WHERE IS THE EVIDENCE TAKING ME? role the

[I HAVE BEEN an accredited expert witness for more than a decade and it is two decades since my first case as the expert. My role as an expert, which was emphasised during my training, is that my duty is to the court. With every case I need to remain independent and impartial.

One common theme I am encountering is how limited the evidence is for many cases I am instructed to review. In part that is because arboriculture is an unregulated profession and some individuals – presenting themselves as experts – are lacking the skills, training, experience and mindset for the role. I covered that problem in the last issue of Your Expert Witness. There is also a risk of becoming emotionally involved with a case.

Often I am presented with a professionally-presented report; and yet when I begin to explore the evidence, I find all is not as it may initially seem. In my first case as an expert that required my attendance at court, a local authority was seeking to enforce what they considered to be a breach of a Tree Preservation Order. I was left distinctly underwhelmed by the evidence presented. The officers presented a series of photographs of tree stumps as evidence that the landowner had been busy felling trees in a woodland. As I looked at the plethora of images I saw a theme of dead stumps, some with decaying fungi present – which is evidence that the host tree was already dead or dying.

At the Meeting of Experts the lead officer conveyed an air of confidence in the merits of their case: ‘We’ll see you in court’ being their informed view. There was little in common with our views and I watched as the case soon unravelled. The local authority had become emotionally involved and focused on prosecuting a landowner who they were convinced was up to no good. The feeling was mutual. Unfortunately, in their desire to ‘get their man’, the local authority had lost focus and was left with little but experience and a large bill for costs.

More recently, I was asked to investigate a case where a tree had broken and caused a road traffic accident. The defendants confidently presented their case that the tree had broken in a storm and its failure was not foreseeable. They had a tree expert within their team to support that view.

It took a quick online search of weather for the time of the incident to conclude that there was no storm – just a wet morning. Another online search soon revealed that the ‘expert’ was only qualified to use a chainsaw and the ‘detailed tree survey’ had been a walk around the grounds of the property with the owner to discuss a schedule of works.

The confidence with which the case had been presented soon dissipated. I duly submitted my report and awaited a call to attend court. It was a bittersweet moment when, soon after, I was informed that the defendant had settled on reading my report.

Sometimes there is evidence of foreseeability, but it may be difficult to find and may require a degree of intentionality. I found that when investigating the failure of a tree felled by Storm Arwen. That particular case demonstrates that the evidence may not be clear-cut and one should consider nuances when presenting a view.

An ash tree was blown over in the storm, causing damage to a nearby property. The tree was on the edge of a field opposite the property – and possibly on third-party land. At the base of the tree, on the field side, were fungi indicating decay. If the insurer had commissioned a tree report as part of offering insurance, then either the presence of the decay or its potential should have been highlighted. However, in mitigation, the evidence was difficult to locate and the storm was northerly in direction and unexpectedly strong, causing widespread damage. Had the tree been blown over in more typical conditions it would probably have landed in the field rather than on the building!

It can be interesting when investigating a case that has also been considered by an experienced fellow professional. I had that experience more recently. The expert for the claimant could cite a Master’s degree, which focused on tree failure assessments. Two trees had been uprooted in inclement weather, causing damage to a vehicle. The owners of the vehicle were seeking compensation. The two trees were in a group of more than a dozen and the owner, a local authority, had an inspection programme in place.

As I explored I soon realised that the expert had no training in tree inspections, no training in the protocol of being an expert witness and they had focused only on the two trees that failed. Decay was evident. However, when investigating it is important to place oneself in the position of the inspector. As I inspected the remaining trees I found them all to be in a good condition. The claimant’s expert, who had no experience of managing a large population of trees, considered that if the inspector had undertaken a decay assessment using appropriate equipment, then the decay would have been identified. I felt this to be unrealistic.

We had a Meeting of Experts, where my fellow arborist informed me that he ‘knew where I was coming from and the differences between us were small’. He considered ‘it was clear that the inspector should have undertaken a more detailed inspection of the two trees that failed’. I politely declined to concur.

His CV was notable for an absence of some core training in tree safety protocol which many professionals, myself included, have. I queried this. My fellow expert informed me that he didn’t have much time for such courses, they were run when he did his training. He had a Master’s degree and his thesis, on tree safety, had won an award!

His summary of our meeting, extending over more than a dozen pages, indicated that he was not fully acquainted with the protocol of the role: the summary should be just that, only a couple of pages in length.

My day in court was duly booked when I got the update that, based on my own report, the case had been settled, largely in favour of the defendant.

I have come under pressure from clients to emphasise the merits of their case, to emphasise foreseeability when it was to their benefit, or confirm negligence. I need to be polite but firm: if the evidence does not support that, I need to follow the evidence. I also need to consider being cross-examined on such matters. My clients may not appreciate that, but it ensures the merits of a case are succinctly presented.

Sometimes, I don’t progress beyond the initial feasibility assessment. When I do, all parties can be assured that there is a case, and with care it can be resolved efficiently. However, I don’t bluff – and if my day in court is needed, I’ll be there. q