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MEDICAL ISSUES 5 What is pain?

Sudden acceleration update

Psychological injuries

Accident investigation

Enhancement of fracture healing

OPENING STATEMENT by Martina Wilson, Business Development Manager

Lung cancer

The problem with lung cancer – pitfalls in diagnosis and management

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Business disputes between partners

The cost of divorce

Dogs – societal menace or misunderstood society members?

A week in the life of a document examiner

Why should golf have need for the expert witness?

A new epoch for mediators

The role of an arbitral appointments referee

Upholding professional values – The Association of British Investigators

Boundary disputes

Willsher v Scott – a case of ‘where and what is the real boundary?’

High strength concrete: getting it right

Uncertainty surrounding the use of hair strand testing to detect alcohol consumption

Driving under the influence of drink and/or drugs

The role of dentists in anti- ageing

Cleft lip and palate care

Transpedicle spine fixation

Chronic fatigue syndrome and litigation

The changing role of expert witnesses – an expert’s view

Textiles and fire

So who needs a specialist mediator?

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Advertising enquiries: Suite 2, 61 Lower Hillgate, Stockport SK1 3AW Tel: 0161 850 1680 Fax: 0161 850 0918 email: kevin@dmmonline.co.uk Business Development Manager: Martina Wilson Email: m.wilson361@btinternet.com Copyright Your Expert Witness. All rights reserved. No part of this publication may be copied, reproduced or transmitted in any form without prior permission of Your Expert Witness. Views expressed in this magazine are not necessarily those of the publisher.

YWT

Opening Statement

t’s amazing how major legal disputes can sometimes arise over what, on the face of it, seems to be something very minor. Take 13 centimetres, for example. The particular 13 centimetres in question was the bone of contention in a boundary dispute – just one of the subjects covered in this month’s issue of Your Expert Witness. In a recent case, a Coventry couple faced losing their dream home in Devon after a court battle over a 13 centimetre boundary dispute.Ian and Teresa Chisholm moved from their bungalow in Binley Woods to a luxury home in Paignton, Devon in 2007. But last month they faced losing it all after a two day hearing at Torquay and Newton Abbot County Court ruled a garden fence was encroaching on their neighbours’ land and they were fined £20,000 in court costs. Mr Chisholm, 67, who worked as a city taxi driver for 20 years, said he felt ‘crushed’ after losing the case. He said: “We brought this house for a peaceful retirement in Devon and now look what we have been through. I have worked so hard on the house it seems a shame to have to sell it now because of this. “For two years we got on fine with the neighbours then one day he said I was trespassing and he wanted to claim back the land the previous owner had bought from them.” The couple’s neighbour David Roberts and his wife Dr Lorraine Foreman took the matter of removing the fence to court saying it was on their land, was too high and unsightly. The case centred around an agreement between Mr Roberts and Dr Foreman and the previous owners of Mr Chisholm’s property. The judge found there had been an agreement in the mid-1990s which stated the former owners could have a piece of land on a temporary basis. But an expert at the hearing said it was impossible to pinpoint exactly where the boundary was by such a small margin. Mr Chisholm, whose two sons still live in Binley Woods, had put up the two metre fence in August 2009, while his neighbours were on holiday. Representing himself in court, he said he had done it then because he did not want a confrontation. He told how the ordeal had left him and his 62-year-old wife ‘severely depressed’ and facing financial ruin. Speaking after the hearing, he claimed their solicitors in Coventry had made things difficult for them when buying the Devon property. He added: “When we bought the house our solicitors didn’t tell us and the disclosure form didn’t have details of land being handed over. Had we known the details we wouldn’t have bought this beautiful property in Devon with its million pound view.” The Chisholms have now moved the fence back and say they are still trying to find ways of raising the £20,000 fees.

Martina Martina Wilson Business development manager

What is pain? by DR ILAN LIEBERMAN MBBS, FRCA, FFPMRCoA, Consultant in Pain Medicine and Anaesthesia

ain is conventionally defined using the IASP1 definition which describes pain as ‘an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage’. The mechanisms that convey pain have been developed and honed through the process of natural selection over the millennia. They may be divided into receptor systems in the skin and deeper tissues, the transmitting nerves to the spinal cord, integrating junction boxes in the spinal cord, onward transmitting structures in the spinal cord to the brain, integrating structures in the brain including the emotional centres as well as an area which includes a hard wired map of the body and, finally, the area at the front of the brain where consciousness is thought to reside. As well as an inward flow of information from the limbs and skin or internal organs to the brain there is also a resultant and subconscious outward flow of instructions which enhances or blocks the inward flow of information (positive or negative feedback to the inwardly flowing sensory tide). The brain is thought to thus filter and then integrate this entire confluence of sensory information into a conscious experience which can then be acted upon. Acute pain signalling is thus a complex and highly evolved system to enable the individual to experience and act upon tissue injury or potential injury. In common parlance it is a ‘warning system’. Chronic pain is described as arising when a pain has lasted ‘beyond the expected period of healing’. This translates to a pain lasting

conventionally beyond three months and certainly beyond six months. Chronic pain is not a warning sign of tissue damage and it is now recognised as a disease entity in itself. Chronic pain occurs when errors or complications or damage occur within the systems that deal with acute pain pathways or signaling. All of the chronic pain terms, conditions or descriptions arise from variations or subsets of pathology linked to this highly complex network. When trying to understand why a chronic pain condition has occurred it is always prudent to have in mind that the nervous system is not ‘hard wired’ in the same way your car wiring loom is ‘hard wired’ or fixed and unchangeable from the moment of creation on the car production line. The human nervous system has a tremendous facility to change or adapt and is best described as ‘plastic’ rather than ‘hard wired’. This is how and why we can learn new tricks and adapt to new environments and situations. Unfortunately it is this very adaptability of our nervous system to usefully change, for example when we make a new memory or experience and remember a new taste, which means that it also has the facility and potential to change and behave unhelpfully. This is what happens in chronic pain states.

Chronic pain classification Clinicians conventionally describe chronic pain as being ‘nociceptive’ or ‘neuropathic’. Nociceptive pain. Nociceptors are the body’s pain measuring organs and chronic nociceptive pain arises from these structures which may be found superficially in the skin or in deeper tissues such as ligaments, tendons or bones. Nociceptive pain can be further divided into 3 types, ‘superficial somatic’, arising from receptors in the skin or skin adjacent structures, ‘deep somatic’, from receptors in the ligaments, tendons, blood vessels, fascia and muscles and ‘visceral’, arising from pain in the hard and soft organs such as the liver, bowel, kidneys or bladder. The area from which the nociceptive pain arises explains how specific, local or widespread the pain is. The superficial receptors are often closely spaced (for example the skin of your fingers) and so chronic pain from this area is well localised. Contrast pain from the bowel where the receptors are much more widely spaced and consequently bowel pain (such as irritable bowel syndrome) is experienced across a much larger area. Neuropathic pain arises from damage to the nervous system – ‘peripheral’ where the damage is to the nerves in the outer parts of the nervous system, those running from the receptors to the spinal cord and ‘central’ where the damage has occurred to the parts of the nervous system within the spinal cord and brain itself. Neuropathic pain is typically described as ‘burning’, ‘tingling’, ‘electrical’, ‘stabbing’, ‘pins and needles’, ‘ants crawling under the skin’, ‘hot when not hot’ and ‘cold when not cold’.

Common pain descriptions and conditions An exploration of all pain syndromes is beyond the scope of this article, however I have briefly described some of the common syndromes or conditions which are encountered in chronic pain personal injury claims. Whiplash injury is a generic description of acceleration/deceleration injury to the cervical spine in any and all planes of movement. It is also encountered in many sports injuries including horse riding, skiing and cycling. Whiplash is a type of mysofascial pain problem and as such a subtype of chronic deep somatic (nociceptive) pain. If the trauma

is severe there may be associated nerve injury and neuropathic pain as well. Whiplash injuries are best classified by the Qubec Task Force classification2 as whiplash associated disorders which range from grade 0, no neck pain, stiffness or signs to grade 4, considerable neck pain with cervical fracture dislocation or cord injury. The neck pain experienced in a whiplash injury is not always immediate and in the author’s experience can often develop several days after the incident event. The management of whiplash associated disorders is through a combination of patient education, analgaesia, injection therapies and graded exercise regimes. Myofascial Pain is a type of deep nociceptive pain arising from muscle ligaments and associated fascial and connective tissues. Myofascial pain commonly arises as a consequence of injury and may occur in any limb, the trunk, the chest or face. Myofascial pain is often widespread and can commonly develop after injury. The management of mysofascial pain syndrome depends on the cause, area and extent of the pain syndrome. Key elements of management are patient education and understanding of the cause and meaning of their pain, graded exercise regimes, analgesic medications and, where appropriate, injection therapies. Widespread myofascial pain syndromes are often very suitably managed by a group based cognitive behavioural therapy program or ‘pain management program’. (see below). Peripheral Neuropathies are pains in the periphery (hands and feet) commonly arising from diseases affecting the peripheral nervous system such as diabetes, vascular disease or trauma. Peripheral neuropathies are commonly treated with a variety of oral or topical medications to reduce aberrant peripheral nerve dysfunction. Complex Regional Pain Syndromes (CRPS) is a syndrome as defined by IASP. It usually presents as a limb which is very tender, swollen, sweating and commonly completely unusable. Patients often describe the limb as feeling as if it is constantly in boiling oil. The reasons why some individuals develop CRPS from seemingly trivial injuries is unknown. The collective view is that the mechanisms are multiple and probably cumulative, therefore it is thought that there is likely to be an as yet undiscovered inherited genetic risk, psychological risk factors, metabolic issues within the muscles and issues with early diagnosis and treatment. It is clear from the evidence base that patients who persevere with an active rehabilitation strategy and have access to physicians and rehabilitation specialists who are experienced in dealing with CRPS, have better outcomes. Those that neglect and refuse to use what are very painful limbs and are not guided by experienced teams do significantly worse. Functional imaging studies of the brain are also teaching us that the reason why the limbs are painful and difficult to use may be due to imbalances in the communication between the sensory maps of the body and the co-ordination with the motor (muscle) control systems. Chronic Back Pain is a very common diagnosis and a huge drain on the economic resource of the economy costing billions. The description of its prevalence, causes and management are outside the scope of a brief article on chronic pain, however there are some common underlying themes as with other pain syndromes. The pain itself is usually of a myofascial (deep nociceptive) type. Depending on the cause of the back pain there may be neuropathic qualities and contributions to the pain. The mainstays of treatment are patient education, appropriate analgaesic and neuropathic medication. Interventional therapies such as steroid injections have a limited but useful role. Pain management programs are of benefit to some, but by no means all, patients with back pain.

pain syndrome is any less ‘real’ or unpleasant. Pain management programs developed out of the realisation that the psychological aspects of pain medicine are of importance. They are underpinned by the theory that how people think and behave around their pain is not only of primary importance but allows an avenue of therapeutic intervention. Specifically by changing unhelpful, destructive and invariably incorrect thoughts about a pain condition to ones which are correct, helpful and constructive the maladaptive behaviours can be corrected and more appropriate and useful behaviours can be encouraged and developed. The literature is guiding us to the conclusion that intensive pain management programs with significant input from psychologists, rehabilitation specialists and pain clinicians, delivered over at least 100 hours of group based therapy, deliver the best outcomes. Such programs are by default expensive and complex to deliver. Pareddown programs with as little as 20 hours of therapy by less qualified providers have been shown to have much less clinical effect – as in all things in life it would seem that you get what you pay for. The criteria for pain management programs has been described by the BPS.3

Pain management treatments and UK facilities Pain management treatment is delivered in the UK through the NHS in a very disparate fashion. Resource and access in some areas is excellent while some very large NHS Teaching Trusts have no chronic pain services at all. The criteria for appropriate pain medicine services has been described by the British Pain Society.4 The best centres provide multidisciplinary care delivered by pain physicians, clinical psychologists with an interest in chronic pain, specialist occupational and physiotherapists and specialist nurses and are backed up by appropriate resources and administrative support. These centres provide a spectrum of care from interventional and implantable therapies, complex medication regimes, specialist physiotherapy and individual psychology to intensive cognitive behavioural therapy based group oriented pain management programs. q • Dr Ilan Lieberman has an NHS base at the Unversity Hospitals of South Manchester NHS Foundation Trust where he is the lead clinician for chronic pain services. He works in a private clinical capacity in Manchester and undertakes assessments for the purposes of medicolegal reports in Manchester, Liverpool and London. He can be contacted on 0161 227 0017, via dr@lieberman.co.uk or visit www. painphysician.co.uk for more information. 1

IASP is the International Association for the Study of Pain, IASP represents the

collective and respective worldwide national pain medicine associations. 2

The Quebec Task Force classification for Spinal Disorders and the severity,

treatment and outcomes of sciatica and lumbar spinal stenosis. 3

Recommended guidelines for pain management programmes for adults (2007)

http://www.britishpainsociety.org/pub_professional.htm 4

Provision of Pain Services (1997) http://www.britishpainsociety.org/pub_professional.htm

The role of psychology in pain medicine Pain is defined as an unpleasant sensory and emotional experience and as such the psychological response to pain has a key role in the outcome and function of a individual patient. It is important not to confuse the fact that psychological factors (such as coping skills, extent of catastrophising and pre-existing depressive or anxiety states) are central to an individual’s pain experience and outcome with a more uninformed assumption that using the term psychological factors somehow means that the patient is consciously contributing to their pain problem. It is also important to realise that because there may be psychological factors contributing to an individuals pain experience it does not follow that their

Psychological injuries by NICHOLAS TARRIER PhD, FBPsS Professor of Clinical Psychology, University of Manchester

xposure to traumatic events can result in psychological injury which may be the subject of legal proceedings. It is, therefore, important to be aware of the effects of stress and trauma and the nature of the psychological injury that may result. The most common traumas in everyday life are accidents, most usually road traffic accidents (RTAs). Exposure to other traumatic events such as war and natural disaster are fortunately rare for most people, although the experience of violent crime is all too common. Psychological disorders are common following such accidents, as they are to other serious traumatic events. These disorders can vary in severity from Post Traumatic Stress Disorder (PTSD), adjustment disorders, depression to phobic anxiety (usually associated with driving or travel but sometimes with crossing roads or being in close proximity to motor vehicles) through to mild apprehension or loss of confidence. PTSD is a severe mental disorder resulting from exposure to trauma in which there is a real threat of death or serious injury. The person reacts with intense fear, helplessness or horror. Characteristic symptoms are persistent and frequent memories of the accident that are uncontrollable and distressing and other ‘reliving’ symptoms such as nightmares or flashbacks. Other

symptoms include efforts to avoid these memories, including the use of alcohol, or situations which trigger their recall and of a general psychological numbing or unresponsiveness. Increased arousal is also present in the form of disturbed sleep, irritability, poor concentration, hypervigilance or exaggerated startle. For PTSD to be diagnosed the condition must have been present for at least one month and symptoms not have been present before the accident. There has been a tendency to over-diagnose PTSD by loosening the type of event from which it might result. This has been termed ‘criterion-creep’. PTSD does not usually occur after less severe traumas such as relationship breakdown, bullying, financial worries or simple bereavement. Psychological distress following these types of stress is usually due to an adjustment disorder, a less severe condition which has some similar symptoms to PTSD but usually fades within six months after the cessation of the stress. It is worth noting that the majority of those exposed to traumatic stress do not suffer PTSD, although brief stress-like symptoms are very common for a few hours, days or a couple of weeks after any trauma. However, these usually fade quickly with time. Of those who do suffer PTSD about a third will recover within three months, a further third within 12 months and a minority will develop a chronic unremitting disorder. Factors such as a previous mental disorder, poor social support or an abusive or neglected childhood appear to increase vulnerability to develop PTSD. Depression is also common after accidents. About 50% of those with PTSD also suffer clinical depression. Depression can develop as a secondary condition resulting from persistent anxiety symptoms or limitations imposed by the consequence of the accident. Depression can also be characteristic of an adjustment disorder in response to physical injury, pain and disability. Depression appears to elevate subjective report of pain and disability and prolong recovery time over and above what might be expected solely from the mechanical nature of the injury. This is sometimes termed ‘psychological overlay’. Both PTSD and depression will impair functioning and can delay return to work or future employment prospects. A more common, and usually less serious, result of an RTA is phobic anxiety of driving or travel. Most cases show some improvement with time but travel can be restricted to local or familiar routes and there may be quite significant avoidance of longer or unfamiliar journeys or considerable anxiety if they are embarked upon. Idiosyncratic difficulties such as avoidance of motorways, turning right or proximity to the accident site are frequent. Avoidance of travel can cause inconvenience, hardship and damage employment prospects. Successful treatment of psychological injuries is possible by psychological treatment known as cognitive behaviour therapy (CBT), alone or in combination with psychotropic medication. Complete recovery is possible but depends on the severity and chronicity of the condition, the existence of prolonged physical injury and pain and any previous mental disorders. Residual symptoms often persist and elevated vulnerability to suffer further psychological injury if exposed to stress can remain for a number of years. Simulation or exaggeration of psychological injury must always be considered. This can usually be detected by consideration of the presentation and history, the existence of previous claims, prior work record, inconsistencies, evasiveness and certain personality traits. q

Enhancement of fracture healing by MARK PHILLIPS MA, FRCS(Tr&Orth)

here has always been an element of laissez faire about fracture healing (or ‘fracture union’). It takes time – that is common knowledge – but patients, their employers, their family and support network, perhaps their solicitor and their insurance company all have an interest in how long healing will take. Even Primary Care Trusts (or GP commissioners in the future) might like to think about what delayed fracture healing might lead to. Delayed healing may incur higher costs, with some patients requiring prolonged physiotherapy or further surgery to deal with loss of range of movement. The wider community bears the costs in terms of loss of tax revenue.

How then might fracture healing be enhanced? From ancient times up to the 1960s the principles of fracture management were to splint until healed, then mobilise. In general, this leads to good results and is the common experience of most people. More than 90% of fractures heal uneventfully and good or normal function is restored in time. In fact, bone is an unusual tissue in that it is capable of healing with no scar and, in most cases, leaves normal structured tissue after repair. The bone is usually sufficiently strong to bear functional load and allow normal daily activities after about 8 weeks in the upper limb (lower weight bearing demands) and 16-18 weeks in the lower limb. Joint stiffness, muscle weakness and tendon problems often delay normal function further. The quicker the healing, the less troublesome are these soft tissue problems. However, what is not common knowledge, is that some fractures can struggle to heal, take a long time or not heal at all (delayed, or non-union). The effects of this can be catastrophic with patients losing their jobs, and in some cases their home, their partners and their self esteem. This is often made all the worse by the fact that the most likely group to suffer from non-union or delayed union are men in their ‘prime of life’. Many have never suffered long-term illness before, are very physically active and are often in highly physical work. The reason for this is that the ability of bone to heal is related to the energy that went into creating the fracture: so high speed collisions or fractures caused by great force are more likely to be troublesome. And men in the 20-40 year age group are, for reasons that will be obvious, more likely to fall into this group. Add to this the fact that highly physical jobs require high degrees of function to get back to work and it is clear that prolonged sick leave may result. The final blow is that smoking tends to significantly slow down fracture healing

or raise the risk of non-union, and the profile of the average patient at the specialist non-union clinic starts to become clear. Experienced orthopaedic surgeons can recognise a fracture that is at risk of going down the impaired healing route. For this reason, since the 1970s, such fractures have been internally fixed, when it is recognized that non-operative techniques would be likely to lead to prolonged disability. As surgery has become safer, and techniques/devices refined, return to function and work has also been hastened. More and more fractures are now managed operatively, sometimes with the sole purpose of returning patients to function earlier – even if the long term result would be the same without surgery, eg plating of clavicle fractures. There have been developments in the last few years that move the concept of enhancement to the next level. Trials of pharmaceutical products to ‘medicate’ the fracture environment have been carried out and are ongoing. Physical manipulation of the fracture with lowfrequency ultrasound and electromagnetic fields has also been shown to be effective in enhancing bone healing. In fractures that are likely to heal without non-union being a significant risk factor, eg. fractures of the radius at the wrist (such as Colles’ fracture) or closed, simple fractures of the tibia, the use of ultrasound has long been known to reduce the time to healing by over 30% 1,2. In December 2010 the UK National Institute for Health and Clinical Excellence published guidance on the use of ultrasound to promote fracture healing3. The studies on pharmaceuticals directly applied to fractures (by open approaches, mini-open incisions or by direct injection to the fracture site) have not reached a stage where licences can be approved for these products for these applications, but research is ongoing. Oral and intravenous therapies (some of which are already approved to treat or prevent osteoporosis) have been and are being examined for potential therapeutic benefit in this area too, but are not available for clinical use at this stage. Many animal experiments support the hypothesis that fracture healing can be accelerated by these techniques. There remains the issue of whether speeding up fracture healing will then result in a lower risk of adverse fracture outcome, such as non-union, or the effects of stiffness and delayed recovery mentioned above. It would seem intuitively that this would follow. All of the above will have implications for prognosis in personal injury cases and may become relevant to negligence cases if available therapies are not used when they may have been indicated. There may also be reasons why insurance companies would want to know this information in order to promote accelerated rehabilitation and close down cases as quickly as possible. q • Mark Phillips is a consultant orthopaedic surgeon with a specialist interest in complex fracture reconstruction at King’s College Hospital, London. Bibliography 1. Accelerated healing of distal radial fractures with the use of specific, lowintensity ultrasound. A multicenter, prospective, randomized, double-blind, placebo-controlled study. Thomas K. Kristiansen, John P. Ryaby, Joan Mccabe, John J. Frey and Linda R. Roe J Bone Joint Surg Am. 1997;79:961-73. 2. Acceleration of tibial fracture-healing by non-invasive, low-intensity pulsed ultrasound. JD Heckman, JP Ryaby, J McCabe, JJ Frey and RF Kilcoyne J Bone Joint Surg Am. 1994;76:26-34. 3. http://www.nice.org.uk/nicemedia/live/12408/52076/52076.pdf accessed 2nd May 2011

Profiling...

Graham J. Cox

MB BS BDS FRCS (Eng) FRCS (ORL), consultant surgeon, expert witness

consultant ENT surgeon at the John Radcliffe Hospital in Oxford and a Macmillan Head and Neck Surgical Oncologist for fifteen years, Graham J. Cox MB BS BDS FRCS (Eng) FRCS (ORL) has served as an expert witness in many industrial noise induced hearing loss cases, as well as in both private and NHS Trust medical negligence cases. Mr CoxÂ has contributed to national guidance in head and neck surgical oncology, has advised the National Cancer Action Team and NICE in this area and has made numerous presentations at international specialist meetings and workshops. He has a particular interest in quality management in medicine and is a Specialist Associate of the General Medical Council. He has led Deanery Quality Assurance visits and has served as Vice Chair of the Specialist Advisory Committee in ENT for the surgical Royal Colleges. As such, he has been involved in curriculum development in ENT surgery, and in setting standards in post graduate medical education. q

Lung cancer by DR CHRISTOPHER NUTTING, Consultant Clinical Oncologist

ung cancer is the most commonly occurring cancer worldwide with over forty thousand cases diagnosed annually in the UK. Unfortunately, for most patients who present with advanced disease, treatments are associated with a poor outcome and approximately thirty thousand deaths each year are recorded from lung cancer. Lung cancer diagnosis and management is a common cause of litigation. Three common types exist. Small-cell carcinoma is a very aggressive form of lung cancer almost exclusively associated with smoking and this accounts for approximately a quarter of patients. Another two thirds are made up of non-small cell lung cancers including adenocarcinoma, squamous cell carcinoma and large cell carcinomas. These tumours are mostly associated with smoking but are sometimes seen in non-smokers. Mesothelioma is a tumour arising from the lining of the chest and is strongly associated with industrial or occupational exposure to asbestos. Patients with cancer of the lung may present with cough, chest pain, breathlessness, weight loss or fatigue or a combination of the above. A proportion of patients will be diagnosed incidentally when a chest x-ray is done for some other purpose. Currently, screening for carcinoma of the lung is not undertaken. A number of studies have looked at the role of screening with chest x-rays or CT scans but failed to show a reduction in lung cancer death rate. Any patient presenting with worrying symptoms would be expected to be referred via a two week wait emergency pathway to the appropriate hospital department. Initial investigation would be with chest x-ray and other investigations, including CT scanning, bronchoscopy and biopsy would follow in suspicious cases. The prognosis of lung cancer is largely determined by stage. The TNM classification stands for tumour, node, metastasis and is used to define stages one to four. Stage one and two non-small cell lung cancers are those which are small in size with no signs of spread. Treated with surgery they have a forty to seventy percent chance of five year survival. Stage three cancers show spread of tumour to the central part of the chest (mediastinum). These patients maybe treated with radiation or combinations of radiation and chemotherapy and five year survival rates are in the region of fifteen percent. Stage four defines patients where the disease has metastasised to other organs for example bone, brain or other sites

and typically treatment is with chemotherapy or radiotherapy. Five year survival of patients with stage four non-small cell lung cancer is less than ten percent. For small-cell lung cancer, the overall survival rates are approximately ten to twenty percent and are less affected by disease stage. For patients with mesothelioma there have been some recent advances in treatment with chemotherapy which has been shown to prolong life by a modest degree. This treatment is often combined with drainage of fluid from the chest. The common causes of clinical negligence arise from incorrect treatment or the lack of appreciation of an early stage, potentially curable, lesion which subsequently progresses to incurable stage. In the UK, public health intervention, such as the smoking ban and the strong support of smoking cessation, should lead to a dramatic reduction in the incidence of lung cancer later in this century. In the meantime, lung cancer remains a topic of extensive clinical research, particularly into drug treatments with a high efficacy and a lower toxicity profile. Patients and their families need intensive support for this devastating illness. q

The problem with lung cancer – pitfalls in diagnosis and management by DR STEPHEN MANGAR, Consultant Clinical Oncologist and Honorary Senior Lecturer

ith over 40,000 new cases in the UK each year, lung cancer is one of the most diagnosed cancers, second only to breast cancer in women and prostate cancer in men. It is also one of the most lethal, killing more men and women each year than any other type of cancer. This is because over 80% of cases present at an advanced inoperable stage, commonly spreading to mediastinal lymph nodes and distant organs such as the liver, adrenal glands, bone and brain. It is not unusual for many patients to have no symptoms of lung cancer in its early stages, and therefore it is easy to miss a diagnosis of the condition when it is most treatable and most curable. In fact, a misdiagnosis of lung cancer can significantly reduce a patient’s survival rate and, in some cases, lead to an untimely death. Lung cancer is often overlooked or delayed in diagnosis, and ranks fourth in malpractice lawsuits. There are many reasons for this but usually lung cancer may be confused with other chest conditions such as chronic obstructive pulmonary disease, bronchitis, pneumonia and asthma. These can all present not only with similar symptoms to lung cancer but can also co-exist, masking an underlying cancer, as well as being implicated or exacerbated by cigarette smoking. Although lung cancer can present with varying symptoms, a chronic cough, haemoptysis (coughing up blood), breathlessness on exertion

and weight loss are usually indications to prompt further assessment. It is important to recognise that by the time symptoms become apparent the lung cancer is probably already at an advanced stage. For example, a patient with a chronic cough who is a smoker may be diagnosed with bronchitis, and without running the proper diagnostic tests a lung cancer may go undetected at a stage that is potentially curable. Smoking causes more than 80 percent of all lung cancers because cigarettes, cigars and other tobacco products contain many dangerous carcinogens. However, occupational exposure and inhalation of asbestos and radon, along with other chemicals such as arsenic, chromium, silica and beryllium are important to consider, especially in those non-smokers seeking compensation claim awards. People with a history of tuberculosis and other lung diseases, including emphysema and asthma, have an increased risk of developing lung cancer. The key to successful treatment of lung cancer involves correct diagnosis and staging. Whilst lung cancer may be suggested by the presence of a lesion on a chest x-ray, the cancer is more readily identified and assessed by a CT scan of the thorax (fig.1). Primary lung cancer classically presents as a spiculated lesion, commonly spreading to, and causing enlargement of, mediastinal lymph nodes. In more advanced cases the scan appearances can be highly variable ranging from multiple rounded opacities in both lung fields, fluid within the lungs (pleural effusion) to rib fractures suggesting bone involvement. To confirm the diagnosis a biopsy is required of which there are two kinds depending on the site of the tumour. Bronchoscopy for central tumours with disease surrounding the major airways (bronchi), and percutaneous needle biopsy under ultrasound or CT guidance for more peripheral lesions. Bronchoscopy involves insertion of a bronchoscope, a flexible lighted tube, into the patient’s mouth or nose and guiding it to the bronchi. A percutaneous needle biopsy involves inserting a needle into the lung through the skin. The decision for the latter approach needs careful consideration as one of the complications of this procedure is a pneumothorax (punctured lung), which can be life threatening if the lungs are already compromised by COPD/asthma. Obtaining a tissue diagnosis is important for guiding treatment and prognosis. The main histological distinction is between a small cell and non-small cell lung cancer. Small cell lung cancer is usually Medical negligence claims involving lung cancer often involve one of the following factors: Failure to diagnose – this is due to either missing or misinterpreting symptoms or test results. Delay in diagnosis – this can be caused by delayed referrals to specialists, delays in carrying out a biopsy or failure to act quickly enough in reaction to test results. Misdiagnosis – some patients are diagnosed as having cancer when they do not. This can lead to them having to endure difficult treatments such as chemotherapy and radiotherapy unnecessarily.

Fig.1. An example of a patient with lung cancer – the disease is not readily apparent on a chest x-ray but clearly visible on CT scan. Primary tumour within the right lung

more aggressive and grows more rapidly than the non-small cell type, with almost 50% of patients developing brain metastases either at presentation or shortly afterwards. However this small cell lung cancer is highly responsive to chemotherapy and radiation treatment with initial responses of up to 70% with combination platinum chemotherapy. However, these patients relapse quickly and prognosis is usually measured in months despite aggressive treatment. Nonsmall cell lung cancer is more common (approx 70%) and is not as responsive to chemotherapy as small cell lung cancer. In addition it is now possible to examine the genetic make-up of the tumour to see whether it has specific genetic changes (mutations) that will allow it to respond better to certain treatments – for example EGFR mutation status predicting for a response to Erlotinib. Once a diagnosis is made, it is important to assess the extent of spread of the cancer (stage) in order to determine the treatment required. This is usually done by a whole-body CT scan, including the brain, and also an isotope bone scan. Nowadays PET imaging (using a tracer which highlights high metabolic activity and hence detects whether the cancer is active) is also used routinely in the staging and assessment of treatment response. If the tumour has not spread to lymph nodes or remains confined to a lung lobe, then surgery offers the best chance of long term survival (approx 85% at 5years). In patients who are not medically operable then radiotherapy is a suitable alternative. For patients with advanced disease chemotherapy forms the mainstay of treatment, with platinum combination treatments impacting on disease control and overall survival. Radiotherapy is also used mainly for symptom control – commonly on sites of bone metastases or bulky lung disease that is causing symptoms such as

haemoptysis. With newer better tolerated chemotherapy treatments and targeted therapies, nowadays patients who are otherwise fit can expect to be offered 2nd and even 3rd line treatments with the emphasis being on controlling the disease and maintaining quality of life. Of central importance is providing care within a multi-disciplinary setting, involving palliative care specialists, district and MacMillan community nurse support, oncologists, cardiothoracic surgeons and respiratory physicians. It is also important to recognise that patients diagnosed with lung cancer, even if successfully treated, are at risk of developing a further lung cancer which can be of the same type as the previous cancer or a completely new primary. The incidence increases in patients who continue to smoke. As such it is important that patients are regularly followed up by their specialists and encouraged to stop smoking in these circumstances. q

Key Points • Early detection plays a crucial role in increasing the rate of lung cancer survival. When people are diagnosed with early stage lung cancer their chances of five year survival can be as high as 85%. • The majority of patients present with advanced disease at a stage where treatment is unlikely to be curative. • Cigarette smoking causes in excess of 80% of all lung cancer – but be aware that some cases can be related to occupational exposure of asbestos, radon gas, silica, arsenic and beryllium. • Lung cancer can present with similar symptoms as other lung conditions such as chronic obstructive airways disease, which can also co-exist, and thus there can be potential for misdiagnosis or delay in diagnosis. • Obtaining histological confirmation is important, as it guides prognosis and treatment, but this may not always be readily achievable.

The Role of Dentists in Anti-Ageing by EDWIN BONNER BDS MDent, Sloan Fellow London Business School

he annals of fiction are replete with examples of people who gave everything in the search for eternal youth. Oscar Wilde’s Dorian Gray sold his soul to the devil for precisely that, and Henry Rider Haggard’s She describes the beautiful woman seeking the fountain of youth. Aldous Huxley in Brave New World and Margaret Atwood in Crake & Oryx describe dystopian worlds in which gene mutations allowing for vacuous, ever youthful life were programmed to terminate abruptly. The fact is, our bodies aren’t designed for eternal youth. Julian Barnes in his book Nothing To Be Frightened Of quotes Montaigne: ‘The death of youth, which often takes place unnoticed, is the harder death; what we habitually refer to as ‘death’ is no more than the death of old age. The leap from the attenuated survival of senescence into non existence is much easier than the sly transition of heedless youth to crabbed and regretful age.’

Stranger than fiction Now, truth has outstripped fiction as millions of individuals spend billions of dollars in the selfsame quest. A Harley Street medical group’s brochure states: ‘We are all aware of the way we look and, more importantly, the way we used to look. We recognise that our non surgical solutions for many people are about renewed confidence and wanting to face life looking great.’ An interesting observation

by the group is that less costly, non invasive treatments tend to remain unaffected by economic downturns, while expensive surgical procedures drop in popularity.

Homeostasis and longevity Cells do repair and regenerate – however, we tend to encounter more damage than we repair and so, as we age, we accumulate damage to our cells and bodies. The diminished capacity to maintain tissue homeostasis is a central characteristic of ageing. Cumulative insults to the cell, including acute stress, interfere with the capacity of longlived stem cells to regenerate. Immune function declines with age, thus predisposing to infection, cancer and autoimmune disease. Longevity is determined by genetic factors, and long-lived persons appear resistant to common disorders that affect morbidity and mortality. A (literally) vital factor is nutrition – how we lead our lives determines how quickly we age. According to Finch (Amsterdam 2007), reducing calorie intake by 60% is associated with up to a 50% increase in life span. Conversely, nutrient excess adversely affects the function of muscles, blood vessels, fat tissues, liver, pancreas and the immune system. Excess calorie intake results in an inflammatory response, which blocks insulin action and leads to a vicious insulin cycle of resistance resulting in diabetes, coronary artery disease, Alzheimer’s and accelerated ageing. Enough good quality sleep, and lowering levels of stress, limits the risk of insulin resistance.

The progressive dentist Today’s dentist has entered the ring to look at ageing in a whole new way and attempt to redress the balance between what is lost and what can be restored. Otorhinolaryngologists (ENTs) and reconstructive (plastic) surgeons who carry out face lifts, neck lifts, rhinoplasty and chin augmentation are being joined at the cutting edge of beauty therapy by increasing numbers of dentists literally filling in what has been lost to the ravages of photo-damage through excess exposure to the sun. Out of this realisation that dentistry and facial aesthetics go hand in hand has evolved the concept of ‘dental practice as spa clinic’ Trained dentists, because of their knowledge of head and neck anatomy and vast experience in the administration of local anaesthetic injections, are ideal clinicians for providing facial aesthetic treatments. Non surgical facial aesthetics should be a core treatment modality within our medical and dental services.

More regulation? Originally, medical aesthetics was monopolised by cosmetic surgeons. Now it is a melting pot of medical and dental specialisations, and indeed it would seem sensible that doctors and dentists are the right people to deliver such non surgical facial care. However, one of the biggest problems facing the medical and dental professions today is the still high level of non regulation in the cosmetic industry. Virtually anyone with a modicum of on-the-job training can (and does) administer treatment, not necessarily in the best interests of the recipient. It is necessary, indeed essential, to set standards and codes of practice for the cosmetic industry to provide the highest quality of care. q • Ed Bonner is an experienced expert witness in dentistry and has written over 1,000 reports in personal injury and negligence cases. He can be contacted by email bonner.edwin@gmail.com or by tel 07766 601338.

Cleft lip and palate care by PETER REVINGTON TD, MScD, FDS, FRCS(Eng)

n 1998 the Clinical Standards Advisory Group (CSAG) published a much anticipated report on cleft lip and palate surgery in the United Kingdom. This followed a number of earlier reviews (Eurocleft Database1997) and confirmed the suspicion that clinical outcomes in this field of surgery were less good in the UK than in our near European neighbours. A number of recommendations were made and a wholesale reorganisation of the delivery of cleft care followed. This resulted in the establishment of approximately 15 ‘high volume’ surgical centres – approximately because some units with obvious geographical difficulties amalgamated administratively with neighbours, but practically still function in an autonomous way. The driving principal was that all surgeons do best that which they do most often and an arbitrary minimum case load of 45 cases per annum was chosen to replace individuals who ‘dabbled’ with as few as a half dozen or so each year. This involves more travel for the families concerned to surgical centres, with non surgical elements of care being provided locally. In the field of cardiac transplantation outcome is easy to measure – the patient survives, or not. Many surgical outcomes in cleft surgery however, which may involve multiple interventions over long periods of time, are notoriously subjective and hence difficult to quantify, notably the crucially important appearance of the lip and nose. Other factors are less subjective such as speech and x-ray changes after bone grafting and growth. Just over ten years on from the report there is some evidence that the situation has improved. Patients are seen in a more timely way and most have access to a comprehensive range of specialists in multidisciplinary teams, notably surgery, orthodontics, speech therapy, psychology and dental care. There remain however, elements of a ‘postcode lottery’ where, usually for obscure financial reasons, the whole range of advice may not be available to patients. Although there remain, according to HES (Hospital Episode Statistics) data, a small number of ‘low volume’ operators, who continue to provide elements of surgical care for a very small number of a given type of operation within the new cleft centres. Although audit of patient outcomes was seen as a priority of the new centres and has become a major focus of the individual centres, there is no national body with ownership of such outcomes – a failure which renders difficult any unified approach to deviant results that inevitably arise periodically. The responsibility for surgeons’ results therefore continues to rest not

only with the individual operator, but with the trust which happens to host the service. Some centres may therefore simply fail to comply with requests for outcome data and there is no routine mechanism in place to ensure that such information is available for peer review. Indeed, given the complexity of the care provided, it is perhaps surprising that a degree of unanimity within the professions, as to what those outcomes should be, exists at all. A second review of the services provided is underway and, although no longer owned by the Surgical Royal Colleges, the colloquially named ‘CSAG2’ will revisit many of the old issues and will almost certainly advise further fine tuning of a service which has to compete for resources along with every other aspect of health care. Most families develop strong personal ties with the teams that care for them, with a uniquely long term relationship that may span two decades for the children under care. q • Peter Revington is a Consultant Maxillofacial Surgeon at the North Bristol NHS Trust and a Member of the SW Cleft Team.

Transpedicle spine fixation by PROFESSOR MALCOLM H POPE Dr.Med.Sc., PH.D., D.Sc., C.Eng., Eur Ing., Eur Erg

ttachment sites (where the hardware is attached to the spine) were used for a number of decades for spinal implants. The spinous processes were the attachment sites for the upper and lower ends of pairs of tin-plated steel rods implanted as far back as 1910 for treating spondylitis. Plates were bolted together on each side of four or five spinous processes for stabilisation after injury or lumbosacral degeneration. A similar approach was used by Reimers (both Reimers and Harrinigton are pioneers in this field). The facet joints were used as attachment sites for metal screws placed across the joints for partial immobilisation of the lower lumbar and lumosacral spine. A different line of development was based on attachment of implants to the laminae. Harrington distraction rods were described in 1962. The choice of hook attachment site was based upon strength testing of various possible attachment sites. This implant was designed for realignment of scoliosis but was also used for spondyloisthesis and for trauma and other causes of instability. Plates and screws were the first really successful transpedicle screw-based spinal implants, and a family of such implants was developed.

A high level of interest has developed over the past few years in transpedicle screw fixation. Clearly such fixation can be used in a way that is effective and safe, as demonstrated by a growing number of patients who have had extremely satisfactory outcomes and yet who have not been condemned to a lifetime of dealing with an unnecessarily long segment of fused spine. Equally clearly, such fixation brings with it certain demands and risks. Extensive interest has developed in spinal instrumentation that uses transpedicle screws (right) as the method of vertebral attachment. This interest has been stimulated by certain major advantages that this approach provides, although much remains to be learned concerning its limitations and the best methods for avoiding potential complications. There have been reports of premature failure of implants of pedical screw systems and often the affects are severe. No definitive pre operative assessment exists which reliably predicts whether the spinal implant will fail before the fusion. One should define a threshold value of bone quality above which long implant life will be predicted and be susceptible to premature failure. Premature failure of pedicle screw systems often result in increased motion. Failure occurs due to the fatigue failure of the pedicle screw. This has, in the past, been due to stress concentrations in the screws because of design errors. The challenge is to find ways to meet the demands and simultaneously to reduce the risks. To accomplish this will require further research not only in the area of biomechanics but also in the area of clinical practice. q

Chronic fatigue syndrome and litigation by Dr ANTHONY CLARKE, F.R.C.P., Consultant in Rheumatology and Rehabilitation, Bath

ew conditions have caused more controversy than chronic fatigue syndrome (CFS). For the past 50 years doctors, patients and politicians have argued over its very existence. From the English perspective, the issue was settled with the report of the Chief Medical Officer in 2002. This authoritative document acknowledges the existence of the condition (or, more correctly, group of conditions), describes the symptoms and reviews management. Fatigue is a common constitutional symptom related to serious physical conditions such as rheumatoid arthritis, ankylosing spondylitis, many cancers, diabetes and chronic obstructive airways disease. However, CFS is a discrete condition, with a constellation of symptoms including fatigue, pain, low grade fever, post-exercise malaise, poor concentration and sleep problems. There are two main legal issues relating to CFS. The first is ‘can CFS be brought on by trauma, environmental factors or work-related stress?’ The second is ‘what is the effect of trauma on pre-existing CFS?’ There is little evidence to suggest that CFS can be caused by trauma. It is true that there is considerable overlap between CFS, fibromyalgia and chronic pain, and it is possible to see considerable fatigue in patients with a post-traumatic pain syndrome, but trauma as a cause of pure CFS is very unlikely, using the balance of probabilities test. Of the possible environmental causes, only viral infection has been reliably shown to be related to CFS. It is an almost inevitable accompaniment of influenza and

is commonly seen in glandular fever. The majority of virally-related cases resolve in four to six months. We do not know what causes most cases of CFS, but then we do not know what causes rheumatoid arthritis or multiple sclerosis. Of course the legal test of causation has always been different to the medical test, in that if A follows B then B is, using the balance of probabilities test, likely to be due to A. It is for the experts to advise the court if that is a reasonable position. I would suggest that, as medical experts, we should be robust in stating that CFS is not usually associated with trauma or environmental factors, but keep an open mind in individual cases. We now come to the difficult issue of the claimant who had CFS prior to the index accident or occurrence. Over the past 10 years I have seen on average two claimants annually in this situation. Although there is a degree of acceptance of CFS as a physical disorder, like the other chronic disorders mentioned above, it is clear that any stressor, internal or external, will worsen CFS, just as it does those other conditions. It is worth remembering that one of the major causes of severe relapse in rheumatoid arthritis is the death of a spouse. Typically the claimant will report that his or her symptoms of pain and fatigue have been significantly worsened by the index accident. This is an entirely reasonable proposition. What is not necessarily reasonable is to ascribe all the continuing CFS symptoms to the accident. A careful forensic analysis of the medical notes will enable the expert to establish the normal pattern of the CFS in the claimant. Even in long-standing CFS there is likely to be cyclical changes which will allow the expert to assess if there is an overall sustained worsening of the symptoms, and therefore loss of amenity, due to the accident. Secondly, other stressors can be identified which will have led to a worsening of the claimant’s condition. One has to remember that a bereavement or a burst appendix are likely to be a much more significant stressor that a minor whiplash injury. However, only the accident is compensatable and not surprisingly the claimant and their legal advisors will focus on the accident. It should be remembered that the majority of people with CFS get better, especially if they receive help with management of their condition. An accident will slow down the improvement, but will not stop it. Finally, all stressors can worsen CFS. A major stressor is an unresolved legal case. It is in everyone’s best interest to settle such claims as quickly as possible, especially if the main aim is to return the claimant quickly to as normal a life as possible. q

The changing role of expert witnesses – an expert’s view by PHILIP COLLIER of Collier Knight Watts

he role and usefulness of experts, and particularly engineering experts, has been under close scrutiny over the last few years. There is increasing pressure to settle cases without expert evidence and the majority of expert evidence is now presented as only written evidence to reduce the costs of experts going to court. Our experience is that there is reluctance amongst some solicitors to commission an engineering report early in the case, sometimes because it is thought that the claim does not warrant the expenditure, or because the trial judge might be critical. As the amount of expert work reduces, it is our experience that experts will only be able to maintain an active role in the litigation process by adapting their practices to offer a more flexible and bespoke service. We reviewed our own working practices and we now offer a range of services that we consider is attractive and helpful to the parties engaged in litigation and which can be applied at various stages of a claim. ‘No obligation’ telephone consultations for solicitors or insurance companies allow a discussion about the likely issues and the type of expert that might best be able to assist. In this way an expert can assist in the early identification of likely issues which might assist in the pre-action protocol.

The preparation of short preliminary advice/reports, perhaps based on a limited amount of information, assists in explaining what the engineering issues might be and what an engineering expert could offer in a particular case. This might be used to negotiate settlement or to secure funding for the formal instruction of an engineering expert. Inevitably, we receive instructions in which the evidence leads us to form a non-supportive conclusion for the instructing solicitor. To give them the opportunity to avoid potentially unnecessary additional expenditure we now always consult with him/her to explain the situation and agree a way forward. In our experience some solicitors still prefer to receive a non-supportive report so they can understand the reasoning applied by the expert and are then able to communicate the same to their client. However some prefer us simply to provide a short summary of the case, dealing with the issues and explaining why the expert has formed his opinion. We are often only approached as the final step to get the case ready for trial. Not infrequently we then find the engineering issues are straight forward and that our involvement would probably have led to a settlement of the claim, one way or the other, had we been approached earlier. Rather than being a cost burden, the appropriate use of engineering experts could have the significant benefit of reducing costs and speeding up the litigation procedure. The use of so called ‘professional’ experts, as opposed to those who undertake expert witness as secondary line of work, is regularly scrutinised. The arguments for and against the use of professional experts have been well rehearsed. From an engineering perspective, our experience is that professional engineering experts are better equipped to offer a focussed and knowledgeable input to assist the litigation at any stage. It also seems likely to us that the judgement in Jones v Keany may deter some ‘part time’ experts from acting as expert witnesses. Whatever the fallout from that case we consider it should help focus the minds of all experts to the duties that come with their instruction. In summary, despite the pressures to reduce the use of experts, we consider that they still have an important role to play in the litigation process. Indeed our experience indicates that many solicitors would welcome expert engineering evidence at a much earlier stage in that process, if it could be funded. We would therefore advocate a minor change to the current system to allow the parties to consider obtaining at least an initial opinion from an engineering expert at an early stage in the claim. This may help narrow the issues at the outset and potentially lead to early settlement of more cases, avoiding the need to follow the pre-action protocol which inevitably drives up the costs. But we would say that wouldn’t we? q • Philip Collier is a partner at Collier Knight Watts LLP Consulting Forensic Engineers. The company accepts hundreds of instructions per year across a wide range of industries. Mr Collier specialises in cases related to the Construction and Building industry and to incidents on the highway. For details of our full range of services and specialist expertise please contact us by telephone, email or fax, or visit our website.

Are your clients

forensically and security aware?

ust how important are IT systems to you and your clients? Could you/they function without them for a couple of days, a week or no longer than a minute? What would happen if an investigation was needed or demanded? Are you prepared for a forensic examination of your systems? Most companies these days would be in a pretty sorry state if they were without their systems for even a minute. If their computers were seized it could bring them to their knees. The forensic examination of a hard disk can take many days to complete – just securing an image can take hours and the computer and/or server will be out of service. If it is a police investigation the computer itself may never be returned. Consider this scenario. A company employee is arrested and charged with a serious offence. The police arrive to seize his work computer and you have to inform them that the company uses hot-desking and roving profiles and the employee has used at least half a dozen computers in the office. If the police take away the six computers

and the server (the suspect’s profile is sitting on the server) the business, or at least a significant part of it, could grind to a halt. It might be days, weeks or even months before the computers are returned. It is possible to prevent this by configuring the network so that only the bare essentials of the user profile is downloaded to any workstation and that all work files, including temporary internet files, are stored in the user’s specific area on the server. It could then be argued that the only forensic imaging required would be that of the user’s profile from the server which can be carried out with the system being ‘live’. Other administrative and security logs on the server should provide a history of when the particular user profile was accessed.

The danger within Your client has secured their systems and taken every step possible to ensure that they are not being used for nefarious activities. But are they really safe? Who looks after the system? Who knows all

the intimate details of critical systems and has access to all of the financial, operational and marketing strategies? The answer, generally, is the IT staff. If you are lucky this may well be a team of dedicated staff all of whom could, if necessary, run the system(s) even if everyone else left. What if there is one administrator who knows all the passwords, backdoors and little tricks that keep the system running sweet. He/she may seem like a ‘god’ to those who use the system and do not understand what makes it tick. However that ‘god’ could turn out to be the very devil should anything go wrong. When was the last time your client’s system was the subject of a security audit? Do they know who does what on their system? Is someone stealing confidential data? Have you/they considered a digital forensics readiness policy? q • Griffin Forensics tel: 01327 856010, email: info@griffinforensics.com, web: www. griffinforensics.com.

One step ahead

of the Smart Criminal By D A SYKES BSc CEng, CITP, FAE, MEWI, Senior Consultant Chartered Engineer, IT Group

here is often some confusion when speaking about ‘High Tech Crime Units’ and ‘Computer Forensics’. It has become relatively common knowledge that mobile phones are routinely seized and laptops and computers or servers have their hard drives removed for analysis when crimes take place. The data that can be collected and in some cases ‘un-deleted’ from these valuable sources can be used to track what criminals were planning and where they were at key times. But are we talking about deploying high technology techniques to catch the ordinary criminal or indeed to support their alibi, or are we talking about high technology crime? There is no doubt that the perpetrators of organised crime and many criminal gangs are now alert to the basics of mobile phone forensics and hard drive analysis. In many serious crime situations, mobile phones are routinely disposed of and replaced and SIM cards similarly can be swapped on a daily or weekly basis. If the phone is an unregistered payas-you-go model, it becomes increasingly difficult to attribute the mobile (the phone number) to a person with any degree of certainty. Furthermore, it is a commonly presented defence that mobile phones are shared, borrowed or swapped between co-defendants. More and more often now we see the deployment of specialist deletion software on hard drives. These software products, often referred to as ‘shredders’, simply overwrite

the hard drive with blank data and in theory make the analysis impossible. In practice, some of the cheaper products are nothing more than a simple deletion tool and do not do what they claim. To stay ahead of the smart criminal we need to look much deeper into mobile phones and hard drives. Fortunately in this world where we all need to be ‘always on’, there are increasing numbers of ways that we can secure information on whereabouts and retrieve data that has, in theory, been fully deleted. The wireless features of the latest range of Android phones enable us to track smart phones even when they are not making calls. Many of these models routinely store the wireless hot-spots that the phone has connected to and even store cell site data in the phone itself. There is increasing evidence that some criminals know that smart phones are recording their exact whereabouts and in a number of recent trials we have seen evidence of counter-measures. In a recent murder trial in Sheffield, the gang on trial for a drive-by shooting had seemingly switched off all their phones in a synchronised manner making any further tracking impossible. In a high profile murder trial at the Old Bailey we saw that the defendant had both an ordinary mobile phone and a smart phone. He appeared to know that the smart phone was always on and therefore capable of being tracked even if no calls were being made. Consequently he left the smart phone just outside the scene of the crime and then proceeded to collect the murder weapon and carry out the crime carrying only a basic mobile phone. Phone attribution then becomes key and the association of both phones with the same individual assisted the Jury in reaching its verdict. A burgeoning sector for forensics and the deployment of high technology lies in white collar crime. Increasingly the techniques that have been refined and honed in the traditional criminal fields are being put to good use in Intellectual Property cases and large scale white collar crime such as insider dealing and tax evasion. Virtually all businessmen and women access their data on-line via their smart phones and portable devices such that the hugely expensive and difficult task of interrogating a corporation’s servers is often avoided. Techniques for tracking the use of USB devices and for piecing together internet histories and email distribution mean that complex technical findings can be portrayed in graphic terms in a form easy for a judge or a jury to understand. q • Tony Sykes, Senior Partner in IT Group, is a Chartered IT Professional and a Chartered Electrical Engineer. He has twenty years’ experience as an IT and Electrical Engineering Consultant and is an experienced Expert Witness. IT Group provides a broad range of consultancy services including due diligence, business process review, QA audit, Insurance assessment, forensic IT/telecoms/ Electrical systems examination and expert services. www.itgroup-uk.com.

IT Group Cases include: • London Borough of Southwark –v- IBM • Kingsway Hall Hotel –v- RedSky IT Limited • Watford Electronics –v- Sanderson CFL • Sam Business Systems –v- Hedley & Co • Autoroute Circuits –v- Life Racing Limited • Epsom Telford Limited –v- Revenue and Customs • Automotive Latch Systems –v- Honeywell International Inc • Anglia Autoflow Ltd –v- Wrightfield Ltd • Discovision Associates, Pioneer Electronics Capital Limited and Pioneer Electronics (USA) Inc –v- Disctronics (UK) Ltd • Horace Holman Group Ltd –v- Sherwood International Group Ltd

Sudden Acceleration

e t a pd

by DR ANTONY ANDERSON CEng, FIEE

n the Spring 2010 issue I wrote about sudden uncommanded acceleration (UA) in automobiles. These dangerous incidents have caused deaths, serious injuries and, in some cases, have led to drivers being prosecuted for vehicular homicide and imprisoned for lengthy periods. In the USA courts have tended to accept prosecution arguments that if no physical evidence of a malfunction in the cruise control or electronic throttle can be found, it must have been caused by driver error. By such fallacious argument, the burden of proof is reversed, and the vehicle is assumed innocent unless proven guilty rather than the driver. This may now change as a result of the Koua Fong Lee case. Koua Fong Lee was driving his family home from church on June 10, 2006 when his 1996 Toyota Camry suddenly accelerated at an Interstate 94 exit ramp near St Paul, Minnesota. In vain Lee tried to brake and his car rear-ended an Oldsmobile that was stopped at a red light, killing the three occupants. Lee was sentenced to 8 years on the basis of the prosecution case that he must have pressed the accelerator rather than the brake. Because of a large number of Toyota sudden acceleration incidents coming to light during late 2009 and early 2010, Lee was granted a review hearing before the same judge who had sentenced him. Having heard a parade of witnesses testifying that they had experienced sudden acceleration incidents in similar vehicles the judge released Lee in August 2010, saying that if the testimony from other drivers had been introduced during the original trial it would ‘more likely than not, or probably, or even most certainly’ have resulted in a different verdict. In March 2010, largely as a result of congressional hearings on sudden acceleration, the US National Highways Transport Safety

Agency (NHTSA) commissioned the US National Academy of Sciences to investigate sudden accelerations in all vehicles and report in the summer of 2011. NHTSA also commissioned NASA with a narrower brief to examine electronic throttle systems in Toyota vehicles. NASA presented their report to NHTSA in mid January 2011 and NHTSA published a heavily redacted version in early February 2011. Claims have been made in some quarters that the NASA report exonerates electronic throttles as the cause of sudden accelerations, ergo they must be caused by loose floormats, sticking accelerator pedals or driver error. However this is what the report actually says: “Due to system complexity ...and the many possible electronic hardware and software system interactions, it is not realistic to attempt to ‘prove’ that the ETCS-I1 cannot cause UA’s2. Today’s vehicles are sufficiently complex that no reasonable amount of analysis or testing can prove electronics and software have no errors. Therefore absence of proof that the ETCS-I has caused a UA does not vindicate the system.” 1

ETCS-I Electronic Throttle Control System - Intelligent

UA Unintended Acceleration

With whole pages blacked out, the report presents a considerable challenge to the reader. Naturally every self respecting investigator wants to know is what has been censored, by whom and why. Meanwhile hundreds of federal sudden acceleration lawsuits against Toyota have been consolidated before Judge Selna in California as a multi district litigation with the first trial beginning in early 2013. The discovery process is in now in its early stages. q

Redacted NASA Sudden Acceleration Report

Accident Investigation by NIK ELLIS of Laird Assessors

“

fter you’ve heard two eye witnesses accounts of an accident, it makes you wonder about history” We always bear this quote in mind at the start of a new accident investigation. The vast majority of incidents that require investigation involve two cars and thus two drivers, often with very different views on not only who was at fault but how the accident occurred. It is the job of an accident investigator to piece together the known facts and work backwards to determine the most likely cause of the collision. Mechanical failure is rare these days so normally the investigation reveals that one, or occasionally both, of the drivers was at fault. Whilst we will peruse the drivers’ statements or claim forms, as expert witnesses we will only present actual evidence rather than a driver’s hearsay evidence. So where do we start? The ideal starting point is a closed scene where we can access the vehicles and collect data, such as the distance the vehicles have moved from the point of impact, road surface types, lines of sight and fully measure and photograph the scene. However vehicles are often removed from the scene to allow trafﬁc movement to continue, plus disputes tend to arise days or weeks later when the drivers have had time to calm down and reﬂect upon the accident. Therefore the typical starting point is a thorough examination of the crashed vehicles. We consider that an inspection should be carried out by an engineer with a combination of real experience of repairing accident damaged vehicles and a sound understanding of accident reconstruction.

Conclusion The engineer will then prepare his report detailing his ﬁndings and, in the vast majority of cases, provide a clear conclusion. Often this will focus on the salient points raised in the case. For example, in a criminal case the focus may be on the speed of the impact to determine whether the driver was speeding. In a civil case the insurer or solicitor may wish to determine where liability for the accident lies. Once the report is submitted, it can be challenged by the opposing side and questions can be posed to the engineer. Often experts from both sides are asked to meet in an attempt to discuss the case. They will attempt to narrow their issues and provide a joint report outlining areas of agreement and disagreement. Ultimately the case may be heard in court and the engineer must provide oral evidence to support his report and assist the court with his expert knowledge. The role of the accident investigator is varied and the increasingly rapid introduction of new vehicle technologies, materials and paints means that we are constantly training, evolving and learning new methods, skills and laws. q

Vehicle examination A forensic examination of the vehicle will assist the engineer in determining data vital to the reconstruction – such as the initial point of impact, the direction of the impact and its magnitude. The heights of the damage are meticulously recorded as they can often demonstrate that one or other of the vehicles was braking and to what extent because, when a vehicle brakes, its weight is transferred forwards causing the front end to dip as the front suspension compresses. The damage sustained to the vehicles will normally give a clear indication of the angle and point at which they collided and the most likely cause of the accident may become apparent at this point. The vehicles are also checked for any other items that may have caused or contributed to the accident, such as the condition of the tyres, brakes, seat belts, lights and other safety, performance and handling items. Once the data is collected it may be necessary to visit the scene so that the engineer can gain a clear understanding of the road layout and thus the positioning, movement and direction of the vehicles. Sometimes this is possible with satellite views or aerial photography alone. The most likely reasons for the accident should be apparent in most cases and these can be compared to the drivers’ accounts to determine which, if any, are accurate.

Boundary Disputes By PETER DAY of Day Montague Youens, Chartered Surveyors

veryone knows that boundary disputes are costly, unpleasant and include a serious risk of going to court. The outcome is usually unsatisfactory for both parties.

So what causes a boundary dispute? The obvious answer is that a boundary is considered by one or more parties to be in the wrong place. In practice it is an event or act by a party which generates the dispute. Most occur when a boundary is cleared for the erection of a new fence, particularly where the existing line is hedged and unclear. Other examples include a change in ownership or damage to the boundary wall or fence. What should people be looking for which may indicate a potential problem? A brief checklist would include the following: • Indistinct line of boundary. Is the boundary a clear straight line or an • overgrown tangle of broken fence posts and weeds? A rotted fence • with displaced panels and posts would be an obvious source of • problems. • No boundary marker. I had one dispute which centred on the • removal of a fence between two gardens as the previous owners • were related. The re-establishment of the fence became a concern • for the new owner. • The boundary is offset. Where outbuildings are built close to the

• boundary, fences are often offset to the building giving a kink to • the fence line. This becomes a problem when the structure is rebuilt • or room for access is required for maintenance on that side. This is • also a problem if the wall is subsequently used for fixings or there • are concerns over defective gutters. Any irregularities such as • champhered corners and offsets can indicate that land has been • removed. • No clear line of boundary. This occurs when the land is not used as • gardens. The boundary can be a ditch, line of bushes or trees. In • one case it consisted of two lines of trees with a ditch between. • Do the boundaries on site match the deed plan? It is usual for a • building survey to be carried out on a property without sight of the • deed plans. The surveyor therefore cannot comment on whether • there are obvious anomalies. Where there appear to be such • matters it is also common that these are not followed up by clients. • New fences. Is the fence to been renewed? This is the time when • disputes occur over the line of the fence. If the fence is dilapidated it • is important that the line be agreed before the fence is erected. What happens if the fence is erected in the wrong place? The obvious route is for an informal approach followed by formal dispute resolution if unsuccessful. Most disputes that go to court are because one or both parties feel that a principle is at stake. Pragmatic solutions are therefore ignored and this leaves court action as the final method of resolution. Court cases involving boundary disputes are difficult due to the problems of accurately plotting boundaries and the lack of good precise evidence as to the original conveyance. The best evidence is plans with dimensions, especially where there are markers such as buildings. However, this is not foolproof. One case centred on the separation of two parcels of land where the two frontages had a total dimension greater than the actual measured frontage. The validity and precedence of the documents becomes the issue and the intent of the original parties then has to be assessed. Movement of boundary. It is assumed by clients that they will automatically have the boundary moved if they win. In some cases however the encroachment is small and a financial settlement is awarded. Values of small areas of land are usually small. This can however be substantially different if the piece of land affected forms an effective ransom strip. If the courts decide that there is adverse possession then they can direct that the boundary stays in its current position and is not moved to where it is believed that the boundary was originally. Criminal Damage. One worrying trend in cases is where there is a charge of criminal damage to buildings and boundary walls. In this situation the status of the wall becomes crucial. If this is within the ownership of the person accused then this is not usually criminal damage, as this is damage to one’s own property. The consequence of this decision affects whether someone ends up with a criminal record, or worse, prison. This is more important than a simple monetary loss of land. Be warned lock up your sledgehammers when dealing with boundary disputes or it could have a more serious consequence. q • The contents of this article are given in good faith and no liability is accepted for anyone relying on the contents. Any boundary dispute should always be subject to full legal advice.

Willsher v Scott – a case of

‘Where and what is the real boundary?’ by CARL CALVERT MA, MSc, PgDLaw, FRICS, MBCartoS

his article considers the role of the expert(s) in the case of Willsher v Scott & Ors [2007] EWCA Civ 195, a dismissed appeal against the judgement of Wassall HHJ in Truro County Court. I found it most instructive for three reasons. The first is that a sole joint expert (SJE) was appointed where previously a single expert had produced and filed a report. Secondly the SJE had given an opinion on part of the boundary which was different from what either of the parties had contented for, even though he had seen the pleadings. To my mind this is an example of the expert giving his objective view on the evidence of which he was the expert. This brings me to the third point, that the mapping was of insufficient precision and accuracy to define the line of no thickness which is the legal boundary. The SJE considered the ground features, both in position and nature, so that he could establish the relationship between mapped topographical boundary, deed plan, ground and the legal boundary. Put simply, the respondent (Mr Willsher) had bought two plots of land from the British Railway Board with Mr and Mrs Scott buying land adjoining those two plots some years later. The boundary around one parcel of Mr and Mrs Scott’s (S) land was fenced by them and later replaced by a block wall. Mr Willsher (W) alleged that the wall encroached upon his land. The SJE had marked on his plan where he believed the boundary to be between the parties’ land. The lower court accepted the position which he had marked on the plan being a combination of the evidence of the conveyance and his opinion on Ordnance Survey mapping. The Court of Appeal approved of the lower court’s judgement in this respect. The questions were (1) where was the northern boundary line? and (2) where was the eastern boundary? The third issue of the right of way was not appealed and it is not considered further here. (1) The northern boundary ran parallel and south of the old railway siding, W contended that the boundary was along the top of the bank (further south) whilst S contended for the bottom of the bank (further north). S’s evidence is supported by old photographs showing the position and shape of the wall or bank. W relied on Land Registry (LR) title plans and the parcels clause in the conveyances The original judgement was that Mr Powell’s (the SJE) opinion was that the physical boundary represented the boundary. However he did not say this, it was a statement by a previous expert, Mr Lewis, who was not called. I do not know, and have not seen in the transcript, why there was a subsequent appointment of a sole joint expert. As to the Ordnance Survey (OS) maps used by LR, the SJE relied on

the accuracy of OS mapping, as given by OS, as ±2.3m for 1:2500 scale maps to say that the maps were inconclusive of the exact line. This, in my own opinion, is in absolute agreement with why LR has a ‘general boundary rule’ (s60 LRA 2002). In the event the judge held for S on this point. (2) As to the eastern boundary the SJE stated in his report that it ‘was impossible to reach a conclusion as to the precise nature of the disputed boundary…’ Laws LJ stated that ‘his [the SJE] approach was ...to go and look at what his eyes told him about the lie of the land, finding as many natural features as possible to determine what the eye saw the natural boundaries to be….’ There was much argument about the quality of the mapping and the fit of the OS mapping to the deed plan was quite poor, but this is a reflection on the poor quality of the deed plan rather than the poor quality of the OS map. Indeed, the OS map is a topographical map and shows ground detail which is surveyed (or not) according to the rules of the OS and takes no account of any private property boundaries. The three points to take from this case are that firstly, the court appointed a sole joint expert notwithstanding that a previous expert had produced a report; secondly the sole joint expert had given an opinion that the eastern boundary was as neither of the parties had contended for and thirdly OS maps and deed plans are not always definitive on their own as to what and where the true property boundary may be found on the ground. q

High strength concrete: Getting it right

by DR RAJEN LAVINGIA of Cadogans

ccording to a report by the World Business Council on Sustainable Development, concrete is the second most consumed material by mankind after water. High durability, versatility, ease in construction and cost make it the preferred construction material of a contractor, as long as they can get it right. However, if suitable care is not taken, the same concrete can become a nightmare for all the parties involved in the construction process. With technological advances, the percentage of high strength concrete production has increased in the last couple of decades. Skyscrapers and infrastructure projects, such as power plants, shopping centres, multi storey car parks, highway bridges, schools and hospitals are the primary beneficiaries of these developments. However, an increase in concrete strength requires increased attention during the various stages of production – design, production, casting and curing. An oversight or error during any of these stages could lead to serious consequences. High strength concrete is invariably associated with a water/cement ratio lower than 0.50. Design of such a concrete requires careful

The world’s tallest building, The Burj Khalifa, is a great example of high strength concrete in use

planning and hence high strength concrete needs to be designed by a specialist, just like a structure needs to be designed by a structural engineer. Workability, or the ability of concrete to flow in the ‘liquid’ state, is a big concern at low water/cement ratios. With the advent of superplasticisers, this issue has been controlled to some extent. However, superplasticisers are only effective for a short period of time and their effectiveness is reduced as the time goes by and the concrete starts to harden. I have witnessed a 35% reduction in a concrete’s workability between the two ends of a 140m long concrete pumping line. A retarder could be used to slow down the hardening time of concrete. However, a retarder also needs to be used carefully. I have come across a dispute where the concrete did not harden for two days! Casting, and especially compaction, of the liquid concrete is an equally important aspect of the construction of concrete structures. Similarly, if concrete is not cured adequately, it could crack excessively. The irony is that, in most cases, the concrete structures are designed by highly educated and experienced engineers. However, the execution of the work is often carried out by people with relatively little education. This education gap needs to be bridged for an optimal solution. If concrete is not compacted properly, a well-designed concrete mix loses its integrity and loses its strength and durability. I have witnessed a difference of more than 30% between the final strength in two batches of ‘identical’ concrete prepared, cast and cured by two different teams. In a nutshell, high strength concrete in its fresh state is like a new born baby, which requires a lot of attention and care. This baby, if looked after in the initial days of its development, can yield outstanding results. However, an oversight in this initial care results in a lifelong maintenance regime. q • Dr. Lavingia is team leader, civil and structural engineering, for Cadogans.

Uncertainty surrounding the use of hair strand testing to detect alcohol consumption by David W Holt DSc (Med), FRCPath

n November 2010 Mr Justice Moylan delivered an open judgment on the reliability of using hair testing to measure markers of alcohol intake (Neutral Citation Number: [2010] EWHC 2903 (Fam)). The case involved a mother with a history of severe alcohol abuse which had led to her older children being removed from her care. Tests were performed on head hair samples from the mother in an attempt to determine the extent of her alcohol consumption. Apparently conflicting results were obtained for two different hair samples. Nevertheless, the results were interpreted as indicating that the mother had consumed alcohol, despite evidence from other tests suggesting she had not. Two compounds were measured in the hair samples – ethyl glucuronide (EtG) and fatty acid ethyl esters (FAEE). The use of these measurements in hair as markers of alcohol consumption is relatively recent and the literature extends back only about a decade. Much less is known about the interpretation of these measurements than for direct measurements of alcohol made in blood, breath or urine. EtG and FAEE are only very minor breakdown products (metabolites) in the elimination of alcohol (ethanol) from the body and, although they can be incorporated into hair, for any given consumption of alcohol their concentrations in hair can vary widely. Added to this, external factors such as contamination, hair preparations and washing can affect their concentration in hair.

There have been some excellent research studies on hair testing, involving people with varying histories of alcohol intake. However, there are still relatively few well-documented control data for these markers in hair samples from people with reliably documented histories of no alcohol intake. Both EtG and FAEE have been found in people claiming complete abstinence from alcohol. The rationale for the measurement of EtG and FAEE in hair is that, as the hair grows, they will provide a chronological record of when alcohol has been drunk. This approach is considered to be less intrusive than frequent direct measurements of alcohol in blood, breath or urine. It also overcomes the problem that alcohol disappears from the body relatively quickly so, unless frequent direct measurements are made at closely spaced intervals, it is easy to escape detection whilst claiming abstinence. For these reasons it has become a popular test in child custody cases to ascertain whether a parent is consuming alcohol. The judgement by Mr Justice Moylan deals with the reliability of hair testing for markers of excessive alcohol intake. It also highlights the duty of experts to abide by the mandatory guidance of the Practice Direction ‘Experts in Family Proceedings Relating to Children’ (2009) 2 FLR 1383. Mr Justice Moylan is clear that it is the responsibility of experts to present evidence that is backed by appropriate research findings. In the case in question, he concludes that there is a lack of empirical research data which can justify dividing results into those consistent with abstinence/social drinking and those consistent with excessive drinking. This is particularly important in the context of cases in which local authorities have assumed that the tests could be used to show, unequivocally, abstinence from alcohol. In my experience of care proceeding cases, those requesting hair tests to assess alcohol intake have expectations of a clear, unambiguous, result. This is often not the case, leading to requests for repeat testing. Frequently, an independent expert is then needed to interpret the results for the court. Sadly, too much faith is often put into a single test, rather than looking at the possibility of alternative test procedures and the medical evidence. Those of us called upon to estimate drinking patterns based upon direct measurements of alcohol are well used to being asked to provide uncertainties for the estimates. Those uncertainties can be calculated because data collected in a broad spectrum of the population, in sufficient numbers for statistical significance, are available. Mr Justice Moylan’s judgment is a timely reminder that novel approaches to assessing alcohol consumption must be backed by the same levels of evidence. Hair testing to determine alcohol intake is an important analytical tool. However, it must be seen as only one part of the evidence and it should not be assigned a value which is beyond the limits of the science on which it is based. Other methods to detect alcohol intake, and their associated flaws, should be taken into account and evaluated in the context of medical evidence. Mr Justice Moylan concluded “I regret to say that the hair testing evidence given in this case failed the parties and in particular the children.” A salutary observation for those engaged in presenting or interpreting scientific data to courts. q • David Holt is Emeritus Professor of Bioanalytics at University of London and a director of the company Analytical Services International Ltd. The company has laboratories based at St George’s, University of London and provides both analytical and consultancy services on the measurement and interpretation of drug measurements.

Driving under the influence of

drink and/or drugs

by DAVID BERRY PhD, FRC Path, MFSSoc, MRSC Alcohol

here is strong evidence that a personâ&#x20AC;&#x2122;s ability to drive is affected if they have a significant amount of alcohol in their blood and studies have demonstrated that (1) the accident risk rises exponentially as the blood alcohol level increases and (2) young drivers are particularly susceptible to accidents after consuming alcohol. The current UK legal limit for alcohol concentration in blood is 80 mg/ 100ml. Alternative samples such as breath and urine can be required and limits for these are defined as 35 Âľg/100ml and 107 mg/100ml respectively. Breath and urine testing assumes that alcohol absorption is complete, since their alcohol content will not accurately reflect the blood concentration if the subject is still absorbing alcohol. Breath testing is now the predominant procedure since it can be carried out by a suitably trained officer in a police station using an approved evidential breath testing (EBT) device and without the need to call a forensic medical examiner (FME), furthermore the result is available immediately. Blood or urine are now generally only required if (1) the subject is unable to provide a sample of breath on medical grounds (2) the testing device is not serviceable (3) no trained operator is available or (4) the lower of the two breath readings is below 50 Âľg/100ml and the subject is offered the statutory option which allows him/her to replace the breath alcohol reading with either a blood or urine concentration measurement. The option is allowed because the breath testing instruments assume that

everybody has the same blood to breath partition ratio of 2100 to 1, however the ratio can vary from 1300:1 to 3100:1 (or more widely in some cases), and an individual with a non-average partition ratio could fail the breath test but pass a blood test.

Metabolism and excretion of alcohol Alcohol elimination commences as soon as it is absorbed and a normal individual clears alcohol, mainly by metabolism, at a rate that causes the blood concentration to decrease by between 10 and 25 (most likely 18) milligrams per 100 ml per hour. Approximately 10% of alcohol is, however, excreted into urine unchanged. Since absorbed alcohol is essentially distributed throughout the body water, it is possible to roughly estimate (by calculation) the concentration in blood that will be achieved after consumption of a known dose. One of the simplest methods is to divide the total amount of alcohol consumed by the total amount of water in the body, which can be estimated from body weight. Gender plays an important role in that men generally have a higher percentage of water per pound than women, which is the main reason why men usually require more alcohol than women to achieve the same blood concentration. Another method of calculating the blood alcohol level that will be attained after imbibing is by reference to test dosing in a large cohort of subjects. Back calculation is the mathematical process where a measured alcohol concentration is extrapolated to a previous time point. The calculation assumes that absorption of alcohol is complete and applies the elimination rate information cited above. Back extrapolations are most often requested when a long delay has occurred between a driving incident and alcohol testing. Also both forward and back calculations may be applied in cases where post driving consumption of alcohol has occurred or when drink spiking is alleged.

Drugs

More recently it has become evident that drugs, both recreational and prescribed, are present in an increased proportion of drivers involved in accidents. The complex nature of pharmacodynamics and pharmacokinetics, however, make it very difficult to establish blood concentration values for each drug that is likely to cause impairment in the general population. The interpretation of drug concentrations in blood is further complicated by issues of tolerance, interactions and variable effects of the same concentration even within an individual. When driving under the influence is suspected and the alcohol test is negative or low, the driver could be subjected to a Field Impairment Test (FIT) which would be carried out by a qualified officer or FME. If the FIT indicates impairment, a sample of blood and/or urine would be required for submission to a forensic laboratory where it would be tested for a range of drugs that are known to affect driving performance. The specimen would initially be screened by immunoassay for common recreational drugs such as cannabis, cocaine, amphetamine stimulants (and related ecstasy type compounds), opiates etc. If the screen indicates that substances are present the laboratory would confirm the drugs identity by an independent method based upon different analytical principles and also determine the concentration in the sample. Drug concentrations can be related to effect provided that the laboratory measures pharmacologically active substance(s). For example, until recently the carboxylic acid metabolite of cannabis was the only substance measured in blood and urine samples and since this metabolite is pharmacologically inactive its presence only indicates prior exposure. Similarly for cocaine, the target

compound benzoylecgonine is another pharmacologically inactive metabolite which can only indicate prior ingestion. Forensic laboratories now determine the concentration of tetrahydrocannabinol (THC) in the blood of subjects that screen positive for cannabis. THC is the main pharmacologically active component in cannabis and the concentration can indicate whether drug use was relatively recent. Some over-the-counter (OTC) sleep aids and cold remedies can induce drowsiness. These preparations also relieve pain and act as decongestants but have side effects which can impair driving performance. Many prescription medications such as antihistamines, antidepressants, antipsychotics, benzodiazepines and hypnotics also affect driving ability and are detected in drivers. However, simple, reliable screening immunoassays for detecting most of these drugs are not presently available and the search for these in blood or urine has to be carried out by various chromatographic/mass spectroscopic techniques. The list of target compounds is long, however the forensic scientist is sometimes provided with information about drugs prescribed to a driver and these would be included as targets in the search. Quantitative measurements would again be undertaken to try and establish whether excessive quantities of prescribed medication had been ingested prior to driving. Driving on a prescription drug is not necessarily an offence and patients stabilised on treatment under close medical supervision, for example an addict prescribed methadone or an epileptic prescribed anticonvulsants, are able to drive – indeed it would be more dangerous for such patients to discontinue treatment.

and signs of recent ingestion. One is sometimes asked to calculate the time and size of dose ingested and, while it is possible to produce an approximate answer, these calculations (as with alcohol) cannot be totally accurate. Furthermore, some recreational drugs such as GHB, are very rapidly eliminated from the body and may not be detected by the laboratory if a few hours delay occurs in blood sampling. Interpretation of prescription drug findings is equally uncertain. It is not uncommon to be requested to say ‘how much drugs were taken and when?’. To some extent the answers to these questions are not particularly relevant, although the information could be useful, for example when a drink has been spiked or if the drug involved is known to cause amnesia. For many prescription drugs the blood concentration likely to cause a desired clinical effect or toxicity is known, but while reasonably well-defined serum concentration ranges have been determined for many drugs, they do not apply to all patients. Target ranges only reflect the spread of values encountered in a population prescribed normal doses of the drug, but some patients require concentrations either well below or above these ranges and there are several reasons for this including genetic variation, dietary differences and pharmacokinetic interactions.

Summary Driving after the consumption of alcohol and drugs continues to be a problem and experience in analytical toxicology, clinical toxicology and therapeutics is required for the best interpretation of laboratory testing results. q

Roadside drug testing The diagnostics industry has been busy developing simple tests that indicate likely drug use and several urine ‘dipstick’ types of device and oral fluid testing systems are now available. An evaluation of some devices for indicating the presence of drugs in the onsite situation has been undertaken in a European study called ROSITA, with the aim of being able to carry out a roadside drug test in the same way as a roadside alcohol breath test. Oral fluid has proved to be a promising specimen and the ‘Cozart’ device, which is already used by the police forces for in-station testing, is being further evaluated for roadside use. Of course, all suspected positive results will require confirmation by an independent analytical technique, and more research is required on the pharmacokinetics of drugs in oral fluid in order to assist with interpretation and understand the significance of results.

Pharmacokinetics of drugs and interpretation of drug testing results Following ingestion (and this can be by many varied routes of administration), the drug and/or its metabolites will be detectable in biological samples for a period of time which depends upon many variable factors relating to (1) the individual subject (2) the pharmacokinetic properties of the drug (3) the dose ingested and (4) the lower limit of quantification of the analytical method. The interpretation of drug testing results is much more complex than with alcohol, since for alcohol a proscribed limit is stated in law and it’s simply a question of whether the driver exceeded this limit at the time of driving. For drugs there is no proscribed limit. Of course, recreational drugs should not be present in a driver’s sample, but indications of its presence does not necessarily mean that the driver was affected by the drug while at the wheel. It may only be an indication of prior use. The precise effects of a drug on a specific individual can depend on many factors such as tolerance, time and dose ingested. It is known, of course, that all of the drugs which are incorporated into the laboratory screen can impair driving, but the effects produced by drugs can vary between individuals and any drug findings should be used in conjunction with other evidence of impairment

Textiles and Fire

by JULIAN ELLIS OBE, M.Phil, C.Text, FTI, MRSC, MAE

he majority of textile products are, as is well known, susceptible to burning when any source of ignition is applied. However, an appreciation of the risks is not always considered, and therefore assessment not undertaken. This can not infrequently lead to tragedies. Legislation has been introduced into a number of areas after such events and the matter has gradually improved over several decades. One early problem overcome by legislation was that of fires of nightdresses, when little girls, showing their pretty garments in front of an open fire, caught them alight and suffered serious effects. Laws affecting upholstery were also brought into being, notably after a member of parliament lost his mother in a fire. Sadly, Moses baskets were not included in the new law, and a badly thought through design caused a tragedy. A basket woven from palm, itself a flammable product, was lined with a polyester and cotton fabric. In a Jamaican hotel susceptible to power cuts, a little girl found some matches to light candles, and when her mother left the room briefly to fetch her drink, she accidentally set fire to the Moses basket of her baby brother. Having a cover of untreated cotton and polyester fabric, it caught readily, and became an inferno. In about a minute the baby was badly burnt and disfigured for life. When I tested baskets bought from the retailer, I found how quickly the fire spread â&#x20AC;&#x201C; in one minute the basket was well on fire as can be seen from the photo. For my tests I made up identical covers in just cotton and just polyester fabrics. When in a polycotton mixture the cotton in the mixture flares up and the polyester supports the cotton and makes a frame for the burning fabric. If it had been cotton alone the fire would have flared quickly upwards and not spread so fast. Polyester fabric, being thermoplastic, tends to just drip â&#x20AC;&#x201C; the drips of burning plastic often take the fire with it and the

fire goes out. Although either alternative choice would not have been ideal, the fire would not have been so bad. Sadly, the fabric was picked because the basket designer liked the pretty print design and thought no further. If a proper design process had been applied, a fire retardant fabric would have been selected, preferably 100% FR polyester, and the fabric would not have caught fire at all. However, sadly, that was not the case and as a result a baby was nearly killed and has had his life ruined. Significant damages were awarded in an out-of-court settlement, but were of no consolation to the boy, his parents nor his sister. q

So who needs a specialist mediator?

have been a forensic accountant and expert witness now for 23 years, and have written hundreds of reports and given expert evidence scores of times across a very wide range of subjects: commercial disputes, director and partnership disputes, matrimonial valuations, personal injury and fatal accident on the civil side; fraud, asset tracing, drug trafficking, confiscation of assets on the criminal side, to name but a few. I led the team of accountants defending the chairman of Barlow Clowes (who was found not guilty on all charges) and I was prosecution expert in the infamous Rotherham mouldy chicken case, in which convictions and sentences of up to 7½ years were achieved against a gang who were converting condemned poultry into food for human consumption. The common factor, though, is that in all these cases I was engaged as an expert accountant, and that as an expert, I could use only my training and experience as an accountant to assist the court. The principle comes from the very old case of Foulks v Chard (1783), in which John Smeaton, the man famous for designing a lighthouse which would survive storm and tempest at Eddystone, was giving evidence in a case concerning erosion of a coastline and silting of a harbour. Opposing counsel protested that he was expressing his opinion when giving evidence, but the judge overruled him, saying that he had often relied on Mr Smeaton’s assistance in such matters. From this came the rule that a man of science, when giving evidence, may express his opinion, but only within his own science. So the expert witness industry developed, until now it seems that some cases need experts on a huge range of subjects, down to the follicles of the left nostril! Some lawyers think the same must apply to mediations – that, because some deep and complex points of law are involved, the mediator needs to be a QC, or even one of the rapidly increasing band of retired judges who have trained as mediators. Is this right? I respectfully say it is not. I do not denigrate retired judges, some of whom no doubt become excellent mediators, but I do say that it is not necessary to have as mediator a senior lawyer for a complex legal case, a QS for a construction case, a motor engineer for a vehicle case, a law cost draftsman for a costs case… need I go on? If such specialist mediators were required for each type of case, I would not have been able to mediate successfully disputes concerning all those things, plus boundaries and rights of way, Inheritance Act and ToLATA, defamation, and so on. And I have. So how does a humble chartered accountant get involved in cases such as this? The answer is, that to start with, I was booked as a mediator on cases which the parties (or their lawyers) thought I would understand as an accountant – business valuations, partnership disputes, and so on. But then, seeing that the skills of a mediator are transferable, the same lawyers or their colleagues would book me as mediator because of my mediation skills alone. The point is that the mediator can only listen, not give advice, so it is a waste having a senior lawyer as mediator because of his knowledge of the law. He can’t use it except to understand the papers initially, because if he starts to give advice, one is getting into evaluative mediation, whereas the model we use in the UK is facilitative mediation: the mediator is there to facilitate agreement between the parties. Further, if there are very complex matters of law or technical issues, an expert in such matters is at risk of delving into the complexities, and getting bogged down in the detail. In mediation that is fatal; the discussion must be kept moving, big picture issues should be considered, and all effort should be put into finding the solution that the parties can live with. Thus, after initial stating of cases, and after the pouring out of emotion in the early meetings (it happens!), the mediator should guide the parties to consider what they can live with, not who is right. The mediator’s listening skills are vital here; the mediator should have two ears and only one

by CHRIS MAKIN

mouth, and I often say, only partly in jest, that all that every party needs is a good social worker! The technical and deep legal issues should be set out in the Mediation Position Statement, so that everyone attending (including the mediator) understands the lingua franca of the particular industry or the legal concepts. After that, concentrate on the big issues and on what costs and management time may be saved by an agreement today, and you will be well on the way to satisfying your client’s true needs – an end to the worry and expense of the dispute. So in a word, forget about the specialist mediator and choose your mediator because he is good at mediation. q Chris Makin has practised as a forensic accountant and expert witness for 23 years, latterly as Head of Litigation Support at a national firm. He has been party expert, single joint expert, court appointed expert and expert adviser in hundreds of cases, and given expert evidence about 70 times. He also performs expert determinations. Chris is a fellow of the Institute of Chartered Accountants where he serves on the Forensic Committee, and as an ethical counsellor; he is a fellow of the Chartered Management Institute, a fellow of the Academy of Experts where he serves on the Investigations Committee, and an accredited mediator. He is also an accredited forensic accountant and expert witness. He practises as an expert witness and mediator from his home in West Yorkshire and his office at 3 Gray’s Inn Square, London WC1R 5AH. He has mediated a vast range of cases, with a settlement rate to date of 80%.

Business disputes between partners by DAVID BUNKER

ne of the saddest things I encounter in my professional life is an acrimonious dispute between business partners. In many cases this comes at the end of years of peaceful co-existence. These disputes often take on a matrimonial quality and become mired in personal animosity and an obsession with victory at all costs. In my experience alternative dispute mechanisms can prove very helpful in resolving business disputes between partners because they concentrate less on the adversarial element than the conventional legal process. The two mechanisms I use are mediation and arbitration. Mediation is essentially a non binding process during which the parties are invited by the mediator to express their point of view and articulate their demands. By working tactfully and sympathetically with each party in turn, in private session, the mediator tries to bring each party to a clearer realisation of what key interests need to be addressed in any settlement. Frequently the central element of any settlement is obscured under the detail of the claim. I often discover that a dispute between partners is not about money after all, but is simply about the need for an apology by one partner to the other. Having helped each party to a greater level of analysis of their own position, the mediator then tries to assist both parties towards a realistic settlement between them. Arbitration, by contrast, is a binding process through which the partners have passed the final decision on the matters in dispute to an independent third party. This is particularly relevant when the dispute contains a mass of technical detail and is being disputed by parties who are themselves well versed in the technical details. As an accountant, for instance, I have arbitrated over disputes between chartered accountants where the technical content was very high. If these kind of disputes were to be

pursued through the courts a great deal of expert witness testimony would be required to put the judge at the appropriate level of understanding. The arbitration can also be conducted at a time scale and in a manner appropriate to the nature of the dispute and if that requires site visits, or the use of computers so be it. The process of arbitration can provide the partners with an opportunity to explain the complexities of their position in a fuller and more appropriate way than a courtroom. The arbitrator is also able to provide a more complex final judgement and award than may be available in court. The common factor throughout a dispute between business partners is the need to lower the emotional temperature so that the actual issues underlying the dispute can clearly emerge. This means that the mediator and arbitrator needs to do a lot more than merely establish his independence and technical competence. He needs to demonstrate a range of interpersonal skills. It is a source of great satisfaction when a dispute between business partners can finally be brought to a conclusion. q â&#x20AC;˘ David Bunker is a Chartered Accountant who practises as an arbitrator and mediator on a wide range of business disputes and can be contacted at davidbunker@david-bunker.com

The Cost of Divorce by JONATHAN RUSSELL, Chartered Accountant

he break up of any relationship is always emotionally painful and as professionals our moral duty is to strive that all parties come through the process as fit as possible to go forward. With the increasing drive for counselling and mediation, in order to help reconcile differences or at least lead to a less acrimonious parting, it is often surprising how some of the basics within the process get forgotten. Once all the emotion has been stripped away from a break up there is only one area which is to be considered – money. Money will include possessions, capital needs and income/expenditure needs, all coupled with adequate provision. This means there is a very important process of identifying the assets, fixed and liquid, and the potential income streams in the future. This then needs to be balanced with availability and affordability which can be complicated by a variety of factors and by taxation. How often do we have reasonable capital but little liquidity, potential value in business ownership which is intrinsically linked with income provision where realising one might damage the other. The biggest problem with the monetary side of separation is that the costs all come from the pot to be divided and used for establishing the future. All professional fees must come from this pot and the legal process, which by nature is adversarial, means there is a professional drive to do the best for the client. However, morally the position may be different and I would suggest professionally also. What is best for a client may well not be ‘winning’ the biggest slice of the pot, but a speedy, practical and cost effective settlement. As an accountant I am frequently

surprised how far proceedings can have progressed before financial advice is sought. Frequently, when agreeing instructions, it can be the case that the questions being asked are financially the wrong ones or at best being asked for the wrong reasons. I fully understand the desire to not incur costs at an early stage but very often this can be a false economy. As an accountancy expert an early approach may not be my best fee option, as I may well be barring myself from a future SJE appointment and other fee opportunities, but for the parties it could well be a huge advantage. Let us consider the marketing position. As a professional I am sometimes asked by clients to recommend other professionals who will aid with matters outside my expertise. When it comes to matrimonial issues I will assess the individual as best I can and match them to an appropriate fellow professional. However it is not unusual for professionals I recommend to be made ineligible to act by arranging a professional appointment which then won’t proceed past the initial consultation – these are invariably those who have a history of overly adversarial operating methodologies. Fortunately conciliatory methodology and the work of specialist matrimonial networks are reducing the number of operators of this type. So where do you get your business, I suspect much is from recommendation – and the best recommendation is the satisfied client. Whilst some clients will relish the ‘victory’ I suspect the majority

consider the conduct of the process, coupled with the outcome, as far more important. They all have future lives to live. As money is the crux of separation proceedings I urge an early engagement of an accountant to review the situation when businesses are involved. This does not need to be an in depth report or even involve detailed instruction. What is needed is an overview so the legal team can understand a route map which is possible. Why spend large amounts of time, and hence fees, on valuing business assets which cannot be readily realised but ignore, through oversight, a simple source of capital. I have seen businesses which were producing very good income streams destroyed because directors’ loans, which were essentially long term business capital, were deemed liquid and available. In a single legal ruling businesses have been saddled with debt they can’t afford and incomes from the business destroyed. An early engagement of any appropriate professional may well reduce the time taken and the costs to the clients and this must be the best client advice. q • Jonathan Russell is a Chartered Accountant in practice in Witney, Oxon (Rees Russell) and Gerrards Cross, Bucks (Russell Phillips). He is also a member of the Institute of Arbitrators and an ADR Accredited Mediator.

Dogs – societal menace or misunderstood society members? by DR ANNE McBRIDE, University of Southampton

here are approximately 8 million dogs in the UK, they are part of British society and most live their lives without bringing their owners into any conflict with the law. However, there is extensive legislation relevant to dog owners, basically resulting from the facts that dogs deposit faeces, bark and have fangs. Owners are obliged to pick up and appropriately dispose of their dogs’ faeces, and not doing so can result in a Dog Control Order being issued. Problems relating to nuisance barking are usually dealt with via the local council to whom a complaint has been made. Councils will normally issue a Noise Abatement Notice and, hopefully, information advising the owner of sources of professional help to resolve the problem behaviour. Further action can be taken under the Clean Neighbourhoods and Environments Act (2005).

Injuries caused by dogs are taken more seriously in law, with two civil Acts (the Animals Act (1971) and the Dogs Act (1871)) and the criminal and infamous Dangerous Dogs Act (1991). Injury is not confined to bite wounds, but also scratches, or being knocked over by a dog. Leaving aside issues relating to banned breeds, all dog owners may inadvertently come to the attention of the law because of their dog’s behaviour. There has been a tremendous increase in scientific knowledge of dog behaviour in the last 20 years. Dog behaviour is influenced not only by genetics but also early and continued environment, types of training methods used and health conditions. Human behaviour will also directly influence the behaviour of dogs. All of these factors need to be taken into account if one is going to be able to come to a just outcome in any particular case. Where a person has suffered injury, it is likely that they desire financial recompense and some form of assurance that a similar circumstance is unlikely to occur again. In that light, there should be more weight given to using civil rather than criminal legislation. However, owners and non-owners alike need to be aware that dogs are living organisms and thus will react to circumstances around them – they are not ‘little, furry humans’. Education is clearly the way forward to reduce the likelihood of nuisance behaviour and of injuries – be they accidental, influenced by the behaviour of people present or caused by dogs – that, due to whatever range of factors, may be decreed as ‘dangerous’. Education of non-owners is important so that people understand how to interact, or not, with dogs. Education of owners is equally important. Neither is legislated in this country, though the Swiss have had obligatory education for owners, and their dogs, since 2007. It will be interesting to see how effective such law has been and whether something similar would be useful to increase harmony between people and dogs in the UK. q • Those wishing for further information regarding dog law are advised to visit the web site of Trevor Cooper at www.doglaw.co.uk.

A Week in the Life of a document examiner by KATHRYN THORNDYCRAFT CDE MEWI, Forensic Document Examiner

he basic method of handwriting identification is the same now as in Shakespeare’s Twelfth Night. Around 1600 Lady Olivia’s renegade uncle, Sir Tony Belch, conspires with her maid, Maria, to set a trap for Malvolvio, Olivia’s officious, ambitious and humourless steward. They plant an anonymous love letter that appears to be directed to Malvolvio, in what seems to be Lady Olivia’s handwriting. Malvolvio finds it and falls for it: ‘By my life, this is my lady’s hand These be her very c’s her u’s and her t’s and thus makes she her great p’s. It is in contempt of question her hand.’ Malvolvio ‘Alas Malvovio, this is not my writing Though I confess much like my character But out of question ‘tis Maria’s hand’ Olivia I have been in this field of work for almost 22 years, initially with the police and for the last 13 as an independent forensic document examiner. I will share with you what happens in my field of work in a typical week during which enquiries come in by many means: by telephone, direct in the mail and, more commonly these days, by email. A typical week would be the post arriving with a selection of enquiries.

Occasionally the casework arrives without me having received any notification that it is on its way, or even being asked if I am available to undertake the work! I must stress it is so important to have this confidential material sent by at least recorded delivery and to contact me in advance to make sure that I will be there to receive it. The phone might then ring with a lawyer contacting me at the last minute to say ‘Can you be at the High Court to examine some documents. I have a case being heard next week and I really would like the documents examined by an expert!’. This call will usually be from the UK but I am now often getting cases from Southern Ireland and occasionally from further afield, from mainland Europe and worldwide. This happened just two weeks ago, with a call from a lawyer in Southern Ireland. It all turned out well in the end as a very hospitable Judge allowed me to examine the documents along with the lawyers from both sides sitting with me for over two hours in an anti-room of the court. I returned to my office in Scotland, prepared a forensic science report and illustration, and it was accepted as evidence by the court. The following week the case, which had been around for a number of years, was settled amicably! In the identification of handwriting I require to have sight of the original document whenever possible. I can look at photocopies but this will limit my examination and reduce my ‘probability of authorship’. I also require an adequate supply of ‘formal samples’ and ‘known writings’ for comparison purposes. I will then undertake the comparison and forensic examination and produce a forensic science report and, if appropriate, an illustration describing my findings for the court or industrial tribunal. If a lawyer is unable to send me the original documents by registered mail, special delivery or courier I often have to visit a lawyer’s office, police station or procurator fiscal’s office to examine the originals and sometimes to take the ‘formal sample’ signatures for comparison from the client or accused. Also I may need to take my specialised forensic equipment. I use a Video Spectral Comparator (VSC) to examine different inks. This happened last week when I had to travel to the north of Scotland to examine a prescription to investigate whether it had been altered. I also use an Electro-Static Detection Apparatus (ESDA) to examine for indentations that may have been left from writings on paper sitting on top of the ‘questioned document’. This can reveal indentations that can give further clues as to who might have sent an anonymous letter – such as in the example from Shakespeare! Most days I get emails from lawyers asking if I can help them in a particular case they have which involves a ‘questioned document’ of some kind. These days it is very common for me to be approached by email and I even get formal instructions by email. Any given week I may get requests to examine many different types of ‘questioned documents’ such as wills, mortgage contracts, guarantees, leases, anonymous letters, driving licences and prescriptions. The list goes on! In an interesting case that came in this week I have been asked to help with a fraud in Nairobi where a gentleman died and the only person present was his girlfriend who has since emptied the house and sold it, possibly by forging his signature. This is another challenge I look forward to sorting out. Finally, a week with a difference is coming up. I and my consultant, Dr Sue Turnbull, attend the NADE (National Association of Document Examiners) annual conference. This year it is in Montreal and is usually attended by about 60 independent examiners from all around the world. It is a very important opportunity for us to share experiences of casework and new methodologies, and to be taken to various specialised labs to see the latest technology in document examination. We really enjoy our work as each case provides another interesting challenge to find the truth! q

Why should golf have need for the expert witness? by NORMAN FLETCHER, External Relations Executive , The Professional Golfers’ Association

any people are surprised when I explain that my role within the Professional Golfers’ Association includes expert witness work. Most people think I organise golf tournaments and spend most of my time at events that they watch on television, but nothing could be further from reality. I have organised and managed hundreds of golf events but not in the last twenty years. 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 them to play golf. Today the PGA has over 7,500 members in over 80 countries and the PGA qualification is a Foundation Degree gained through three years of study. Our headquarters is at The Belfry and we have seven regional offices covering Great Britain and Ireland. With a turnover in excess of £10 million and over 100 employees we are 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 for advice in this area that we decided, rather than try to recommend individuals, to provide some assistance ourselves. At that time I was Assistant Chief Executive and, given my experience, it was agreed that I would try to use it to 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, principally in the UK but also 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 experience, advice and education how to structure a report, differentiate between fact and opinion and appreciate the fundamental duty an expert has to the court. What cases within the game have I been involved with requiring the evidence of an expert? Road traffic accidents and accidents at work can result in a loss of ability, as well as the amenity and fellowship that golf can provide – and hence there is a claim. I have written reports on how good a player might have become, but for the accident. A demonstration of how difficult it is, and how outstanding a player has to be, in order to make a living from playing golf has been covered in many reports. Fortunately the playing of golf is not subject to criminal law but I have also advised police forces in the prosecution of wilful acts where golf balls have caused harm in public places. The third area of expertise has been with safety issues in golf course design and the construction and operation of driving ranges. Over recent years bay safety has become less of an issue, however I have been involved in a number of guides in relation to driving ranges, particularly with colleagues in PGA subsidiary companies that specialise in driving range construction and operation. I can recommend ‘Golf Ranges – a Design Guide’ and the ‘Best Practice Guide to Practice Facilities’ as essential reading for all golf operators. ‘On course’ safety is increasingly an issue with golfers. The rules of golf have evolved over 200 years, but the ‘safety rule’ is short, concise and relies on good golfing sense and awareness – not always observed by the young, the inexperienced and where alcohol has been consumed. My advice to any player is ‘be insured’ and to any club, please make golfers’ insurance cover a compulsory condition for any player. Golf course designers must make the concept of ‘safety zones’ a prerequisite. Players owe each other a simple ‘duty of care’ and a warning shout of ‘fore’ is essential to that duty. Prevention has always been, and always will 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 even the most obvious of cases. I have learned from experience that it is impossible to judge the outcome of any case put before a court and settlement pre-trial is always desirable. An eminent QC once advised me that the test of a good settlement was that neither party should be satisfied with the outcome. Fortunately the trend in golf litigation seems to be on the downturn. The change in Civil Procedure Rules may be partly responsible but I hope that safer environments and more responsible players are also factors. 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 one of the few that, because of the handicap system, can be enjoyed by players of all abilities in some of the world’s great environments. For an issue in sport to become a matter for the court is not what any participant would ever envisage. q

ivorce this decade has become synonymous with uncivilised disputes and undignified legal proceedings putting a strain on all parties involved, including children. However, we are now beginning to see hopeful signs that an amicable separation will soon be easier to obtain. Experts point towards a new epoch in which mediators will take the lead in resolving family disputes, offering an accessible route to help couples move on gracefully. In this shake-up of the Family Justice System, divorcing couples will be ordered to consider mediation before entering the divorce court. New rules, which came into effect on 6 April 2011, will see couples who cannot agree how to divide up their belongings and share responsibility for their children having to attend a mediation awareness session. Instead of a judge ruling on the details of their divorce, they will be encouraged to hammer out a deal with the help of trained mediators in an attempt to prevent the rising number of costly and emotionally draining court hearings. A mutual agreement is signed to resolve the divorce out of court, putting the emphasis on civility and common sense conclusions. It is hoped the change will lead to more couples concluding their divorce without the need for expensive lawyers and lengthy court battles. The radical changes were introduced to the system in order to make it less adversarial and to cut the speculated £1.6 billion budget of the Ministry of Justice in this particular area. Last year there was a rise of 16% in the number of couples heading to court to argue over rights to children and money, with 137,000 disputes being recorded, not forgetting that childcare cases last an average of 56 weeks. The benefits of compulsory mediation as the first approach are obvious. Mediation costs are a drop in the ocean compared with the fortune that can be spent on

litigation. Attorney General, Dominic Grieve, rightly and frighteningly observed that, “once we’ve been through all that pain [of a 24% cut], what we’re simply returning to is the level of expenditure that was in existence in 2008.” This is perhaps an indication of how used this country was becoming to ‘mainlining’ on public expenditure. In my own experience, as a qualified non court-based dispute resolver, I have found mediation to be a shorter, simpler process, with fast tracked hearings and a quicker route to a resolved outcome. Court should always be the last resort. The consensus amongst lawyers, judges, other professionals and politicians on family law is that conflict is negative for parents, couples and children and should be avoided. In mediation, parties are offered a more constructive environment than the court where they feel safe and supported. Experts in alternative dispute resolution (ADR) have long argued the benefits of mediation in avoiding lengthy court battles. Michael Forbes MCIArb, Director General of the Chartered Institute of Arbitrators (CIArb), welcomes the new ruling saying, “Divorce will always be a painful experience, but mediation allows couples to work out their differences in a more informal environment, sparing them the added worry of expensive and time-consuming court hearings.” Mediation is going to work in the vast majority of cases, which will definitely ease the pressure on the courts. For those that do not want to settle, there is a lot to be said for a form of fast track family arbitration. Such a system is under development in Scotland, where they have a new Arbitration Act and a new set of family arbitration rules has been developed. With all these innovations coming into play, we can safely hope that more families will be able to move on gracefully from divorce in the near future. q

A New Epoch for Mediators

by MICHAEL COVER FCIArb, CIArb Accredited Civil and Commercial and Family Mediator, Principal of Michael Cover ADR Limited

The role of an arbitral appointments referee by JASMINE SNEDDON, Head of Dispute Resolution Service, RICS Scotland

he new Arbitration (Scotland) Act 2010 names a number of Arbitral Appointments Referees, one of which is RICS Scotland Dispute Resolution Service (DRS). RICS Scotland is the largest dispute resolution provider in Scotland for property and construction disputes and appoints RICS professionals to over 500 dispute applications each year. The main issues of dispute are rent review, although we do also deal with arbitrations in the construction and building sector. We also appoint adjudicators under the Scheme for Construction Contracts (Scotland) Regulations 1998. We can deal with anything from building disputes to agricultural disputes, residential neighbour disputes or just simple valuations. Rent review disputes are varied and can be anything from an office building to a shopping centre, a funeral parlour to a telecommunications mast or the local corner shop. RICS Scotland has certainly seen a decline in arbitration appointments over the last 15-20 years and, therefore, it is hoped that the new Act will instil confidence in the market to use arbitration. The use of arbitration will also free up a court system already creaking with an abundance of disputes which could have been resolved without the need for court action. Prior to the new Act, arbitration was not regarded as an attractive form of dispute resolution in Scotland because it was generally considered to be slow, complex and expensive and arbitrators’ decisions were based mainly on Case Law and the 1894 Act. So, will it make a difference to RICS Scotland to be an Arbitral Appointment Referee? I am not sure if it will in the short term. I think

that it will take some time for people to begin to use the arbitration process again. Prior to and throughout the early 1980’s there were lots of arbitration appointments for chartered surveyors, especially those in the construction industry. Many of these arbitrations took years to come to fruition and this of course resulted in the Scheme for Construction Contracts (Scotland) Regulations coming into force in 1998. This allows parties to a dispute to exercise the right to adjudication and have a resolution within 28 days of referring the dispute. Following changes to Part II of the Housing Grants, Construction and Regeneration Act 1996 the Government currently have a consultation document seeking views on various aspects of the Scheme, including consequential amendments and supplementary proposals to improve its effectiveness. The consultation document also seeks views on whether any additional amendments to the Scheme are required in order to improve its operation in practice. It is uncertain whether amendments to the scheme will encourage parties to choose adjudication over arbitration. I know that Scottish Building Contract Committee Limited, the vehicle for producing building contracts for the market in Scotland, are making reference to the new Arbitration (Scotland) Act in their contract documentation. This will inevitably lead to the use of the new Act. I do, however, feel that it may take a number of years before we see significant increases in arbitration cases. From the point of view of RICS Scotland, I don’t see any real change in the process of appointing arbitrators. The list of Arbitral Appointments Referees is such that it does cover a wide variety of dispute types. Traditionally, construction disputes have come to RICS and other types of disputes have gone to the appropriate body – legal issues to the Law Society and engineering disputes to the Institute of Civil Engineers. The only difference now is that these organisations are named in the legislation. With particular regard to rent reviews, most leases make reference to the chairman of RICS Scotland making the appointment of an arbitrator/expert to set the rent. Therefore, these reviews would not necessarily come via the Arbitral Appointment Referee route. The Scottish Government required the Arbitral Appointments Referee to demonstrate that there is in place a programme of training and assessment of panel members. This was a pre-requisite to being named as an Arbitral Appointments Referee. Of course, RICS Scotland already have this in place and are constantly striving to improve procedures and training for members of the chairman’s panels. I am not sure if the Scottish Government plans to review these procedures to ensure that Arbitral Appointments Referees continue to keep their members up to date with training and developments on arbitration. At the present time, the market is driven by the economic climate and the lack of any, or very little, construction work in Scotland. This will of course have an impact on arbitration in the construction industry at the present time. I suggest that it will take some time before we see the volume of arbitrations which were around in the 1980/90s. RICS Scotland Dispute Resolution Services provides alternative dispute resolution to a wide range of customers with differing needs and expectations and we have an experienced team of dispute resolvers. The property and construction industries rely on the expertise of our dispute resolution professionals, along with clients from landlord and tenant groups, central and local governments, the legal profession and the general public. The RICS Scotland panel of dispute resolution professionals is made up of RICS members with specialist experience in the full range of operational areas, skilled in dispute resolution procedures. The pool of expertise enables DRS to make the right appointment for our customers to effectively respond to their dispute needs. q

The Association of British Investigators

Upholding professional values

by TONY IMOSSI, President and JAMES BLACK LL.B (Hons), member The Association of British Investigators is a professional body. It is so because it is non-profit making and seeks to further the profession of investigation, the interests of its members and the public interest. In this article we discuss what else The Association is in 5 key issues: • Where it ranks in the professional world. • What it does in the public interest. • Will investigation ever be licensed? •The alternative to licensing. • Recognition of excellence. We also argue that professionals respect The Association because it makes a valuable contribution through its members to the public interest, promotes the standing of the profession and is a must for all professional investigators based in the UK and overseas. 43

ating back to 1913, the Association is the premier professional body for private sector investigators working within the United Kingdom and internationally. It incorporates members, private and public, within a strong cohesive network. It provides the industry’s leading vetting and due diligence testing of investigators and has a rigorous code of ethics and professional standards. Throughout its history, the Association has worked hard to improve the standing and reputation of the investigative professional, and has long been regarded as the bellwether of the profession. All applicants are stringently examined as to their knowledge, competence and ethics, and are governed by the Association’s Disciplinary Committee. Every member’s agency must be notified to the Information Commissioner as a ‘Data Controller’, provide a recent Criminal Conviction Certificate and hold professional indemnity insurance, amongst other key requirements.

Many Association members are able to provide high-level specialist investigation services on a number of issues, for example the investigation of torts such as fraudulent misrepresentation. Data recovery is another specialist area and, in a recent case, co-author James Black obtained an order against a debtor in fraudulent misrepresentation in the sum of £600,000.The client, an Australian shipping company, had approached various firms of lawyers for redress against the American fraudster without success. Finally engaging the services of skilled Association member, James Black, ensured that unequivocal evidence of fraud was obtained and the case proceeded successfully. This ‘investigator led’ case generated lawyers fees of around £30K. In such a case investigation fees and legal costs may also be added to any award in damages and represents a classic ‘win win’ for Law Society and Association members alike.

Where does the Association rank professionally?

The public interest

The Association’s professionalism and unique position was acknowledged 3 years ago by the Driver and Vehicle Licensing Agency, which granted it the sector exclusive ‘Accredited Association’ status. Other partnerships include public law enforcement agencies and, more recently, the Association has been endorsed by The Law Society. After careful scrutiny, and with the support of two government departments, it was accepted that the Association exclusively provides the industry standard for solicitors’ quality risk mitigation when appointing an investigation agency. In May 2011 The Law Society of Scotland followed suit by sector exclusively including the Association in its Service Provider Scheme. These endorsements are a ‘win win’ for both solicitors and investigators. Almost all firms of solicitors with contentious practices will at some time engage litigation support services. Likewise the professional investigator will outsource legal work arising from investigations where previously lawyers have not been instructed.

The Association seeks to initiate a HM Land Registry review of access to the Individuals Proprietor’s Register presently restricted to law enforcement and secret service agencies, trustees in bankruptcy and liquidators. Property can provide a major ‘sink’ for fraudulent money and the ability to name search property should be an available tool in civil recovery and enforcement. This is in the public interest because it reduces fraud by reducing fraudulent money being

30 years discreet service

embers of the ABI, Fairclough & Partners are a well established and respected solicitors agents and investigation agency with a discreet and motivated workforce and a proven track record going back over thirty years. The business was started in 1975 to service a growing demand from many solicitors for a third party to undertake tasks such as conducting enquiries, process serving, tracing debtors, interviewing witnesses, taking statements and preparing reports on their behalf. The firm’s range of services has since expanded to cover the majority of areas of investigation within the public sector and the private sector, for both companies and individuals. Their client base has grown to include local authorities, insurance companies, commercial and private clients – all with varying profiles and differing needs. This growth has mainly come about through personal recommendation and developing market needs. The firm’s reputation has been built on providing a discreet personal service with tasks carried out quickly and efficiently. All staff have undergone CRB checking and their services are available throughout the UK and internationally through a network of proven agents. q

concealed in property. The Association has a sound legal case to justify a less restrictive interpretation or, if necessary, amendment to the regulations. Lawyers have signed their support and the Information Commissioner’s Office (ICO) is also in agreement on data protection issues.

Private investigation and licensing The platform for licensing some areas of investigation in the private sector was tentatively introduced by The Private Security Industry Act 2001 (PSIA). It has yet to be implemented and, with the change in politics since the Act, it is unlikely that it will be in the foreseeable future.

Licensing alternatives The Association views licensing as a method of controlling quality – but is it the only way? The Association, which has been waiting since the PSIA was passed in 2001, has now evolved. It has better quality control methods and membership selection processes which have enhanced its professional standing resulting in The Law Society’s recent endorsements. The confidence vested in The Association by the Driver & Vehicle Licensing Centre (DVLA) also adds weight, as does the relationship with The Lancashire Constabulary and other government departments and law enforcement agencies. The Association is earning respect exponentially and the more standing it gains the more it can control quality of its own volition. The Association’s membership selection process is industry leading. It is an on-line examination based on its own Best Practice Guide, an outline of the law that is common to all areas of investigation – for example The Data Protection Act 1998. This complements an interview by panel system that has worked well for some 30 years or more and will continue to support the numerous other checks and verification procedures.

35 years of diligence and discretion C

helmsford based Nick Hillman has been a professional investigator in private practice for 35 years and during that time has worked for the defence team on no less than 17 separate murder trials as well as numerous other high profile cases, both criminal and civil. Throughout this time a high degree of diligence, discretion and professionalism has been maintained with evidence and statements being produced in accordance with the Criminal Justice Act and Civil Procedure Rules. Of particular interest is his knowledge of marine matters as, prior to entering into investigation, Nick Hillman was a Merchant Navy

officer and subsequently a boat builder. This experience, together with a lifetime of sailing and boating has led to an expertise in marine insurance investigation cases. Having held a general bailiff’s certificate for 32 years, specialising in commercial rent recovery for most of that time, he has also accumulated a vast experience in the Law of Distress for Rent. Many commercial landlords and their professional advisors use Hillmans for rent recovery and forfeiture, secure in the knowledge that matters are being dealt with in a professional manner. q

Does the Association recognise excellence among its peers? Recognition of excellence contributes to the cohesion of the Association. Each year, at its annual meeting, members select candidates for the hotly contested awards. The 2010 meeting produced excellent nominations. The Zena Scott Archer Award for Investigator of the Year was presented to Dick Smith from Bristol. Mark Peachman from Norwich gained the Frank Martin Award for services to the Association, a recognition granted in 2011 to Ted Potter from Bolton. In conclusion, the Association is an evolving professional body and can demonstrate that it adds great value to civil claims in specialist areas and its members can generate a â&#x20AC;&#x2DC;win winâ&#x20AC;&#x2122; with fees for lawyers and other professionals. It is striving successfully to improve quality and, with increased marketing, may evolve beyond the requirement for Government Licensing in its current PSIA form. It recognises excellence amongst its peers and promotes cohesion. Because it makes a valuable contribution to the public interest and promotes the standing of the profession it is respected by other professions and increasingly the general public. It is a must for professional investigators based in the UK and Internationally as well as the legal profession. q

Excellent reputation built on police background

ull based investigators and process servers C.F. Naylor and Company were formed as far back as 1962 by founder Clive Naylor. He eventually retired and in the early 1990â&#x20AC;&#x2122;s the business was bought by ex police officer of 30 years Anthony White who, with his wife Frances, successfully built up a thriving client base and an excellent reputation. Current owner Melissa White joined the business in 2006, initialy working part time and eventually taking over in 2009 as Anthony and Frances retired. Frances still acts as a consultant and has a wealth of experience to offer whilst Melissa enjoys the day to day running of the business. She has herself built an excellent reputation for a fast and efficient service with both local clients and a growing number of out of town fellow agents. The company are experienced in accident investigation and statement taking, as well as tracing enquries, process serving and credit counselling. Having been members of the ABI for over 10 years they offer a discreet and professional service at all times, whilst adhering to the Data Protection Act. q

Keeping up with the fraudsters

nsight Investigations are a full service private and commercial investigation agency with over 30 years experience in the investigation industry, operating both throughout the UK and internationally. With a diverse range of specialist operatives experienced in many varied aspects of investigation services, Insight has helped countless clients, both private and commercial, with problems of a sensitive nature that require the upmost confidentiality, integrity and discretion. In an industry where it is not necessary to hold a license or gain qualifications, one of Insightâ&#x20AC;&#x2122;s directors is proud to be a member of the Association of British Investigators, which has a strict code of conduct and endeavours to promote the professionalism of the investigation industry. Insight is an experienced firm with long established principles in providing affordable, innovative solutions to sensitive or complex problems, using a blend of traditional and modern techniques to provide results. In the modern world of the internet, when crimes such as internet dating scams and frauds are on the increase, Insight have forged an excellent reputation specialising in such criminal activity investigations and in April gained vast PR coverage online in warning people of these perils. Popular breakfast news programme Daybreak reported earlier this year on the increase of internet dating scams, whilst in 2010 the BBC stated that approximately 1 in 4 people on the internet uses a fake

name. With such alarming coverage it is little wonder that, as a full service investigation agency, Insight constantly research and attend training seminars and workshops to expand their knowledge of the ever changing methods of the fraudsters. By paying such attention to detail Insight can not only offer background checks on a potential spouseâ&#x20AC;&#x2122;s history, and possible infidelity, which often results in prevention of an online scam, but they have also been able to assist in the recovery and tracing of lost monies from victims of internet dating fraud. As well as dating, there are many types of online fraud such as identity theft and viruses, than can allow criminals to take control and gain access to sensitive data such as online banking passwords and only last year Insight recovered ÂŁ30,000 for a victim of online fraud. Insight also offer a wide range of legal and litigation support services including criminal defence investigations. Being able to go beyond the reach of legal representation, their resources can help to locate witnesses, ascertain previously undiscovered evidence and build strong defence cases which can help to successfully support a defence case and with appeals. Matrimonial and relationship investigations are one of the most sensitive areas, none more so than co-habitation investigations. On separation or divorce from a partner where young children are involved, the other party has a responsibility to help with financial maintenance for the main carer who has custody of the children. Insight can prove if ex-partners are co-habiting with a new spouse to ensure that all facts are available to be presented to court. q

Code of Ethics and Professional Standards This code, comprising of ten principles, is sponsored by the Governing Council of the ABI and reflects the way in which all members should conduct their business. Principle 1- Responsibility and Accountability Members are personally responsible and accountable for their actions or omissions, as are their employees and other persons paid to assist an investigation. Principle 2 - Honesty and Integrity Members are to act with honesty, integrity and must not compromise their position, that of the Association or any of their clients. Principle 3 - Caution and Thoroughness Members are to verify the credentials of clients to ensure that they have lawful and moral reasons to request an investigation. Principle 4 - Conflict of Interest Members having a personal or conflicting interest in any matter in which they are involved shall disclose that interest, if it is in conflict with the interests of their clients. Principle 5 - Acting within the Law Members are to obey the law and refrain from carrying out any act that they know, or ought to know, is unlawful, or contrary to the Associationâ&#x20AC;&#x2122;s policy. Principle 6 - Authority, Respect and Courtesy Members are to act with self control and tolerance, treating everyone with whom they come into contact with respect, fairness and courtesy. Principle 7 - Equality Members are to act with fairness and impartiality. They will not discriminate unlawfully on the grounds of sex, race, colour, language, religion or belief, national or social origin, disability, age, sexual orientation or other status. Principle 8 - Confidentiality Members are to treat information with which they are entrusted with respect and access or disclose it only for the purposes for which it is intended. They must attend to all instructions within the principles of the prevailing privacy legislation and in particular, if controlling personal data, to be so notified with the Information Commissioner. Principle 9 - General Conduct Members are to act in a professional manner and must not behave in a way which brings, or is likely to bring, discredit upon the Association or any of their clients. Principle 10 - Challenging and Reporting Improper Conduct Members are expected to challenge and when appropriate take action or report breaches of this code and the improper conduct of colleagues.