Forensic & Expert Witness E Mag winter 2014 by Industry eMag

Forensic & Expert Witness E Mag

Winter 2014 Issue

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Trauma & Orthopedic Medico - Legal

Mr. Richard Scott-Watson RSW Medicolegal Ltd

Special & Expert Advice on

From the following professionals:

RSWatson - Surgeon Ian Anderson - Psychologist Jon Leigh - Physician Andy Logan - Pain Consultant Eric Freedlander - Plastic Surgeon Mike Rothburn - Microbiologist Marta Elian - Consultant Neurologist John Shapiro - Psychiatrist XPC - Toxicology Experts Ethos - Forensic investigations Robyn Webber - Surgeon Chris Makin - Forensic Accountant Andrea Denby - Translator Philip H Barnwell - Translator S A Walsh - Consultant Engineer Colin Read - Medicolegal Services DRC - Forensic Accountants Sue Bayram - Mediator Lance N Forbat - Consultant Argentum - Medical Illustrations Hugh Koch - Psychologist Aman Ranu - Medical Forensics Coates Greetham Forensic Meteorologists Crash Detectives - RTA Forensics FMS - Digital Investigations Alan Spencer - Telecommunications

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Mr. Richard Scott-Watson

RSW Medicolegal Ltd

ased in Stourbridge, Richard Scott-Watson is a highly experienced Trauma and Orthopaedic Surgeon. He became the Director and sole Medical Examiner at RSW Medicolegal Ltd in August 1990. Since its inception, the firm have been specialising in the provision of high quality medico legal reports in the field of orthopaedic related personal injury cases.

Mr. Scott-Watson is a single expert with over 23 years experience with a particular interest and expertise in general orthopaedics, fractures and trauma; musculoskeletal injuries and all aspects of bone and soft tissue injury including limb and spinal injuries. He is a member of the Oxford Medical and Legal Society and attends industry-led conferences each year,

In a recent interview, Mr. Scott-Watson discussed his work as an Expert Witness: 'How has your experience and various qualifications enhanced your standing as an Expert Witness?' “The difficulty with being an expert witness in the field of Orthopaedics is that much of what the Court requires is not routine NHS work,” he explained. “Clearly it is essential to be knowledgeable about all the subjects the expert is claiming to be expert in, in every case but qualifications are also essential. There may have been a time when an expert could claim to be so because of experience alone, but really both experience and qualifications are required.” “In my day the essential qualification was the Fellowship of a Royal College of Surgeons, but this has since changed and the Trauma and Orthopaedic Fellowship would be essential for more recent experts,” he continued. “In addition, I hold the Diploma in Disability Assessment Medicine. Experience from that is of assistance in giving opinions on disabilities and their interactions, which is often a major part of a case and often not dealt with in detail. It is also useful to hold the LLB so that I can understand where lawyers are coming from and what they are saying (sometimes).” “Experience is also essential in providing the courts what they require. Fortunately after nearly 25 years and over 18,000 reports, there are not many things that are new, but the odd one still turns up now and again,” Mr. Scott-Watson went on to say.

Mr. Scott-Watson was then asked to 'explain the importance of instructing an Expert Witness at the beginning of an investigation/legal case, opposed to asking for an opinion at a later stage of the proceedings?' “The timing of instructions is something not all lawyers get correct,” he said. “For simple cases that will settle down and probably fully recover in a year or two, an early report is largely pointless.” “A single detailed report at the twelve to eighteen month mark will usually clear the whole medical aspect of the case in one report,” he went on to say. “The problem comes with the multiple injuries as these are much better addressed with an initial report early, probably within three months. This will set the scene for time off work, reports from other specialities and whether or not full recovery is anticipated from that point. This can help with interim payment requests at an early stage and reduce the often considerable financial burden placed on claimants from prolonged absence from work.”

'How regularly do you attend court and who do you act on behalf of?' “Court attendances are rare, I would put it at about one in a thousand cases, so that works out at between one and two per year,” Mr. Scott-Watson replied. “I usually find they are cases where I am instructed by solicitors for the claimant and, more often than not, the problem is that the other expert has not stuck firmly to CPR part 35 and has become partisan.”

'Could you provide brief examples of cases that you have instructed on?' “Many of the cases are due to initial reports proving incorrect with the passage of time. The initial General Practitioner report is something we have all come to know but realistically in all but the most minor cases their value is very limited,” he explained. “However, the telephone only rehabilitation report is worse than useless, he continued. “The time used to assess the case during these interviews is inadequate to make an assessment and diagnosis and treatment recommendations are not always correct. The report being written without medical notes means that it is almost entirely a claimant account, which is not always found to be correct at more detailed examination. As a result, at a later stage, their only value is in reducing the need to remember what happened, but what was said at these interviews can cause a considerable difficulty for the claimant if it is contradicted by the notes.”

Areas of Expertise

General orthopaedics, fractures and trauma Musculoskeletal injuries All aspects of bone and soft tissue injury, including limb and spinal injuries (NB special interest in cervical spine injuries and disorders, and their consequences and treatment) Finger injuries Hand and wrist injuries (including wrist fracture) Tendon injuries Forearm injuries and fracture Elbow injuries and fracture Humerus fracture Shoulder injuries and fracture Shoulder dislocation Rotator cuff injury Whiplash injuries Cervical spine soft tissue injury Cervical spine fracture Back injury and pain Thoracic spine fracture and pain Lumbar spine injury, fracture and pain Pelvic injury and fracture Hip injury and fracture Neck of femur fracture Femur fracture Knee fracture Knee ligament injury Knee meniscus injury Meniscus injury Tibia fracture Ankle sprain, fracture and dislocation Calcaneum fracture Foot fracture Metatarsal fracture Compound fracture Closed fracture

he most interesting cases, from Mr. Scott-Watson's experience, are multiple injuries and those with inter-acting disability which may or may not have come from the accident. Providing further examples, Mr. Scott Watson continued:

The person on crutches long term, such as an above knee amputee, will gain considerably more mobility disability from a broken wrist than those with no initial disability.” he explained. “Equally that person may gain little disability in activities of daily living as their disability in these activities was already so high that it could not really be increased. Such arguments are vital to assess a case fairly for both parties.” “People often present with areas previously injured that they have now re-injured or have sustained a new injury in the same area. This is common with hands in particular,” Mr. Scott-Watson explained. “Assessing the total disability in these cases is essential but these things add together strangely. The final disability is not just the sum of the parts, nor is it in other circumstances. Where the two disabilities interact there is both the individual disability plus the interaction, so one of the few cases where it is possible to say that two plus two really does equal five as you have to add the extra one for the interaction!” “Equally, where someone is left with a permanent disability, there is the potential interaction with the ravages of the ageing process,” he went on to say. “As above, anything that limits the ability to use crutches will disproportionately affect someone who later needs them for a hip or knee condition. This could be someone with a shoulder soft tissue injury that still reacts to repetitive movements but otherwise works normally. This is a common problem that joints are said to have returned to normal range of movement but the claimant’s report of inability to perform repetitive movements is not fully taken into consideration – a common problem here is left arm injuries and changing gear or left foot injuries and operating the clutch of a manual car.” “In such circumstances there may be a good medical reason for advice about an automatic vehicle. An elbow that no longer fully straightens from a minor fracture can produce similar arguments and cause disability that can easily seem out of proportion to the original injury, but that is because it is.”

“Then there is the case of the joint that is damaged and will wear abnormally in the future. The most frustrating for the lawyers is the fortunately rare dislocated hip. The problem with these is that it is known that they can suddenly deteriorate at five years post injury so cases cannot be settled until that date, unless the deterioration occurs earlier. The difficulty is that the deterioration is the head of the femur disintegrating (from avascular necrosis) and the other problem is that these claimants are young so need a hip replacement at an early age that will inevitably need replacing again.” “Cases where one remaining disability can lead to another injury are not uncommon,” he explained. “This is particularly the case with abnormal gait. It can be difficult to make a reasonable estimate as to when deterioration will occur if insufficient time has been allowed to determine what is most likely.” “The expert who examines the notes is also there to see how the claim medically fits together.” “Common scenarios are initial report claims of severe disability but when the notes are examined the claimant either did not attend a medical practitioner after the event or attended only once, with subsequent attendances about other matters, making no reference to continuing symptoms.” “Where the claimant is attending a physiotherapist or chiropractor then there is no requirement for duplication but the claim of severe symptoms, as opposed to lesser ones, with no corroborative evidence is a contradiction. Attendances at the general Practitioner, or other health care professional, in the early stages does help to give an indication of the expected recovery. Inconsistencies are particularly those cases where little is wrong, at the time where symptoms are maximal, but symptoms then seem to build from a point after that. A few of these cases are genuine and the notes will help, but most are building their case, which the notes will also give an indication about if examined correctly. The long gap followed by a sudden clutch of attendances is quite a give-away,” Mr. Scott-Watson exclaimed.

“Many cases that I see are ‘simple whiplash’, and most of those turn out not to be,” he jested. “My particular hobby horse is the neurological consequences of these injuries. Many of the claimants have low level, usually non-disabling arm symptoms which the vast majority of practitioner’s seem to either ignore, put down to something else or mention but then ignore. The problem is that this leaves claimants with permanent symptoms that would be completely remediable with appropriate treatment, in the vast majority of cases, as this is not a condition that will resolve spontaneously. The other problem with it is that claimants commonly develop minor short term arm symptoms after these injuries but what they have done is start a process that will not then manifest until about three months later. This generates two problems: Firstly that it can be ignored because the initial medical report does not use the notes and is usually written before the symptoms return (the claimant has usually forgotten the initial symptoms and these reports are so brief that detailed questions are not asked) and secondly that when those symptoms do return, being three months later, both the claimant and the expert who is unclear of the diagnosis can put it off as something unrelated.”

In conclusion, Mr. Scott-Watson explained: “Overall the expert wants to see the cases they can best address. I do not particularly want burns or hernias, but have been sent both in recent months. Where initial reports need alteration, provided the evidence is there it is the expert’s duty to realise that the report is a draft until finalised and this should never be an issue. What becomes really difficult is where solicitors work through agencies but the agencies ‘translate’ the request before passing it on.

Mr R Scott - Watson

BSc(Hons) MB BS LLB (Hons)(Open) Cert.Av.Med.Cert MR(2)DDAMFRCS(Ed)

RSW Medico-Legal Ltd

Expert Witness in orthopaedic Trauma. APIL Expert. Injury reports and employment Tribunal reports (Equalities Act). Waiting list 4-6 weeks. Urgent reports undertaken. Reporting since 1990. Over 17,000 reports ( Currently 1,500 per annum). Fully trained in CPR, Court appearance (3 per year) and Report writing. Low Velocity Impact Traffic Accident cases accepted. Clinics in Stourbridge, Birmingham, Coventry, Bristol, Swindon and Oxford. Home and Prison visits undertaken. For further information, please call Mr. Scott-Watson's Secretary, Carol Couzens on Tel/Fax: 01384 441 126 or email enquiries to carolcouzens@ymail.com

ANDERSON

s a renowned Chartered Psychologist and expert witness, Ian Anderson is able to draw on over 30 years of experience. He is highly regarded for his diagnostic expertise as well as having worked with over 2,000 patients and provided many hundreds of expert reports. Dr. Anderson’s academic credentials speak volumes about his commitment to continually extend and further his educational knowledge in a range of psychology-based disciplines. These include achieving a Bachelor’s degree in Sociology & Economics, a Master’s degree in Social Psychology and Research Methods, and a PhD following Dr. Anderson’s research into ‘models of diagnosis and their relation to commonsense reasoning’, all from the University of Manchester, England. Dr. Anderson went on to teach at degree and postgraduate level and conducted research during the seven years following the completion of his doctorate. Over that period he also gained three further MScs in Experimental Psychology, Occupational Psychology, and Psychological Counselling. In a recent interview Dr. Anderson outlined what distinguishes him from other expert witness psychologists:

Chartered Psychologist &

“Unfortunately, a great many Psychologists providing their services as Expert Witnesses are trained in a very narrow field of applied psychology, enabling them to come to a conclusion by giving an opinion from merely one somewhat narrow point of view. Having achieved separate qualifications and training in a number of fields of applied psychology, I am registered with the Health and Care Professions Council with four separate protected titles of Clinical Psychologist, Forensic Psychologist, Occupational Psychologist, and Counselling Psychologist. This not only supports my commitment to consider assessments from a number of different perspectives, but it also enables me to utilise my expertise in all four areas in order to reach the conclusions and form an opinion in relation to the case on which I am working. For example, if someone is suggesting they have a disability that is having an impact on the workplace, I am able to look at it both from the Clinical and the Occupational point of view. Likewise if someone has a psychological problem, I am able to assess it not only from the Clinical point of view but also from a Forensic risk point of view.

As an Expert in litigation and dispute Dr. An over a wide field of applie • • • • • • • • • • • •

Pers Psychological Compe Child and ME/Chronic Workplace stress an Risk Assessment - Gener Persona Harass Posttraumat Drug and Depressi Psycho

Dr. Ian Anderson.

“I have been fortunate enough to work across a number of different specialities in psychology including a large number of criminal cases. Many of these require me to conduct cognitive assessments of the accused, and sometimes of a witness. A number of cases in recent years have required me to use my expertise in the area of the reliability of memory and confabulation. This has become very relevant recently in a number of cases involving accusations of historical sex abuse. “In several recent cases I have seen defendants acquitted of very serious charges of which I believe that they would have been convicted without expert evidence in the area of memory. “Another major area of my work is in work related stress and disability discrimination. I think it is fair to say that my instructions are equally divided between claimants and defendants in these cases, which I find most helpful as I believe that an understanding of both sides is of significant advantage. “Whilst an Expert owes his duty to the Court and is not a ‘hired gun’, I do think it is incumbent upon an Expert once he has formed an opinion to present that opinion in the most effective and persuasive

nderson has gained considerable experience ed psychology including:

sonal Injury etence/Cognitive Assessment d Family matters Fatigue Syndrome nd Disability discrimination ral violence and Sexual violence ality Disorders sment/Bullying tic Stress Disorder d Alcohol Abuse ion and Anxiety ometric Testing

way possible. Whilst I have been a Psychologist for over 30 years, it is actually my second career as I was previously a professional Actor for over eight years, earning credits in stage, television, and film. My presentation skills in providing testimony and my ability to be persuasive are always at the forefront of my mind.” It comes as no surprise to learn that Dr. Anderson is regularly called upon to provide psychological reports and expert testimony in criminal and civil litigation cases within the UK. Dr. Anderson has Permanent Resident status in the USA where he works occasionally and has given evidence in Bermuda. Apart from offering his professional services as an Expert Witness, Dr. Anderson is currently in the process of launching an innovative Virtual Clinic aimed specifically at the Claims Management Sector: “This will enable me and my colleagues to provide a service to clients over the internet by video conference, telephone, This will obviously cut down our overhead costs and this saving will be reflected in the amount we charge our clients.”

TO FIND OUT MORE PLEASE CONTACT: DR. IAN ANDERSON Chartered Psychologist & Expert Witness

Tel: 0870 609 2445 Email: iga@DrIanAnderson.com Website: www.DrIanAnderson.com

Dr. Ian Anderson.

The Gillingham Clinic of Complementary Medicine

Mr. Jon Leigh

Registered Osteopath, Naturopathic Physician and Expert Witness, Mr. Jon Leigh has been in practice for over forty years. His areas of expertise include instructions on injuries caused by motor car accidents, occupational injuries and sports injuries.

Osteopath, Jon. Leigh is registered with the General Osteopathic Council. In 1982 , he opened the Gillingham Clinic of Complementary Medicine, which is the oldest clinic of Osteopathy and Complementary Medicine in the Medway Towns. Having qualified from the British College of Osteopathy and Naturopathy, Hampstead in 1972, he returned to lecture in Osteopathy and Clinical procedures, where he became the senior Osteopathic Tutor and head of third and fourth year clinics. He has also taught at the European School of Osteopathy, Maidstone and the International College of Osteopathy and Alternative Therapies, based in London and Paris. He continues to guest lecture and has presented papers in England, France, Germany, America and Australia. Few Osteopaths are trained as Expert Witnesses. Mr Leigh has substantial experience in writing medico-legal reports and presenting evidence to both courts and tribunals. This includes working as a Single Joint Expert Witness. In an increasing number of cases, the use of such experts has led to settlement of disputes without the stress of court appearance being necessary for either the complainant or defendant. During forty years of prominence within the Expert Witness field, Mr. Leigh has instructed on numerous cases involving motor car accidents, examples include: i. A female driver sitting in her car whilst at traffic lights was hit in the rear by a driver who ‘failed to observe’ that the lights were at red. Immediately following the incident, she experienced neck, thoracic and low back pain. She was subsequently examined by a hospital doctor, who diagnosed a neck strain and prescribed pain killers. After six weeks she still experienced pain and was referred by her legal representative for a more comprehensive examination. On carrying out the appropriate tests, Mr. Leigh was able to demonstrate that she had experienced a severe acceleration injury, in common parlance, a whiplash, which was affecting her cervical, thoracic and lumbar vertebrae. ii. A male driver waiting to turn right at a junction was hit on the left front of his car, which spun his car around. Apart from a bruise on his right temple he was declared uninjured. Two days later he began to experience headache, indigestion, low back pain and difficulty sleeping. Having been referred to Mr. Leigh for an examination, it was discovered that the driver suffered a rotational whiplash injury and he was recommended to have osteopathic treatment. Within four weeks, all his symptoms had completely disappeared.

Mr Jon Leigh

Mr Jon Leigh Mr. Jon Leigh is registered with The General Council & Register of Naturopaths, a Member of the Institute of Osteopathy and the Institute of Classical Osteopathy. Mr. Leigh is also a member of the Institute of Expert Witnesses and a Member of the Academy of Experts.

Examples of occupational injury cases include:

Examples of sports injury related cases include:

i. A number of oﬃce workers were all suddenly reporting pain in their necks, elbows and wrists after the introduction of a new computer system, which had high level monitors.

i. A young male footballer was tackled from the side with ‘an aggressive’ tackle. His knee was forced to bend inwards, not a natural movement, resulting in damage to his knee ligaments. It was demonstrated that this was not an accident but an intentional foul and the player was awarded substantial damages.

After conducting an ergonomic survey of their work stations, Mr. Leigh demonstrated to the office manager that the computer screens were too high and the computer users were all sitting with their heads held in a position of backward bending, in order to be able to easily read the screen. The screens were all lowered and in the vast majority of cases, all the symptoms disappeared. This demonstrates that it is essential to fully examine not only the patient but also their work environment, too. ii. Workers in a distribution centre were complaining of an increase in lower back pain after the warehouse had been fitted with a new shelving system. After observing the operatives at work, Mr. Leigh noticed that as the new shelving system was deeper than the one it had replaced, in order to reach items from the back of the shelves, they were having to bend and twist to reach these items. He suggested that the pallets on which the items were delivered were placed nearer the front of the shelving and this reduced the amount of injuries to the ‘old’ levels.

ii. A male cricketer who was hit on the head by a ‘bouncer’ delivery. In spite of wearing a helmet, which reduced the major injury, the force of the blow caused his head to ‘snap’ backwards. Later he complained of neck pain and headaches. Following a full osteopathic examination, a whiplash type injury was diagnosed. In a recent interview, Mr. Leigh highlighted the importance of instructing an Expert Witness at the beginning of an investigation/legal case, as opposed to asking for an opinion at a later stage of the proceedings: “The earlier an expert is instructed, the less secondary trauma and stress the injured party is likely to experience” he said. “Also, in the case of whiplash injuries, the sooner some form of positive treatment is instigated, the sooner the person will recover and in the long term save the insurers time, effort and money” he added.

Mr. Jon Leigh The Gillingham Clinic of Complementary Medicine 01634 576 292 or email enquiries to jhl@gillinghamclinic.co.uk

Dr Andrew St. Clair Logan

(MB B Ch B FRCA FFPMRCA)

Fellow of the Faculty of Pain Medicine of the Royal College of Anaesthetists (FFPMRCA) Dr. Andrew St. Clair Logan (BA Hons (Cantab) MBChB FRCA FFPMRCA) provides services as a Pain Management Consultant at the Countess of Chester NHS Trust, Nuffield Health Chester; the Grosvenor Hospital Chester and the Spire Hospital Warrington. Throughout his illustrious career Dr. Logan has also achieved an impressive reputation for the services he provides as an Expert Witness in cases involving 'pain' relating to injuries received in an accident.

In a recent interview Dr. Logan explained that the definition of pain and the differences between acute pain and chronic pain were fundamental to an understanding of the problem of persisting pain. "Pain is an unpleasant sensory and emotional experience association with actual or potential tissue damage, or described in terms of such damage (http://www.iasp-pain.org). The above definition leads to the conclusion that pain is always subjective. Another way of putting this would be to say 'pain is what the person says it is existing when and where the person says it does'

Consultant in Pain Management & Expert Witness

It can also be readily deduced from this definition that there "We have all experienced short term or 'acute pain'. This is a does not actually have to be any tissue damage for there to warning sign that prevents us from injury and helps heal or be pain. Pain can exist without an obvious medical cause. reverse injury. Acute pain can be extremely useful in alerting us to avoid touching hot or sharp objectives, as well Expounding on his theory on pain, Dr. Logan outlined more as the abdominal pain of appendicitis. In both cases the about the definition of pain in general and persisting pain experience of pain leads to behavioural changes that are caused as a result of an accident : useful and adaptive. Acute pain usually has a straightforward cause and is easy to diagnose and cure. Whereas 'chronic pain' can be defined as 'pain that extends beyond the expected period of healing'. This can be arbitrarily determined as 3 months, 6 months, 12 months or left simply as it is. It is not as easily understood as acute pain and leads to, or is associated with, other issues such as psychological and social problems. Pain is subjective, there is no objective way of measuring it. You have to ask the patient/claimant so exaggeration and malingering is not easily detectable due to the subjective nature of pain and its assessment. There are many simple ways of assessing pain. One way would be a numerical rating, where you would ask the patient to rate it from zero to 10. This is quite useful for the assessment and treatment of acute pain but too simplistic with regards to chronic pain which requires more detailed assessment."

Dr Andrew St. Clair Logan

"Treatments for pain vary from medications and interventions to pain management programmes and psychological treatments such as cognitive behavioural pain therapy," added Dr. Logan, "As a Pain Management Consultant I am often asked about prognosis and recommendations for further treatment. There is a broad palate of treatments to apply to the canvas of pain management. Treatments of different modalities are often recommended as part of the patient's pain management programme, with physiotherapy, medication trials, interventional techniques and psychological techniques often forming part of a treatment plan."

On the subject of video surveillance being provided as evidence, Dr. Logan went on to say: "Although the pain management expert has a duty to the court to provide an unbiased report it follows that, as a result of the subjectivity of pain, such reports will often be broadly in favour of the claimant. The pain management expert is trained to believe the 'patient' when that person describes and scores their pain. When called upon as an Expert Witness, Dr. Logan is able to draw on his vast experience to make an overall assessment of the patient from the pain management prospective. As there is much overlap between pain management and psychology, Dr. Logan may consider it necessary in some cases to seek the opinion of an expert in psychology or psychiatry, who may have already been consulted, (e.g. in cases where post traumatic stress disorder may be suspected). Depending on the severity of the injuries sustained in an accident or personal injury, persistent pain can be a real problem. There may be a continuing cause for this or the original precipitating factor may have caused injuries that have already healed and the general perception is that there should be no further problems. It is also possible that the injury may have exacerbated a pre-existing condition or may have been endured by a person who, for some reason, is more likely to develop chronic pain.

However, it is not uncommon for pain specialists to be sent video surveillance records on which they are asked to comment. In many cases no firm conclusions can be made about pain as it can't be measured or deduced from a video though it can help with some aspects of exaggeration of disability. There are occasions, of course, where the evidence will result in a change of opinion, in cases where a claimant who claims to be permanently wheel chair bound is observed running for a bus or taxi!"

The pain may also be associated with functional difficulties, disability, psychological problems such as depression and anxiety and social problems. All these factors are likely to exacerbate the pain and lead to one or more vicious circles. There exist different types of pain after an injury, therefore it's important to differentiate between these as the treatments for them are totally different," Dr. Logan explained, "Nociceptive pain is the pain we all know about which is caused by a noxious stimulus or at least described in those terms. Whereas Neuropathic or nerve pain is caused by a defect or problem in the nervous system. It is usually more difficult to describe than Nociceptive pain and often remote to the site of injury.

Dr Andrew St. Clair Logan MB BChB FRCA FFPMRCA Nuffield Health The Grosvenor Hospital, Wrexham Road, Chester CH4 7QP Tel Mobile: 07791681278 Secretary Sharon: 07763783601 Fax: 01244 851 278

Dr Andrew St. Clair Logan

Mr. Eric Fr

Consultant Pl

It is critically important to the success of a court case to call upon the correct expert witness. With twenty years experience as a Consultant to the NHS, Mr. Eric Freedlander has been instructed to write numerous medical reports and provide expert witness testimony for a variety of personal injury and medical negligence cases. Eric worked as a Consultant at Sheffield Children's Hospital NHS Foundation Trust, Nottingham University Hospitals NHS Trust, as well as at Sheffield Teaching Hospitals NHS Foundation Trust until the summer of 2012. Having retired from NHS consultancy, today Eric undertakes private consultancy and charity work. A previous President of the British Association of Plastic, Reconstructive & Aesthetic Surgeons; Eric possess vast experience of medico-legal work, personal injury and clinical negligence reports. A qualified, respected and vastly experienced Plastic Surgeon, Eric holds wide experience of all aspects of the speciality from the medical treatment and examination of burns, hand trauma, lower limb trauma to children born with cleft lip and palate issues and cosmetic surgery. He acts on behalf of solicitors, working on cases brought forward by both the claimant and defendant which, in most cases represents where surgery has taken place, or the particular surgeon who carried out a procedure.

For further i please c Mr. Eric Fre 0114 23 or email en efreedlander

reedlander

lastic Surgeon

information, contact eedlander on 30 9160 nquiries to r@mac.com.

Eric provides expert witness reports for two types of cases. The first, personal injury which involves trips, falls and individuals that are injured at work and are therefore suing their employer. Recently and more commonly, Eric instructs on medical negligence cases where an individual is suing a surgeon for their care – covering a range of topics, including poor results, pain and suffering caused and low standards of care. This includes cosmetic surgery issues where clients have endured failings in procedures such as nose and breast surgery. When providing testimony as an expert witness, Eric highlights how “important it is for the expert not to venture from their expertise and to utilise their experience in particular aspects of their speciality.” “Expert Witnesses have to be very careful not to be criticised in the court as this could hinder their reputation and value to court proceedings,” he explained. “When giving evidence, an expert witness is acting on behalf of the court and must give an unbiased report, including issues that might count against the side being represented." Aside from personal injury and medical negligence cases, Eric also compiles reports for the General Medical Council, examining the professional and medical standards of practising registered Doctors.

FORENSICS INDUSTRY

E-MAGAZINE

AWARD

Dr. Michael Rothburn

NEWS

INFECTION ADVICE Award 2014

clinically orientated medical microbiologist and hospital infection control doctor who is currently working as the Consultant at the University Hospital Aintree, Liverpool.

BSc, MB, ChB, Dp Bact, FRCPath

GAINS RECOGNITION WITH PRESTIGIOUS AWARD Dr Michael M. Rothburn's area of expertise includes • • • • • • • • •

Microbiology; Food poisoning; Control of infection; Clinical negligence; Virology/viral infections; Gynaecological infections; Hospital-acquired infections; Bacteriology/bacterial infections; Skin, bone & soft tissue infections;

For which Dr. Rothburn holds responsibility for the setting-out of 'standards of care' to eradicate current infections, as well as offering professional advice on managing any future infections, which can relate to neonatal through to the elderly patients. Having undertaken academic training leading to accreditation to the following B.Sc, MB, ChB, Dp Bact, FRCPath, Dr. Rothburn is able to draw on his academic training, together with his vast practical experience, to provide his services as an Expert Witness for cases involving negligent hospital acquired infection (including MRSA), large prosthetic joint infections, severe sepsis, food poisoning incidents and sharps injury. AVMA registered, Dr. Rothburn's interest in neurosurgical and spinal infection emanates from his time working for the Walton Centre for Neurology and Neurosurgery, Liverpool, where he held the post of Director of Infection Prevention.

Dr. Rothburn regularly receives commissions to act as an Expert Witness; with half of his time being taken up with NHS work and the other 50% working as an Expert Witness, for which Dr. Rothburn has written in excess of 30 reports in the last three years. In a recent interview Dr. Rothburn explained: "In acting as an Expert Witness it's important that I examine and establish what standards prevailed at the time of the incident in question, taking into account up-to-date understanding." Therefore, it comes as no surprise to learn the Team at the Forensic & Expert Witness E-Mag voted unanimously in favour of Dr. Rothburn as this year's winner of the coveted 'Expert Witness Service Award for Infection Advice'; an independent Award scheme that was created in order to highlight those businesses and individuals who have made an outstanding contribution to their particular field. The Forensic & Expert Witness E-Mag is always keen to bring attention to those who are providing a product or service that stands out from the crowd and deserves to be appreciated not only by its' readers, but also by a wider audience.

On receiving this accolade Dr. Rothburn had this to say:

“I am delighted to accept this award in recognition of my work in this area and I am looking forward to making further contributions including speaking about infection at educational seminars over the next year”

DR. MICHAEL M. ROTHBURN.Clinical Microbiology Department University Hospital Aintree, Longmoor Lane, Liverpool L9 7AL Tel: 07837 474 367 . E MAIL: Manddrothburn@yahoo.co.uk

For over 20 years Dr. Marta Elian M.D. has been able to draw on her considerable academic training, together with her special expertise, to provide concise, objective Expert Witness Reports covering all aspects of general neurology, epilepsy, motor neurone disease, multiple sclerosis and objective smell tests.

DR. MARTA ELIAN M.D.

Working for either the claimant or defendant, as a single or joint expert, Dr. Elian has a great deal of experience in attending court; having in the past given evidence as an Expert Witness for cases involving personal injury, as well as disputes over medical negligence and inquests at Crown Court. Clients should also note that consultations with Dr. Elian can be conducted, in addition to English, in Hungarian, Romanian, German, French or Hebrew, thereby negating the need for an interpreter. Below are a couple of case studies undertaken by Dr. CASE NO 1 Elian: A 60 year old married man sharing a pub management job with his wife for 40 years was referred by the Crown Prosecution Service. Being a football fan he brought the neighbour's teenage son two football publications and retuned with a third one. On both occasions the sixteen year old sister opened the door. She remarked having heard what a nice flat he had; she came over to see it spending five minutes in the flat. Two days after this brief visit she indicted him to the police that he “intentionally touched her with a sexual nature without her consent”. He first knew about it at the time of the surprise arrest at home and taken into custody for several days. He suffers from progressive Parkinson's disease since 1997. He slowed down, is unsteady but his main problem is “freezing” i.e. suddenly stops walking as if nailed to the ground especially where space is limited as in a crowded street or narrow doorway. His abnormal behaviour – result of Parkinson's – was easily demonstrated during the consultation, when I instructed him while watching going through a narrow door. Visualising his behaviour I had no doubt he would have been physically incapable to perform the complex procedure he was indicted with. This demonstration made it clear the girl was mistaken misinterpreting his Parkinson's induced behaviour. Based on my report he was cleared – I received a thank you letter.

Consultant Neurologist & Expert Witness

CASE NO 2 Following a mild head injury after a road traffic accident a 26 year old man allegedly had several generalised convulsions confirmed by the GP's letter. When asked to demonstrate the event – he did! An impossibility as generalised convulsions always occur while unconscious. To double check I asked the accompanying witness to imitate/demonstrate what was observed. The demonstration well supported my opinion that the convulsions were not organic in nature. I suggested hospitalisation with video recording as final proof. It confirmed what was clinically obvious that we are not dealing with genuine seizures. Needless to say his claim was dismissed.

FOR FURTHER INFORMATION PLEASE CONTACT: DR. MARTA ELIAN Consultant Neurologist & Expert Witness 32a Queens Grove, London NW8 6HJ Tel: 0207 722 5508 Fax: 0207 483 1761

www.sawalsh.com

MSc. C.Eng.,FCIWEM, FIPHE, MCIBSE, A.C.E. MIOSH, MAE. MEWI.. CUEW

SPECIALIST CONSULTING ENGINEERS & EXPERT WITNESS LTD

Providing a professional service, of quality and value for every instruction, Mr. Stephen Walsh is a Chartered Engineer, Chartered Safety and Health Practitioner, Chartered Water Engineer and Environmental Engineer and has been an Expert Witness since 1984.

Stephen Walsh entered the profession as an indentured student apprentice Plumbing, Heating, Gas and Public Health (Building Services) Engineer during August 1964 and qualified as an Engineer in 1969. Stephen became an Expert Witness in Gas Plumbing, Heating, Drainage during 1984. He has completed the Academy of Experts courses for Expert Witness and together with being Chartered Occupational Safety and Health Practitioner. During 2005 he gained the Cardiff University Accredited Expert Witness by their examination.

Occupational Health & Safety Award

Following an assessment by an independent body S.A. WALSH Consulting Engineers and Expert Witness Limited were awarded the BS OHSAS 18001 certification. This certification has only been achieved by less than 1% of UK businesses and this prestigious award is supported by the Since qualifying, Stephen has been instructed as an Expert Government and recognised world-wide. Witness and given oral evidence in Civil and Criminal Courts. He has given oral evidence as an Expert Witness at the Old Said a delighted Stephen Walsh Bailey for gross negligence cases and at the Royal Courts of “We have always been proud of the service we offer our Justice, Technology and Construction Court together with clients and the way that we conduct our business including the importance we give to Occupational Health & Safety regional County Courts within England for Construction Plumbing and Hot and Cold water, Building Services matters. With the award of BS OHSAS 18001 certification, Engineering litigation. Stephen has also given oral Expert this has been confirmed by outside experts who are used Witness evidence at Arbitration, Mediation and Public to judging standards on a daily basis in a wide variety of trades and industries”. Hearings. As well as being a Chartered Engineer, Stephen Walsh has separately gained MSc Occupational Safety and Health. He is a member of the Chartered Institution of Building Services Engineers, Fellow Institution of Public Health Engineers, Fellow of the Institute of Plumbing and Heating Engineers, Member of the Worshipful Company of Plumbers, Chartered Member Institute of Occupational Safety and Health, and Gas Safe registered in compliance Gas Safety (Installation and Use) Regulation 1998 reg.3. Stephen is also a former chair of a British Standards Technical Committee for hot and cold water services; and a former director of the Institute of Plumbing.

Mr. Keith Burns, who undertook the assessment for QMS International plc, paid particular tribute to “the investment in people and training that enables S.A. WALSH Consulting Engineers and Expert Witness Limited to provide an efficient and Occupational Health & Safety aware service to their customers”. S.A. WALSH have previously been successful in completing assessments for BSEN ISO 9001:2008 Management Systems and BSEN ISO 14001:2004 Environment Management Systems.

T:020 8850 1918. E:sawalsh@btconnect.com. W:www.sawalsh.com.

Non-Medical Carbon Monoxide Poisoning Forensic Investigations Carbon Monoxide (CO) is similar to air in that it is colourless, When gas appliances have complete combustion to their manufacturers’ tasteless and non-irritant gas. It is slightly less dense than air settings the main products of combustion are Carbon Dioxide, reduced levels of Oxygen and Water Vapour. When a room has no supply of and is very slightly soluble in water.

combustion air from outside the gas flames start to burn the air in the Carbon Monoxide is a toxic gas to humans and animals because the room which contains the products of combustion. These products haemoglobin has a greater affinity for CO than the oxygen in the air. The contaminate the air resulting in insufficient Oxygen for combustion. inhalation of CO forms carboxyhaemoglobin (COHb) in the victims body removing oxygen from the body’s tissues including the brain. What As the flames burn the products of combustion, the Carbon Dioxide makes CO poisoning extremely dangerous is its insidious onset. It affects is reduced to Carbon Monoxide. The process continues until there mental ability, rendering a person incapacitated without them realising being insufficient Oxygen for combustion and the flame extinguished. Unfortunately before this situation arrives the victim in the room has the dangerous situation. become unconscious resulting in possible death. During the production Carbon Monoxide (CO) poisoning from domestic and commercial gas of CO due to incomplete combustion other components are produced and electrical appliances can be one of the most difficult to prove. The such as alcohols which become oxidised forming Aldehydes which have collection of evidence that will stand Court examination being challenging a characteristic smell. Although Aldehydes are poisonous their levels are together with finding an accredited expert witness. The expert needs to only sufficient concentration to cause nuisance and irritation to the eyes. understand the complexity of CO within the incident environment and The victim would succumb to CO poisoning first rather than Aldehydes. the technical knowledge and expertise of the alleged faulty appliance’s Before the introduction of Carbon Monoxide alarms an early indication of the products of combustion spilling into a room was condensation on operation with its possible fluing arrangement. cooler surfaces such as mirrors and single glazed windows. Fatality cases have one important advantage over personal injury cases in that the post mortem report will give the level of carbon monoxide within “Gas appliances have to be correctly serviced,” the body normally as carboxyhaemoglobin percentage (COHb%) trapped Mr Walsh went on to say. in the tissues at time of death. Personal injury cases require the Claimant to attend hospital for COHb tests within the shortest possible time to “A sorry fatality case involved two elderly people in their home heated give effective test results for litigation. Once the living CO victim has by a warm air boiler. A local plumber serviced the boiler as a friend been removed from the contaminated area and they commence to breath without knowing the servicing procedures. The boiler due to incorrect clean air the CO starts to leave their body (degassing). In atmospheric air combustion became full of soot resulting in the products of combustion Carbon Monoxide leaving the victim’s body has a 'half-life' of between 4 entering the property. It was evident the residents had suffered CO and 4½ hours. This means the COHb level reduces to half its initial level poisoning for some time due to the extent of headache pain killer within the half-life time and continues to leave the body therefore until it displayed next to their bodies.” has an equilibrium with the victim’s surrounding air. “Several years ago as part of my Occupational Safety and Health Masters (MSc) course I undertook a dissertation to study the Carbon Monoxide gas contaminating the breathing zone of gas fitters during their natural assessment for their competence by monitoring their expired breath,” Mr Walsh explained. “An interesting development from this research was the secondary Carbon Monoxide contamination present within the fitters’ environment such as smoking tobacco and being a passenger in a stationary vehicle within a traffic jam inhaling the vehicle exhaust gases through windows and the vehicle’s ventilation system.” “There was one case in which the tenants of a rented house alleged Carbon Monoxide poisoning from a gas fire and combined boiler installed within the living room fireplace,” he continues. “Upon inspection the decorations had a brown sticky layer indicating products of tobacco smoke. After extensive testing of the gas appliance no spillage of the combustion products could be established. However the medical report showed elevated levels of COHb. The source was found by making an unplanned visit to the property where I found both tenants seated in their garden shed with a motor cycle engine running, they were both smoking with the door closed. Their litigation ceased.” The burning of gas in domestic ovens and cooking grilles can lead to CO poisoning. When a gas flame comes into contact with the frites of the grille voluminous quantities of Carbon Monoxide can be produced. It being a similar situation with unserviced ovens. The yellow flame being incomplete combustion. Mr. Walsh have had to investigate cases where during the winter months victims have used cooking appliances within a sealed kitchen for heating. As the frets and oven warmed so the initial CO produced reduced. However, there then comes the second issue of air supply for combustion. The burning of gas appliances requires a clean supply of air.

www.sawalsh.com

All the time we burn carbon fuels there will be Carbon Monoxide incidents.

In another case the first floor flat owner of a converted residual house removed the chimney passing through his flat from the downstairs flat which the other resident was away on holiday. Upon their return the lower flat resident ignited a gas fire in his accommodation and sat down to watch the television. His body was found two days later. The gas fire’s products of combustion could not ventilate to the outside air and so returned to the fire’s combustion process which spilled into the resident’s flat. As the combustion recirculated through the gas fire the CO level increased until the fire was extinguished due to the lack of oxygen in the room.

In this case, the upstairs flat owner, the builder and the plumber were found guilty of gross negligence manslaughter.

View of a boiler spilling CO in a kitchen.

This photograph shows the black staining on top of the boiler which is characteristic of a boiler spilling products of combustion into the room and depositing carbon onto the ceiling and finishings. The kitchen had been blackened by soot.

XPC Services Dr. Graham Mould Pharmaceutical & Toxicology Expert Witness XPC Services provide expert witness advice and written reports for prosecuting and defence counsels on drug related criminal and similar cases. Clients include the Crown Prosecution Service (CPS), Police Authorities and many private solicitors.

Dr. Mould has appeared as an Expert Witness in Magistrates and Crown Court on a number of occasions.

He has been instructed to formulate reports centred around cases: •

With over 40 years experience in the National Health Service and pharmaceutical industry, XPC Services expert Dr. Graham Mould holds extensive and broad knowledge • in the action of drugs on the body and how the body with drugs once they have been taken. His specialisms include clinical pharmacy, clinical • pharmacology and toxicology. • Dr. Mould is also ideally placed to advise on drug therapy and the consequences of their untoward effects. • Based in the University of Surrey Science Park, • Dr. Mould has been heavily involved in the close clinical monitoring of patients who were receiving potent drugs, as well as observing the action of drugs in healthy volunteers • and in patients. Over the last Ten years, Dr. Mould's skills have developed in report writing and assessing the action of drugs in criminal cases where the action of drugs might have been responsible. •

Involving the administration and effect of prescription and over-the-counter medicines in the young and elderly Driving under the influence of drugs and/or alcohol Drug assisted sexual or criminal assault The use of illicit drugs Errors in dispensing of prescribed medicines Interpretation of toxicology reports relating to drug concentrations. Assessing results of overdose situations

However recent cases have included: Prescription drugs and alcohol and the effects of depression and violence in terms of wounding with intent.

The role of the Expert Witness is to assist the Court on specialist or technical matters within their expertise. Dr. Mould is able to provide an unbiased opinion to the facts • Drugs involved in sexual assault through the presented. His reports are clear and portrayed in spiking of drinks in bars and clubs. numbered paragraphs for ease of reference. Written in The volume of cases of this nature seems to detail using the latest research, the reports are generally have increased over the last six months due to written within two weeks following an instruction and can the number of drugs that are now available. be modified in the light of new evidence. For further information, please call Dr. Graham Mould at XPC Services on 01483 685 785 or visit the company's website at www.xpertwitness.co.uk

• The use of dinitrophenol as a slimming agent or to build muscle. The drug, which is largely purchased online requires the user to ingest a potent compound and at least one individual has died as a result of taking it.

Demonstrating Excellence in Forensic Science Ethos Forensics is the brainchild of Forensic Consultant, Sue Carney, who, by drawing on her skills and experience as a senior forensic scientist at the former Forensic Science Service, has built-up an impressive reputation for providing a range of expert forensic and scientific services including: • Forensic consultation in relation to DNA and body fluids evidence. •

Expert witness services, including a review and reinterpretation of the biological evidence and the provision of expert testimony at court.

•

Training provision in forensic awareness, DNA profiling, the investigation of sexual offences, case assessment & interpretation, or other bespoke courses for legal professionals, police customers and forensic practitioners.

•

A Quality Systems Consultancy service to forensic companies seeking certification to ISO 9001:2008 or accreditation to ISO 17025:2005, including quality system implementation, quality investigations, root cause analysis and laboratory auditing services.

Sue has consulted on a range of high profile cases incorporating forensic biology, low template DNA techniques and blood pattern analysis, providing advice to Counsel and expert testimony at court. However, her area of particular expertise is Sexual Offences cases, which often comprises the most complex forensic interpretations, as she explains: “In many forensic scenarios much of the evidence is time-dependent. This is particularly true of sexual offences casework. Biological evidence deposited on the body or inside a body orifice during sexual activity persists for a limited time, and loss is accelerated by other activities. It’s vital that forensic medical examinations are carried out effectively and at the earliest opportunity to maximize the recovery of trace evidence. Much of the information gleaned at the forensic medical examination is invaluable in determining the most appropriate forensic strategy in the case. Information at the time of forensic strategy setting is key in assessing the potential outcomes of laboratory examinations and indeed, in determining the value of suggested examinations.”

An articulate trainer,Sue presents to a variety of audiences, and teaches on accredited forensic science degree courses. As well as providing consultancy to UK clients, Sue travels worldwide, having most recently consulted in Germany and the Kingdom of Bahrain. PLEASE CONTACT: Sue Carney, Ethos Forensics T: 07796 546 224 E:sue.carney@ethosforensics.com W:www.ethosforensics.com

ROBYN J.S. WEBBER MD FRCSEd (Urol)

Having qualified from the University of Otago, Dunedin, New Zealand in 1987, Robyn J S Webber emigrated to the UK in 1989, where she trained to become a urological surgeon.

Having worked as a consultant urologist at Hairmyres Hospital in East Kilbride for five years from 2000 to 2005, Robyn then moved to Fife, and is currently based at the Victoria Hospital in Kirkcaldy, where she works as a consultant urological surgeon. She also works at the NHS hospital in St Andrews. Robyn added: "I have had a particular interest in medical education and training, and during my time at Hairmyres Hospital was Associate Director of Medical Education. Currently I am an examiner and question writer for both the MRCS and FRCS(Urol) examinations." I have recently been appointed as an external advisor for consultant appointments in urology in Scotland. Having worked for a variety of medical publications in the past 12 years, Robyn is able to draw on her expertise in medical journalism and editing in her present position as Deputy Editor of Surgeons News, editor of SN Global, and former member of the web editorial team for the BJU International.

Throughout her career Robyn has taken an active part in the activities of the Royal Society of Medicine; currently being a Council Member for the RSM Section of Urology. In acting as a Expert Witness for investigations Robyn is required to give her professional opinion on: All aspects of urological surgery, urological malignancy, delayed diagnosis of urological conditions, urinary incontinence, complications of TVT/TOT mesh surgery, clinical negligence, informed consent and personal injury including genito urinary tract injury, renal and pelvic trauma and erectile dysfunction. Writing approximately 50 reports as an Expert Witness per year, Robyn is equally well versed in giving evidence in court.

Consultant Urological Surgeon & Expert Witness in Urological Cases

CASE STUDY No.1: CAUDA EQUINA SYNDROME: A 30 year old woman with a long history of back pain and “sciatica” attends her GP complaining of worsening of pain in her lower back and tingling in her buttocks. Her GP increases her analgesia prescription. Two days later she attends her local Accident and Emergency Department. Her pain has worsening, and she describes feeling numb over her buttocks and inner thighs, and has difficulty in passing urine. She also complains of constipation. Her constipation is attributed as a side effect of her analgesia, her medication is changed again, and she is discharged. She returns to hospital the following day, in retention of urine. She is catheterized, and has over a litre of urine in her bladder. Neurological examination reveals loss of sensation over the buttocks and inner thighs, and an emergency MRI scan of her spine is requested. This demonstrates a large central disc prolapse at L4/L5 and she undergoes an urgent decompression. Post operatively her residual symptoms include numb ‘patches’ over her buttocks, and continuing difficulty with both urination and defecation. Her symptoms vary, at times she has difficulty in passing urine and may be constipated, on other days she experiences episodes of urinary and fecal incontinence. These symptoms do not improve. She becomes housebound, leading to a loss of her income, and her embarrassment and distress over her bladder and bowel symptoms contribute the breakdown of her long term relationship.

CASE STUDY NO.2: CONSEQUENCES OF A MALE PELVIC FRACTURE A 25 year old man sustained a fractured pelvis following a fall from a motorcycle. He also sustained a partial rupture of his urethra, and has suffered from erectile dysfunction since the time of the accident. Erectile dysfunction occurs due to damage to the nerve and blood supply in the penis following the accident. Although he may have some spontaneous improvement, he is unlikely to regain full erectile function and will require treatment as long as he wishes to remain sexually active. His urethral trauma places him at risk of subsequently developing a urethral stricture. He developed such a stricture 18 months later, with symptoms of an increasingly poor urinary flow. He undergoes an optical urethrotomy (a procedure performed using a special ‘telescope’ to divide the stricture). Within months the stricture recurs, and he elects to undergo a urethroplasty, a larger open operation, which is curative, but places him at risk of complications including urinary incontinence, which may be permanent in some patients.

In addition to having undertaken medico-legal work for the past 7 years, Robyn has also been a Clinical Advisor to both the Parliamentary and Health Services Ombudsman, and is now an independent Clinical Advisor to the NHS.

Gerroff moy land! Land in the UK is a finite commodity – except on the East Coast for example, where either through natural erosion or a policy of abandoning land to the sea, our small island is growing even smaller – so it is little wonder that arguments over who owns which part of our precious Albion are emotive. Some land of course is well worth fighting over: the narrow strip which would allow access to a huge building site worth millions, for example. But what can cause just as much concern is the dispute between neighbours over where exactly a border runs between their properties. Such disputes can last for years at huge expense, and emotionally they can be a nightmare. Take the case of neighbours in rural Lancashire, reported in the Daily Telegraph a little time ago. A dispute over the exact placing of a fence had gone to the High Court, which ruled in favour of Mr Jeffrey Grundy, a businessman. His neighbour Miss June Iddon, a 72-year old spinster, didn’t accept the court’s decision. When Mr Grundy and his contractor began moving the fence, Miss Iddon, in a rage, seized a spade and swung it at Mr Grundy, breaking his arm. She was sent to prison for 12 weeks, and was dragged down to the cells, protesting her innocence. So not only would it have cost her a fortune in legal fees when she lost at the High Court, not only does she now have a criminal record, but when she is released (for good behaviour?!) she will have to go on living next door to the person she hates. There has to be a better way of solving such cases, and indeed there is. District Judge Stephen Oliver-Jones QC, designated DJ for the West Midlands, is so aware of such problems that he insists, on first learning of a boundary dispute in his area, that all parties and their lawyers attend his chambers, where he warns them of the expense, delay and emotion of continuing with the litigation, and forcefully urges them have a skilled mediator help them to settle the matter. Of course mediation is not the answer to every situation – Halsey –v- Milton Keynes General NHS Trust [2004] EWCA Civ 576 gives a checklist – but it is remarkably effective in many cases, and the going rate for reaching a settlement is reckoned to be over 70%, even including those parties who agreed to mediate only after judicial “encouragement”.

As Lord Justice May said in Egan –v- Motor Services (Bath) Ltd [2007] EWCA Civ 1002:

“Try it more often.”

Chris Makin Forensic Accountant & Mediator

Chris Makin Forensic Accountant & Mediator Please allow me to describe a couple of mediations I have done on this topic, all identifying features changed to preserve confidentiality.

usiness neighbours had not spoken for ten years when I was asked to mediate their dispute. At the start they even refused to sit in the same room. The dispute was over a yard between two Victorian warehouses. On the low side was a motor panel beater who had traded there for many years; on the other a new architects’ practice. The latter had constructed a mezzanine floor and modern staircases inside, and completed the facelift by laying tarmac in the yard. Trouble was, the yard had been muddy with natural drainage. Now every time it rained the water ran down the slope into the panel beater’s workshop. He couldn’t spray cars over a wet floor, and had to waste time mopping out. Worse, the architects had marked out the yard with parking spaces, blocking a public right of way, a fire escape, and access to the workshop. The panel beater had produced an expert accountant’s report on loss of profit of £100,000. It was grossly inflated, and was really just a cry for help. I took the parties out to the yard on a damp November afternoon, got them to measure up the access points and blocked markings, and eventually the architect agreed to repaint the parking spaces freeing up the right of way and access, and agreed to have a new drain constructed to take the water away. With a modest payment to the panel beater for his inconvenience, the dispute of ten years was settled in a day.

Chris Makin Forensic Accountant & Mediator

he other example concerned a row of detached houses, “little boxes on the hillside made of ticky tacky”. Looking from left to right there was Mr Left’s house and a drive, then Mr Right’s service strip and house with a drive to its right, and so on up the hill. Mr Left wanted to construct a garage at the side of his house with a bedroom above, and there was doubt about where exactly the border lay between his drive and the service strip. Mr Left asked Mr Right for the benefit of the doubt, to construct his extension up to the edge of the service strip rather than taking the mid-point of the low dividing wall. Mr Right adamantly refused; but when he was on holiday, Mr Left had the extension built nevertheless. During the mediation, I knew we were in trouble when Mr Right produce a photograph of his house, showing where he believed the boundary lay. Interestingly, there was a bedsheet draped out of the bedroom window, painted with a Union Jack and “Welcome Home, Gary”. To be friendly, I asked “Who’s Gary?” to be told that he was his now dead, a soldier killed in the first Gulf War, and Mr Left had encroached on the “sacred” land where he had played with Gary as a child. After fierce negotiations, Mr Left agreed to pull down the extension – it was only a brickwork shell – and rebuild it two inches narrower. That would have been a good result, except that Mr Right said that he must have been Right (!) all along, so he wanted his costs. Mr Left had no money. The mediation failed, and no doubt the dispute rumbled on, with huge legal costs and destroyed relationships; but we got so close. Litigation destroys relationships; mediation can rebuild them. Litigation is hugely expensive; the cost of mediation can be modest. Litigation can last for many years; mediation is usually over in a day. And mediation is such a powerful process that even a mediator such as myself, a mere chartered accountant, can bring warring parties together.

chris@chrismakin.co.uk www.chrismakin.co.uk

ANDREA DENBY

s a freelance Interpreter/Translator Researcher Andrea Denby is able to draw on her many years experience of interpreting/translating for the Legal sector, the Probation Service and UKVI; having completed close to 2000 hours in Magistrates’ Court, Crown & Family Court, interpreting assignments for Tribunals and working for the Police and assisting Solicitors in the preparation of cases.

INTERPRETOR TRANSLATER Andrea added: “I am fully aware of our professional codes of conduct and work through Agencies such as Capita, Language Line Services, Kwintessential, London Translations, JSP and LST.” Having been a Member of the NRPSI Hungarian Translation & Research for over 14 years, Andrea also holds Membership to a number of other leading professional bodies including the Chartered Institute of Linguists, the APCI and the International Association of Professional Translators and Interpreters (IAPTI).

Able to speak English and Hungarian fluently on a legal professional level, Andrea is also able to read and have basic conversational skills of German; with her knowledge of Latin having proven to be an extremely important asset in helping her to understand legal arguments. Andrea is able to draw on her extensive academic training, which includes having attended the ELTE in Budapest, where she gained an MA degree in English and Hungarian Language and Literature, before going on to become a certified Doctor of Philosophy in comparative literature at the University College, London. Following which she studied at the Chartered Institute of Linguists, London where she gained a Diploma in Public Service Interpreting in Law. Andrea then furthered her education by achieving a Graduate Diploma in Law, English Law at the University of Westminster. With 2011 seeing Andrea successfully complete an MOJ Independent Assessment in Hungarian-English Legal Interpreting course (Tier 1) at Middlesex University, London. Currently working as a freelance Interpreter/Translator Researcher in the Hungarian Translation & Research Education Dept, at the University of Westminster, Andrea established her own company over 14 years ago and has been on the oﬃcial register of Translators/Interpreters since June 2007.

Course Tutor at South Thames College - Mariana Asminian was certainly impressed with the standard of Andrea’s work: “I teach legal interpreting courses at South Thames College and Andrea has been marking my student’s translations for the past year or so, helping me adhonorem by checking translations and providing guidance to my Hungarian students on grammar and terminology as required. They greatly appreciated the knowledgeable feedback Andrea provided them.In recognition of her input and great help, I issued Andrea with a Confirmation of CPD carried out for our college.”

Andrea Denby Grange Farm Cottage, Hengrave, Bury St. Edmunds, Suffolk, IP28 6LX Tel: 01284 756 092 / Mob: 07729152115 Email: adenby@hotmail.com

BAHASA INDONESIA

Translation and interpreting services

Philip and Dina Hatch-Barnwell

Working from their offices in Dorset in the south west of England, Philip Hatch-Barnwell and his wife Dina provide a professional and confidential legal translation and interpreting service from Bahasa Indonesia to English and vice versa.

roblems with other, more common languages are rife in legal cases. The use and, more importantly, the need for accurate translation and interpreting of Bahasa Indonesia is very rare in proceedings, thus representing the importance of Philip and Dina’s expertise With Government cuts to legal aid, representation is not often available with interpretation being one of the items paid for –this causes a huge problem when proceedings involve one or more individuals whose native tongue is not of British origin. This ‘language barrier’ can be critical to the outcome of any case and the mis-translation of speech in court, statements, reports or documents can add to complexities of the case even leading to a miscarriage of justice. Add to this, problems that solicitors are experiencing with the governing body of legal translation and interpreting services in the UK and the impact on court cases can be catastrophic. Mirrored around the industry, government provided translators are either not arriving at court or, worse, not an expert in the language being spoken – therefore giving translators and interpreters in the country a bad reputation. Reliability is the key. Currently, solicitors must go through the authorities to request a linguist with an independent option only allowed to be explored after contacting them in the first instance. Philip Hatch-Barnwell is a member of The Association of Police and Court Interpreters (APCI) who are active in protecting and promoting good interpreters. If Government authorities cannot supply or perform simply, Philip encourages solicitors to contact them directly. Ensuring that all instructions are carried out thoroughly and with the utmost accuracy, Philip is vastly experienced and has built excellent working relationships with many clients, meeting their deadlines and providing a critical component to the success of legal cases. Philip and Dina’s specialties include translation, consecutive interpreting both ways; subtitling film or video, voice overs, transcription, editing and proof reading. Working in partnership with his wife, Dina – an Indonesian national and native speaker – the couple have experience and expertise in translating many subjects from legal matters to company reports with the advantage of all translations being edited by a native speaker – ensuring clarity and credibility. Working in and out of Indonesia since 1975, Philip Hatch-Barnwell covers a wide range of topics and subject matter. Philip passed the Metropolitan Police test for consecutive interpreting some time ago, successfully completing the course to distinction level. In January 2007, Philip was awarded a Commendation by the Metropolitan Police for outstanding work with the Sapphire Team. In an extract from a Judgement made by a District Judge at Bournemouth Crown and County Court recently, it was said: “However, I want at this stage to pay the highest possible tribute to the professionalism of the interpreter, Philip Hatch-Barnwell. He has been conspicuously helpful to the Court and, seemingly, tireless in helping everyone in extracting from the Mother answers to questions which were quite properly and clearly put but with which she appeared to struggle. This judgement may not reach him in full, although it might, but I hope that the respective solicitors will pass on my thanks and admiration to him.” Philip is a member of the Chartered Institute of Linguists (CIOL), International Association of Professional Translators & Interpreters (IAPTI) and the Association of Police & Court Interpreters (APCI) and The Institute of Translators and Interpreters (ITI). He is also a full status member on the National Register of Public Service Interpreters. He has been instructed on translation and interpretation projects for many clients including Universities, HM Customs & Revenue, The Foreign Office, Police Forces throughout the country, and many Courts.

For further infor�ation please call Philip or Dina on 07711 64 35 70 or email at philipjava@g�ail.com For further infor�ation see http://philiphatchbarnwell.wordpress.com

ith over ten years experience as a substantive consultant, working in two of the busiest A & E Departments in the UK, Dr. Colin Read currently holds the post of Consultant in Emergency Medicine at Lancaster Royal Inﬁrmary. Trust.

DR. COLIN READ

LLM, FRCS (Eng) FCEM

Dr. Colin Read Medicolegal Services Ltd Dr Read trained in Emergency Medicine at University Hospitals of Leicester and the University of Tasmania. Dr Read has also undertaken postgraduate training in the field of medical law, achieving a Masters degree (LLM) in Medical Law from the University of Cardiff Law School. This covered consent, confidentiality, clinical negligence and law and psychiatry. This qualification has enabled Dr Read to secure a teaching position in Medical Law at the University of Lancaster Medical School. As an examiner for the College of Emergency Medicine, Dr Read remains fully committed to maintaining knowledge of current ‘best practice’ in Emergency Medicine. Through his company Dr Colin Read Medicolegal Services Ltd Dr Read has built up an impressive reputation over the past twelve years as an expert witness- providing medical reports and advice for Personal Injury, Medical Negligence and Criminal cases. Having worked as a Consultant in Emergency Medicine for 7 years during which time he was clinical lead for 3 years in what is acknowledged as one of the top 5 busiest A&E departments in the country, Leicester A&E departmentwhich handles 165,000 patients per year, Dr Read gained a thorough grounding and comprehensive experience in dealing with wounds, injuries and managing trauma and medical cases.

Dr Colin Read

" My ser�ices are not limited to 9 - 5 and should a client need any advice I am just a phone call away and will be happy to help at any time." “Having had extensive experience in giving evidence in court as an Expert Witness at Inquests and criminal cases - including murder and manslaughter, I am currently preparing for a civil trial appearance. I also have experience of conferences with Counsel in preparation for progression of negligence claims."

Dr. Read added: “Whatever the injury, when dealing with a criminal case involving GBH or s18 wounding prosecutions, I am able to draw on my extensive knowledge to provide an accurate, concise opinion in court. Dr Read has given expert evidence in Crown Court for Murder, GBH and other serious criminal charges.”

A Member of the British Academy of Experts, Dr. Read's highly respected medical career also includes Having been a course director for Advanced Trauma Life Support (ATLS) and Advanced Life Support (ALS) courses...

Due to specialised knowledge in the area of Manslaughter by Gross Negligence, Dr Read has assisted the Police and CPS in the assessment of such cases, and is experienced in case conferences with Counsel on such matters.

Dr. Read's heavy work schedule still allows him time to write articles for the NHSLA website, and as it now incorporate a 'lessons learnt' section in its' instructions, Dr. Read also has experience of writing these submissions.

The unique knowledge he gained during his time at Leicester which included managing hundreds of cardiac arrests, and teaching on Life Support Courses, Dr Read is a credible witness when giving evidence on what is most likely to have happened if a sick or injured person was taken to hospital at a particular point in time. “Concerning Negligence, my Defendant/Claimant split is 80/20. I receive regular instructions from a variety of leading law firms, and also from Professional regulatory bodies to comment on standard of care”.

Dr. Read's philosophy to eliminate unnecessary, time-wasting paperwork is evident in that he operates a 'paper-light' office, enabling him to produce reports usually within four weeks of instruction, and sometimes more quickly if the deadline demands: " My services are not limited to 9 - 5 and should a client need any advice I am just a phone call away and will be happy to help at any time."

Dr Colin Read

Consultant in Emergency Medicine Emergency Department, Royal Lancaster Inﬁrmary Lancaster LA1 4RP Tel: 01539 447 320 . Mobile: 07921 545 600. Email: colin.read@mbht.nhs.uk Website: www.drcolinread.com

David Cook JP FCA MAE David Cook qualiﬁed as a Chartered Accountant in 1965 and is a Law Society approved Expert Witness with over 40 years experience. Following partnership roles within several national forensic accountancy ﬁrms, David set up his own forensic accounting and expert witness practice, DRC Forensics Ltd, in 2009. David holds a wide range of commercial and corporate expertise, particularly in the fields of business advice, financial planning and taxation. He has considerable expertise in litigation support and investigations; supporting lawyers on the accounting and financial aspects of business and commercial disputes, professional negligence, fraud investigations and other criminal matters. In today’s complex financial and business world there is often the need for a forensic accountant with meticulous attention to detail combined with analytical and interpretive skills of the highest order. Speaking of his experience and expertise in a recent interview, David explained: “Lawyers are looking for Experts who can demonstrate that they have the experience and qualifications to carry out assignments to a high standard. These days you are not likely to get appointments unless you have the qualifications and a reputation for having the experience and ability to produce a high standard of work and be able support that in discussion with the other parties’ expert as well as in Court where necessary.” David acts on the behalf of the Prosecution/Claimant and Defence, and also accepts instructions as a Single Joint Expert and as an Independent Expert. The instructions that David accepts cover a third of Criminal, Professional Negligence and Commercial Disputes including matrimonial. His practice, DRC Forensics Ltd also provides a lot of valuations of companies in dispute situations.

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David Cook

Reg Nº: 3061 membeR

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THE ACADEMY OF EXPERTS

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Examples of instructions that DRC Forensics Ltd have accepted include: PROFESSIONAL NEGLIGENCE

A case in respect of an MBO by a one third director shareholder of the other two one third director shareholders. Completion was agreed to take place by fax confirmations on a Friday morning, in fact went to late in the afternoon with the following Monday being a Bank Holiday, when it was too late to transfer the funds and the vendors solicitors, an assistant as the partner had already left for the holiday weekend, accepted completion subject to agreeing the payment of interest up to the Tuesday. The next day, Saturday, the purchaser director received information that a major customer was removing its business and pulled out of the deal. The vendor directors sued their solicitors on the basis that completion had taken place, which the solicitors should have enforced, and that they had lost due to the greatly reduced value of the company. Acting for the Defence, David had to value the company following the change in circumstances, both with and without a minority interest, assess the value of security and value loan notes on a discounted interest basis. The case was decided in favour of the defence, both on Quantum, where the Judge gave his assessment first, and on causation.

CRIMINAL TRIAL

A Crown Court Fraud trial relating to a director, minority shareholder accused of fraud against a major supplier and customer, in conjunction with a director of that company. The other director had already been convicted of fraud against his international company. The basis of the Defence, for whom Mr. Cook was acting, was that the Defendant and his company colleagues knew nothing of the fraud, entered into transactions with someone that they were used to dealing with, supplied cash for subcontractors, as they had in other cases, had made their usual profit margin on the jobs and had dealt with the transactions correctly. David had to examine the transactions in detail and report on whether they were correctly recorded in the company’s records and accounts, correctly dealt with for VAT and Corporation Tax and that the director had derived no personal direct benefit from the transactions, which he was able to do. He also had to look at and comment on how the transactions were dealt with in the other company’s records and their internal control procedures for verifying transactions This case involved a fairly gruelling cross examination but Mr. Cook's evidence was upheld and the Defendant cleared.

Criminal POCA

This is a case of fraud against an Insurance/Investment company by an individual who discovered by accident, that he could ”fix” the time on fax instructions so that he could buy or sell units after he knew how they were performing and make guaranteed profits. He pleaded guilty so that the case was all about the level of compensation to the insurance company and the Confiscation Order under the Proceeds of Crime Act (POCA). The prosecution claimed that the Defendant should pay both £4.5m compensation and £5.5m confiscation, with the bonds being worth some £4.5m and using his other assets, property and investments to pay the balance. Mr. Cook's first task was to correct the figures being claimed to compensation and to point out that cashing the bonds, as was being proposed, would attract tax, which should either be taken into account in the compensation figure or that this should be dealt with by the insurance company taking back the illegal profit direct from the bonds so that tax was not a consideration. The second task was to argue and show that the Defendants other assets were not derived from crime and that the compensation should be paid first with confiscation only being paid to the extent that there was a balance of value left in the bonds. This would leave the other assets for the Defendants now divorced wife and family. At a hearing before a High Court Judge in London, he found in the Defendant’s favour.

For further information, please contact David Cook on 01275 390 432 or 07891 492 002, or alternatively email the expert on david@drcforensics.co.uk Click here for www.drcforensics.co.uk

Accredited forensic accountant

Commercial Disputes A company was supplied with faulty goods which it used in its manufacturing process, resulting in faulty products being supplied to customers as the resulting problems did not become apparent until later when the goods were in use. Acting for the Claimant, David had to assess and quantify the losses suffered by the company which in hisview were in respect of: i. ii. iii. iv. v.

The time and costs involved in identifying and solving the problem. The cost of rectifying faulty items. The cost of the faulty materials. Compensation paid to customers. Loss of business and goodwill, which was the most difficult area to assess.

The matter was settled at Mediation, with The Claimants receiving fair compensation.

Matrimonial

Davidâ&#x20AC;&#x2122;s usual involvement in matrimonial cases is where a private company is one of the major assets and income source and the company has to be valued and the ability to extract income or capital assessed, with sometimes looking for disappearing income or funds. In today's legal arena, it is fairly rare for an Expert to attend Court on Civil matters, the whole system is geared up to settling matters pre Court and that is what happens in most cases. Over the years, David has attended Court on Professional Negligence cases and Commercial Disputes, including valuation several times. Apart from having sat regularly in Court as a magistrate for 24 years, David has and still often goes to Court on Criminal matters. In particular this is for fraud trials, money laundering trials and Proceeds of Crime Act (POCA) contested hearings. In a recent interview, David outlined the importance of instructing an Expert Witness at the beginning of a legal case, opposed to asking for an opinion at a later stage of the proceedings, he explained: â&#x20AC;&#x153;An informed assessment of the likely direction and likely level of the case/claim is important - an expert's input into the direction of the case is vital so as to avoid going in the wrong direction, developing teamwork and avoiding a last minute rushed approach.â&#x20AC;? David is a Fellow of the Institute of Chartered Accountants in England and Wales and accredited by the Institute as a Forensic Accountant. He is also a Member of the Academy of Experts and accredited by them as an Expert Witness; a Member of the Society of Expert Witnesses and a Member of the Professional Negligence Lawyers Association.

ased in North Lincolnshire but operating throughout the country, Sue Bayram is able to draw on her academic training, as well as the practical experience she has gained over the years within both the NHS and the private sector working in general and continuing nursing care, including residential and community care, to provide her services as an experienced Expert Witness.

Now working as an independent Nursing Consultant, Sue is fully aware of the legal obligations of care provision and the pitfalls of completing documentation. Specialising in cases involving clinical negligence and personal injury claims, Sue is fully trained and able to provide reports - for both claimant and defendant which are compliant to CPR requirements. As part of her commitment to extend her knowledge base, Sue undertakes ongoing professional development for herself, as well as providing a Consultancy & Training Service to those working in healthcare in a variety of settings, including interim and crisis management. Undertaking this work ensures that she keeps abreast with current practice and is regularly involved with day to day issues - a factor she feels is vital to her role as an Expert Witness.

SUE BAYRAM Mediator, Training & Management Consultant & Expert Witness (Nursing)

A member of The Academy of Experts, Sue is also Deputy Chairman, sitting on both the Council and Executive Committee of the Academy. The Academy provides training and support for experts worldwide, as well as advising Government bodies, the judiciary and allied organisations on procedures and protocols relating to Expert Witness issues.

Mediation/early settlement is now recommended by the Civil Courts as the first consideration rather than taking legal action. If mediation/early settlement hasn't been considered - or has been delayed prior to legal action - this may affect the decision of the Judge regarding costs, with several winning parties to date out of pocket as they refused to consider, or delayed, the process of mediation prior to legal action.

Qualifiying as a Mediator with The Academy of Experts in 2001, Sue mediates on a range of disputes ranging from neighbour and boundary disputes to multi-million pound business issues, including personal injury, clinical negligence and employment cases.

To ensure that she is current in her knowledge and approach in this area also Sue carries out research into current mediation practice nationally and internationally as well as updating her skills on a regular basis.

E x p e r t Witness (Nursing)

CASE STUDY:

Mrs W was admitted to hospital with a history of poor appetite, nausea and vomiting, and a reluctance to take ﬂuids. At 81 yrs of age she had a complex medical history and was quite frail. On admission to hospital it was found amongst other things that she was dehydrated and malnourished. She was assessed as being at a very high risk of developing pressure area problems and she did go on to develop two sacral pressure ulcers shortly after her admission which deteriorated during her treatment. Although the staff had identified that she was at high risk, they failed to put into place an adequate care plan to reduce/remove the risk of her developing such pressure ulcers. That care plan should have included suitable pressure relieving equipment ( which was eventually provided), at least 2 hourly positional changes and pressure area care, good oral hygiene and the encouragement of a good varied high protein

diet and plenty of fluids. It is usual for someone who has such needs to be referred to a dietician who can advise on the best way in which to ensure that the person has a suitable diet and also prescribe supplements if necessary. The development of the pressure ulcers caused Mrs W to have great discomfort and they took a considerable time to heal. The documentation provided by the hospital in respect of her care was very poor, not only in the way in which it was completed, but also regarding the fact that there was a lack of appropriate care given in relation to her care needs. The conclusion of my investigation and report was that in my opinion the standard of care provided was not consistent with what should be expected of a qualiﬁed and competent nursing team. Throughout my reports I use appropriate references to support my opinion.

The Trust responsible for the hospital settled the case with an offer of £40,000 which was accepted. Qualifying as a Mediator with The Academy of Experts in 2001, Sue mediates on a range of disputes ranging from neighbour and boundary disputes to multi-million pound business issues, including personal injury, clinical negligence and employment cases. Mediation/early settlement is now recommended by the Civil Courts as the ﬁrst consideration rather than taking legal action. If mediation/early settlement hasn't been considered - or has been delayed prior to legal action - this may affect the decision of the Judge regarding costs, with several winning parties to date out of pocket as they refused to consider, or delayed, the process of mediation prior to legal action.To ensure that she is current in her knowledge and approach in this area also, Sue carries out research into current mediation practice nationally and internationally as well as updating her skills on a regular basis.

For Information On Sue Bayram's Fees And A Full CV Please Contact Sue Directly On Tel: 01724 784148. Mob: 07951075939 email: Sue@SueBayram.com: www.SueBayram.com

Improving Evidential Reliability Dr Hugh Koch, Chartered Psychologist and Director, Hugh Koch Associates LLP Dr Jenny McGillion, Chartered Psychologist, Hugh Koch Associates LLP Dr Karen Shannon, Chartered Psychologist, Hugh Koch Associates LLP A medico legal expert frequently interviews a claimant to establish the injury, psychological or physical, that has occurred, and whether this is attributable to the index event. Seven key medico-legal questions are shown in Table 1 (Koch, 2005 & 2011). Interview information, witness statements and medical and occupational medical records, provide the expert with an array of ‘data’ which he/she diligently considers in order to arrive at the most logical opinion.

Table 1: The Key Medico-legal questions 1) What, if any, injuries or medical conditions resulted from the claimants’ accident? 2) Are these injuries and conditions consistent with / attributable to this accident? 3) Are there any symptoms that relate to pre-existing conditions, and to what extent have these been exacerbated by the accident or made the claimant vulnerable to the accident related injuries? 4) What was the course and duration of these injuries and medical conditions to date, and were these within the expected range? 5) Was any absence from work in light of the injuries sustained reasonable? 6) What treatment has already been received and/or is likely to be needed in the future for these conditions? The opinion is then ‘tested’ via claimant response, lawyer clarification and debate, followed by between-expert discussion, before occasionally being tested in Court. Throughout this process there are two factors which the expert must grapple with to arrive at a ‘best-fit’ opinion – reliability and validity.

Evidential Reliability – the legal perspective When assessing evidential reliability, the Law Commission (2011) stated that experts should have regard to a number of factors including: A) The extent and quality of the data on which the opinion is based; B) If the opinion relies on an inference from any findings, and whether the opinion explains how safe or unsafe the inference is; C) If the opinion relies on the results of the use of any method (for instance, a test or survey), whether the opinion takes proper account of matters, such as the degree of precision or margin or uncertainty, affecting the accuracy or reliability of those results; D) The extent to which any material upon which the opinion is based has been reviewed by others with relevant expertise and the views of those others on the material; E) The extent to which the opinion is based on material falling outside the expert’s own field of expertise e.g. organicity of pain. F) The completeness of the information which was available to the expert, and whether the expert took account of all relevant information in arriving at the opinion. G) Whether there is a range of expert opinion on the matter in question; and if there is, where in the range of opinion lies and whether the expert’s preference for the opinion proffered has been properly explained.

Hugh koch associates

Hugh koch associates The Law Commission are developing further the concept of the ‘Reliability Test’ in assessing evidence; such tests are also know already used in the USA (Daubert test in supreme court; Frye test in federal court). The use of diagnostic classifications (e.g. DSM IV) of disorders have significantly improved the reliability and validity of diagnosis, where symptoms can be aligned to a ‘best fit’ diagnosis which can be communicated and discussed between expert and with the Court. However, the Courts should be encouraged to compensate individuals according to disability (i.e. actual loss) and disruption rather than purely a technical diagnosis.

Within the interview, the clinician listens for descriptions of symptoms which appear unsound or unreliable. The most common indicators of unreliability are shown in Table 2 below.

Table 2: Indicators of unreliability (a) “Blanket” problems and gross symptoms claiming - Almost all areas of enquiry produced claiming discomfort. (b) Selective Recall Poor recall of pre-accident traumas (e.g. previous accidents or minimising of pre-accident stress). - Difficulty acknowledging evidence of recent improvement in distress or functioning. (c) Magnifying Recall - Use of a single example only to reflect apparent consistent and sustained distress (e.g. when I drove the first time after the accident it was awful). (d) Discrepancy between self-report and other evidence - between client and GP information. - between client and work information. - between client and relative information (e) Production of rare or common symptoms - Claiming unusual, strange, atypical or preposterous symptoms. - Claiming symptoms which are experience by most of the general population (e.g. losing objects, forgetting names occasionally).

Thorough clinical interviewing and data gathering The expert clinician, like the expert lawyer, develops skills over time in “listening” to available information and organising a “picture” of an individual containing:(a) facts about the trauma and its after effects; (b) the individual’s perception of his/distress (physical and psychological); (c) significant other’s perception of the individual (e.g. family, other experts, GP); (d) an appraisal of reliable behavioural data on ability and disability; “I can’t lift things” or “I can’t drive” must be backed up by examples of previous behaviours which are now avoided (partially/totally) and frequency of such avoidance to reflect level of disruption. (e) ‘Networking’ with other experts and/or available reports to try and not only present one expert view, but also facilitate a development of the overall picture of an individual across clinical disciplines/functions (e.g. orthopaedic, neurological or psychological).

Comparison of claimant history and symptoms with GP records The expert is typically presented with several different sources of medical and occupational records. However, frequently the most useful is the GP medical journal of attendance (typically computerised for more recent years). This gives the expert the opportunity to compare what the claimant has disclosed either through interview or witness statement about: a) their condition and b) their GP attendance (Koch and Mackinnon 2004). One key question remains: whether the Claimant would have attended their GP for diagnosis and treatment if they had a clinically significant psychological injury? Some clue to this can be found in their previous records; if they previously attended for psychological problems, there is unlikely to be a post index incident reason why they have not attended unless their condition is very mild or absent. A formal GP chronology (typed and complete as far as possible) is essential to enable the experts on both sides to, sensibly and logically, answer pertinent questions in a non-partisan, objective manner. What does the pattern of attending indicate about: • Pre-accident status • Immediate post accident experience • Diagnostic and treatment provided • Other factors cited (related or unrelated) • Duration of symptoms and treatment?

How can reliability and validity be enhanced? Ultimately, any ‘certainty’ of evidence depends on whether it is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time. Findings of credibility and reliability require a comprehensive and critical examination of the evidence as a whole – not only one element to the exclusion of others. When investigating characteristics of reliability and validity in claimant’s interviewing content and style, there are several aspects of the patient history which are addressed: • Pre accident condition and psychosocial context. • Index trauma and peri-traumatic context (soon after). • Immediate short term reaction and level of disruption. • Natural improvement. • Prognosis and change/treatment expectations. The current litigation process increases ‘evidential certainty’ as it progresses. The typical ‘trail’ (Figure 1) is shown below: Figure 1

Hugh koch associates

Hugh koch associates During this process, there is a search for the ‘best fit’ opinion. With regards to increasing objective and contemporaneous information, if all Claimants are expected to have attended their GP or equivalent at the earliest possible time post-index accident, this would provide a contemporaneous and independent record from the GP of physical or psychological injuries and causation. It seems suspicious when the trail of complaint only begins with the commencement of litigation. It should be remembered that it is incumbent on the claimant (or his/her representatives) to “prove” the case of attributing injury to the index event. However, the role of single event trauma can be over emphasised and co-existing psychosocial factors which are unrelated to the trauma may be both critical and under estimated. It is important to place and compare the claimant’s overall ‘picture’ into the context of epidemiology, normality and what is called a ‘default mode’ or ‘real world perspective’ (Gill, 2008) – in plain English, what sort of reaction would be expected to be found in the general population. This must be particularly the case when dealing with adjustment reactions/disorders, or where a whole family complains of the same psychopathology. In this context it is important to remember and apply the ‘But For’ test to decide objectively the relevance of pre-index event history. However, claimants may have difficulty recalling their history comprehensively, thus making the expert’s ability to apply the ‘But For’ rule difficult and consequently, less reliable.

Current research into evidential reliability We are currently investigating in specialty-specific detail what variables are most prone to unreliability in the two clinical areas of psychology/psychiatry and orthopaedics. Experts in these two fields are being asked to provide information on which aspects of their opinion are most prone to variability, either within their own practice or between them and other experts (e.g. when joint opinions are prepared). The results will be published in the Autumn.

References Koch HCH, Holden N and Willows J (2013) Testing the reliability and validity of evidence. Expert Witness Journal, Autumn. Koch HCH and Mackinnon J G (2004) GP Records and the Medico-Legal process. PI Compensation, August, 10 – 12. Dr Hugh Koch, Dr Jenny McGillion and Dr Karen Shannon can all be contacted at www.hughkochassociates. co.uk

Hugh koch

FORENSICS INDUSTRY E-MAGAZINE

DR AMAN RANU

2013

Forensic Medical Examinations Currently working Independently

of injuries. He regularly sees and documents injuries both before

as a Senior Forensic Medical

and after treatment. His training in the evaluation of bruises can

Examiner

assist in the ageing of injuries.

(FME)

providing

services to the Metropolitan Police Force, Dr Aman Ranu is an Expert Medical Witness operating in the speciality of Clinical Forensic Medicine. Having qualified in Medicine in 1993 and then completed training as a GP, Dr Ranu has undergone higher training to pass the Diploma in Medical Jurisprudence (Clinical) examination in 2008. He has also achieved Foundation Membership of the Faculty of Forensic and Legal Medicine. Dr Ranuâ&#x20AC;&#x2122;s expertise primarily relates to forensic aspects of the care of police detainees. All detainees held in police custody are entitled to see a health care professional as part of the Police & Criminal Evidence act (1984 PACE). Alternatively, if the police have concerns regarding the physical or psychological health of

Drink/drug driving offences & Failing to provide a blood or urine sample Numerous medical conditions are sometimes overlooked at the time that the police ask a driver to provide a sample of blood or urine. These conditions include panic attack / anxiety symptoms, respiratory conditions such as asthma, and needle phobia. Dr Ranu prepares expert reports for the court based on police documents and CCTV evidence to establish whether a medical condition is likely to qualify as reasonable medical excuse for non-provision. Sexual offences Due to specialist training and expertise, Dr Ranu also undertakes the examination of victims and suspects of serious sexual offences including the harvesting of samples for forensic evidential purposes Care of police detainees / Death in Police Custody

any detainee and their fitness to be interviewed or charged , they

When held in custody, an individual is owed a duty of care by the

too can request assessment by a Doctor.

police. Forensic physicians may be asked to provide an opinion as to whether this care may have fallen below an acceptable level

Virtually on a daily basis, Dr Ranu has to manage multiple

by scrutinizing CCTV and other evidence. Expert opinion is also

challenges when dealing with individuals with complex medical and

sought in cases when detainees allege use of excessive force by

psychological needs that can be further complicated by alcohol or

the police during their arrest or detention.

drug misuse. Dr Ranu is well aware of his obligation to provide clear, objective Dr Ranu also attends sudden or unexpected death scenes to assist

fully researched clinical forensic medical opinion to assist the

the police in the identification of unusual or possibly suspicious

administration of justice through the courts. His medical testimony

circumstances surrounding the death.

is regarded as high quality and reliable.

Injury interpretation

For fur t her infor mation, please cont ac t Dr A man Ranu on 07951 0 4 8 626 or visit his website at w w w.exp er t physician.info

Dr Ranu prepares Expert court reports when medical opinion is needed to establish the likely mechanism of causation and timing

METEOROLOGY IN LEGAL CASES COATES-GREETHAM, FORENSIC METEOROLOGIST The forensic meteorologist carries out an investigation into the weather over a few hours, days and on occasions over many months or even years.

Why do the courts need an expert in meteorology? Although meteorology is an every day science, in that almost everyone understands the terms, fog, snow, rain, hail etc. the forensic meteorologist is required to examine weather records and offer an opinion based the minutiae of the science. This, almost always, involves preparing the equivalent of a weather forecast, (backcast). He is required to explain to the court why, when and where the weather occurred and how it affected the incident. In many cases of flooding and others the defence of 'Act of God' is offered, not always successfully. (Rylands v Fletcher 1868, although liability is strict, 'Act of God' is a defence.) It is of course a matter for the judge in each case to decide whether a particular weather event is an 'Act of God'. The meteorologist's part is to describe to the court, by means of a written report and if required verbally in the witness box, the evolution of a weather event. From the records, witness statements and other sources give an opinion on any matter concerning the weather that affects the case. For example it may be a question of how much rain fell, how strong the wind was, what time ice formed. On some occasions a forensic entomologist needs to know the weather over a number of days, in particular temperature and humidity, to assess the effect of the weather on the development of fly larvae in a body.

The role of the meteorological expert witness is the same as any expert witness: 'To give an honest and unbiased opinion based on sound scientific principles with supporting data and references to published work'. The weather is a matter of record and is well documented, not only in the weather records, but in the case of severe weather events and often road traffic accidents, in newspapers, on television, in witness statements, etc. Although there is a time element involved, the changes of the various weather parameters in terms of time are fixed. It is therefore a problem of spatial separation of the weather events at the nearest weather stations and the weather at the site of the incident that the expert has to consider. The opinion is based on weather data from a variety of sources, the internet, the Met. Office, witness statements, the media and, on some occasions CCTV from the site of the incident. Although meteorological evidence is not vital in many cases, occasionally it is very important. Such a case was R V Agis. Mr Agis was the designer of a large plastic multicoloured structure through which the public walked listening to music. The structure was tied down by ropes pegged into the ground. He was charged with manslaughter as well as breaking health and safety rules. The structure lifted off the ground in a park at Chester-le-Street injuring twenty or so people and killing two. Meteorological experts were employed by the prosecution and defence.

Reports, prepared by Coates-Greetham have covered the weather in Bangladesh, The West Indies, Bulgaria, Romania and at 37,000 feet over the Eastern Atlantic just off West Africa, 14,000 feet near Chicago, and other cases at flight level concerning injuries to cabin staff due to turbulence.

The case was heard in the Newcastle Crown Court. The expert for the prosecution gave as his opinion that the cause of the accident was a strong gust of wind which should have been anticipated. CCTV was available throughout the day. The day was very hot, sunny with very light winds until about one minute before the structure rose vertically into the air. Trees near the structure suddenly showed violent movement whilst other trees further away were generally still. The nearest weather stations did show quite strong winds at times but the site of the incident was much more sheltered from the prevailing wind than the weather stations. The meteorologist acting for the defence disagreed with the prosecution expert on the wind theory. The defence expertâ&#x20AC;&#x2122;s theory was that the top surface of the plastic structure became very hot. This caused air to rise over the structure in a strong thermal and the structure was sucked off the ground. The sudden increase in wind over the nearest trees supported this theory as air rushed in to replace the rising air. In the event the expert for the defence was not called to give oral evidence. It appears that the CCTV evidence was conclusive in destroying the wind theory. The jury could not agree on a verdict and Mr. Agis was found to be not guilty of manslaughter but guilty of breaking health and safety regulations. In Goodes v E. Sussex C. C. (House of Lords Appeal June 2000),

the weather too was important. The claimant skidded on ice whist overtaking and crashed into the wall of a bridge and suffered severe injuries. A weather report showed the high probability of the presence of ice on road surfaces, which would have been obvious to drivers due to hoar frost on grass and trees. The claimant lost in the high court ; won in the the appeal court and lost in the House of Lords. Coates-Greetham was started by John Greetham after a career in the Met. Office spanning thirty seven years 1951 to 1988. Starting as an observer then forecaster and eventually in 1986 head of the legal enquiry section as a Senior Scientific Officer. Over the last 30 years reports have been submitted in both civil and criminal cases. Cases have covered a very wide spectrum from murder, rape to minor traffic offences, on the civil side, personal injury, road traffic accidents and building delays covering many months. His first court appearance was in 1984 one month after joining the enquiries section. The case was one of murder. A taxi driver was killed when a rock was thrown off a bridge during the miners strike of 1982. A policeman had given evidence that he saw the accused by bright moonlight on a cloudy night with light drizzle. His evidence was withdrawn.

For further information, please contact John Coates-Greetham on 01264 360 509, email e to john@coates-greetham.co.uk or visit the company's website at www.coates-greetham.co.uk

collision

analysis

Experts in & Mobile Located in Berkshire, Forensic Mobile Services has been providing 'expert evidence' for law enforcement, criminal defence cases and commercial organisations since 2003. Digital Forensics and Phone Usage analysis is a key element in most legal cases. It is critical that the examination process is handled correctly and efficiently to ensure robust, quality evidence is obtained. As part of the larger FMS Group, the Digital Forensic team at FMS utilise in-house expertise to examine and investigate all manner of digital devices including Computer, Audio & Video, Satellite Navigation systems and Mobile Phones, FMS are one of the leading providers of the advanced digital data extraction technique known as Chip-Off.

Some of the areas commonly addressed by FMS in forensic computing investigations include: • • • • • • • • •

Internet activity & history Pornographic or indecent material Copyright & intellectual property theft Breaches of acceptable use policies Email correspondence & deleted e-mails Address book contact & calendar entries Dates & times of key events User identification & passwords Data recovery & deletion

Our Mobile Phone Forensic service will provide you with an evidence package comprising of a complete download of data from the mobile phone, a DVD containing all the data recovered from the exhibit as well as the experts' statement of continuity.

Why choose FMS? FMS has been in the expert evidence business for over a decade. All staff are subjected to rigorous security checks both in-house and by law enforcement agencies. Our expert evidence is consistently robust and is regularly commend either at trial of by our customers. Whether it's Cell site analysis, Computer forensics, Mobile phone or Chip-off forensics, Audio & Video enhancement, FMS have an esteemed reputation for providing comprehensive, detailed and accurate examinations and reports.

n Digital Investigations Phone Solutions The Chip-off process is an advanced digital data extraction technique which involves physically removing the flash memory chip from a handset using specialist equipment and then acquiring the raw binary data. That extracted data can then be read using mobile phone forensic software to produce your full evidence package. This service is vital to progress investigations when examining damaged handsets of bypassing secure passwords such as those found on BlackBerry's. The Cell Site Analysis team at FMS utilise experts whose knowledge has been gained from working within the communications industry since the implementation of the Major Mobile phone Networks infrastructure throughout the UK, both at senior engineer and senior management levels.

With the arrival of 4G handsets onto the market and the increased use of Wi-Fi, the FMS Group have recently launched their 4G LTE & Wi-Fi coverage survey capability. FMS has developed and now uses and sells its own survey toolkit which measures four networks & technologies simultaneously including GSM (2G), UTMS (3G), LTE (4G) and Wi-Fi. FMS are able also able to provide a Private GSM / 4G mobile phone network as a solution to your business or individual network requirements.

FMS hand held CSU-4L survey tool

In cell site analysis FMS use a variety of techniques, including coverage surveys, to ensure that a subject was or was not in the vicinity of a location of interest or crime scene at the time of a specific incident. FMS derives its survey methodology directly from its roots, doing the same job in and for the mobile phone networks.

For Further Information, Please Contact The FMSGroup T:01635866678 E:info@forensicmobile.co.uk W:www.fmsgroup.co.uk

Telecommunications Alan Spencer Telecom Expert

Alan's very first case involved the use of a supposed patented connector on a printed circuit board that formed part of a piece of telecommunications equipment. “A UK plc claimed that the manufacturer of the connector had infringed the patent which the UK plc held,” he explained. “On careful inspection it was found that the connector in question had slight differences to the patented connector but nevertheless used the same principle of connection. On examination of the patent it was clear that the method of connection was the invention and not the type or style of the connector.” The Expert Witness report, which Alan compiled, made it clear that the connector in question infringed the patent and subsequently both parties agreed to an arrangement whereby the equipment could be manufactured and marketed without dispute. “Another case involved a modem-like piece of telecommunications equipment that was sold by a dealer to one of its customers,” Alan continued. “The equipment was designed to perform protocol signalling conversion and to enable computer data to be transferred across a telephone line.”

Alan Spencer is a Consultant, Chartered Engineer and telecommunications Expert Witness who has been engaged in civil and criminal investigations since 1991. With over 40 years experience in the IT and Telecommunications industry, Alan has investigated many complex types of expert witness telecommunication cases, providing expert opinion and reports for use in court.

“The customer in question had a particular operational problem with the equipment and returned the equipment to the dealer as not fit for purpose and demanded a refund. The dealer contacted the UK manufacturer of the equipment and reported the problem and was told that the equipment was never designed to cope with the particular operational problem in question. The dealer maintained that the data sheets and the e-mails received from the manufacturer implied that the equipment should have coped with the particular operational problem. The manufacturer denied this, which resulted in matters being referred to a court.” “The Expert Witness report was based on a full paper trace involving data sheets, e-mails and letters between all parties. The paper trace revealed that the manufacturer had exaggerated the capabilities of the equipment and the dealer had sold the equipment based on the exaggerated capabilities, as it was these capabilities that the customer in question had required.” Part way through this particular court case, the manufacturer agreed to settle the dispute by compensating the dealer.

Fully qualified Chartered Engineer, Alan Spencer has also worked as a Consultant for a number of large companies and has engaged in high-profile projects including, among others: A •

Leading a team as Project Leader in ETSI that standardised the technical registration for Euro ISDN.

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Working with Ofcom and BT so that a start-up company could become a public Telephone Operator and offer unified communication services and have interconnection with BT.

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Alan has also been engaged by the European Commission to lead telecommunication's harmonisation projects in the Czech Republic and Cyprus.

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He is also the author of many reports on telecommunication and related IP topics as well as presenting at conferences worldwide.

Further case examples in which Alan Spencer's Expert Witness experience has played a pivotal role, include: (i) A case involving a major international communication system supplier, a Portuguese mobile network operator, a firm of installation contractors and a number of insurance companies and legal representatives of all parties. The operator had purchased a new mobile telecommunication system from the supplier and during the installation of the system it was found that a number of racks of equipment (worth over ÂŁ1,000,000) did not function although the equipment had previously been shown to work. Initial inspection by the supplier showed that the equipment in question had been damaged by an electrical surge. Following a site visit and a series of interviews which Alan conducted (with an interpreter being used on some occasions), he determined that the electrical surge was caused by the equipment being turned on in the wrong sequence. It was also discovered that in order to check that the electrical supply was connected correctly, an electrical installation engineer had turned on the equipment but was unaware of the sequencing required and this had caused the damage. Due to the time-scales involved, all parties decided to come to an agreement without involving the courts. (ii) Another case involved potential litigation by Ofcom against a telephone card (calling card) service provider that failed to meet EU directives on number portability. It is an EU Member States requirement to ensure the provision of number portability to subscribers pursuant to Article 30 of the Universal Services Directive (2002/22/EU) as amended byDirective 2009/136/EC. The service provider had been operating for many years and his telephone switch was not originally designed for number portability such that calling card subscribers were not able to move their phone numbers to other service providers. After examining the architecture of the telephone switch, Alan was able to suggest a slight change that satisfied Ofcom. Litigation was avoided.

The specialist telecommunication areas that Mr. Spencer has particular experience and expertise in include patent infringement, equipment analysis/design, number portability infringement; telephone billing involving fraud, call fraud, regulation and standardisation. (iii) A case involving a major Insurance Company and an agricultural manufacturing company that operated from a rural area and had telephone service via BT overhead cabling. Following problems with the BT overhead cabling, no telephone calls were possible for a number of days. The agricultural manufacturing company claimed a substantial sum for lossof-business against the insurance company. Alan was asked to investigate what remedial action the company could have taken in order to carry out trading from the same site or a different site. (iv) In another case which involved a tenant at a mobile home holiday camp that claimed that the camp management had assured him that each mobile home would be having BT telephone service. The tenant claimed that as no BT telephone services was provided he was unable to contact his sick relative in Europe. Alan investigated all possible communication services from the camp area. (v) One case involved telephone fraud caused by remote hacking (by unknowns) into a telephone switch during the weekend whilst the premises were unmanned. The case (which ended up being heard for many days in court) was to decide which company (the telephone operator or the customer of the telephone operator) was responsible for paying the ÂŁ50,000 telephone bill for the multiple calls to overseas mobile numbers by people using the hacked service. (vi) An example of Alanâ&#x20AC;&#x2122;s good nature is demonstrated by a case involving a 96-year old lady that could not use her Piper Lifeline as her telephone service was not working. Whilst Alan could not personally resolve the problem and contact the telephone service provider (due to the Data Protection Act), he did provide free advice to the ladyâ&#x20AC;&#x2122;s son and eventually the service was restored and compensation paid.

For further information, please contact Alan Spencer, Telecommunications Expert on 07931 642 506, email enquiries to alan@telecomexpert.co.uk or visit his website at www.telecomexpert.co.uk