HR policy across a workforce of 36,000, whilst personally providing advice and guidance at Board level. The detail included:
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• Ensuring that the personnel strategy across the Naval Service’s Warfare, Engineering, Logistic & Medical, and Royal Marines functional areas was coherent, whilst advising on HR strategy and influencing decision making at Personnel Board level; • Facilitating best practice and efficient business ativity by promoting knowledge exchange through formal and informal procedures across the organisation that included the coaching and mentoring of colleagues at all levels, both service and civilian; • Leading the promotion and management of business change. Instigated a new system for HR Risk Management that better identified and quantified risk, whilst advising at Board level on mitigation strategies to ensure a financially viable and coherent personnel strategy. As well as working with Army and Air Force colleagues to provide tri-service information with briefings to Defence Board level and the Chief of the Defence Staff. So what of life after the Royal Navy? The next milestone in John’s career was to qualify as a mediator with the London School of Mediation in 2009 and he subsequently joined mediation panels at Clerksroom, Mediation Dorset, The Centre for Peaceful Solutions, and latterly London Mediation Services. John is both versatile and adaptable as a mediator, and is particularly at home with his HR background in the field of Workplace and Employment Mediation. He is very familiar with the wide variety of disputes that can occur in the workplace ranging from breakdowns in communication to bullying & harassment. Naturally highly people focused, John is a superb active listener a skill that is honed by his practice as an Executive Coach. He works frequently with senior leaders and teams to resolve conflict and/or achieve clarity of purpose in the at times apparently intractable challenges encountered at the highest levels. In all he does he always seeks to bring out the best in those around him and it is these skills that characterise his approach - one that is facilitative, highly positive and based upon trust and integrity. Over the past two years on several occasions he has worked with the British Council and Association of Colleges developing leading figures in academia and colleges from Iraq. It is this breadth of experience that resulted in John being invited to become a tutor with the Training Faculty at the London School of Mediation. He is now actively involved in the teaching and development of mediation and is the EXPERT WITNESS JOURNAL 72
LSM’s lead for Workplace and Employment Mediation. As a Trustee & Director of Mediation Dorset and also, as a Trustee of the Society of Mediators, John is at the heart of the development and progression of mediation. John’s extensive knowledge and expertise of the workplace is also often and increasingly sought after as an employment expert in cases relating to personal injury and trauma. Although particularly aware of the special characteristics of the members of the UK Armed Forces John also takes instructions for those who work across the civilian private and public sectors. In preparing his reports John takes a holistic view, following the guidance and direction of CPR Part 35. John takes care to interview the claimant in an empathetic and understanding way whilst utilising his experience as a mediator and coach to explore and understand both the claimant’s past and future aspirations. Personal reports are analysed and organisational structure explored to assess pre-accident career progression and potential. John assesses medical reports to determine employment potential in the light of injury prior to researching possible retraining and further employment opportunities. John follows trends in the UK Labour Market and Economy and where appropriate factors the impact of that environment on the claimant. Finally, John pulls all the data and analysis together to provide evidenced and experientially based opinions and conclusions. ■
John Sephton Consulting 'a competitive advantage through people' John Sephton Consulting Limited is a consultancy that spans: • Human Resource Management • Leadership & Management Training • Mediation and Conflict Resolution In any business people are the most valuable resource. They come up with the ideas, they produce the products, they sell the goods, they market the services, they generate the wealth … in short they are the company. But people need looking after. They have needs and desires, aspirations and thoughts. To get the best out of people in the contemporary workplace requires leadership as well as management. If you would like to discuss any aspect of John Sephton Consulting then please call Tel : 07966 214 127 or email : john@johnsephtonconsulting.co.uk www.johnsephtonconsulting.co.uk
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New Mother: What to Do or Not to Do in Early Weeks by Dr Bashir Qureshi FRCPCH, FRCGP, FFSRH-RCOG, AFOM-RCP, Hon. FRSPH. Medical doctor, specialist in child health, author, journalist and expert witness. His Royal Highness Prince George of Cambridge, a future King of Great Britain, was born on Monday 22 July 2013, at 4.24 pm, at St. Mary’s Hospital, London. I observed on watching television that Duke William and Duchess Kate came out of hospital on 23 July 2013, at 6pm, carrying Prince George very correctly. This action gave me an idea to write this article with up-to-date information. These tips are written for all new mothers whose babies were born on the same day or afterwards. Some of these tips would not apply to our Royal new mother Kate as she would know the correct ways already. In this article, I have used my Experience Evidence as I have been a former Medical Officer Community Child Health & Schools, in London, for 26 years (1972-1998).
countries, the mother and the baby is protected from all visitors for 40 days. 4. When and how to feed, and to protect during sleep. Breast feeding is the best for many reasons for at least six months. Of course, solids are given later on, when the baby can eat. Where this is not possible, artificial milk, from a cow or goat or dry milk, should be given. How much to feed? It would vary every week and the amount depends on the body weight. It is essential to seek advice from a health visitor. Other mothers can also give advice based on experience evidence. I suggest that a baby should be fed every four hours, except at night when the mother has to sleep.
What to do? 1. What to do when the baby cries. For over nine months, the baby was in mother’s womb; neither breathing nor speaking but free to run around. At birth, he/she breathes the sigh of relief and makes sounds for communication. We may think the baby is crying but there are no tears. The mother should speak to baby who would listen quietly, if healthy. The newborn would have limited vision, try to lean over about 10 inches and really chat with rhyme. They are clever, they listen and learn fast. 2. How to carry and protect head and neck. The head and neck are wobbly at birth and remain so for a few weeks. The duration varies from one baby to another. Wrap a light weight cloth round the baby. Hold the baby by your one forearm, while holding the head and neck on your upper arm or support with your other hand. Look at the internet to see the picture; how the Royal couple carried Prince George.
Dr Bashir Qureshi FRCGP, FRCPCH, FFRSH-RCOG, AFOM-RCP
Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. Expert Witness in GP Clinical Negligence. As a specialist in Cultures, Religions and Ethnicities, since 1992, I have written reports, given advice, and evidence in tribunals or courts. In cases of medical negligence, discrimination in employments, personal injuries, accidents, murder inquiries by police, family or marital disputes, child abuse, sexual abuse, immigration, asylum and other litigation cases. Languages spoken: English, Urdu, Hindi, Punjabi. Author of ‘TRANSCULTURAL MEDICINE’ Dealing with Patients from different Cultures, Religions & Ethnicities.
3. Touching baby by herself and by others. In pregnancy, the baby had the mother’s blood and immunity. This protection may last only the first three months. It is essential to wash hands before touching the newborn, even using a hand sanitiser, so as to avoid infection. The mother may need to wash her hands less often because of shared immunity. In some Asian EXPERT WITNESS JOURNAL 73
Contact: Tel: 0208 570 4008 Fax: 0208 570 4008 Mob: 07710 402 276 Email: drbashirqureshi@hotmail.com Web: www.drbashirqureshi.com 32 Legrace Avenue, Hounslow West, Middlesex TW4 7RS WINTER 2014
In addition, clean drinking water should be given as the newborn’s body needs more water. This would help digestion as well. Babies prefer to drink water with a spoon because they learn that bottle is for milk, if they are artificially fed. Do not over-use dummy, this may obstruct their communication. Dummy should not be used for more than one year, to avoid emotional health problems. There should be a short pillow between the mother and the baby when sharing a bed or baby should sleep in a baby cot. 5. How to self care. Looking after a newborn, especially in first week, is very tiring, mentally and physically. Seek help from the husband or partner, if on paternity leave, and other relatives. Grandmothers are a valuable asset. The mother should sleep about eight hours a day in divided shifts. This would prevent exhaustion and depression. You can care for the baby well, if you are well and happy yourself. 6. What resources to use. New mothers should consult relatives, friends, health visitors, medical and other health professionals, books, magazines, and internet. If medical help is needed, do not delay; consult a doctor or nurse soon. A stitch in time saves nine.
What not to do? 1.Leaving a toddler sibling to play alone with the baby. If you also have a toddler, it is wise not to let him/her be alone with the baby. A toddler is a child who mainly plays with toys. Breaking the toys is a part of the game and gives pleasure. Moreover, he or she may resent that more attention is being given to the newborn and may take punitive action in anger, as a human instinct. He or she would love the newborn but may harm unwittingly, if left alone for some time. 2. Leaving in a cot alone while lounge door is open to garden. Dogs and cats are kept as pets in many British families. They have good and bad moods. They can go over the top to hurt the newborn, without realising it. A fox can come in the ground floor kitchen or lounge and snatch the baby, if left alone, as a source for food. Do not leave the baby alone with a cat or a dog and beware of a fox, when having to pop out to washroom or kitchen. Prevention is better than cure. You can only prevent a danger, if you are aware of it. 3. Leaving baby alone with estranged father. As the number of single parents is increasing in British population and worldwide, there is a remote possibility that an estranged male partner or divorced husband may harm the baby in revenge or to sue the mother for child abuse. It is life, the unexpected can happen. Beware of remote dangers. 4. Believing in Evil Eye. Some religious or eastern people worldwide, even in the UK, believe in evil eye. Seculars do not believe in EXPERT WITNESS JOURNAL 74
Dr Bashir Qureshi in conversation with Her Majesty the Queen in 1986, at the Royal Society of Health Headquarters in London.
superstitions. Check your parents, relatives or friends, in case they may have such beliefs. They may over- protect the baby or child, in good faith, with untoward consequences. Some parents had killed their child, by repeated assaults, misbelieving that the child was possessed by evil spirit, a Jinn or a ghost. They may consider it as an act of holy exorcism. In 2010, I gave Expert Witness Evidence in such a case in the Crown Court, Birmingham, UK. 5. Over or under clothing the baby. Baby cannot tell the mother that he/she is over- clothed or under- clothed. The baby can sometime cry while not be aware of the fact and may become ill. It is the mother’s responsibility to see that the baby has clothes appropriate to the weather, especially when taking the baby out in garden or for shopping. 6. Ignoring her own mother’s or health professionals’ advice. Do not ignore your own mother’s advice because she brought you up and has the experience to help you. A granny is akin to a health visitor. In addition, seek baby rearing and caring advice from a health visitor. They may be contacted through GP surgeries, in Britain. They are trained health professionals who give advice for care of healthy babies and to prevent disease or maltreatment. When you read any leaflet or internet page, there would be a mention that you must consult your own General Practitioner, if the baby is not well. Many diseases can be treated only if the help is sought at an early stage. In Britain, child rearing is team work where parents and the state share responsibilities. A new mother is never alone. Seek help and you will find. Remain optimistic and make the new baby experience really enjoyable. ■
Dr Bashir Qureshi FRCGP, FRCPCH, FFSRH-RSPH, AFOM-RCP, Hon. FRSPH
• Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. • Expert Witness in GP Clinical Negligence. Email: drbashirqureshi@hotmail.com WINTER 2014
Trampolining Great Fun or Danger by Robin Walker Competitive Trampolining is no longer a new sporting activity in Britain with most leisure centres and secondary schools having one or sometimes even four installed. There are also many thousands set up in back gardens throughout the country.
event both The International Trampoline Federation (the FIT) and the British Trampoline Federation (BTF) were formed. Now, World Trampolining is administered by the International Gymnastics Federation and in Britain by British Gymnastics.
The sport was introduced to Britain in 1958 by George Nissen who had developed it to help train U S Navy Aircrew and soon became very popular in American Universities and schools. It became popular in schools here and in Leisure Centres as soon as they became a feature in many Local Authorities. The standard size was 15ft x 9ft by 3ft.6in in height. The beds were 12ftx 9ft, plain or webbed. In time a larger model was introduced – The Goliath with a 17ft x10ft frame size and even moderately skilled trampolinist could reach heights of twenty feet from the floor.
Subsequently, Paul Luxon from Islington became our main star. I coached him at the Polyechnic in Regents St from 1964 till he became British Champion in 1968, European Champion in 1968 and 1971 and World champion in 1972. The sport was first dominated by the USA but became worldwide with the Russians, Japanese and then the Chinese successively being the leading nations.
From 1958 the sport was first administered in Britain by the British Amateur Gymnastics Association and, in 1964 the first World Championship was held at the Royal Albert Hall. The Americans won both the Men’s and Women’s Titles and the Synchronised and Team Events. After that EXPERT WITNESS JOURNAL 75
As the sport became more popular and the beds became more powerful, the number of accidents increased and more teachers and coaches were sued for negligence. However, accidents were not always proven as the fault of the teacher or coach. Many were caused by sudden
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and landings from the feet, seat, front and back, there is always the possibilty that mistakes will be made and performers get injured. Most accidents happen from landing badly on the trampoline rather than from falling off. Although the landing may not feel as hard as a landing on the floor the rebound power can cause more of a problem than the first impact. I would estimate that there are far less accidents on the trampoline than there are missed penalties in soccer. They are caused more from incorrect performance by the trampolinist than poor or incorrect instruction by coaches. Normally coaches, who are qualified by attending Governing Body twenty four hour instructional courses consisting of a large amount of practical work on the trampoline followed by practical, coaching and written examinations. All Leisure Centres, Schools and Trampoline Clubs require that their Coaches are fully and appropriately qualified up to the level that they will be teaching. The popularity of garden trampolines even those with netting surrounding the bed has led to a higher incidence of accidents. Often children are left unsupervised and untrained since a lot of parents relish the fact that the children donâ&#x20AC;&#x2122;t need entertaining and so are left to their
EXPERT WITNESS JOURNAL 76
own devices. Sometimes the trampolines are out of direct sight so that parents are not aware of exactly what is happening. The children are just allowed to jump without any instruction sometimes two at a time. They inadvertently collide with one another sometimes with considerable force, collide with the side netting supports or just land badly. More accidents are caused in training for competitions or high level performance of forward rotational skills such as Front Drops, Forward Turnovers to land on the Back and Front or Back Double or Multiple Twisting Somersaults Feet to Feet. The really serious accidents tend to be from over or under rotated back ward skills where the force of the landing is on the neck or the spine and can cause paralysis. However, serious accidents are no more frequent than in other sports provided that normal care is taken during properly undertaken teaching. Remember that SAFETY COMES FIRST, LAST AND IN BETWEEN AND THE FUN WILL LOOK AFTER ITSELF Rob Walker. 2013.
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Why Should Golf Have Need for the Expert Witness? A Revision of an article first published in May 2011 by Norman Fletcher Many people are surprised when I explain that as part of my role within The Professional Golfers’ Association is to complete all Expert Witness work on behalf of the company. Most people think I organise and manage golf tournaments and spend most of my time at the events that they watch on television, nothing could be further from reality – I have organised and managed hundreds of golf events but not in the last twenty years. To provide some degree of appreciation and context, The Professional Golfers’ Association is a members organisation that was established in 1901 to protect the “mutual and trade interests of its members” and to provide opportunities for its professional members to play golf. Today the PGA has over 7500 members working in over 80 countries, the PGA qualification is a Foundation Degree gained through three years of study. The company Headquarters is at the Belfry and we have seven regional Offices covering the whole of Great Britain and Ireland. The company has a turnover in excess of £10 million and employs more than 100 people – making the PGA one of the major organisations in the administration of Professional Sport.
So why get involved in Expert Witness Work? The simple answer is that in the late 1980’s and early 90’s we were receiving so many calls from individuals and companies who were looking for advice that we decided that rather than try to recommend individuals we should provide some assistance. At that time I was Assistant Chief
EXPERT WITNESS JOURNAL 77
Executive and given my ‘wide experience’ it was agreed that I would try to use that experience of golf and provide support as an ‘expert’ in the preparation of reports on golfing incidents.
Twenty years later what has been the outcome? I have been involved in over 50 cases working principally in the UK, but I have also been involved in work as far afield as Hong Kong where the legal system originates from the British stem. I have written reports on behalf of both claimant and defendant, acted as a joint Expert on limited occasions and have been involved with a number of cases that have gone to trial. Essentially I have learned through a combination of experience, advice and education; how to structure and construct a report, differentiate between fact and opinion and appreciate that it is fundamental for any expert to understand the duty to the Court – in my experience a responsibility not always understood by the expert in the construction of their report. What cases or incidents within the game of golf have I been involved with that has required the evidence of an expert? Road traffic accidents and accidents at work that have resulted in the loss of ability, amenity and fellowship that golf can provide and hence there is a claim. I have written a number of reports on how good the player might have become, but for the road traffic accident. A structured and realistic approach to demonstrate how difficult it is and
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how outstanding a player has to be in order to make a living from playing golf on the European Tour or other international playing circuits has been the subject of many reports. I have been involved in writing reports in cases where European Tour players have been seriously injured in car accidents and there has been major disruption to their career pathway. I have also been asked to produce reports where a player with little or no track record has been injured in the back of a taxi in a supermarket car park and where a player with a serious back problem caused by an RTA was filmed unloading furniture from the back of a transit van. Fortunately the playing of golf and the incidents that occur are not usually subject to criminal law, however I have completed reports and provided advice to police forces in the prosecution of wilful acts where golf balls have caused harm, often to young people, in public places. The third area of expertise has been with basic safety issues in both golf course design and the construction and operation of golf driving ranges. Over recent years bay safety has become less of an issue at golf ranges. I have been involved in the evolution of guides and design guides in relation to Golf Driving Ranges, particularly with colleagues in PGA subsidiary companies that specialise in Driving Range construction and operation. I can recommend â&#x20AC;&#x2DC;Golf Ranges â&#x20AC;&#x201C; A Design Guideâ&#x20AC;&#x2122; and â&#x20AC;&#x2DC;Best Practice Guide to Practice Facilitiesâ&#x20AC;&#x2122; as essential reading for all golf operators. I have also advised the Health and Safety Executive at County Level on safety issues at golf ranges and on golf courses. â&#x20AC;&#x2DC;On courseâ&#x20AC;&#x2122; safety is increasingly an issue with golfers. The rules of golf have evolved over the last 200 years, but the â&#x20AC;&#x2DC;safety ruleâ&#x20AC;&#x2122; is short, concise and relies on good golfing sense and awareness â&#x20AC;&#x201C; not sometimes observed by the young, the inexperienced and where alcohol has played a contributory role in decision making. My advice to any player is â&#x20AC;&#x2DC;be insuredâ&#x20AC;&#x2122; and to any club, PLEASE make golfers insurance cover a compulsory condition for any member or visitor. Golf course design and architects must, in my opinion, make the concept of â&#x20AC;&#x2DC;safety zonesâ&#x20AC;&#x2122; a pre-requisite of good practice in the design or build of courses. Players owe each other a simple â&#x20AC;&#x2DC;duty of careâ&#x20AC;&#x2122; to their fellow participants and a warning shout of â&#x20AC;&#x153;foreâ&#x20AC;? is essential to that duty though the variations in judgements that have occurred confuses the importance or relevance of a golfer issuing a strident warning shout. EXPERT WITNESS JOURNAL 78
Prevention has always and will always be preferable to litigation. The confusion in case law surrounding judgements in golfing accidents demonstrates that a player can never rely on the court or the insurance company to compensate in cases which to an experienced golfer may seem to be avoidable. I have learned from my experiences that it is impossible to judge the outcome of any case that is put before a court and settlement pre-trial is always desirable. An eminent Q.C. once advised me that the test of a good settlement was that neither party should be completely satisfied with the outcome. Fortunately the trend in golf litigation seems to be on the downturn, I hope that safer environments and more responsible players are the reasons. On the other hand more â&#x20AC;&#x2DC;expertsâ&#x20AC;&#x2122; in the market place may simply mean that I receive fewer instructions. In conclusion, I would temper my words with a view that golf is a game for life, a game that can be played by all and is one of the few games that, because of the handicap system, can be enjoyed by players of all abilities in some of the worldâ&#x20AC;&#x2122;s greatest environments. For an issue in golf to become a matter for the court is not what any participant would ever envisage when they step onto the golf course and players, facilities, managers, operators and organisers have a duty of care to all who participate in the game. â&#x2013;
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Horse Ownership - A Legal View Former lawyer Nigel Roddis is part of the small syndicate behind Cheltenham Festival winner and Grand National-placed racehorse Teaforthree. Expert Witness quizzed him about his rollercoaster life as a racehorse owner. For someone whose background is steeped in the precision, certainty and dispassion of law, the glorious unpredictability of horseracing might seem quite a leap. Certainly, emotional involvement with a client is a no-no – so when Nigel Roddis confessed he’d fallen hook, line and sinker for a racehorse on his books, eyebrows were raised. The client concerned was a jumps horse called Teaforthree. Roddis had been central to negotiations for the novice hurdler to be leased to Sky’s Soccer AM show as part of a Great British Racing initiative to broaden the sport’s appeal. Soccer AM’s viewers followed “their” horse’s progress throughout the year, but when the lease expired, the horse was put up for sale – and Roddis knew he couldn’t let go. The former lawyer, currently Development Director for Great British Racing, says: “I was extremely attached by then. From the first time I saw him, I could see he was a chaser in the making. He’s just a lovely horse, with an appealing personality.” After securing the okay from his boss, Roddis mounted a hurried ring-round of friends, many from the legal profession, and formed a partnership of five equal shares
EXPERT WITNESS JOURNAL 79
in Teaforthree. This has since reduced to four, including two lawyers, and runs under the respective surnames of the people involved. There followed a fairytale 18 months, as the Rebecca Curtis-trained horse won the four-mile National Hunt Chase at the 2012 Cheltenham Festival, and finished third in the 2013 Grand National. “I remember when I pitched the idea of buying Teaforthree to my friends, I said I thought he could be a National horse,” says Roddis. “I had no idea whether I meant Sussex National, Welsh National, the Grand National, or just National Hunt – but we’ve been ridiculously lucky.” The 2012 Cheltenham Festival victory remains one of the highlights of Roddis’s life. His fellow partnership members watched from the owners’ viewing area but Roddis chose to stand apart, with his wife, in the crowd. “I didn’t trust my emotions, win or lose, and I certainly knew I wouldn’t manage to stand still during the race,” he says. “When I saw him jump the final fence, I knew he was going to win. The noise that greeted him winning was
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tremendous, as it should be for a winning favourite of the first race on a Festival day. I watch the race quite often. It helps on bad days!” The inclusivity of horseracing is one of the attractions as far as Roddis is concerned. “It’s one of the few events where you see the full spectrum of society.” he says. “A day at the races also allows close up access to the participants in a way that few sports can compare with. “This is a highly professional sport, and you could say our horse is towards the pinnacle of it, yet we still have a central role to play. The trainer tends to make decisions, but as owners, you do get involved in decisions. That is relatively unique for people with other day jobs like us. You couldn’t call your team’s football manager to discuss tactics. Choosing the colours, the silks worn by the jockey who’s riding your horse, is one of the many exciting parts of becoming an owner. Choosing the combination from 18 colours and various patterns invariably involves visions of them flashing past the finishing post in a famous victory. Many people, and companies, choose a colour combination which means something to them. For Roddis, it was the blue and white stripes of his favourite football team, Sheffield Wednesday. EXPERT WITNESS JOURNAL 80
Racehorse ownership, as Roddis discovered, is no longer the preserve of the super-rich. Whilst you can buy a horse outright, pay for ongoing upkeep and training, and be the sole beneficiary of any winnings if resources allow, there are many options to getting invovled. By forming or joining a syndicate or partnership, you dilute the cost but still have the excitement of a stake in a racehorse. Roddis likens the cost of syndicate membership to a year’s gym or golf club fees, dependent on the number of members. One Somerset trainer has calculated his yearly racing club membership (£599) as the price of a daily cup of coffee. The returns can be good, but like most people involved with racehorse ownership, Roddis warns against expecting to make a fortune. “The reward is in watching your horse develop and compete, in the thrill that involves, and in the enjoyment of those around you,” he says. “In our partnership, we bring our families and friends along and have some fantastic days out. And there’s also that close involvement in a top sport at the highest level, which you can’t achieve anywhere else. Get all that right and the rewards are emotionally off the scale.” Roddis’ first venture into racing syndicates came while at law school in Nottingham more than 20 years ago. He’d WINTER 2014
go along to the local race meetings and spot fellow law school students in the crowd. “There were three of four of us who’d all gone racing individually, and realised we shared an interest,” he says. “We started going to the races together and took small shares in a couple of syndicates, with varying success. We still stay in touch to this day. “With friends and colleagues so often dispersing to various locations, I’ve found that racing, and particularly a shared interest in a horse, has been a fantastic way of staying in contact with people.” Roddis’ legal career began with city firm Olswang. It was here he met media lawyer David Zeffman, now a partner at Olswang and a fellow Teaforthree owner. The other syndicate partners are James Conyers, General Counsel at BSkyB and John O’Reilly, head of interactive at Coral Bookmakers. A betting specialist, Roddis left Olswang for The Tote in 2000, to advise on legal issues involved with its sale. While there, he joined friends and colleagues to take a 12th share in Quizzene, a horse running in Flat races and syndicated by Favourites Racing. “He was a beautiful horse who won a couple of nice races, notably at the big meeting at Chester in May. “After that, he was favourite for his race at that year’s Royal Ascot – but unfortunately he was injured and never really returned to the same level again. That was my first real taste of the disappointments horse ownership can bring,” Roddis recalls. Other syndicates, and various highs and lows, were shared. And no matter how flush Roddis or his friends and colleagues were at a given time, there was always a syndicate option to suit their budget. And, along with racehorse owners and part-owners the world over, they discovered there is no guarantee of success, with even the most expensive thoroughbred from a stellar blood line. “It is a bit of a dark art, to some extent,” he says. “You can look at all the science you want but in the end, it’s all in the lap of the gods – and that’s the fun of it. “Things can go wrong, of course, but you can get lucky, too. For me, ownership has fulfilled the requirements of keeping in touch with people. We’ve been lucky enough to have some great wins along the way, too, and that’s a fantastic experience, worth every penny spent. Teaforthree was prominent for most of the 2013 Grand National race at Aintree, went into the lead at the Canal Turn and was overtaken only at the final fence. The shock winner, 66-1 Auroras Encore, proved there are no certainties in horseracing – and even outsiders can see their dreams come true. EXPERT WITNESS JOURNAL 81
The battle plan is already in place for Teaforthree’s second tilt at the Grand National in 2014. But the owners also recently added another rising star to their portfolio. Potters Cross, a six-year-old bay gelding also trained by Pembrokeshire-based Curtis, recently won the novice’s hurdle at FFos Las with legendary jockey AP McCoy onboard. It was his first win although he’d finished in the top four of all his other races before then, so Roddis is abuzz with anticipation. “He’s in his novice hurdle year so is still learning what the game’s about,” he says. “He looks like he could be half decent and by winning the FFos Las novice’s hurdle, he’s following the same career path as Teaforthree. “But I’m trying not to think about where we could go with him. It all starts again and it’s all just great fun!” Details about how to get involved in racehorse ownership are on Great British Racing website www.own1.co.uk. ■
Luke Dace Copped Hall Farm, Okehurst Lane, Billingshurst, W.Sussex RH14 9HR M: 07974 765506 (Louise) M: 07949 401085 (Luke) E: lukedace@yahoo.co.uk W: www.lukedace.co.uk T: @LukeDace
the edge. The ultra-modern facilities, especially the equine swimming pool, is a key element in the rehabilitation VM PUQ\YLK OVYZLZ LUHISPUN Ä[ULZZ recovery without undue stress on joints and tendons. The results speak for themselves, with 15 wins in 2013 so far.
Biography: This husband and wife team brings dedicated training, experienced re-habilitation, world-class facilities and a love of horses to make their winning combination.
Both former jockeys – Luke a professional jumps rider, Louise riding winners on the Flat as an accomplished amateur. Their partnership has gone from strength to strength, each complimenting each other in the range of skills they possess. While they both ride work, Luke has proved particularly adept at placing their horses to great advantage. Louise has acquired a reputation for the specialist treatment and rehabilitation she is able to give to horses in their care. This means the string reaches peak Ä[ULZZ ^P[OV\[ ILPUN W\ZOLK V]LY
Facilities: American barns, indoor canter way, round track, outdoor sand school, 6f gallop, swimming pool, valley gallop, American bend, veterinary lab, turf gallop, starting stalls, cross country course, winter grass gallop. Type of license: Dual Daily fee: £35 per day plus gallops etc. Syndication: Options available
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A Taste of the Sport of Kings By Rachel Flynn Head of Horseracing and Equine, Partner, Taylor Vinters, Cambridge Buying a racehorse, or a share in a racehorse, can be enormous fun and affordable partnerships give many of us the chance to have a taste of 'the Sport of Kings'. However, there are pitfalls for the unwary. Even hardened businessmen and women can have a blind spot where their hobby or leisure pursuit is concerned – and racing has its share of colourful characters happy to part gullible would-be owners from their cash. As they say: "to make a small fortune in racing, start with a large one"! Great British Racing www.greatbritishracing.co.uk or the British Horseracing Authority site www.britishhorseracing.com/owning are good places to start, as the first task for prospective owners is to find a racehorse trainer or other bloodstock advisor with whom they feel comfortable. No professional bloodstock advisor will mind being checked out, and there is plenty of information in the public domain as to trainers' past records, for example on the Racing Post website – www.racingpost.co.uk. References could also be useful, as choice of advisor is the single factor most likely to affect an owner's future enjoyment. Bloodstock agents should be members of the Federation of Bloodstock Agents. Many racehorse purchases are made at public auction. A new owner will have to give a bank reference to the auction house prior to purchase, or more likely a trainer or bloodstock agent will bid on their behalf. Owners should be absolutely clear regarding the price they are prepared to go to. Remember that the price is usually in guineas (5% more than £1) and excludes VAT. Bloodstock agents will normally charge 5% of the purchase price, but trainers’ terms of purchase vary and they may charge no commission if the animal is to be trained by them. The terms on which the advisor/agent is appointed should not be overlooked. The auction itself will be governed by the sales house's terms and conditions of sale – the six or so pages of small print at the front of the catalogue – which are also worthy of close scrutiny. When the horse is placed with a trainer the owner enters into a contract, but what are the terms? The trainer may have his own terms of business, or use the National Trainers Federation/Racehorse Owners Association's training agreement, or he may have no written terms. EXPERT WITNESS JOURNAL 82
What is the training fee? What extras can you expect? Are there gallop fees? Are veterinary fees all-in? How often can you expect a report on how the horse is getting on? All sensible and important questions which, if not addressed at the start, can lead to misunderstandings - or worse. While all this may seem like a lot of hard work – it really will be worth it. Do it properly and racehorse ownership can be everything you dream of – and more. Rachel Flynn is a partner with Taylor Vinters in Cambridge and legal advisor to the National Trainers’ Federation, the Thoroughbred Breeders’ Association and the Federation of Bloodstock Agents (GB) Limited.
Attwater Racing is the company of Michael Attwater. Michael began training at Nottingham in 2004, where he remained for 2 seasons and saddled 43 winners. He finally made the decision to break away on his own and in January 2007 commenced training in Lambourn for a short period before once again returning to Epsom. Now based at Tattenham Corner Stables with over 30 horses and in excess of 60 winners in a relatively short career, Michael feels very settled and is now looking forward to enjoying an exciting future. Attwater Racing currently has syndicates which operate through The Attwater Partnership. Companies may also be interested in shared ownership to have an interest for hospitality. Michael is always happy to discuss any of these options with you and pleased to offer advice where required. There are different forms of ownership. Naturally a horse can be owned outright by one person but there are also various ways of setting up partnerships and syndicates which makes it possible for a lot more people to enjoy the involvement of having a share in a horse at an affordable budget.
If you are interested please enquire by email: attwaterracing@hotmail.co.uk or call me direct on 01737 360066
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The Morgan 3 Wheeler Drive an Adventure Morgan Three Wheeler Limited announces a 2014 update The Morgan Motor Company Ltd was established by H.F.S. Morgan in 1909 when he designed the first Morgan three-wheeler. The first four wheeled Morgan was produced in 1936. Since then the Morgan Motor Company has been making exciting sports cars in the beautiful spa town of Malvern. Morgan cars are famous the world over for their unique blend of charisma, quality materials, craftsmanship and performance. Morgan are the last remaining family owned, independent, innovative British motor manufacturer. All Morgan cars are coach built. Yet still utilising the latest cutting edge technology. One of the brands strongest selling points is the care taken in the manufacture of each car; Leading design capability, an extensive array of luxurious materials and the latest drivetrain technologies combine to create an unparalleled driving experience. Morgan also produces its cars in an environmental friendly way as possible. The atmosphere at the factory (currently running a 177 strong workforce) is one of family, which also extends to
EXPERT WITNESS JOURNAL 83
the owners. Prospective owners are encouraged to visit the factory to watch their cars being built, and to choose from a wide range of paint and leather colours as well as optional extras that will stamp their mark on the car and make it their own. Today, the factory produces in excess of 1300 cars per year. Whether it’s one of the lively ‘Classic’ range sports cars, the extravagant high performance ‘Aero’ supercars or the truly unique Morgan 3 Wheeler, every last detail of Morgan cars are tailored to the customer’s specification. The Morgan 3 Wheeler is designed to bring the fun and passion back to personal transport. Lift the safety catch from the “bomb release” starter button, hear the massive twin cylinders detonate and choose your favourite destination. The iconic design of the Morgan Threewheeler has been updated with 21st Century technology. The power train is a 1976cc ‘V-twin’ fuel injected engine mated to a Mazda 5 speed (and reverse) gearbox. This provides smooth “get in and drive” convenience with the thrill of extreme performance.
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Some things have not changed. Why change the shape when the Morgan Threewheeler still holds long distance speed records for one litre cars set in the 1930â&#x20AC;&#x2122;s? The pronounced aluminium bullet hull and the exposed tubular chassis are accompanied by the aeroplane profile of the carâ&#x20AC;&#x2122;s sides. The shape is of a gentle yet powerful missile at the front leading to a beetle back tail at the rear. From the design viewpoint, the focus was set on making the car as close to an aeroplane as possible, while retaining handy extra space for driver, passenger and a hold-all in the rear. The Morgan 3 Wheeler is designed for one purpose alone, to make driving fun. A leather padded cockpit complete with aircraft instrumentation adds to the sense of flying on the road. The car seems to respond as much to thought as physical input. With an estimated 140 Newton metres of torque the motor provides maximum power at minimum revs. When coupled with a weight of 525kgs the 21st century Morgan 3 Wheeler provides unrivalled power to weight for its on the road price. The time is right for Morgan to take a new look at the combination of acceleration, performance and economy.
BRANDS HATCH MORGANS
Explore the possibilities Test drive three and four wheel Morgans here in Borough Green
Brands Hatch Morgans
A customer can choose from a large range of options that are available to tailor a 3 Wheeler and make it unique to
EXPERT WITNESS JOURNAL 84
The Morgan Agents for South East England Borough Green, Kent, England TN15 8HA Tel: UK: 01732 882017 Overseas: 0044 1732 882017 email: sales@morgan-cars.com www.morgan-cars.com
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them and special. The exterior colour can be chosen from an almost unlimited spectrum. Over one hundred leather options and an array of high quality well designed parts are available to increase the cars specification. As an addition to the ‘Bespoke’ options, we are offering a range of ‘graphic packs’. Authentically styled wraps can be applied professionally to the body of your car. The wraps are durable yet removable. For more details and pricing please contact your local dealer or visit www.morgan3wheeler.co.uk. ■
Krazy Horse Krazy Horse, based in Bury St Edmunds has a retail outlet and fully equipped workshop which undertakes all areas of custom motorcycle work ranging from servicing by S&S trained engineers through to complete builds, conversions and restorations. With over 30 years experience the team makes sure that customer’s bikes are properly maintained and looked after. The showroom will stock the best aftermarket parts from all over the world including W&W, Zodiac, CCI and Motorcycle Storehouse. A range of demo bikes is available in the Krazy Horse showroom for customers to try out (and they often do). The custom cycle team has staged various celebration days featuring hot rods, choppers, drag bikes and top fuel cars. These free events have been open to all. Krazy Horse has its own motorcycle clothing rangebranded as Poachers. Krazy Horse is a regular exhibitor at the Goodwood Festival of Speed. The company attended Dirt Quake in 2012, a Britain’s first Chopper Speedway Race and Vintage Speedway Racing event. It has also received acclaim at the European Custom Bike Building Championships for building some of the best-ever custom motorcycles on the planet.
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SUPERDRY 3 WHEELER £35,036.00 Extras include Brown Mohair Tonneau and Thatchem Toad Immobiliser, also first reg, 1 year rfl and number plates.
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coming soon: Sports Grey Plus 4 with brown hood, Sports Red 3-wheeler and Booklands edition 3-wheeler. STOCKISTS OF INDIAN, ZERO ENGINEERING AND ZAETA MOTORCYCLES finance agreements available
KRAZYHORSE.CO.UK 01284 74 96 45 EXPERT WITNESS JOURNAL 85
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The Lexus IS The 2013 Lexus IS was unveiled at the Detroit motor show 2013 and soon shown that it was a serious rival for compact executive saloons such as the Audi A4 and BMW 3 Series. Lexus says it has been strongly influenced by the Lexus LF-CC concept car, which made its debut at the 2012 Paris motor show. Cosmetically he IS shares many design features with the LF-CC, including a large 'spindle' front grille and rear lights that swoop downward into the sides of the car. Inside, the IS's cabin has a similar look to that of the larger Lexus GS, with a large display screen and simple dashboard layout. A lower driving position is designed to give a sportier feel, and the range of the steering wheel’s reach adjustment has been increased, giving a more sporting driving position. The new-design driver’s seat is more comfortable and provides better lateral support. Practicality is improved compared with the current car, Lexus says, thanks to a wider body and longer wheelbase. There is also a new headlamp cluster design, with Lexus’s signature L-shaped daytime running lights independently below. The IS is designed with elegance and comfort in mind, the thinner front seat backs help to improve rear legroom, while the rear seats have a 60/40 split-folding function for greater luggage capacity. E X P E R T W I T N E S S J O U R N A L 8863
Under the hood the IS is a lot more classical in style, there is a sophisticated twin-cam straight-six producing lots of torque. The IS maximum speed is tried and tested at 144 mph. Steering is accurate, with good weighting. The single-piston swing caliper brakes are responsive and powerful. With the handling being the best that Lexus has ever offered. Lexus have plans to expand the IS range, as well as a new four-door saloon, there'll be a two-door coupe, which will look similar to the LF-CC. The current car's 2.2-litre diesel engine will be dropped from the IS range. Instead, the new IS will be available with an entry-level small-capacity petrol engine, while the big-selling model will use a fresh hybrid powertrain that combines a new direct-injection, four-cylinder, 2.5-litre petrol engine with an electric motor. The hybrid IS 300 model will be a direct rival for 2.0-litre diesel versions of cars such as the Audi A4, BMW 3 Series and Mercedes C-Class, with similar power and performance. Lexus says that CO2 emissions should fall below 100g/km, while average economy should be more than 65mpg. Our Green Car of the Year – the BMW 320d Efficient Dynamics – emits 109g/km. With such low emissions and consumption it is capable of saving a higher-rate-tax paying company car driver up to £600 a year, making the IS the ideal company and family car. WINTER 2014
Events and Conferences Bond Solon Training Excellence in Report Writing (1 day) Starting 8th January 2014 09:00 in London Starting 3rd February 2014 09:00 in London Starting 24th February 2014 09:00 in Manchester Courtroom Skills (1 day) Starting 9th January 2014 09:00 in London Starting 4th February 2014 09:00 in London Starting 25th February 2014 09:00 in Manchester Cross-Examination Day (1 day) Starting 10th January 2014 09:00 in London Starting 5th February 2014 09:00 in London Starting 26th February 2014 09:00 in Manchester Criminal Law and Procedure (2 days) Starting 6th February 2014 09:00 in London Civil Procedure Rules for Expert Witnesses Certificate Online training: available at any time and from any computer via secure login Family Procedure Rules for Expert Witnesses Certificate Online training: available at any time and from any computer via secure login Call Bond Solon on 020 7549 2549 for further information
Expert Witness Institute Report Writing (Advanced) - London The Expert Witness Institute 7 Warwick Court, London 31st January 2014 Marketing for Experts Witnesses The Expert Witness Institute 7 Warwick Court, London 11th February 2014
RICS RICS Dispute Resolution Conference The annual RICS Dispute Resolution Conference will focus on early intervention, risk mitigation and dispute avoidance to make sure you can keep your project in budget and on schedule. EXPERT WITNESS JOURNAL 87
Each session will examine in-depth current successful and unsuccessful practice in order for you to take back practical knowledge of dispute resolution to implement in your projectâ&#x20AC;&#x2122;s workflow. London, 28th Januray 2014 Crowne Plaza, 45 Buckingham Gate, London SW1E 6AF Dispute resolution Expert Witness - report writing e-Learning course www.rics.org/uk/training-events
Professional Solutions Writing Evidence in Planning Appeals 7th February 2014 Giving Evidence in Public Inquiries 13th and 14th February 2014 Tel: 020 7421 7444 12 Bloomsbury Square, London WC1A 2LP www.prosols.uk.com
SpecialistInfo Training SpecialistInfoâ&#x20AC;&#x2122; courses focus on Medico-Legal Training for Consultants and GPs and has been providing courses in London, Birmingham, Bristol, Leeds and Manchester since 2007 as well as an Annual Medico-Legal Conference. Course types include Standard, Clinical Negligence, Advanced and Court Room Skills. Training is provided by Barristers and Solicitors highly experienced in Medico-Legal work. Mediation Courses are also available. For more information, visit www.specialistinfo.com or contact Nicola Guy or Lisa Cheyne on 01423 562003 20th Jan 2014 Mediation Course (5 days) London 19th Feb 2014 Advanced Medico-Legal Course, London 20th Feb 2014 Standard Medico-Legal Course, London 21st Feb 2014 Clinical Negligence Medico-Legal Course Birmingham 3rd Apr 2014 Court Room Skills Course, London 2nd May 2014 Clinical Negligence Medico-Legal Course Manchester
WINTER 2014
Advertisers Index Ability Matters
Page 39
Paul Jones Associates
Page 70
Dr Adedokun
Page 16
Hugh Koch Associates
Page 46
Dr A Anderson
Page 09
Krazy Horse
Page 85
Andrew Acquier
Page 64
Professor P Lodge
Page 30
Attwater Racing
Page 82
Dr Andrew Logan
Page 20
Dr H Baker
Page 19
Dr K Mahmood
Page 22
Dr T Barabas
Page 28
Mike Martin Associates
Page 10
Dr P Bell
Page 53
Midlands Psychological Services
Page 68
Mr Birnie
Page 76
Morgan
Page 84
Dr E Bonner
Page 25
Professor Christopher Nutting
Page 10
Cadogan
Page 13
Orpwood Associates
Page 13
Mr S Carter
Page 19
Dr M Pye
Page 22
Dr Chessman
Page 09
Dr J M Porter
Page 28
Mr B Cross
Page 12
Dr B Qureshi
Page 73
Dr Anthony Clarke
Page 37
Dr M Rawson
Page 68
Dr N Cooling
Page 50
Dr Roch-Berry
Page 02
Luke Dace
Page 81
Graham Rogers and Associates
Page 68
Dr William Durward
Page 61
Mr S Roy
Page 17
Davies Peter
Page 37
Dr Rosie
Page 25
Mr Chris Drake
Page 35
Ross Liddel
Page 13
Dr D Dymond
Page 22
J Sephton Consulting
Page 72
Educare
Page 59
Dr Ian Starke
Page 58
Dr C Essex
Page 34
Dr George Stein
Page 53
Dr J Fell
Page 23
Dr R Taylor
Page 67
Forensic Firearms Solutions
Page 57
Vickery Holman
Page 14
Forensics Europe Expo
Page 89
Dr Norman Wallace
Page 27
Mr Ian Forster
Page 31
Mr Robin Walker
Page 76
Mr N Fletcher
Page 78
Mrs Robyn Webber
Page 02
Edgar Gordon
Page 28
Dr G Williams
Page 23
Griffin Forensics
Page 58
Contact Us We welcome your views and contributions, please send all articles letters and comments to, admin@expertwitness.co.uk For all editorial comments and enquiries please contact: info@expertwitness.co.uk Editor, Des Griffin, des@expertwitness.co.uk Artwork & Design, Chris Connelly, chris.connelly@expertwitness.co.uk All accounts and bookings Lee Hirst, lee@expertwitness.co.uk The information in this magazine does not constitute a legal standpoint. Printed in England 2013. The Expert Witness Journal Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk
EXPERT WITNESS JOURNAL 88
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