The Expert Witness

COVERS ISS 9:Layout 1 10/14/14 11:26 AM Page 1

THE JOURNAL FOR EXPERT WITNESSES AND INSTRUCTING PROFESSIONALS

=

THE EXPERT WITNESS ISSUE 9 AUTUMNR 2014

NURSING - CHOOSING THE RIGHT EXPERT - TRAINING Vol 1 Issue 9 - Autumn 2014 UK £5.00 Euro 6.00

COVERS ISS 9:Layout 1 10/14/14 11:26 AM Page 3

editorial 9:Layout 1 10/14/14 2:11 PM Page 1

Editorial Meet us at the Bond Solon Expert Witness Conference…

In this issue we cover the hottest topics from aviation litigation to pathology, featuring contributions from the most authoritative medical and professional experts in their fields.

Compensation claims for industrial deafness have risen by two thirds over the past two years, according to insurance and legal experts. It is understood that this is due to a mixture of the impact of the recession, the influence of claims management companies, changing claimant solicitor activity as well as legislation and process changes. But read the full article to see the landscape in its entirety.

Construction disputes are on the rise too, both domestically and abroad. The ‘Unbuilt’ environment – building procurement contracts and projects that fall short of delivery targets and design considerations – is becoming a major source of revenue for consultants who understand the complex scenarios that embroil Architects, Engineers, Developers and Contractors.

Disputes relating to major global construction projects increased in value to, on average, $32.1 million in 2013 according to Arcadis, the global natural and built asset design and consultancy firm.

From construction to engineering, it is always best to put that little extra effort in at the design stage to save litigation later on. This is born out in an article by the leading authority in metallurgy, Robert Francis, who outlines how corrosion engineers can save money and a lot of bother later on by being meticulous at the early project stages.

In medicolegal contexts, we have some highly insightful articles such as the challenges with the brain injured, and rebuilding lives after injury.

Whatever your discipline and whatever side of the fence you are on, visit our stand at this year’s Bond Solon Expert Witness Conference to share and discuss viewpoints.

Des Griffin Editor This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products.

No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’ The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. ABC audit applied for 2014.

EXPERT WITNESS JOURNAL

1

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 2

News & Events

A Blood Test to Diagnose Depression May be Possible Currently depression is only diagnosed through consultations with doctors based on mood and screening tests using questionnaires. A small complex study a team from Northwestern University in Chicago screened the blood of teenagers to look for chemicals that were present in those with early onset of major depression and were not present in those who were healthy. The test involved 14 healthy teenagers and 14 with early onset major depression.

genetic features involved in brain damage. The early onset of major depression has a worst prognosis than the adult onset condition and affects up to 25 per cent of people in their late teens.

Inital finding indicate that the pilot data suggests that our approach leads to a clinically valid diagnostic panel of blood transcripts that can differentiate early-onset major depressive disorder from controls.

The next step is to test the findings in a large sample of youths with major depressive disorder, comparing them with youths without any psychiatric disorder and youths diagnosed with other psychiatric disorders.

Writing in the journal Translational Psychiatry co-author Eva Redei said the chemicals in the blood could be taken as a ‘neurodegenerative fingerprint’ highlighting that problems might occur. Discovering a biological sign of depression also shows that the condition is a disease and not simply being sad or in a low mood. The tests were based on animal studies and found 26 markers in the blood linked with stress and

The research also stated that the condition has also been linked with Alzheimer's and Parkinson's in later life which the test may also help predict. ■

Marine Paint Surveyor Course Underway The International Institute of Marine Surveyors (IIMS) is completing a pilot course for Registered Marine Coatings Inspectors’ qualification designed to resolve one of the most contentious issues in the superyacht industry, the paint job. Technical leaders at five SYBAss yards and a number of the leading ICOMIA-member paint applicator and manufacturer companies are attending the pilot course. Once completed and adjusted after feedback, the full course will be offered to the industry, with the first talking place in Portsmouth 20-24 October and a second in Amsterdam 6-10 December ahead of the first major industry coatings conference there. The program was instigated by the Superyacht Builders Association (SYBAss) in conjunction with the International Council of Marine Industry Associations (ICOMIA) working with IIMS. ■

EXPERT WITNESS JOURNAL

2

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 3

Contents Some of the highlights of this issue News and Events

Page 2

Boundary Disputes: Making Sense of the Kafkaesque by Kevin Hainsworth

Page 9

Conflict Management and Early Intervention by Martin Burns Head of ADR R &D at RICS

Page 19

The Unbuilt Environment

Page 22

Industrial Deafness Claims Rise by Two Thirds

Page 26

Food Cargo: An Expert’s View by Imrie Consulting

Page 30

Trace Evidence by J Mc Glinchey

Page 36

Aviation Litigation by GMR Consulting

Page 47

Public Misperceptions of the Pathologist by Dr Liz Soilleux

Page 59

Running an Expert Witness Practice by Dr Asef Zafar

Page 69

Reviewing Medical Notes by High Koch Associates

Page 72

The Challenges of the Care Expert in Brain Injury Cases by Jean Phillips HFH Consulting

Page 77

The Cost of Losing a Loved One by Sarah Green Banbury Care Agency

Page 92

Rebuilding Lives after Injury by Rachel Lund, OTC

Page 86

Nurse Expert Witness Services by Apex Healthcare

Page 91

Failure to Examine the Evidence by Angus Strover FRCS

Page 100

Whiplash and Associated Injuries by A. Birnie FRCS (E)

Page 104

Landmark € 1.75m Personal Injury Case

Page 107

All rights reserved, material in this publication may not be reproduced without written consent.

Editorial material and opinions expressed in The Expert Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal. The publisher does not accept responsibility for advertising content. The information in this magazine does not constitute a legal standpoint. Printed in England 2014.

The Expert Witness Journal, Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk

EXPERT WITNESS JOURNAL

3

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 4

News & Events Government Needs More Digital Experts les technology silos. The aim is to build new services on cheap, effective common platforms and they enable common sharing. ‘No more Big IT’ is the key phrase, with the stripping out the layers of complexity and layers of silos to start delivering a service-based government.

Skills shortage have hit the Government, as Whitehall needs more data scientists and tech experts to achieve its 'digital by default' target, set by chief technology officer Liam Maxwell.

Whitehall is seeking to recruit graduates to improve its base of tech skills by introducing a fast tracking graduate recruitment programme, at it is not developing enough expertise among civil servants. The current policy on talent is rent, buy or grow, with an emphasis on grow, which is why a digital and technology fast stream recruitment scheme has been introduced.

But there is also a need to keep the lights on and keep things running. The process is to build the new things before we turn the other things off.

However, the GDS itself warned in July that its £58m budget would not cover the recruitment of new techsavvy staff to help shift hundreds of public body websites to Gov.uk by March 2015.

Digital civil servants are required to help the Government Digital Service (GDS) deliver more digital transformation across government, as Whitehall comes to the end of a project to deliver 25 'digital exemplar' projects, including a booking system for prison visits and visa applications - 22 of which are now live.

And the MoJ's chief digital officer, Paul Shetler, said it was crucial to have a capable internal IT team. With his team trying to help other departments.

However, Maxwell pointed to progress in an ongoing project to move the Cabinet Office onto a new more collaborative system for staff to work together on documents and see each other's diaries. ■

He added that Whitehall is now trying to increase the use and capabilities of its common platform as it tack-

University Experts Join with Police Forensics Experts in forensic science at Nottingham Trent University have joined up with East Midlands Specialist Operations Units (EMSOU).

The move comes as the university also renews its reciprocal agreement with the EMSOU-Forensic Services (EMSOU-FS), which helps provide at least four students each year with 12-month work placements at local police forces in their relevant forensic science departments.

The agreement, announced in September, will see the two organisations explore the potential for synergy through guest talks, joint research, enhancing skills of staff and officers, and the sharing of facilities such as the university’s crime scene house – an on campus residential property replicating crime scene scenarios.

Jo Ashworth, regional director of EMSOU-FS, said: “The east midlands police forces have a reputation for innovative collaboration not just between each other, but also in conjunction with a range of partners in the public, private and academic sectors.

EMSOU Chief Inspector Ted Antill, said: “We are delighted to have formalised this agreement with Nottingham Trent University, which gives us access to first class training facilities for our search teams and provides a really welcome and valuable engagement opportunity with the staff and students of the university.”

EXPERT WITNESS JOURNAL

“The development of forensic knowledge both through the skills our experts can provide and the research conducted by the university is hugely important to advances in this field of policing.” ■

4

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 5

News & Events New Book for Expert Witness Doctors & Dentists October sees the publication of the second edition of Michael R Young’s critically acclaimed book The effective and efficient clinical negligence expert witness, which is available as an e-book or in hardcopy. The book is published by Otmoor Publishing and is priced at £60. Further details and how to order can be found at http://www.otmoorpublishing.co.uk/young/ As an adjunct to the book, Michael Young and Mike Hill, a clinical negligence barrister, are proposing to run two courses. Both aimed at doctors and dentists, the first is for anyone considering becoming an expert witness and who’d like to find out more; the second, a more advanced course, is for those who are perhaps already involved in expert work, but who would like to sharpen their skills.

Please email Michael at thegenghiskhanway@gmail to register your interest in the courses.

Mental Health Waiting Times Unacceptably Long Unacceptably long waiting times for mental health patients has lead to almost one in six attempting suicide. Many patients waiting for psychological therapies have also self-harmed and had suicidal thoughts, a powerful coalition of health charities, royal colleges and service providers said.

talking therapies thanks to the governments £400 million investment, aimed at introducing access and waiting time standards for mental health from next year.

The report found that two thirds of mental health patients waiting for treatment have experienced suicidal thoughts, a poll of 2,000 people who tried to access therapy in the last two years has found; One in 10 were waiting over a year between referral and assessment.

41% waited more than three months.

While waiting, two thirds (67%) feel they have become more mentally unwell.

Four in ten (40%) have harmed themselves.

The report by a group of mental health charities is calling on the government to impliment a fast-track 28-day maximum waiting time for all patients before any more lives are lost. At present 62% of people referred for talking therapies are treated within 28 days Patients having to wait more than a year for psychological treatment is unacceptable, Care and Support Minister Norman Lamb has said. He also stated that More people than ever before are getting

EXPERT WITNESS JOURNAL

One in six (16%) attempted suicide. ■

5

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 6

News & Events

Expert Witness Fees and Payments Guidance Updated New guidance on the rumuneration of Expert Witnesses were released in September. The report published rates that the Legal Aid Agency (LAA) can pay up to with exceptions for exceptional circumstances with prior authority.

Some examples of where higher rates have been granted are set listed below: Paediatricians where the children who were subject to care proceedings had an unusual genetic disorder; Interpreters where there was a scarcity of interpreters due to an unusual language or dialect; Sexual abuse cases where there is a scarcity of risk assessments experts with exceptional expertise to deal with serious sexual offenders.

Exceptional circumstances are defined in the Regulations and are where the expert’s evidence is key to the client’s case and either; a) the complexity of the material is such that an expert with a high level of seniority is required; or b) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.

Where an expert is not listed in the Remuneration Regulations the LAA or the Court will assess these costs on an individual basis.

The Regulations also state the maximum number of hours for assessment in the cases of Psychologists, Psychiatrists, Parenting Assessments, Paediatrician, Radiologists and Independent Social Workers.

Where a rate set out in the Remuneration Regulations has been exceeded and no authority to exceed the rates has previously been granted the LAA will disallow any fees exceeding the maximum rates.

Also listed are details of joint instructions, breakdown of hours and associated costs.

Payments on account for experts’ fees will be rejected if they exceed the codified rate unless it is demonstrated that a case is exceptional and a prior authority has been granted.

To download the full guide in pdf format please see; www.gov.uk/government/uploads ■

Mr Eric Freedlander BSc. (Hons.) MB, ChB, FRCS, FRCS (Plast.) Ed.

Consultant Plastic Surgeon I have over 20 years experience providing medico legal reports for both claimants' and defendants' solicitors in cases of personal injury and also in cases of alleged medical negligence. I have appeared as an expert witness in court on a number of occasions.

I have extensive experience in nearly all areas of my speciality including: • Burns • Soft Tissue Injuries &Scarring • Hand Injuries

• Head & Neck Surgery • Cleft Surgery • Cosmetic Surgery

Tel: 0114 230 9160 Fax: 0114 230 9160 Mobile: 07702 339 930 Email: efreedlander@mac.com Claremont Hospital, 401 Sandygate Road, Sheffield, S. Yorks S10 5UB

EXPERT WITNESS JOURNAL

6

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 7

News & Events National Standards Introduced To Improve Quality Of Expert Witnesses In Family Court New national standards have been introduced to family court cases to increase the quality of expert witnesses and to speed up legal proceedings.

registered body and comply with safeguarding requirements.

Family Justice Minister Simon Hughes said that the new national standards will put children at the centre of the family justice system and reduce the delays that can have a damaging impact on young people involved in court cases.

The new measures, which were implemented on 1st October, mean that experts must have knowledge appropriate to the court case, they must have been active in the area of work and have experience of the issues relevant to the case.

The standards were developed in conjunction with the Family Justice Council and follows new laws implemented in April 2014 which means that expert witness evidence will only be commissioned where a judge considers it necessary to resolve cases.

Experts permitted to give evidence in Family Court will also need to be regulated or accredited to a

Mediation on the Rise A national mediation charity claims the number family mediation cases increased during the first half of 2014.

Family mediation is being promoted as an alternative solution for disputes rather than going through the courts.

National Family Mediation (NFM) is reporting ‘a significant rise’ in people who have taken up their services between 1st January and 30th June. With some areas experiencing increases between 30 and 40 per cent.

The changes have so far had little success. There was initially a significant drop in the number of mediation cases, and in June, the Ministry of Justice reported that only half of adults were actually aware of mediation.

In England, public policy has made it compulsory for both sides to attend a meeting prior to any court action being raised in relation to family matters, at which mediation and other forms of dispute resolution will be considered.

Represented mediation is commonplace in commercial mediation. The actual process is a little different but if represented mediation was to be introduced in family law cases, then the client would have the benefit of having their solicitor with them but would also be able to take advantage of a process which is less destructive than litigation. â– EXPERT WITNESS JOURNAL

7

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 8

Events Talking Life

RICS

Court Skills and Expert Witness Training (2 day) Starting 12th February 2015 09:00 in Manchester Starting 17th June 2015 09:00 in London Starting 19th june 2015 09:00 in Bristol Contact: Tel: 0151 632 0662 Web: www.talkinglife.co.uk

Dispute Resolution Conference London, 28 Jan 2015 Practical contract, risk and relationship mechanisms for avoidance The annual RICS Dispute Resolution Conference will focus on practical contract, risk and relationship mechanisms for a quick resolve or dispute avoidance in your commercial projects. Each session will examine in depth current successful and unsuccessful practice in order for you to take back practical knowledge of dispute resolution for immediate implementation. Speakers will present new options in contracts, best practice case-studies and essential skills around negotiation, engagement and relationships. Ultimately, you will gain a commercial perspective to manage and mitigate risk, improve the connection with your supply chain adding immense value to your projects.

Bond Solon Courtroom Skills (1 day) Starting 13 November 2014 09:30 in London Starting 09 December 2014 09:30 in London Starting 04 December 2014 09:30 in Manchester Cross-Examination Day (1 day) Starting 14 November 2014 09:30 in London Starting 10 December 2014 09:30 in London Starting 05 December 2014 09:30 in Manchester Criminal Law and Procedure (2 days) Starting 11 December 2014 09:30 in London

To find out more or to book, contact RICS Training: Web: www.rics.org/uk/training-events Tel:0207 695 1600

Civil Procedure Rules for Expert Witnesses Certificate Starting 16 October 2014 09:30 in London

Forensics Expo Olympia London 21-22 April 2015 Book online now www.ame-event.co.u Forensics Europe Expo, 21 - 22 April 2015, Olympia, London is the only premier dedicated international exhibition and conference for the entire forensic sector and supply chain.

Contact: www.forensicseuropeexpo.com/expert ters, solicitors and forensic consultants, our smallgroup workshops are targeted to meet the needs of the experts in attendance.

Excellence in Report writing Starting 13 October 2014 09:30 in London Starting 12 November 2014 09:30 in London Starting 03 December 2014 09:30 in Manchester Starting 08 December 2014 09:30 in London Eperts Meeting Overview Starting 19 November 2014 14:00 in London Starting 20 November 2014 14:00 in Manchester Contact: Tel: 020 7549 2549 Web: www.bondsolon.com

Talking Life is the No.1 choice for high quality training in the Public, Private and Voluntary sectors. Established for more than 15 years, we offer a portfolio of over 1000 in-house courses and a small number of specialised open-access courses which we can deliver from as little as £250 (+ vat) for a half day training course.

Talking Life has developed a high quality range of legal courses in recent years which has attracted outstanding feedback across our client database. Our Achieving Best Evidence (ABE) course uses highly innovative techniques, including the use of actors and our Court Skills training is second to none (though we say it ourselves!).

Our Court skills and Expert Witness training team is led by a senior practising Barrister and our ABE course is led by a former senior specialist police officer.

At Talking Life we pride ourselves in exceeding our clients’ expectations.

Through our training courses we believe that we can make a positive difference in today’s workplace.

Download the current Legal brochure from our website at www.talkinglife.co.uk or call on 0151 632 1206

Telephone: 0151 632 1206 Fax: 0151 632 1206 Email: info@talkinglife.co.uk or enquiries@talkinglife.co.uk Website: www.talkinglife.co.uk Talking Life Ltd 36 Birkenhead Road, Hoylake, Wirral, CH47 3BW

EXPERT WITNESS JOURNAL

8

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 9

Boundary Disputes: Making Sense of the Kafkaesque

by Kevin Hainsworth MRICS BSc, Chartered Land Surveyor With 30 years’ experience in land surveying, plan production and report writing, Kevin produces boundary dispute and expert witness reports as proprietor of Manchester-based company Insepes.

It was late evening when K. arrived. The property lay deep in snow.

There was nothing to be seen of the gatepost on which his client had set so much store, and neither had the documents which that gentleman supplied shed any light on the matter. K. stood by the ornamental pond leading from the path to the garden gate for a long time, looking at what might once have been the foundations of a low wall. ‘A mere garden feature’ said K.to himself in a noticeably quiet voice. ‘It could scarcely constitute a legal boundary’.

He saw the locals clustering nervously together and conferring; well, the arrival of a land surveyor was no small matter. Anticipating the ready expression of views contrary to his own K. strode forward purposefully, extending his hand in greeting. ‘Well,’ he thought to himself, ‘I’m not the timid sort myself, and I can speak my mind even to a count, but of course it’s far better to be on friendly terms with such gentlemen.’

With profound apologies to the ghost of Franz Kafka and The Castle’s hard-pressed land surveyor ‘K’.

EXPERT WITNESS JOURNAL

9

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 10

When asked – as I often am – exactly what it is I do for a living, it usually isn’t long before I find myself describing a world Franz Kafka might have recognised. When you deal with boundary disputes, the facts described as ‘clear’ are usually the murkiest. One man’s obvious truth is another man’s arrant nonsense. And as soon as you give into frustration you lose.

Myth: the Land Registry Plan shows the legal boundary The Land Registry Plan is not the repository of all wisdom that some consider it to be. Contrary to expectations, this weighty document doesn’t show the legal boundary. It is in fact closer to being a record of transactions. Equally, an Ordnance Survey Map (on which the Plan may be based) is rarely, if ever, accurate enough to be used to resolve boundary disputes on its own. It is ‘fit for purpose’ – but that purpose isn’t to resolve boundary disputes. The Ordnance Survey mapmakers could hardly be expected to go from door to door asking “Are you sure you haven’t fenced off a bit of next door’s garden?”

After this, they don’t usually ask me a second question.

But, on reflection, I was once asked “How can you run a business when your customers are never happy?”(I assume they meant when they come to me, not when the job’s done).

To get a handle on what exactly it is that I do – and why it’s so often necessary to employ the services of an expert witness in the field of boundary disputes – it’s worth considering what it is that has made my customer (or yours) unhappy in the first place.

One of the first things to bear in mind when looking at a Land Registry Plan is that there is no way of knowing whether a black line is a wall, fence, hedge or ditch. Indeed a single black line might be a generalised representation of a number of f eatures lying in close proximity, which if all shown would leave the plan covered in black blobs, of no use to anyone.

Myth: boundary disputes start with the boundary With many boundary disputes, the ‘dispute’ part comes before the boundary is even thought of.

Let’s say that two neighbours fall out over something as simple as a parking disagreement.

One thing leads to another and a friend of one of the parties suggests that the other “hasn’t even got the right to park there in the first place.” The first party discovers that his home insurance includes some cover for legal expenses and – lo and behold – he has a new weapon to use against his rival.

This is, of course, just one possible scenario. But it illustrates the point that boundary disputes can arise from some slightly convoluted or even trivial routes – they don’t all begin with a wall or a fence.

Naturally, in instances such as this, insurance companies want to be sure that the dispute is based on a serious issue – which is one reason why they might commission an expert report. If the case is shown to be based on some trivial disagreement then all parties stand to lose. Post-Jackson it isn’t guaranteed that if you win your case your client will be awarded all their costs. Increasingly, the courts are considering whether matters could and should have been resolved more simply and cheaply. This knowledge comes as a shock to some – but can focus minds when considering alternative dispute resolution.

You should also never rely on scaled distances from Land Registry Title Plans that are drawn on Ordnance Survey maps.

A wall should be initially regarded as a garden feature. Unless there is evidence of its status, it may be no more representative of the property’s legal boundary than an ornamental pond.. or a garden gnome.

What about the conveyance documents?

The conveyance document contains a description of the property being conveyed. It generally includes a plan and occasionally an indication of who is responsible for maintaining fences, hedges and similar physical features. The deed describes what property has changed hands but can still be open to interpretation – on it you will often find the seemingly innocent phrase ‘For indicative purposes only’ when referring to the plan. In a dispute, the question is asked of whether the boundary as described can be taken and used ‘uniquely and unambiguously’ to identify the features actually present on the ground.

Often, it can’t be. Frequently the boundary is only described in the deeds so that the vendor and purchaser can both identify and agree the extents of the property at the time of that particular sale.

As time passes physical features can alter, move and

Of course, the parties involved often do manage to resolve the problem without recourse to surveyors, lawyers or even mediation. But this isn’t as simple as it might seem.

EXPERT WITNESS JOURNAL

10

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 11

be replaced. When the property is eventually sold, it may not be as straightforward to define the extents of the property by reference to those original features.

“Look closely and consider it carefully” It’s important to take nothing at face value. It’s unlikely that you’ll ever be presented with a report that includes the word ‘clearly’, but if you are, be careful. This can be shorthand for “I’m hoping you’ll think this already, so I haven’t provided any evidence”.

And this is where attempts to resolve a boundary dispute without an expert’s report often flounder.

Mediation:

Just as a good expert witness won’t make assumptions without explanation, you can be equally sure that they will take all the physical evidence they are given with the proverbial pinch of salt until they have considered it carefully. Many of us have impressive collections of photographs of every vintage – showing portions of walls, fences obscured by trees, flower beds, children, animals and even wedding parties. Helpful as they might be, they’re certainly no substitute for going there and seeing (and photographing) for yourself.

“Why do I have to be the one to prove I’m right?”

Solicitors, of course, are obliged to recommend mediation before a dispute progresses towards a possible resolution in court. And even if both parties are utterly convinced that mediation could never work, it often does. Certainly it’s a less costly option than progressing further – though not as much so as simply making an agreement. It’s also true to say that even clients who ‘know they’re right’ need to be aware that a greater degree of uncertainty and loss of control over the outcome enters into proceedings once a third party is involved – and still more so if the case goes to court.

The more people are involved, the more interpretations of the ‘facts’ are possible. Proceed with caution!

Though CCTV is often recommended by Police and others as a way of recording on-going neighbour nuisance, it can be a mixed blessing when it comes to resolving boundary disputes. In my experience it does tend to turn up the heat and if the quality of the video and audio recordings is poor it can be inconclusive... and will sorely test the patience of anyone who has to sit through them.

Producing an expert report Writing the report takes time – rarely less than two full days of a surveyor’s time. No two reports are alike, so ‘off-the-peg’ options are simply not available. And, of course, the actual writing of the report is only part of the job. The expert’s greatest worth lies in their forensic ability. Armed with experience, close observational skills and surveying equipment, they carefully examine the site for evidence of features alluded to in the conveyance.

This might mean traces of a long-crumbled gatepost, tell-tale signs that paving stones or walls have been moved, signs of unusual activity or excessive footfall in unexpected locations.

Sheds move on their own, greenhouses walk around. Just because it’s nailed down doesn’t mean it won’t move. But the all-pervading eye of CCTV sees everything. It’s amazing what a determined protagonist in a boundary dispute will get upto under the cloak of a new moon or when their neighbour is on holiday. Is it the fence or the shed that has moved when the gap between them can be shown to have increased ?

The truth will out...

Expert witnesses and lawyers are two very different animals. A lawyer is trained in the adversarial arts.

It’s their job to interpret the evidence in a way that favours their client. The role of the expert witness in boundary disputes, as in other areas, is highly forensic. A good expert witness approaches every instruction as though they were appointed by the court, not the hired gun of their client or their solicitor. This can and does lead to tension between the expert and their instructing lawyer, but it’s vital that the expert stands their ground if they want to remain credible. In any event, if the expert guilds the lily then a half decent cross-examining barrister is likely to see through it. The Judge certainly will.

Equally, if the expert changes their opinion at any stage they need to have the humility to say so,

Tŷ Mawr or Mawr Tŷ The importance of site visits...

The resolution of a boundary dispute centred around the location of two stone gateposts. One side maintained they were in their original location, the other claimed they had been moved at some point in the past. Neither side would give an inch, so an expert was appointed to produce a report.

On visiting the site, the expert noticed that the name of the house – two words in Welsh – was carved onto the gateposts... but the two words no longer read on from each other, indicating the likelihood that the two posts were unlikely to be in their original location. This aspect of the dispute was subsequently resolved rapidly.

EXPERT WITNESS JOURNAL

11

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 12

irrespective of what their client’s side may think.

Some experts struggle with this and can steadfastly stick to the blatantly ‘un-obvious’ in a vain attempt to save face. Their reports are often then totally disregarded.

If there’s a Single Joint Expert: ➢ ➢ ➢ ➢

The expert is instructed jointly The SJE produces the report Both sides read it They each have typically 28 days to come back with ‘proportionate’ questions. ➢ After the questions are answered the parties either come to an agreement or continue the process ➢ Expert’s costs are likely to be lower than if both sides each appointed their own expert.

Qualified, equipped and experienced Of course, I’d like to believe that the skills required to do my job are at least partially innate, granted by the gods of surveying to a fortunate few.

Certainly the role requires a passion for thoroughness which can’t really be taught. The incessant downward pressure on costs and a fear of overkill can lead to the unwary lawyer instructing those who are prepared to cut a few corners – but this does not come without risk.

The appointment of an SJE is likely to generate more questions than would be the case if each side has their own appointed expert.

If two different experts are appointed: ➢ Both experts prepare their reports based on their own observations and their clients’ input ➢ The two reports are exchanged ➢ Each expert has the opportunity to question the other’s report with one set of written questions which again must be proportionate ➢ A joint meeting of the experts takes place, usually at the site of the dispute ➢ A further report is produced, detailing what has been agreed, what is still disputed and why the disagreements remain. This distillation process can be of great assistance to the court.

The truth is that, to a large degree, you can judge an expert by the training they have received. They need to be qualified, equipped and experienced – and qualifications are where you should start when you’re considering who to instruct.

Apart from the regular surveying qualifications, a number of recognised courses are available in expert witness qualification. Choosing an expert who has completed such a course provides a measure of reassurance that they will not only ‘know their stuff’, they will also know how to apply it in relation to legal processes. My own course was the Bond Solon Civil Expert Certificate from Cardiff University Law School – the first universityaccredited expert witness qualification in the UK.

This takes longer and is likely to cost more than appointing a SJE, but the parties tend to feel as though they have more trust in their own expert’s report than they would have in a joint report.

Cardiff University Law School Bond Solon Civil Expert Certificate Recognised by instructing solicitors and courts, this expert witness qualification demonstrates that the holder has been assessed and holds the core and requisite competences to act as an expert.

Completed by experts from a wide variety of professions, the course covers: 1.

Excellence in Report Writing 2.

Courtroom Skills 3.

Cross Examination Day 4.

Civil Law and Procedure

This feeling could be misguided and there is perhaps a role for the lawyers to more forcefully explain the benefits and recommend the use of a SJE to their clients.

If the expert can demonstrate that they have carried out their professional duties correctly then there should be no reason why the SJE should not prevail. Of course that’s often easier said than done in the arena of boundary disputes.

Some guidance for solicitors At this point it’s worth pointing out some recently published guidance. The Civil Justice Council Guidance for the Instruction of Experts in Civil Claims isn’t formally in force yet, though it is intended that to replace the protocol on experts which is currently part of Practice Direction 35 of the Civil Procedure Rules. The guidance contains some important recommendations on handling cases involving expert reports:

I have subsequently attended a Mediation Awareness course run by SMCA and an Experts’ Meeting course run by Legal Experience Training.

Progressing a case... from report to court Both sides, of course, may decide to each appoint an expert to produce a report. Or they may agree to appoint a Single Joint Expert (SJE).

EXPERT WITNESS JOURNAL

12

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 13

➢ If a solicitor sends an expert additional documents before the report is finalised, the solicitor must tell the expert whether any witness statements or expert reports are updated versions of those previously sent and whether they have been filed and served.

try to find someone who enjoys working with people as well as maps. A successful candidate will combine the thoroughness of a forensic scientist with the empathy of a personal counsellor. Remember, you – and they – will be dealing with people who are upset, disgruntled and impatient. All in a day’s work!

➢ Before filing and serving an expert’s report, solicitors must check that any witness statements and other experts’ reports relied upon by the expert are the final served versions.

“True,” said K. “One ought not to judge too early.

At the moment all I know about them is that up there they know how to pick a good land surveyor.”

➢ When a case has been concluded – either by a settlement or trial – the solicitor should inform the experts they have instructed.

Where to find more information www.insepes.co.uk – my website www.ricsfirms.com – enter your postcode, put a tick in the Regulated by RICS box, Choose Boundary Issues as the surveying service. www.localsurveyorsdirect.co.uk – to find surveyors in your area www. boundary-problems.co.uk – John Maynard is technically a competitor (250 miles away)... but a very well-respected font of knowledge with a superb website! www.dispute-mediation.co.uk – Dispute Mediation Consultancy LLP www.mediationadvocates.org.uk – Standing Conference of Mediation Advocates www.bondsolon.com/expert-witness – A leading provider of Expert Witness training www.en.wikipedia.org/wiki/The_Castle_(novel) – welcome to my world!

The resolution In recent years it has become the norm that in around 99 times out of a 100, the expert will not be required to attend court. If the expert has done their job correctly the report should stand on its own without the need for additional questioning from the lawyers or the Judge, since they will have had opportunity to do this before the case is heard.

If the boundary dispute is part of a larger case then the expert may be called.

Whether the dispute is resolved in court, or settled at an earlier stage, it’s worth stressing that the ensuing boundary can be completely different to anything indicated in the deeds or the Land Registry Plan. One way of recording this is by a Determined Boundary Agreement, an arrangement which would rarely be overruled by a judge.

The Land Registry is informed of the agreement and they then write to all interested parties who sign to indicate their assent. End of process!

Getting the most from your expert witness

Insepes ltd

• Use their key skills to complement your own – Chartered Land Surveyors are as comfortable with maps and measurements as lawyers are with arguments and interpretations. To get the most from their skills, it’s worth trying to familiarise yourself with a little of the ‘language’ they speak.

You can find out a little more on this subject by visiting my website, www.insepes.co.uk, where I’ll be including some tips and guidance.

Chartered Land Surveyors

Boundary Dispute and Expert Witness Surveyors.

CPR part 35 reports, Determined Boundary Plans.

A cost-effective, high-quality enhancement to the service you offer your clients.

792 Wilmslow Road, Manchester M20 6UG Tel: 0161 286 0795 Email: kevin@insepes.co.uk Web: www.insepes.co.uk

• Please take the time to let your expert know the final outcome of a dispute. We all need feedback!

• The best way to get a speedy response from your expert is to pay them on time! This is particularly applicable when additional work is likely to arise.

Finally... if you do find yourself appointing an expert witness in a boundary dispute situation, EXPERT WITNESS JOURNAL

Regulated by RICS

13

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 14

Establishing the Next Generation of Trees: Getting it Right

by Mark Chester - Cedarwood Tree Care Tree planting is often associated with ceremonial and other landmark occasions. Trees are planted to commemorate births, anniversaries, and civil events. The sight of a dignitary, spotless spade in hand, carefully pouring soil around a young tree, is guaranteed to get photographers busy, those observing taking the reassurance that a legacy for future generations is being birthed.

Trees are really important to improving the health of our urban environments. Research by Professor Roland Ennos at Manchester University [1] using Birch trees to measure the interception of air particulates linked to asthma found that by placing larger specimens outside a row of properties fronting a busy road significantly reduced the air pollution. However, with some 25% of all newly planted trees failing to reach maturity [2], and canopy cover being reduced as larger, mature trees are felled and either not replaced, or replaced with smaller, often shorter-lived specimens, the situation needs to change.

However, establishing the next generation of trees is far more than providing a photo opportunity. As we are faced with the challenges of climate change, urban heat islands, the rise in respiratory illnesses among both young and old, and the need to increase canopy cover to counter these issues, so it is important that we are planting the right trees in the right places and equipping them for the future.

Increasingly, tree planting in mitigation is a requirement for planning applications, and the need to demonstrate feasibility is key to ensuring the smooth progress of cases to conclusion. In addition, I have been asked to assess a number of sites for asset transfer in the past year or so. The presence of young trees in decline provides an obstacle to a swift conclusion, and the cost of replacing damaged and dying trees can become substantial, not just in terms of the actual tree but also interuptions to infrastructure. It does not reflect well on developers when a scheme fails to mature and instead of an attractive green landscape, less attractive swathes of concrete are left.

EXPERT WITNESS JOURNAL

Tree planting is often a feature of new developments and regeneration projects. An important element of this, especially with schemes that may be sensitive, and those which will require a Planning Inquiry, is the credibility of the case being presented. Regardless of the credentials of appointed experts, a lack of technical understanding can undermine a presentation. One element that I have appreciated in recent years is that successfully establishing new trees within the landscape 14

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:11 PM Page 15

the best idea. The same tree situated among shrubs, away from pedestrians, it can make a valued contribution.

encompasses such a wide range of skills that few people will be fully acquainted with all aspects.

Several years ago, I was engaged as the arboricultural consultant for a scheme in a sensivite setting within a National Park. What might otherwise have been a relatively straight forward brown field regeneration project was being subject to a more intense level of scrutiny, and the landowner had commissioned planning consultants to guide the process. The consultants in turn had their own team of specialists to advice on the plethora of issues needing to be considered, from bats and ecology to landscape and architecture. I had been instructed to survey the trees on site, and attended a meeting with the planning officials in this capacity.

The Alder (Alnus glutinosa ) is popular on development sites and in regenerating sites with contaminated soils. It also thrives in the harsh settings of the urban environment. It grows fast, and can help to improve otherwise poor soil.

However, individual trees often reach heights exceeding twenty five metres, and the foliage can cause shading. It is a species to be used carefully in proximity to residential settings, especially higher density properties such as apartments.

In the meeting with planning officials, I saw detailed site plans including landscaping, for the first time. These included a row of Alder proposed to line the side of a road, fronting apartments. Alders are an ideal choice for many situations, but not fronting apartments, where their shade is likely to become a problem. I saw a recipe for problems, and as this was highlighted by the planners as a concern, was able to reassure that the plan before them was not the final document, and different species would be used.

Part of my role as an arboricultural consultant involves identifying trees and shrubs suitable for including within a landscape scheme. I consider the setting, the qualities and attributes that specific trees may bring, and the anticipated timescale that a tree may have to mature and develop. There are situations where it is harder to justify the budgets that larger trees may require, such as some residential settings, with a larger number of smaller, less expensive trees making a greater contribution.

Other situations may call for impact, such as prestigious retail and technology parks, where a smaller number of larger trees is the preference.

There is also little purpose with planting trees that may require half a century or more to reach their full potential within a setting that may undergo redevelopment within a decade or so. There are many factors to consider, which one only gains with experience in the field.

Whilst some trees, such as London Plane, respond well to being planted in the landscape, and can be moved when larger, others, especially Birch and Beech, are more sensitive to this major change.

With such trees, it is preferable to plant them when smaller. Providing informed insight can ensure that a good idea becomes a better one.

As an independent consultant, I seek to guide interested parties whether they are preparing an application for submission or seeking advice on how to respond to a proposal. Some years ago, I was approached by a group of residents concerned about the potential impact of a major regeneration project proposed for parkland by them. The site contained some one hundred or so trees, including ornamental apple (Malus ), Beech, Horse Chestnut and Willow, and many were being recommended for removal, caveated by the promise of new trees being planted.

I spent my early years as a professional gaining experience within the nursery industry, being involved in the production of trees and shrubs.

This provides me with an invaluable insight in to production methods and how to specify quality stock. The process is reinforced in the recently published BS8545:2014 ‘Young Trees: From Nursery to Independence Within the Landscape’.

One of the elements that I have appreciated is that the place within a site that a tree is planted can have a significant bearing on whether it provides a positive or negative contribution to the setting. For example, having a seed-bearing tree near to a footpath where berries will be squashed under foot, and can be trodden under foot, is not necessarily EXPERT WITNESS JOURNAL

The residents were concerned that the proposals may not have been appropriate, and sought guidance. If the removals were justified, then the residents would accept this; they wished to make an informed response and to focus efforts where this was justified. This approach is very sensible, and 15

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 16

demonstrating that this aspect is not being delivered on a ‘shoe-string’ budget, or to choose trees which will provide blossom, and look attractive. Cherries and ornamental apples (Malus sp.) seem to be very popular. Whilst these trees can provide an attractive feature, especially during the weeks when they are in blossom, they tend to be ‘high maintenance’ specimens, sensitive to pruning, with invasive roots, which is often overlooked when they are planted near to expensive block paving or tarmac surfaces. And they tend to be comparatively short-lived.

comes back to the need for credibility. As I walked this particular site, I recognised that, attractive though they were, the many ornamental apple trees were actually coming to the end of their natural life.

Such trees tend to live for 50-60 years, compared to the several centuries and sometimes more of Beech, London Plane and Oak. When trees are coming to the end of their natural life, a recommendation to fell is understandable. There is a serious pathogen attacking Horse Chestnut, called ‘Bleeding Canker.’ It attacks the bark and although research is identifying ways to equip some specimens to resist attacks, at the time of my visit, it was generally regarded as untreatable. With this insight, I recognised that proposals to remove the Horse Chestnut trees had merit. Indeed, I suggested that several specimens showing the early signs of infection but not identified for removal should be considered for Felling.

There is nothing wrong per se choosing trees supplied as ‘root-balled’, a common specification.

These are trees grown in a field and lifted with many of the roots and some of the root ball in-tact.

However, without an appreciation of production methods, one can easily order trees with poorly developed roots that struggle to become established once planted. As a tree is growing on the nursery, its’ roots need to be pruned every two to three years to ensure that they remain in good vigour and become well developed. This can now be specified with reference to the new BS8545:2014.

One of the challenges, which can be difficult to prepare for, is how much those doing the actual planting appreciate the importance of their role.

When a tree is prepared as a rootball, its’ roots are

However, a row of Willow trees had been recommended for felling, on the grounds that they were unsafe. No specific failure points were cited for the trees, and I had concern that this element was unsustainable. I provided the residents with my comments. I queried the credentials of the author of the original report, which the local authority had commissioned. The response that the author was an approved consultant raised concerns for me, as there is no national ‘approved consultant’ scheme.

The Arboricultural Association has a list of Registered Consultants and Approved Contractors, the latter being specialists in pruning and felling trees. Whilst they are often instructed to write tree reports, this is not their specialism, as it is for tree consultants.

Principle Consultant

Mark Chester BSc (Hons); Tech. Cert. (Arbor.A.); MIOH; F.Arbor.; C.U.E.W.; C Env.

Mark has experience in Tree Preservation Orders, boundary disputes, amenity tree valuations, planning permissions and tree works.

I guided the residents to focus their attentions on the Willow trees, and to seek to have quality new trees planted as part of the regeneration project.

Today, the Willows remain for another generation to enjoy, and the landscaping which included longer-lived Lime trees, is maturing as an attractive feature. This highlights one of the key elements to increasing canopy cover; to retain current trees for as long as possible, as they provide maturity, size and are already established.

He can provide feasibly assessments, support mediation and produce technical reports, and can guide your case through to a court hearing. Mark has undertaken specific training in cross examination and has an excellent track record of successful courtroom witness cases.

Mark Chester holds the Cardiff University Law School Bond Solon Civil Expert Certificate, enabling him to provide Expert Witness support for court cases and tree disputes, including Tree Preservation Order breaches and compensation for tree damage. A recent case summary described Mark as "a very impressive and authoritative witness."

Developers are often aware of the importance of tree planting within the landscape of a scheme.

There is often a tendency either to plant big trees,

EXPERT WITNESS JOURNAL

Contact Details Telephone: 01981 570426 Mobile: 07888 838360 Email: enquiries@cedarwoodtreecare.co.uk Website: www.cedarwoodtreecare.co.uk

16

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 17

within a population gain an advantage, shading the later budding specimens. English oak trees come in to leaf depending on temperature, benefitting from warm spring weather, whilst the Common Ash is influenced by day length, which is a fairly regular annual feature. With time, and warm springs, oak will shade out ash.

usually encased in wire netting for transportation.

I have seen trees planted with the wire caging still in tact (it should be removed prior to planting).

When you have seen this once, there is the note in one’s mind to specify removal of wire as part of the planting Method Statement!

However, merely requesting trees be either container-grown or root-balled is a bit like asking for a car that runs on petrol or diesel. Much more detail is required. One customer I am aware of, with a six-figure budget to purchase nursery trees, provided a document several hundred pages long inviting tenders for the contract. The document contained a single page relating to the trees being ordered, with a specification relating solely to the size of tree, and no reference to quality of stock.

Issues such as pruning of roots to encourage vigorous growth, and of branches to enable the crown to develop, were absent. The remainder of this document covered issues not relating to trees at all.

Tree planting can be an important aspect of obtaining planning permission, reassuring concerned local residents of mitigation to minimise the visual impact of a proposed development and enabling planning officials to deliver visually high quality sustainable schemes. However, with developments being increasingly high-density, it can be challenging to provide trees with sufficient space to grow to maturity. Research by Professor Kathleen Woollf at the University of Virginia, presented at the ‘Trees, People and the Built Environment: 2’ conference held at Birmingham University in April 2014, showed how the presence of trees and shrubs within the landscape actually enhancers the retail experience of shoppers, who are more likely to stay for longer and spend more money, when visiting a retail outlet with attractive landscaping.

Tree health has been a high profile issue in the past several years, with attention focused on Chalara fraxinea, which can be devastating for ash. The disease arrived in the UK on trees imported from the continent. This has highlighted the issue of provenance, which is also of importance for wildlife and ecology. However, provenance, which is the origin of the seed from which a tree has been grown, or the parent plant if the tree is cultivated from a cutting, cannot be established simply by requesting stock be sourced from a local nursery.

In the UK, many ash trees have been germinated from local seeds which have then been exported as seedlings to nurseries on the continent where production costs are lower. They have then brought back to the UK before being sold to UK customer, sometimes with unexpected passengers!

Work over the past decade or so has focused on creating subterranean conditions to enable trees to be successfully and sustainably established within settings where otherwise it would be impossible.

Trees need access to a volume of well-aerated growing media which can be maintained with sufficient moisture, and kept free from compaction.

The infrastructure used also needs to have sufficient strength to support activities above ground, such as delivery vehicles which can weigh many tonnes. This is now possible, and there are examples of trees maturing within the car parks of retail centres, pedestrianised high streets and even in the central reservations of main roads. The work has been so successful that one experienced and highly reputable nurseryman I know considered that the trees in one venue, planted ten years ago, to be as healthy now as they would be if still on the nursery. High acclaim indeed!

Seeking local provenance is more than simply buying from a local supplier. A tree which has grown in the south of England and then travels north to be planted can find the cooler conditions difficult, and may take longer to establish. Whilst this is less of an issue when trees are grown in cooler climes then move to a slightly warmer setting, if a tree has grown as a sapling in a climate with a later spring, for example, in Scotland, it will come in to leaf at this later time if planted in England where spring arrives earlier. This can be a problem as trees coming in to leaf ahead of others

EXPERT WITNESS JOURNAL

The process of establishing the next generation of trees is complex, and breaks in the chain can easily occur. A single break in the chain can undermine the whole process. It is possible to choose appropriate trees, in suitable settings, yet find that the trees struggle to flourish. Some of the trees

17

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 18

leaving our nurseries for landscaping schemes are already dead or in decline. It has not been possible to assess the physiological condition of a tree, until now.

Gorner, Tree Manager for Leeds City Council, shared how a project within the city enabled a large London Plane tree to be planted within a prominent retail setting in 2013, using some of the techniques I have described. Much planning went in to the project, but Glenn had underestimated the impact of a particularly hot and dry June on the irrigation arrangements he had put in place.

Local retailers brought in extra supplies of water on a daily basis during those sultry days, ensuring that this important tree has been sustained.

Work by Barcham Trees and the Bartlett Tree Research Centre in Reading, using equipment developed by Hansatech Instruments, has identified a method for assessing a plant’s health.

Chlorophyll, the chemical which drives photosynthesis, is very sensitive to stress within a plant, and its’ response can be accurately measured.

It can detect stress, such as from drought, long before it becomes evident in the plant. It is now possible to assess the health of young, and more established, trees, using the simple test that these three organisations have devised. One may not be popular with a supplier when turning away from delivery trees that otherwise look healthy. One colleague did the test on some trees planted several years ago, which looked to be in good vigour, as a trial. The test indicated that the trees were being affected by a condition which, with time, was likely to prove terminal. He held his breath waiting for the results, and sure enough, within the month, the trees began to die.

At the conference I referred to earlier, Glenn

EXPERT WITNESS JOURNAL

However, a tree can be vulnerable even years after planting, to unseasonally dry weather or extended drought. In the springs of 2007 and 2008, many trees came in to leaf in April to be faced with a hot and dry May. Cooler and wetter conditions in June were too late for some of the young trees I was managing at the time for a local authority. One of the current areas for research in equipping the next generation of trees to thrive is to identify the factors that enable some species to become established even during drought conditions. If we can select trees naturally unaffected by such challenges, another hurdle can be removed. ■

18

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 19

Conflict Management and Early Intervention

by Martin Burns

Head of ADR Research and Development Royal Institution of Chartered Surveyors Dispute Resolution procedures such as arbitration and adjudication, by their very nature, generally happen too late. By the time a formal dispute resolution procedure is implemented, lawyers may have been instructed, costs may have racked up, commercial relationships damaged and positions could already be deeply entrenched. Completion of the project will probably be delayed and reputations in the market place are likely to have been soured.

The UK construction industry has long had a reputation for conflict that is evidenced in a catalogue of litigation and the widespread use of adjudication. The Royal Institution of Chartered Surveyors (RICS), for example, appoints around 900 adjudicators each year to resolve dispute in the UK. It is perhaps questionable then, that in an industry where disputes are part of life, and where parties readily use adversarial methods to resolve them, there would be a genuine desire to embrace conflict management and early intervention.

Conflict management and early intervention techniques, on the other hand, recognise the inevitability of conflict and involve the parties in establishing, at an early stage, how their disagreements will be handled. The objective of these techniques is to focus minds on solving problems, and doing so early enough to avoid escalation into full-blown disputes.

There is, however, increasing evidence of attempts by decision-makers and influencers within the industry to develop methods for reducing conflict and managing relationships. RICS has been working with a number of major organisations who are embracing new procedures for managing conflict and “nipping in the bud” issues that might otherwise snowball into full blown disputes.

Conflict management techniques are about being realistic and pragmatic, and they work best when applied early to address issues in the early stages, before they get out of hand.

EXPERT WITNESS JOURNAL

There are a number of processes that are being explored, and actually used, by industry bodies.

Standard forms of contracts are being amended to include what you might call “rules of engagement” for dealing with issues as they arise. Clearly defined

19

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 20

ground rules are being written into contracts with the intention of helping to sort out problems immediately and thus maintain positive relationships.

organisations. Conflict management and early intervention techniques often include the use of a neutral third party who actively engages with people who are involved in a project at every level. The process encourages and recognises their input, and gains their support for getting matters dealt with quickly, amicably and to everyone’s satisfaction.

There is a wide range of conflict management and early intervention techniques currently in use.

Dispute Boards (DBs), Conflict Avoidance Panels (CAPs) and Early Neutral Evaluation (ENE) are methodologies that are already widely used in international markets. And, as the industry embraces a culture change in the way it deals with conflicts, more and more fresh techniques will be developed and used in the coming years. These techniques are different in terms of how they operate in practice, but they all have similar characteristics, such as:

• At the heart of nearly every dispute is almost always a communication problem. Conflict management techniques enable honest and clear communications between participating parties.

By encouraging structured, open and straight forward relationships conflict is resolved more easily. (The techniques will also reduce likelihood of conflict in the first place). It is understandable that a party, faced with a difficult problem or issue, will often want to avoid confrontation. Conflict management and early intervention techniques enable parties to air difficult issues, and deal with them frankly, fairly, and directly. This approach works well when communications are facilitated by a third party neutral, who is, and is seen to be, independent, whilst also being authoritative and credible.

• They are not concerned with attaching blame.

Conflict management is about separating people from the problem that needs to be resolved. The techniques focus on the facts and principal matters that need sorting, not on personality issues.

• Adversarial dispute resolution procedures, such as arbitration and adjudication, often exclude key people. Lawyers take control and decisions are escalated to only those at the highest levels of

BARRY J CROSS FCIOB FRSH MRICS MCIH Chartered Building Surveyor

A chartered building surveyor for the entire United Kingdom PRODUCTS & SERVICES Expert Witness reports for construction disputes Claimant and Defence Expert Witness – Civil and criminal litigation on Housing Construction and Environmental Health matters Single Joint Expert Reports Damages claims under Section 11 of Landlord & Tenant Act 1985 and Defective Premises Act 1972 Section 4 Building Pathology Accident Reports Structural Reports Inspection and reports for domestic kitchen, bathroom and window installations Specialist Damp and Fenestration Reports Construction consultation and dispute mediation Homebuyer reports, Red Book & Retrospective valuations for residential properties %$55< &5266 ,6 $1 $&&5(',7(' (;3(57 21 &21680(5 0$77(56 $1' +$6 $66,67(' $1' $33($5(' )25 7+( %%& 21 5(&(17 &21680(5 352*5$00(6

Grenville House, 322 Stratford Road, Shirley, Solihull, West Midlands B90 3DN Telephone: 0121 693 1993 Fax: 0121 693 1994 Mobile: 07970 026386 Website: www.barryjcross.co.uk EXPERT WITNESS JOURNAL

20

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 21

â&#x20AC;˘ Key to the success of conflict management techniques is party engagement with the process in the early stages, before it gets out of hand.

Conflict situations are more difficult to resolve as time goes by, and the longer an issue remains unresolved the greater the chance it will escalate out of control.

4. High quality and trusted third party neutrals, who are trained and assessed in the relevant conflict management early intervention techniques that the parties have agreed to use.

5. Information and guidance for contracting parties on how the process works. This should be more than a clause in a contract. There should be a commitment to educate stakeholders about the process that both informs them and helps to achieve their buy-in.

Whatever procedure parties use in their contracts to manage and resolve conflict situations, they should generally include seven essential components:

6. A commitment by all parties to allocate the necessary time and resources to enable the process to operate effectively.

1. A methodology which spotlights problems as they occur, and triggers the implementation of the contractual mechanism for dealing with them

7. A system to evaluate the process using such criteria as efficiency, cost, durability and overall satisfaction of outcomes. A process may need to evolve over time, and modifying it based on regular feedback from individuals affected, will help to sustain it. â&#x2013;

2. A procedure for diagnosing and obtaining agreement between the parties on the nature of the issues to be resolved.

3. A substantive process for examining the issues and generating solutions (usually with the assistance of a neutral third party or panel). This could result in advice, guidance, recommenda tions or binding decisions, depending on the needs and wants of the contracting parties.

EXPERT WITNESS JOURNAL

Martin Burns Head of ADR Research and Development Royal Institution of Chartered Surveyors 02 September 2014

21

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 22

The Unbuilt Environment Construction Disputes Rise in Value to $32.1million globally, many due to defective works, according to Arcadis report Mike Allen, Global Head of Contract Solutions at ARCADIS said: “Today’s major construction programmes are fast paced, complex and involve a multitude of supplier parties, so there are numerous points at which a dispute can occur.

Many of these disputes are resolved out of the public eye but do often result in heavy costs and time overruns. Our research indicates the scale of this problem and highlights the need for better contract administration, more robust documentation and a proactive approach to risk management to help mitigate against the most common causes of dispute.”

The ‘Unbuilt’ environment – building procurement contracts and projects that fall short of delivery targets and design considerations – is becoming a major source of revenue for consultants who understand the complex scenarios that embroil Architects, Engineers, Developers and Contractors.

Disputes relating to major global construction projects increased in value to, on average, $32.1million in 2013 according to ARCADIS, the global natural and built asset design and consultancy firm. This was $400,000 more than in 2012 when disputes were valued at $31.7million.

ARCADIS also saw the emergence of the ‘megadispute’ in 2013, with its teams working on three separate disputes worth over $1billion including the Panama Canal Expansion project.

The Panama Canal Expansion was one of the highest profile disputes in 2013, with the Panama Canal Authority in dispute with the GUCP contractor consortium about cost overruns said to be worth $1.6bn. It was reported that a deal over a protracted financing dispute was secured in order to free up funds earlier this year and this has allowed work to continue.

Released in May 2014, this year’s report ‘Global Construction Disputes: Getting the Basics Right’ is ARCADIS’ fourth annual study into the duration, value, common causes and resolutions of construction disputes across the globe.

The research found that the most common causes of construction disputes related to the administration of contracts.

The report found that construction dispute values were the highest in Asia at $41.9milllion, closely followed by the Middle East at $40.9million. In the US, disputes values tripled in value to $34.3million and also rose in the UK to their highest value since the report started at $27.9million.

Top five causes in 2013 1. Failure to properly administer the contract 2. Failure to understand and/ or comply with its contractual obligations 3. Incomplete design information or employer requirements

The findings showed that disputes took, on average, less time to resolve in 2013 at 11.8months, down from 12.8months in 2012. They took longest to resolve in the Middle East and US with 13.9 months and 13.7months respectively. Disputes in Continental Europe tended to be resolved the quickest at 6.5months.

EXPERT WITNESS JOURNAL

4. Failure to make interim awards on extensions of time and compensation 5. Poorly drafted or incomplete and unsubstantiated claims.

22

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 23

“The recent upturn in market conditions and claims by employers for alleged defective works are two of the key drivers causing disputes in the UK”

Party to party negotiation was deemed the most popular method of alternative dispute resolution in 2013, followed up arbitration and adjudication.

The likelihood of a joint venture (JV) ending in dispute was also reviewed in the report. ARCADIS found that, where a JV was in place, it had a one in three (35%) chance of causing a dispute. This is an increase from 2012 where instances of JV dispute were less commonplace at 19%.

2013 Rank - Cause - 2012 Rank 1 . Employer/ Contractor/ Subcontractor failing to understand and/ or comply with its contractual obligations 2 . Failure to properly administer the contract 3. Incomplete design information or Employer requirements (for D&B/D&C) 4. Poorly drafted or incomplete and unsubstantiated claims 5. Employer imposed change

Mike Allen continued: “As a result of an increasing active construction market, we are seeing the number of joint ventures increase as employers seek to divest risk across major programmes and blend specialist skills in the supply chain into one contract. This is clearly not an easy undertaking and our research shows it is leading to an increase in the number of disputes highlighting a need for some very careful focus around the selection, set up and management of the JV relationship.”

The causes of disputes in the UK followed a similar pattern to previous years, although a failure to understand contractual obligations rose to become the most common cause in 2013. A failure to properly administer the contract was again common, but fell to second place, with incomplete design information remaining third.

The research was conducted by the ARCADIS and EC Harris Contract Solutions experts and is based on construction disputes handled by the teams during 2013.

In the UK a third of JVs ended in dispute, just under the global average.

The three most common methods of Alternative Dispute Resolution that were used during 2013 in the UK were: 1. Adjudication (contract or ad hoc) (1 in 2012); 2. Party to party negotiation (3); and 3. Arbitration (2).

Spotlight on the UK Construction disputes in the UK continued to rise in value, reaching an all-time high of US $27.9 million in 2013.

However, encouragingly, they took less time to resolve with the average coming down to 7.9 months from 12.9 months in 2012.

The recent upturn in market conditions and claims by employers for alleged defective works are two of the key drivers causing disputes in the UK. The more buoyant market means that contractors are more prepared to take action to recover losses that

Global construction disputes – summary of results Region

Middle East Asia US UK Continetal Europe Global average

Dispute values (US$ millions) 2010 2011 56.3 112.5 64.5 53.1 64.5 10.5 7.5 10.2 33.3 35.1 35.1 32.2

2012 65 39.7 9 27 25 31.7

2013 40.9 41.9 34.3 27.9 27.5 32.1

Length of dispute (months) 2010 2011 2012 8.3 9 14.6 11.4 12.4 14.3 11.4 14.4 11.9 6.8 8.7 12.9 10 11.7 6 9.1 10.6 12.8

2013 13.9 14 13.7 7.9 6.5 11.8

Source: ARCADIS Global Construction Disputes: getting the basics right EXPERT WITNESS JOURNAL

23

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 24

they may have suffered by entering into contracts over the last five years when there was a sharp downward pressure on tender prices. This has also led to a number of speculative claims being submitted, most now citing the Walter Lilly case which is being seen as a panacea for all ills.

position that the contractor is culpable of critical delay. This is being seen as a defence to claims for loss and expense. Whilst this is a completely respectable position to take, it is often the case that with the majority of construction disputes being settled by adjudication, this type of defence will succeed only where the adjudicator takes the time to fully comprehend the parties’ positions as to the cause and actual effect of delay

What many contractors are missing is that for any claim to succeed it needs to be founded on a robust and well evidenced cause of action, not just reliance on a piece of litigation that, taken at face value, appears to offer a contractor a good chance of succeeding with a claim for loss and expense.

ARCADIS’ Contract Solutions team helps clients avoid, mitigate and resolve disputes. The 160 strong team is based around the globe and encompasses one of the industry’s largest pool of procurement, contract, risk management and also quantum, delay, project management, engineering defects and building surveying experts. The team provides procurement, contract and dispute avoidance and management strategies, management expertise as well as dispute resolution and expert witness services. This is delivered through a blend of technical expertise, commercialism, sector insight and the use of live project data, combined with a multi-disciplined and professional focus. ■

In a large number of instances contractors’ claims are often met with counterclaims for delay and/or defective works. The latter claims also tend to end up with one of the design team facing claims for professional negligence thereby creating rounds of satellite litigation generally originating out of a contractor’s claim for loss and expense. As in previous years, a significant cause of claims is the parties’ own lack of understanding of their respective obligations under the contract, despite which many contractors and clients still remain unwilling to invest any money in pre-contract advice.

For further information, please contact: Andy Rowlands, Head of Corporate Communications at ARCADIS on +44 (0)20 7833 6662 Email: andy.rowlands@arcadis.com

Finally, there has been a growing trend for employers, when defending claims, to take the

JONATHAN DAVY

DAY MONTAGUE YOUENS

DipLS FRICS

CHARTERED SURVEYORS

Chartered Land Surveyor

D M Y

DISPUTES AND SERVICES FOR SOLICITORS

My specialism is in Rights of Way and Boundary Disputes and I have been reporting on these for over thirty years.

Day Montague Youens provide a Professional surveying service to assist Solicitors’ and their Clients in property related matters.

• Rights of Way • Boundary Disputes

We provide technical support as part of the team supporting the Client, where disputes occur with risk of court action being taken by or against a party.

• Title Rectification Plans • Determined Boundaries • Lease Plans

We bring to these matters a deep and broad knowledge of building and structures combined with experience court.

Peter Day have been involved in the preparation of Expert Reports for Court for over two decades. In that time we have provided reports on a variety of building defects, contract disputes and boundary disputes.

• Familiar with Civil Procedure Rules Part 35 • Registered with RICS Expert Witness Registration Scheme Walker Ladd Ltd 15 - 17 Pendennis Road, Bristol BS16 5JB Tel: 01179 571 234 Mob: 07769 673 998

Peter Day given verbal evidence in both the County Court and High Court, Following the “Woolf reforms” we have been instructed as a joint agreed expert in various matters subject to court action.

Email: jonathan.davy@walkerladd.co.uk

Membership: Royal Institution Of Chartered Surveyors, Chartered Land Surveyor, Fellow of Royal Institution of Chartered Surveyors since 1994 Having over 30 years experience in Land Surveying; predominately measured surveys of land and buildings.

MR PETER DAY Chartered Surveyor F.R.I.C.S. Tel: 01634 263616 Fax: 01634 264 440 Email: mail@propertyconsulting.co.uk Web: www.propertyconsulting.co.uk Day Montague Youens 4 Bloors Lane, Rainham, Kent ME8 7EG

EXPERT WITNESS JOURNAL

24

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 25

RICS Residential Market Survey Greater caution appears to be being exercised across the UK housing market as house price momentum slowed to the same level it was 16 months ago, according to the latest RICS Residential Market Survey, in an article for discussion by Simon Rubinsohn, Chief Economist (RICS) posted in October 2014.

larger properties (three and four or more bedrooms), which have fallen since the start of the year to 2.2% (down from 3.8% at the start of the year) for three bedroom properties and 2.0% for four or more bedroom properties (down from 3.5% at the start of the year).

At a national level, the slow-down in buyer activity stands in contrast to the lettings market, where demand has continued to grow solidly across the majority of the UK, despite new instructions to let not keeping pace with the rise in tenant demand.

Nationally, new buyer demand slipped for the third consecutive month and in London, caution took a particular toll, with prospective new buyer demand seeing its fifth consecutive monthly decline â&#x20AC;&#x201C; a trend not seen since April 2012.

However, despite market conditions, surveyor expectations for price growth over the coming three months remain positive.

In Scotland, the effects of the referendum on independence appeared particularly significant, with a net balance of 6% more surveyors reporting a drop in the number of interested buyers (compared to a net balance of 49% seeing more interest in August).

However ideally, more supply should be coming onto the market, but with interest rates still at historically low levels and long term house price expectations positive, households are not under any real economic pressure to sell. Next year, RICS expects the house price outlook to be far more subdued.

Meanwhile, stock coming onto the market remained virtually unchanged in September (a net balance of -1%), which led to a number of surveyors reporting a â&#x20AC;&#x2DC;return to more sensible pricesâ&#x20AC;&#x2122;, as properties staying on the market for longer were now beginning to receive offers below asking price.

Get the full RICS UK Residential Market survey here: www.rics.org/uk/knowledge/newsinsight/press-releases/steam-evaporates-out-of-ukhousing-market/

Interestingly and likely in response to political rhetoric around Mansion Tax, the survey showed a drop in 12 month member price expectations for

EXPERT WITNESS JOURNAL

25

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 26

Industrial Deafness Claims Rise by Two Thirds Compensation claims for industrial deafness have risen by two thirds over the past two years, according to insurance and legal experts, as reported by The Independent in July 2014. An estimated 80,000 claims were made last year, compared with 55,000 in 2012, according to the Institute of Actuaries.

It is understood that this is due to a mixture of the impact of the recession, the influence of claims management companies, changing claimant solicitor activity as well as legislation and process changes.

It quotes Sir Malcolm Bruce, MP and Vice Chair of the UK Parliamentary Group on Deafness, as saying: "There is certainly a danger for those affected by hearing loss to be swept up by the no-win no-fee promises from injury-based law firms, but it is important to stress that sufferers should seek help and advice from the NHS, who can provide the right support."

AXA insurance had more claims for industrial deafness than any other type of workplace injury or illness in 2012, at a cost of ÂŁ26m. Aviva, one of Britain's largest insurance companies, is said to reject 85 per cent of new claims, stating that "the vast majority of these claims are fraudulent".

The Independent observes that new claims against industrial deafness often date back several years to periods of less assured health and safety procedures. It quotes Chris Wood, Senior Policy and Research Officer at the charity Action on Hearing Loss (formerly RNID), as saying: "There is a higher prevalence of hearing loss in the north-east of England, where many people now in

The Independent reports that there is mounting concern the high number of alleged false claims may have a negative effect on those suffering from genuine hearing loss.

EXPERT WITNESS JOURNAL

26

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 27

their 70s and 80s had to work in noisy environments without hearing protection."

The key legal and market influences are: • Noise at Work Regulations 2005 • Jackson Reforms • LASPO Act • EL Claims Portal

Significantly the article observes that the increase in the number of cases may be related to the lowering of the noise threshold above which compensation can be claimed.

Source: Institute of Actuaries UK Deafness working Party Update 2013

“Employers are now liable for exposing their workers to noise upwards of 80 decibels, and must provide protection even in situations when the wearing of protective headphones is not a legal requirement.”

Commonest health problems The HSE states that exposure to noise at work can cause irreversible hearing damage.

“It is one of the commonest health problems and can be difficult to detect as the effects build up gradually over time. Throughout all industry, industrial hearing loss remains the occupational disease with the highest number of civil claims accounting for about 75% of all occupational disease claims. It states that most food and drink industries have processes which emit high noise levels exceeding the 80dB (A) and 85dB (A) levels at which employers are required to take action under the Control of Noise at Work Regulations 2005. (Noise levels of 85-95dB (A) occur in the bakery, dairy and confectionery industries but can rise to 100dB (A) in milling, drink production and the meat industry.)

The Chairman of the parliamentary group on deafness, Sir Stephen Lloyd, said: "Awareness of the impact of excess noise on hearing in the 1970s and 1980s was not as good as it is today, so it stands to reason that some people may well have been adversely affected. However, a properly trained specialist should be able to ascertain whether or not deafness was due to excess noise in the workplace or a natural part of the ageing process."

In macro terms. The International Longevity Centre-UK, the leading think tank on longevity and demographic change, warns in their publication “In one ear and out the other”: why politicians can no longer afford to ignore the individual, economic and social cost of hearing loss in general. It quotes new data from its understanding of an ageing demographic to show not only the predicted growth in the number of people with hearing loss, which is set to account for almost 20% of the total population by 2031, but also highlights a £25 billion loss to the UK economy in potential economic output. It is highly likely that these figures mask a legacy of working in poorly regulated industrial conditions from the 1970s with experts agreeing that claims are most expected from people approaching retirement.

At a glance: Deafness Claims • Claims arise from prolonged exposure to high noise levels in the work place • Regulations in 1989 and 2005 reduced actionable noise levels • Noise Induced Hearing Loss (NIHL) becomes apparent around age 60-65 • Current claims predominantly from 1970s to 1980s exposures • UK Insurance industry is currently paying around £70m per year • Total claim cost made up from 25% damages and 75% solicitor fees.

EXPERT WITNESS JOURNAL

27

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 28

It lists the following nine processes to be particularly associated with high noise levels. The inclusion of these processes is supported by hearing loss civil claim data from one of the main trade unions representing workers in the food and drink industries.

• Glass bottling lines: 85-100dB (A) • Product impact on hoppers: 90-100dB (A) • Wrapping, cutting wrap, bagging etc: 85-95dB (A) • Bowl choppers: > 90db (A) • Pneumatic noise & compressed air: 85-95dB (A) • Milling operations: 85-100dB (A) • Saws/cutting machinery: 85-107dB (A) Blast chillers/freezers: 85-107dB (A) Packaging machinery: 85-95dB (A) Wheeled trolleys/racks: up to 107dB (A) (from wheel bearings) The HSE lists a hierarchy of control measures in managing the risks on their website. Protection is best achieved, it states, by controlling noise at source. It advises following this sequence to reduce exposure - wearing hearing protection is the last resort.

exposure to a particular noise source i.e. particular employment supported by witness statements and documentary evidence from the employers.

• Show that at the time of exposure your employer could have foreseen that you might suffer from noise induced hearing loss or an associated condition.

• Show that your employer was negligent in protecting you from the noise.

Whereas these processes are characteristic of industrial noise problems, the emergence of technology and inherently noisy office environments where phones play a central role, such as the many VOIP call centres that sprung up over the last two decades, have augured in a new set of exposure risks.

It states that employers have a duty of care to protect staff from acoustic shock in the workplace, adding that compensation for acoustic shock can be claimed against the employer’s liability insurance company. It lists the first symptoms of noise-induced hearing loss include: • missing parts of a conversation • not being able to hear conversation where there is background noise • having to turn the television up loud • partners thinking they’re being ignored.

The firm goes on to talk about acoustic shock compensation claims, which have risen as a result of technology adoption and call centre development: “Acoustic Shock is the term used for hearing related problems caused by high frequency, high intensity sounds through a telephone headset. For example, people who work in UK call centres where the volume on their headsets is turned up too loud; can suffer from hearing loss, Tinnitus and a range of physiological and psychological health issues.”

Long-term exposure to noise Slater & Gordon Lawyers, one of the largest Personal Injury Law Firms in the UK, deal with all types of industrial deafness claims including noise-induced hearing loss, Tinnitus and Acoustic Shock compensation.

It goes on to state that: “Noise-induced tinnitus can be the result of damage caused by excessive noise and is characterized by the sound of buzzing in the ears. In bad cases, the buzzing is constant and can even make sleeping difficult. Tinnitus can also have emotional impacts such as anxiety or depression.

Tinnitus can affect quality of life, enjoyment of hobbies and leisure activities such as reading, listening to music. There’s no cure for tinnitus, but very bad cases can be helped by using a ‘masking’ device which lessens the intensity of the buzzing.”

A statement on their website outlines the problem: “Industrial deafness is caused by long-term exposure to noise. It can take many years, with sufferers often in their retirement, before significant hearing problems arise. Many people put their problems down to general ageing, rather than making the link with their work many years before. Hearing loss is generally irreversible and hearing aids are usually the only way to help with the condition.”

The expertise of relevant medical experts such as ENT Consultants is critical to the claims process.

But cases can be complicated, relying on the robustness and clarity of the evidence in what can often be difficult circumstances and environments to appreciate in a way that, say, whiplash can.

According to them a successful hearing loss claim must: • Establish that you are suffering from industrial deafness and/or tinnitus, confirmed by a report from a medical expert.

• Show that the condition has been caused by EXPERT WITNESS JOURNAL

28

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 29

Audiogram tests showed the claimant’s hearing in his left ear was slightly worse than his right, despite the claimant mainly using his right ear for the listening element of his work. The claimant said he was given insufficient time to answer the consultant’s questions during the tests, and that he experienced discomfort during them.

Case study: Industrial deafness claim dismissed for lack of credible evidence The following case study taken from the Zurich website illustrates the challenge.

At a glance • Insurers have reported marked increases in industrial deafness claims in recent years • Although this is only a county court judgment, it provides a detailed and useful example of the matters that are scrutinised in a claim alleging occupational noise-induced hearing loss • The burden of proof is on the claimant and this claimant was held to have made deliberately misleading statements in his evidence, significantly casting doubt on the court’s ability to regard his evidence as reliable and accurate

The court held that the claimant was attempting to undermine the results of the tests and to discredit the defendant’s expert evidence. The judge held that the claimant had actively misled the court on matters the claimant felt would not have helped his case but which were actually irrelevant. The court regarded the claimant as an unreliable witness. The court held that the defendant’s medical evidence, against the claimant suffering noise-induced hearing loss (NIHL), outweighed the claimant’s.

The case of: Sutton v British Telecommunications plc, 14.06.13, Cardiff County Court The claimant worked for the defendant from 1986 and continued to do so at the date of this judgment. He claimed damages from the defendant for hearing loss, tinnitus and hyperacusis (painful sensitivity to sound) which he alleged was caused by the defendant’s negligently exposing him to excessive noise at work. He is now aged 46. The defendant admitted liability but denied causation.

The court considered relevant case law including Baker v Quantum Clothing Group Ltd (Court Circular, May 2011). In that case, the Supreme Court held the criteria for diagnosing NIHL, on the balance of probabilities, have to be robust.

There should be a credible narrative history of noise exposure that could cause identifiable noise damage.

Although the defendant admitted liability, the claimant’s evidence was not credible, tainting the reliability of his evidence as to frequency and duration. Further, the experts agreed the audiogram tests did not indicate NIHL. The claim was dismissed. ■

The claimant’s work, as a power maintenance engineer, involved listening to noises, such as beeps, through different types of equipment. He said he could control the rate of beeps but not their level of noise.

The complete Cardiff court judgement article is available from the Zurich site.

Although the defendant provided ear protection for certain jobs, it was not appropriate for the claimant’s work, which required being able to hear clearly while listening for certain tones and sounds.

He mainly used his right ear for this task. The claimant suspected he had tinnitus in the mid-1990s and consulted his GP who was allegedly dismissive. The claimant was a motorcyclist and said he always wore fully protective head and ear equipment.

References Action on Hearing Loss (Formerly RNID ) www.actiononhearingloss.org.uk Health and Safety Executive www.hse.gov.uk The Ear Foundation www.earfoundation.org.uk ILC www.ilcuk.org.uk Aviva www.aviva.co.uk

The parties’ medical experts initially agreed the claimant’s hearing problems were not caused or contributed to by motorcycling. However, at trial, it emerged that the claimant’s involvement with motorcycling was far greater than he had initially indicated. The defendant suggested that the claimant tried to mislead the court, fearing his involvement with motorcycling would weaken his case.

EXPERT WITNESS JOURNAL

Slater & Gordon www.slaterandgordon.co.uk Zurich Insurance www.zurich.co.uk Institute and Faculty of Actuaries www.actuaries.org.uk

29

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 30

Food Cargo An Expertâ&#x20AC;&#x2122;s View

by Frazer Imrie of Imrie Consulting.

Organisation of the United Nations (FAO) compile statistics for the annual trade in food stuffs. For the year 2011 (the latest available) they show the values recorded in tables 1 and 2. (overleaf)

A visit to a local supermarket will illustrate the wide variety of foods that are available to the consumer.

Manufactured food products are imported from many different countries especially with the growth of immigrant sectors of the population who wish to continue to eat familiar food. Foodstuffs used for local manufacture of fresh foods like the wheat used for baking bread is imported from countries where it is grown rather than from local farms.

Fresh fruit and vegetables are available for 365 days a year and not just when they are in harvest locally. Modern technology, for example the storage of apples under controlled atmosphere, has extended the local harvest season but to ensure that fresh apples are available over the entire year involves importing large quantities from other parts of the world especially from the southern hemisphere where harvested fruits are available during the European winter.

The goods transported can be divided into two categories, those that are used as raw materials for further processing to food products, for example oilseeds to be processed into edible vegetable oils, and those that are for direct consumption by humans, for example fresh vegetables and fruit.

It is inevitable that some of these goods are damaged during storage or transportation either due to accidents or to human failure. For example a cargo of wheat on board a ship in transit may be damaged by wetting during bad weather, or may be infested with insects despite having been fumigated so that when it arrives at its destination it may be partially or, in extreme cases, totally unfit for use as human food.

Over the years appropriate technology has been developed to enable foods, particularly fresh fruit and vegetables, in prime condition to be placed on supermarket shelves over the entire year. As a consequence very large quantities of food and food raw materials are transported around the world.

The majority of this material, especially the raw materials for processed foods is carried by sea. In recent years there has been a large increase in refrigerated foodstuffs carried by road within the EU but in total this is only a small fraction of international trade. The Food & Agriculture EXPERT WITNESS JOURNAL

In any event there will be a claim against the insurers of the cargo and for this to succeed the cause of the damage must be investigated by a suitable expert. Impartial experts are involved in these investigations for several reason not least of which is that the value of a cargo of food is high, for example at current prices a 35,000 tonne cargo of milling wheat may have a value between 4 and 6 million pounds. Fresh fruit has an even higher value, for example a 5,000 tonne cargo of fresh apples would be worth over 3 million pounds.

30

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 31

Table 1 Quantity of certain foodstuffs carried in international trade in 2011.

Foodstuff Quantity (tonnes) Wheat 147,205,956 Maize 108,067,148 Soya beans 90,813,977 Soya bean meal 63,593,084 Sugar (raw & refined) 55,759,914 Raw Refined Palm oil 6,589,672 Meat (beef, pork & chicken) 21,837,710 Beef Pork Chicken Wine 10,004,329

Value (£/tonne) 217.50 210.00 353.75 270.00 418.13 476.25 718.13 3326.25 2174.38 1195.62 2064.38

Adapted from data published by FAOSTAT 2011.

Price data converted to sterling at the middle market rate for 2011 advice should be the same irrespective of to whom it is addressed and of who pays for his services.

The role of the cargo expert is clearly defined in law. The Civil Procedure Rules laid down by the Ministry of Justice govern the role of the expert.

Part 35 gives explicit instructions to experts called to give evidence in disputes. Section 35(3) says that “It is the duty of experts to help the court on matters within their expertise” and “This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.”

There are regulations governing the carriage of food stuffs by sea. Some of these relate to the safety of the ship and the crew, for example maintaining the stability of the ship during loading. Ships that carry food stuffs like some oilseeds that can heat up to a point where actual combustion occurs must be equipped with appropriate equipment to smother incipient fires using an inert gas like carbon dioxide. Ships must carry breathing apparatus in case crew members need to enter a hold where the air is not breathable. Some food cargoes are alive and respire taking in oxygen and breathing out carbon dioxide so that there is insufficient oxygen within the hold to support life. Respiration can lead to a build-up of heat within the cargo since many foodstuffs are effective insulators when loaded to a ship’s hold. Thus temperature monitoring of such food cargoes is required to ensure that temperatures do not reach a sufficiently high level to initiate spontaneous combustion. Some food and animal feed cargoes are classified as potentially dangerous since they are prone to heat up and spontaneously combust. There is an International Maritime Dangerous Goods Code (known usually as IMDG) that classifies potentially dangerous cargoes and some foodstuffs are included in class 4.2 as “substances liable to spontaneous combustion.”

Table 2 Quantity of certain fresh foods carried in international trade in 2011 Fresh food Quantity (tonnes) Bananas 18,720,855 Citrus 14,038,318 Oranges, Clementines, Tangerines 11,511,934 Lemons, Limes 2,526,384 Pears 2,638,890 Fresh vegetables 3,316,621 Adapted from data published in FAOSTAT 2011 The cargo expert may perform other roles prior to the hearing at which disputes are resolved. In general these fall into two categories, the role may be advisory to the client or it may be advisory to the client’s solicitors in preparing the case for subsequent hearing. There is nothing improper in the same expert acting in one or more of these roles provided that in his expert report he makes it clear that his first duty is to the court even where some of his opinions may be contrary to those expressed by the client or his legal representatives. The cargo expert is retained as an impartial expert and his EXPERT WITNESS JOURNAL

In general a cargo of foodstuff should be carried according to written instructions given to the Master by the shippers. In many instances, for example with bulk dry food cargoes like wheat or 31

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 32

and also that the relevant government regulations for safe export have been met. On the basis of these examinations and of the inspection of the cargo by the crew during loading the ship the Master is required to certify that the cargo is satisfactory.

Cargoes are carried under documents called Bills of Lading. This is a document issued by a carrier, or its agent, to the shipper as a contract of carriage of goods. It is also a receipt for cargo accepted for transportation, and must be presented before taking delivery at the destination.

soya beans, the carriage conditions are known within the trade and are published in a number of books readily available to ships’ Masters. Typical examples are “Thomas on Stowage” and “Lloyds Survey Handbook”. In other instances where special carriage conditions are necessary these are provided in writing to the Master. They may be quite specific and include precise conditions for temperature control of the cargo during carriage or for ventilation of the cargo following testing the atmosphere inside the cargo hold. Some cargoes are carried under a controlled atmosphere in order to delay the premature ripening of fresh fruit or vegetables.

There are variations in the wording of Bills of Lading but in general they contain the following: • The shippers and receivers/consignees names and addresses • Special instructions for the carrier to ensure prompt delivery • The date of shipment • The number of shipping units, e.g. 15,000 metric tons of sugar in 300,000 x 50 kilo bags • A description of the packing, e.g. polypropylene woven bags with a polyethylene inner liner • If the foodstuff is considered a potentially dangerous cargo, e.g. prone to spontaneous combustion it should be specified on the Bills of Lading together with the appropriate UN classification • The value of the cargo being shipped.

Food cargoes are supplied under a sales contract which specifies the commercial limits required.

Usually these limits cover parameters like moisture, oil content, degree of ripeness, temperature and any other characteristics that define the condition and quality of the cargo.

Finally, food cargoes must comply with the health and other regulations of the country that is importing the food stuffs. These can be divided into two categories, first, those that are common and are found in most countries’ regulations, for example, the absence of live insects and the absence of known harmful chemicals below the limit set by the countries’ public health authorities and second, those specific to that country for example the absence of certain known plant pathogens not present in that country.

All of these factors relating to the condition and quantity of the cargo should be documented and, in most cases, the documents are carried on board the ship. Monitored temperature and other parameters should be recorded either in the ship’s deck log or in special logs dedicated to a particular set of measurements, for example the detailed temperature logs on board ships with temperaturecontrolled holds.

An independent consultancy providing consultation services in the fields of: Agriculture Farm crops, horticulture, post-harvest spoilage and losses, crop storage and transportation.

Food Transportation and storage of all types of foods, both prepared and ingredients. Temperature controlled storage. Frozen foods, fruit & vegetables, meat, fish, sugar, cereals & molasses.

Market Studies European and UK food markets. Structure and value of wholesale and retail markets.

One of the first tasks of a cargo expert when attending the discharge of a cargo is to collect copies of these documents and of any logs or electronic records that the ship may have created during the voyage.

Expert Witness Experienced for past 25 years in acting as expert witness in UK and overseas courts and arbitrations. Providing oral and written evidence. Member of Society of Expert Witnesses.

Frazer K.E. Imrie, B.Sc (1st Class Hons) Fellow Society of Biology, Chartered Biologist, Fellow Institute of Food Science and Technology.

There is a network of cargo inspection around the world that ensures that cargoes of food stuffs are inspected prior to loading to ensure compliance with the commercial contract governing their supply. Usually this is a combination of ensuring that the cargo is within the contract specifications EXPERT WITNESS JOURNAL

44 Alexandra Road, Reading, Berks, RG1 5PF

Tel: 0118 926 1454 Mobile: 07802 226 036 Email: frazer@imrieconsulting.co.uk www.imrieconsulting.com

32

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 33

approved laboratories. There is frequently disagreement between surveyors at this stage since each is employed to look after the interests of his principals and these may be different from one party to another. The cargo expert may try to remain apart from such disagreements but inevitably he may become involved. For this reason when such a case calls for an expert report this is prepared post mortem by another cargo expert leaving the original attendee as a witness of fact rather than an expert.

If the Master believes that there is something wrong with the cargo being loaded he has the right to reject it. This happens from time to time and usually results in a dispute at the loadport. In some instances cargo experts may be called in to assist in solving the problem.

In any event the Bills of Lading are not usually endorsed with adverse comments but Masters can accept a cargo with a qualification such as â&#x20AC;&#x153;weight, quality and condition unknown.â&#x20AC;?

At this point the question of mitigation needs to be considered. It is the duty of the receiver of the cargo to try to mitigate the ultimate loss. Thus it is not sufficient to say that a damaged cargo has no use and should be destroyed. This may be the ultimate fate of parts of a damaged cargo but only after all reasonable attempts have been made to find alternative solutions. For example a cargo of wheat intended for milling to produce flour for bread-making may be suitable for animal feed. This would tend to reduce the financial loss on the cargo. Some damaged cargoes can be sold for salvage to specialist companies that are able to clean the cargo and then sell it in other markets that they can access. When these types of alternative solutions have been considered and rejected then the cargo may need to be destroyed by one of the appropriate methods used within that country. The cargo expert may take part in all of these activities.

Most of the work of the cargo expert is done at the discharge port since this is where problems of damage to a food cargo are usually seen. Damage may be obvious, for example live insects seen in the cargo when the hatches are first opened. In other instances it may manifest itself during discharge when cargo is found to have been wetted deep within the cargo stow. This may result in mould growth within the cargo or in the creation of areas where there has been an increase in temperature to a point where heat damage has occurred.

The cargo expert is then faced with a number of tasks. First, decisions must be taken about how the cargo is to be discharged. If there has been wetting of the cargo then the damaged part needs to be separated from the undamaged part. With bagged cargoes segregation is relatively easy and the damaged cargo can be kept separately from the undamaged for future investigation. With bulk cargoes segregation is more difficult and inevitably some sound cargo becomes mixed with damaged thereby inflating the quantity adjudged to be damaged.

Ultimately the cargo expert will produce a report of his attendance. This is a report for his principals who may be the Owners of the ship, the Charterers of the ship, the Sellers of the cargo, the Receivers of the cargo or one of the various insurance companies involved in the chain of supply. This report is for the use of those who instructed the cargo expert and is not the same as any report that the expert may be required to produce in response to a court or tribunal instructions. However the expert will be giving his opinions in his attendance report and these should be the same as those which he will give in his expert report if a dispute follows the incident.

It is important to do the segregation as rapidly as possible since ships are expensive to operate on a daily basis and the contract to carry the cargo (called a charterparty) will specify how long it should take to discharge the cargo with financial penalties if this is exceeded. The cargo expert must be present during this operation since he is responsible for the forensic examination of the cargo and must try to get as much information as possible about the damage, where it is in the cargo and its extent.

Although the science behind the ways in which cargoes may be damaged is well understood it is sometimes extremely difficult to say with confidence that the cause of the damage was attributable to a particular event or events. It is simple to distinguish sea water wetting from fresh water wetting by carrying out a laboratory analysis for the

The ultimate quantification of damage may rely on an examination later of the segregated damaged cargo which may involve several cargo experts inspecting the damaged cargo jointly. Often a sampling plan is agreed among the various cargo surveyors and the samples taken are analysed in EXPERT WITNESS JOURNAL

33

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 34

are several experts representing the various interested parties although the technical discussions may often be restricted to the experts representing the two disputants. The proceedings are not under oath and the role of the expert is advisory albeit more oriented towards the party that instructed him. Under the guidance of a skilled mediator such meetings often achieve a settlement of the dispute.

presence of the appropriate amount of salt.

However it is often not clear whether the fresh water wetting came from rain, water ingress or condensation. Often the relevant records are not available for example shipsâ&#x20AC;&#x2122; logs are often incomplete or inadequately written up. Then the forensic examination depends to a large extent on the experience of the cargo expert. It is hardly surprising that in such instances there is considerable disagreement between experts about the cause of the damage and the case can only be settled by some form of dispute resolution.

The commonest method of resolving a dispute following food cargo damage is that of an arbitration tribunal. Most charterparty documents include a clause stating that in the event of a dispute about the cargo arbitration will be the preferred method of resolving the dispute. So far as the UK is concerned there is also a clause stating that the arbitration will be held in UK under English law. Similar arbitration tribunals can be and are established in many countries either as independent tribunals or under the auspices of various trade organisations or national arbitration bodies.

Fresh food such as fruit or vegetables is still alive in the sense that the goods respire and may continue to mature or ripen following harvest. In any event they continue to age so that their fresh shelf life is reduced with time. Fresh shelf life is defined as the period during which the goods remain in a condition suitable for consumer use following the voyage from grower to retailer.

Since the purpose is to present goods at the peak of their fresh life to the consumer the cargo expert needs to know about the growing of the crop and its treatment following harvest but prior to shipping. In modern technology the concept of product tracing has become important since the reason for damage to a food cargo may sometimes be found in its treatment during growth of the parent crop or in the immediate post-harvest treatment of the goods. Thus in many instances the forensic examination carried out by the cargo expert involves an investigation of the crop and its treatment following harvest.

Arbitration tribunals are conducted in a manner similar to that used in a trial in court. Clients are represented by legal counsel and evidence is given in a similar manner to that used in a court trial following the familiar pattern of examination-inchief followed by cross examination and any final rebuttal. The evidence given by a cargo expert is intended to assist the tribunal in understanding the technical complexities of the case and also to examine the opinions expressed by the expert in his report. The role of the expert is to be impartial and to express his opinions based on scientific evidence with particular reference to published literature and to his own experience of food cargoes.

Dispute resolution following damage to a food cargo may be by one or more of several different methods. These can be considered as resolution by mediation, or by an arbitration tribunal or by a court depending on the precise nature of the dispute and what is agreed between the disputants and their lawyers.

Trials in court are usually restricted to matters where there are legal as well as technical problems.

Commercial courts often call for expert evidence to be given where they feel that the technical bases for a claim are not clear or require explanation. Courts will often call for a meeting between the experts prior to trial in the hope that some of the technical issues can be resolved and therefore need not be heard at the trial. At trial usually the facts are not at issue and it is the opinions of the cargo expert that are examined in detail and sometimes with great vigour.

There is an increasing tendency to use mediation or some other form of settlement meeting rather than proceed to the more expensive options of arbitration or trial. The role of the cargo expert in a mediation meeting differs from that in an arbitration hearing or a trial. At mediation the principals are present (or their representatives who are empowered to agree any settlement) and the role of the expert is to deal with technical problems that may arise during the meeting. Usually there EXPERT WITNESS JOURNAL

The modern cargo expert works within a network involving other experts with different forms of expertise, master mariners and where relevant 34

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 35

external experts who may be qualified in a particular speciality that the cargo expert does not possess. This is normal and provided that the appropriate acknowledgement is given for such external knowledge it is perfectly proper to use it.

No single person can possess all the knowledge enabling a sensible opinion to be given about the probable cause of cargo damage.

Expert Witness Services: For a wide range of Structural Engineering, Highway, Traffic and Health and Safety matters.

• • • • •

When the scale and complexity of the global trade in food and food stuffs is considered it is hardly surprising that occasionally things go wrong and cargo is damaged. While this is undoubtedly of interest and concern to cargo insurers the main point is that the consumer is protected by a strong network of cargo inspection so that there are very few occasions when the consumer suffers or even is aware of damaged food. ■

RTA Collision Investigations Structural Inspections Slips and Trips Claim Highway Defects Accident / Incident Investigation

Over 30 years including analysis of a city's annual accidents and comparison with national data. Fully conversant with highway design and maintenance standards.

.

E: enquiries@novo55.com T: 01670 542 850 W: www.novo55.com

FORENSIC FIREARMS CONSULTANCY CONSULTANT FORENSIC SCIENTISTS www.forensicfirearmsconsultancy.com

FFC offers bespoke, customer-led solutions to all firearms and GSR-related investigations.

Forensic Firearms Consultancy (FFC) Ltd is an innovative company led by two world-renowned experts.

During their time at the UK Forensic Science Service (FSS), Mark Mastaglio and Angela Shaw became the most senior scientists working in forensic firearms and gunshot residue (GSR) respectively. It is the only UK-based private consultancy offering this level of expertise, experience and worldwide reputation in firearms and GSR. FFC can undertake work at every level of forensic firearms and GSR examinations and has extensive experience of complex, sensitive cases from across the globe.

The FFC directors are two of the most senior and experienced practitioners in the UK, with over 35 years of firearms and GSR court reporting experience.

FFC’s Expert Witness service includes: ❖ Examination of the full range of cases, from the alleged illegal possession of firearms and ammunition to complex interpretation of fatal shooting incidents ❖ In-depth knowledge of firearms legislation involving complex classification issues – an insider’s knowledge of firearms law policy ❖ Civil or criminal case investigation ❖ ❖ ❖ ❖

Court attendance Potential for accidental discharge Trajectory reconstruction analysis, including scene visits Determination of the type of gun used

❖ Determination of how many guns used ❖ Range of fire determination ❖ Interpretation of autopsy findings, including autopsy examination attendance ❖ Interpretation of GSR findings (incorporating SEM-EDX results) ❖ Critical analysis of GSR contamination issues If you need immediate advice, please contact either Mark Mastaglio on +44 7919 217 848 or Angela Shaw on +44 7919 392 397.

Otherwise please email us at: enquiries@forensicfirearmsconsultancy.com. Our website is at: www.forensicfirearmsconsultancy.com

EXPERT WITNESS JOURNAL

35

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 36

Trace Evidence

by John McGlinchey, a comprehensive provider of forensic engineering and scientific solutions to the Legal Professions and Industry.

Evidence has changed over the centuries, having come a long way from the days of the Salem Witch Trials in 1692 where the pointing of a childish finger was sufficient to send someone to the gallows. America, in those days (and in some respects still today) was a scientific backwater.

Thankfully, the men of the Enlightenment (and they were all men) in Europe in the 17th century began to change the way we looked at the world around us. These men emphasised the importance of reason over tradition or dogma. Francis Bacon (1561-1626) espoused that observation was everything. But observation of itself is insufficient in order to understand or interpret the phenomena or problem under consideration, and in order to bring objective (as opposed to subjective) interpretation to an observation we need to rely on the scientific method.

Kepler was a Lutheran, but in following a logical line of enquiry he was able to support Copernicus, despite his religious background. Kepler didnâ&#x20AC;&#x2122;t know why the planets behaved as they did, as his findings were entirely empirical. It would take another 70 years before Newton was able to provide the answer with his universal law of gravitation.

This long drawn out investigation demonstrates the power of reason and logical thought over dogma, and was occurring at the dawn of the scientific era.

Science, it is often assumed, is laboratories, white coats, rats, equipment and all manner of bubbling or clicking paraphernalia. This is not science; it may be peripheral to scientific investigation, it might even be essential, but it is not science per se.

Science, very simply, is a logical method of enquiry, and the scientific method, as it is called, consists of four essential steps: Observation; Hypothesis; Testing; Theory. The last step, the theory, may also be called the Opinion for the purposes of an expertâ&#x20AC;&#x2122;s report, because we are not testing any natural phenomena and trying to find a law to describe it. We are attempting to explain why something is as it is, and therefore an opinion is a more appropriate term.

Historically, the Danish astronomer Tycho Brahe (1546-1601) made meticulous observations of the positions of the stars and planets, and for twenty years gathered data. On his deathbed he handed his data to Johannes Kepler (1571-1630), on the understanding that Kepler would use the data to prove that the earth was at the centre of the universe, in contrast to the findings of Copernicus.

EXPERT WITNESS JOURNAL

36

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 37

In the commissioning of a crime there generally will always be some form of evidence generated, and it is beyond the scope of this article to consider the total gamut of what constitutes evidence. The Encyclopaedia of Forensic Sciences devotes several pages to a description of evidence, but in this article I am going to restrict my discussion to what is termed trace evidence.

amounts of sweat will be produced. Thus, some individuals will be more inclined than others to leave latent fingerprint details, and vice versa. Often I am asked to address the question of why DNA was capable of being extracted from some crime scene artefact, whereas an identifiable fingerprint was not; the answer is a very simple one indeed, but one that generally evades petty criminals.

Trace evidence is the generic term for small, often microscopic material that may be found or recovered from crime scenes and the variety is almost endless, including blood, bodily fluids, fibres, paint, glass, hair, fingerprints, footwear impression marks, gunshot residue, hand-writing, and much more. Trace evidence at a crime scene relies upon Locardâ&#x20AC;&#x2122;s Principle of Exchange (Edmund Locard 1877-1966) in that every contact leaves a trace. Transfer evidence, as some trace evidence is called, occurs as a result of physical contact between persons or between persons and objects, and can take the form of fingerprints and/or shoe impression marks, blood spatter, security dyes, hair etc. Trace evidence can also be either individuating, in that it points towards a particular individual, or it may have class characteristics, in that it merely indicates a common source as opposed to an individual.

Identification of suspects from fingerprints was essentially the beginning of the identification process, but it is not truly scientific as it relies heavily on the opinion of a fingerprint examiner, a human in other words, although today a lot of the initial filtering is done by an automated process. However, mistakes are still made. DNA on the other hand is a very powerful tool and can be used to identify suspects not only long after a crime has been committed, but also through close relatives. Take the case of James Lloyd of South Yorkshire who was eventually tracked down for several rapes through the DNA of his sister who was stopped for drunk driving. A cold-case review found her brother and he confessed to a series of rapes 20 years beforehand ( http://news.bbc.co.uk/1/hi/england/ south_yorkshire/5187634.stm ).

Individuating evidence can be difficult (but not impossible to challenge) but class evidence is a different matter altogether, and the quality of the prosecution investigation is where one finds the fight from a defence perspective.

We can look initially at individuating evidence, and in this category we typically find blood, semen, saliva and fingerprints, all of which generally contain DNA. In respect of fingerprints, these are generally as a result of eccrine sweat production on the hands and whilst leaving potential pattern evidence the sweat itself carries DNA and therefore it is often possible to recover this DNA whereas the fingerprint pattern might not be suitable for identification.

The Home Office Manual of Fingerprint Development Techniques stresses the conflicts that might arise between forensic scientists and fingerprint technicians in attempting to extract the best evidence available. Often one process will frustrate or compromise the success of another.

At the sensational end of the spectrum one always finds murder, and where a firearm has been used there are various sources of evidence, but I will deal here only with what is referred to as gunshot-or cartridge-discharge-residue. This will be referred to in reports either as GSR or CDR, but it means essentially the same thing. A bullet is a projectile crimped into a metal case behind which is a propellant. The firearm hammer strikes the end of

Friction ridge skin on the surfaces of the fingers, hands, and on the bottoms of feet has pores through which small sweat glands (called eccrines) can empty their contents onto the surface of the skin. Eccrines make a watery type of sweat, the composition of which forms a basis for latent (invisible) fingerprint residue. The production of eccrine sweat will therefore vary from individual to individual. In some instances, where a person suffers from excessive sweating, (hyperhidrosis) much larger EXPERT WITNESS JOURNAL

Figure 1 above, components of a bullet

37

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 38

• No scientific evidence to support the assertion that the jeans have been in contact with a dye containing a synthetic DNA code.

the end of the casing and causes a primer to ignite the propellant which then deflagrates to produce a hot gas generating high pressure which drives the projectile.

• Limited scientific evidence to support the assertion that the jeans had been in contact with a red dye from a 3Si Security device.”

During the deflagration event the various compounds will vaporize but upon contact with the air they then condense into a liquid state with the condensate then comprising spheroidal deposits.

This condensate then solidifies and can be deposited upon the hand of the person firing the weapon and it is this deposit that is used to indicate that a particular suspect did indeed fire the weapon. However, there are qualifications to this finding. Firstly, if the condensate deposits are angular as opposed to spherical then they must be discounted. The particles should, if liberated from a single event, all be of a uniform composition; if they are not then this must either be explained or discounted. A further consideration, however, is the possible innocent explanation for the presence of what appears to be CDR and this can come from the use of nail guns, devices which are ubiquitous in the construction industry. Nail guns operate on exactly the same principle as firearms, and the discharge can be indistinguishable on occasion, so this is always an important line of enquiry.

I took issue with this witness’ attempts to interpret her findings as providing scientific support at any level. Distilling the information led inevitably to the conclusion that the witness’ opinion was based entirely and exclusively on the “appearance” of the stain. In other words, this witness was stating that it looked to be the same as a security dye, which in fact actually meant that it appeared to have the same colour. This is not scientific, it’s not objective; it is completely subjective and nothing more than any layperson could do. On that basis it wasn’t even expert testimony. The expert was challenged in court and had to agree that her examination was no better than the jury could have done for themselves. There were numerous laboratory tests that could have been conducted to discriminate the staining against a known sample, in that each could have been broken down into their constituent pigments, but none of these tests were undertaken.

I mentioned earlier about the need to not just observe, but to properly interpret evidence in a scientific manner. It is depressing to note that many people who refer to themselves as forensic scientists do not in fact work in a scientific manner, despite their personal belief that they do, and I would like to give a couple of examples from the more benign, but common end of the spectrum, where this was exposed at trial and during cross-examination of the prosecution experts.

In the first case two suspects held up a bank with firearms and escaped with a bag of cash.

Unbeknownst to them the teller who placed the cash in a bag also placed a dye bomb that exploded a short distance after the robbers fled the premises.

A pair of jeans belonging to one of the suspects was found to have some red staining present that the prosecution relied upon to indicate that it came from the robbery in question. A “forensic scientist” examined the jeans and opined the following:

Figure 2 above, showing the location and extent of staining

on the suspect jeans In a dangerous driving causing death case, wherein a pedal cyclist was killed when in contact with a John Deere tractor, the bicycle was present in court.

The central issue in the case was whether the cyclist went under the front of the tractor, or in at the side.

The prosecution expert was making wild leaps of faith between observation and opinion, none of which could be scientifically supported, but one in particular related to paint contamination on the bicycle. This contamination was green (and if anyone knows their tractors they will know that John Deeres are green) and the prosecution expert stated under oath that this indicated the bicycle

“…This staining had the appearance of dye originating from a 3Si security device…Attempts at obtaining a DNA sequence from this staining proved unsuccessful.

The findings presented in this report provide:

EXPERT WITNESS JOURNAL

38

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 39

sM%253A%3BKM3cDjS8axqYM%3Bhttp%253A%252F %252Fwww.buzzle.com%252Fimages%252Fdiagrams %252Fbulletparts.jpg%3Bhttp%253A%252F%252Fwww. buzzle.com%252Farticles%252Fhow-does-a-bulletwork.html%3B450%3B300)

went under the front of the tractor. At this point I stepped forward and mentioned to counsel that such a connection could not be made without the paint being forensically examined in the laboratory.

This was brought to the judge’s attention and the trial was stopped to allow the necessary tests to be conducted.

Figure 2, (Author’s photograph: showing the location and extent of staining on the suspect jeans) Bibliography Manual of Fingerprint Development Techniques: Home Office Bevan C: Fingerprints: Fourth Estate Haber L; Haber RN: Challenges to Fingerprints: Lawyers & Judges Rinker RA: Understanding Firearm Ballistics: Mulberry House Publishing Heard BJ: Handbook of Firearms and Ballistics: Wiley Townley L; Ede R: Forensic Practice in Criminal Cases: The Law Society

Myself and the prosecution expert both attended at the laboratory to supervise the extraction and testing of the paint sample, and the results were later presented in a report by the scientist who conducted the test. The result was that the paint was ordinary household paint, and did not belong to the tractor, or any tractor at all. This finding demonstrated the dangers of some experts speculating without foundation, and also of the potential for some defence counsel to simply accept such evidence without challenge if they are not alerted to these dangers.

Authors Qualifications John McGlinchey holds two Master of Science degrees, and has taken formal studies in forensic ballistics, impact trauma biomechanics, drink and drug driving, fatigue, driver behaviour, human performance and error. He is the principal of Forensic Engineering Solutions, and is a Research Associate at the Cranfield Forensic Institute. He has been investigating incidents for over 25 years and has extensive experience of giving evidence in both civil and criminal courts.

At Forensic Engineering Solutions we adopt the principle of accept nothing, assume nothing, and test everything. Do not simply accept what one expert says without having that competently scrutinised. Do not assume that what some prosecution experts say is correct. Townley and Ede, writing in Forensic Practice in Criminal Cases state give the following sobering information: “Research for the RCCJ (Roberts P and Wildmore C (1992) The Role of Forensic Science Evidence in Criminal Proceedings, RCCJ Research Study No. 11, HMSO) found that reports written on behalf of the prosecution could be highly selective documents in which the uncertainties and limitations of forensic evidence are not always revealed. Selectivity was also encouraged by the belief that it is for the defence to draw out the limitations of prosecution evidence…A report may, as a result, have been misinterpreted as providing much stronger evidence of the defendant’s involvement than it actually did…The reason for the low level of defence forensic activity may be the perception that the prosecution case may be difficult to challenge…”

Forensic Engineering Solutions A Comprehensive Provider of Forensic Engineering and Scientific Solutions to the Legal Professions and Industry.

We advise on Criminal and Civil Matters, such as Dangerous Driving Causing Death, Firearms, Arson, Forensic Computing, Crime Scene Evaluation, Breaches of Health and Safety Legislation, Employer's Liability, Systems of Work, Accident Investigation, Building Defects etc.

We also provide a solutions service to industry in respect of production difficulties, as well as an investigation service where accidents have occurred.

Additionally, we can monitor computer usage and search for abuse, as this is becoming an increasing problem in the current age.

Finding the right Forensic Consultant can be challenging, but engaging the wrong one can be catastrophic. You need a Consultant who has relevant forensic experience, industry knowledge, and, of course, familiarity with the role of the expert witness within the various legal forums.

Forensic Engineering Solutions has the background and knowledge to help you or your client find the answers to the myriad questions encountered in litigation, criminal defence, and industrial process problems.

Forensic Engineering Solutions

Our philosophy; accept nothing, assume nothing, and test everything, no matter how strong the prosecution might believe it to be. ■

80/82 Rainey Street, Magherafelt, N Ireland BT45 5AJ Tel: +44 28 796 33397 Fax: +44 28 796 33397 Email: info@forensicengineeringsolutions.com Web: forensicengineeringsolutions.com DX: 3309 NR Magherafelt

Picture References Figure 1, source: https://www.google.co.uk/search?q=construction+of+a+ bullet&biw=1276&bih=622&source=lnms&tbm=isch&s a=X&ei=J8wrVNyaOoTn7gbOgoG4Aw&ved=0CAYQ_ AUoAQ#facrc=_&imgdii=_&imgrc=z4vQanpcGg1-

EXPERT WITNESS JOURNAL

39

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 40

Corrosion Engineers (and Metallurgists) Can Save You Money Roger Francis (RFMaterials, UK) outlines the important role of the corrosion engineer in preventing equipment failure and possible lengthy litigation later on.Originally presented at the Corrosie and Coatings Conference, Antwerp, Belgium, February 2014 corrosion or materials engineer, but this is now less common. This means that materials decisions are often left to non-specialists. These may be mechanical or process engineers, or even purchasing managers. This can result in materials being selected, “because it worked last time”, or “because the salesman said it would be OK”.

Abstract Many projects now have long design lives (20 to 40 years) and it is important that the materials of construction will perform satisfactorily. This is particularly important when corrosion resistant alloys (CRA) are being selected. If an unsuitable CRA is selected, there is not only the initial cost of procurement and installation, but also the lost production after failure and the added cost of replacing the CRA with one that is more suitable.

This paper uses several case studies to demonstrate why corrosion engineers are important for cost effectiveness, not only at the design stage, but also through procurement and delivery.

Even if a specialist does pick the materials, there can still be problems unless purchasing is presented with a specification that gives them no room to substitute inferior materials.

The consequences of such decisions can be very rapid failure in service, followed by an expensive shut down and further expense while repairs or replacement are undertaken. These costs can be very high when it is an expensive corrosion resistant alloy (CRA) that is being selected, it fails, and another, different, costly CRA is required so that the equipment/process works properly.

In this talk I will explain why companies need corrosion engineers, either as staff or consultants, to keep costs down. The savings are only apparent

Introduction At some stage in the development of a new project, a refurbishment, or the design of a new piece of equipment, the issue of materials selection comes up. With the current financial situation, many companies, even relatively large ones, do not employ a corrosion engineer, or even a metallurgist. It was once common to have a staff EXPERT WITNESS JOURNAL

40

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 41

when you don’t have a corrosion engineer. When they are doing their job, everything goes smoothly.

I will use a few case studies to demonstrate that corrosion engineers are needed, not only at the early stages, but also during procurement, if failures are to be avoided.

is to condition the potash crystals, i.e. make them a more uniform size, in large rotary heaters. The crystals enter the conditioner hot and dry and water has to be sprayed into the crystal mass to suppress dust and allow crystal growth. These conditioners handle concentrated chlorides at elevated temperatures. With the standard conditioner, you get corrosion as shown in Figures 1 and 2, unless the sprayed water volume is controlled very tightly to low levels..

Alloys In this paper, a number of corrosion resistant alloys are mentioned and the composition of these, along with the common names and UNS designations are shown in Table 1 (below).

Figure 1 (below) shows severe corrosion at welds and fasteners, while Figures 2 and 3 (overleaf) show pitting and SCC of the drier.

Alloy 316L is a relatively low cost austenitic stainless steel that is readily available, but has limited resistance to aggressive environments. 2205 is standard duplex stainless steel that is widely used by the oil and gas and chemical and process industries. It has better corrosion resistance than 316L and excellent resistance to chloride stress corrosion cracking (SCC). Alloy Z100 is a superduplex stainless steel with increased strength and corrosion resistance compared with 2205. It has been used extensively in a wide range of aggressive environments. Both duplex and superduplex stainless steels have greater strength than austenitic alloys, enabling wall thickness reductions for applications involving high temperatures and/or pressures. Alloy C-276 is a well-established nickel alloy with good resistance to a wide range of corrosive fluids, but its high nickel and molybdenum contents make it much more expensive than stainless steels. Alloy 20 is a high nickel austenitic stainless steel which was invented for use in sulphuric acid, but it has been used in other aggressive environments, particularly at low pH.

These conditioners are made of 316L stainless steel, which is well known to suffer chloride SCC at temperatures above ~60°C. Given this level of knowledge it was surprising that potash companies continue to buy them. I was told that this is the “standard” material and a conditioner in a better alloy would be more expensive and on longer delivery. However, there are a lot of potash mines in Canada and more are coming on stream. All that is required is for the potash mines together to demand driers in a better alloy and the problem will be solved. Depending on the operating conditions, the alternative materials would be 2205 duplex or superduplex stainless steel. Replacement parts in these materials machined by the mines have worked well.

3. Case Studies The following four case studies involve applications where the wrong CRA was chosen for arduous service.

3.1 Potash Driers In the potash (KCl) industry, one of the final steps

Figure 1 above Corrosion of a potash drier.

Table 1 Nominal composition of the alloys discussed in this paper.

ALLOY 316L 2205 Z100 C-276 Alloy 20

UNS No. S31603 S32205 S32760 N10276 N08020

NOMINAL COMPOSITION (wt. %) Fe Cr Ni Mo N Bal 10 17 2 Bal 22 5 3 0.17 Bal 25 7 3.5 0.25 5 15 Bal 15 Bal 20 33 2 -

Cu 0.7 3.5

W 0.7 3.5 -

Bal = Balance

EXPERT WITNESS JOURNAL

41

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 42

attack of the 6% Mo alloy at 40°C. The Norwegian oil and gas standard, NORSOK5, requires a PREN>40 for all stainless steels for seawater service, where PREN is: PREN = %Cr + 3.3x%Mo + 16x%N This formula is empirical but the correlation with performance in seawater is good. The 25%Cr alloy in Figure 5 was an early duplex alloy with a PREN ~ 37. The surprising thing in the face of all this evidence is why 2205 was ever selected for this service. The most common materials for these vessels are superduplex stainless steel, coated carbon steel or GRP.

Figure 2 (above) Corroded potash drier showing pitting at a weld.

Figure 4, A and B below, Corrosion of 2205 seawater filter vessels.

Figure 3 (above) Microsection of potash drier showing SCC cracks 3.2 Seawater Filter Vessels There were 16 large (2.5m diameter by 3.5m tall) seawater filter vessels in a seawater reverse osmosis (SWRO) desalination plant handling lightly chlorinated seawater at temperatures up to 35°C. There were numerous leaks at seam welds and also crevice corrosion at flange faces, as shown in Figure 4.

Figure 4 A, (above) Pits at seam weld

The vessels had been made of 2205 duplex stainless steel. When the new generation of stainless steels came on the market in the 1980’s many of the major oil companies undertook seawater testing to determine which alloys were suitable. Figure 5 shows the maximum depth of crevice attack in natural seawater1, 2, 3, while Figure 6 shows the attack in warm, chlorinated seawater4. It is apparent that 2205 is susceptible to attack in seawater even at 8°C. Only the 6%Mo austenitic and superduplex stainless steels were resistant to attack in natural seawater, and there was some

EXPERT WITNESS JOURNAL

Figure 4 B, (above) crevice corrosion of flange face

42

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 43

Figure 5, (above) Maximum depth of crevice corrosion in seawater at different temperatures.

Figure 7 (above) Pitting of C-276 heat exchanger tube.

The pitting was worse on the weld, because the tubes had not been solution annealed after welding.

This had resulted in a dendritic weld structure with the regions between the dendrites depleted in chromium and molybdenum.

While alloy C-276 has good performance in pure sulphuric acid, its performance in raffinates can be somewhat different. Figure 8 shows a schematic polarisation curve for C-276 in sulphuric acid.

Because the alloy has a relatively low chromium content (15%) it has a rather narrow passive region.

This means that in the presence of a significant concentration of oxidizers, such as copper and iron, the potential moves from the passive into the transpassive zone. Here, molybdenum salts are soluble and, because there are chlorides present, this means that pitting will occur, as observed in the failures. The passive zone of superduplex stainless steel is much wider in hot, dilute sulphuric acid, because of its higher chromium content (Figure 8).

Test data showed that Z100 superduplex would work in this environment and Z100 tubes have been in service for nearly two years without problems.

Figure 6, (above) Maximum depth of crevice corrosion in seawater with 1mg/L chlorine at 40째C. 3.3 Raffinate Heat Exchanger Acid leaching is a common method of extracting metals from their ores and a copper mining and processing plant needed a new heat exchanger to heat up a raffinate (spent acid solution) with steam.

The raffinate was 7% sulphuric acid with 200mg/L chloride, 50g/L iron and 13g/L copper at 70째C (inlet) to 87째C (outlet).

The company looked at iso-corrosion curves for alloy C-276 in sulphuric acid and thought it would be suitable. The initial heat exchanger was a plate type, but this kept failing due to corrosion where the solids in suspension blocked the narrow gaps between the plates. To solve this problem it was replaced with a tube and shell type heat exchanger, also in alloy C-276.

Within a few months the heat exchanger had failed due to numerous leaks. Mostly at the welds of the seam welded tubes. The corrosion consisted of pitting of both the parent and weld metal, as shown in Figure 7.

EXPERT WITNESS JOURNAL

Figure 8, (above) Schematic polarisation curves in sulphuric acid for C-276 and superduplex.

43

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 44

solution. Hence, the attack on the valve was not too surprising.

3.4 Chemical Control Valves A chemical plant producing weed killer used some alloy 20 valves in lines handling a mixture of methylene chloride, pyridine and hydrochloric acid at around 50°C. This fluid contained very little water. The valves corroded very badly, as shown in Figures 9 and 10, and one of the valve sleeves was so badly corroded it had fallen into two pieces.

It was recommended that either superduplex stainless steel or C-276 valves be used as replacements, as both these alloys work well in low concentrations of hydrochloric acid at 50°C. This was a problem that could have been foreseen by a corrosion engineer, but not by unskilled personnel.

3.5 Consequences All of the above examples are cases where a significant amount of money was spent on CRA components, but an unsuitable alloy was chosen.

The net result was that the initial expenditure was wasted, there was lost production while replacement items were sourced, and there was the additional cost for the replacements.

Some of these mistakes, like the selection of 316L instead of a duplex alloy, are obvious to a corrosion engineer. Others, like the failure of the C-276 heat exchanger tubes, require more knowledge, but all could have been prevented if a corrosion engineer had been consulted at the outset.

Figure 9 (above) Appearance of alloy 20 sleeve and ball from valve.

4. QA/QC Even if a corrosion engineer is consulted at the outset, his role is not finished then. The purchasing department will take a look at the specification for the material and try to procure it at the lowest cost and as quickly as possible. With the large number of global suppliers of CRA’s, the quality is not always what it might be and what is written on the certificate is not necessarily true. The corrosion engineer or metallurgist needs to ensure that quality suppliers are used. Some companies only use approved vendors for CRA’s and NORSOK M-650 is a system used by the oil and gas industry to approve vendors6. Unfortunately this standard does not include any provision for regular auditing.

Hence, some additional checks on delivery are useful to determine whether a material is satisfactory. Francis et al described additional tests, both in procurement and on delivery, for superduplex stainless steel, to ensure the quality is adequate7.

Figure 10, (above) Appearance of valve outlet (alloy 20).

A microsection showed that the valve was suffering massive intergranular corrosion and did not appear to have been heat treated. However, the lack of heat treatment was not the main cause of the corrosion.

Alloy 20 is very good in pure sulphuric acid but has a low tolerance for even small (200mg/L) quantities of chlorides. This means that it does not perform well in hydrochloric acid. However, the acid concentration was only 0.1% with very little water.

Unfortunately, low acid concentrations with no, or little, water often behave like a stronger aqueous EXPERT WITNESS JOURNAL

Below are three case studies describing problems with some alloys and how they might have been avoided.

44

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 45

this pipe it was >1.2, the limit of the scale. A simple test on delivery would have revealed this deficiency and the pipe could have been returned for re-heat treatment.

4.1 Case study 1 A large number of duplex and superduplex fittings were supplied by a European vendor to a number of North Sea offshore projects. After a short time leaks appeared in some fittings in seawater service and a large research project was undertaken to find the cause and identify the faulty fittings in-situ8-11.

Although the vendor was approved to NORSOK M-650, the large volume of work was sub contacted to a non-approved heat treatment company. They heat treated the fittings in baskets, rather than individually on racks. The result was that the fittings behaved as a solid mass of metal and the heat treatment time was far too short.

4.3 Case Study 3 The Alloy 20 valves described in Section 3.4 suffered severe corrosion due to the presence of hydrochloric acid and a very low water content.

However, the valves had not been heat treated correctly, so that there were grain boundary precipitates and grain boundary corrosion, as shown in Figure 12.

Although this broke all the NORSOK rules, the fittings passed through several hands before going offshore. At no stage did anyone conduct a simple feritscope test, which would have identified some of the fittings as faulty 7.

4.2 Case Study 2 An offshore oil and gas installation utilised 90/10 copper nickel for the seawater cooling system and some 8 to 12 months after start up, leaks occurred in the piping. The leaks appeared to be erosion-corrosion after welds, as shown in Figure 11. The weld metal was 70/30 copper-nickel and was unattacked as was the HAZ.

Figure 12 (above) Microsection showing grain boundary corrosion of alloy 20.

If the valves had been used in less arduous service, then the grain boundary corrosion could have been a problem, when correctly heat treated material would have been satisfactory. The incorporation of an intergranular corrosion test into the specification, such as ASTM G28 Method A, would have shown the unsatisfactory nature of the heat treatment.

5.Role of the Corrosion Engineer The problems discussed above show that the corrosion engineer has a role to play at both the design and procurement stages. At the design stage the engineer needs to review the process conditions and also likely upsets. The presence of impurities must also be considered, as they can drastically affect the corrosion behaviour, as described above.

Figure 11 (above) Severe erosion corrosion of 90/10 copper-nickel pipe.

The reason for the corrosion was poor heat treatment of the pipe during manufacture. The iron content of 90/10 Cu-Ni (~1.8 wt.%) exceeds the room temperature solubility and the alloy must be quenched from around 900째C to hold the iron in solution. Only when the iron is in solution will it increase the resistance to erosion corrosion. This is easily checked with a simple relative magnetic permeability measurement. When most of the iron is in solution, the permeability is <1.1, whereas for EXPERT WITNESS JOURNAL

They also need to consider the mechanical property requirements, so that any alloy selected has adequate strength. Other considerations might include weldability and machinability, so that the components that are required can actually be made without significant problems.

45

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 46

They also need to think about what product forms are required and whether the alloy is available in those product forms. For example, austenitic cast iron is available as castings, but not as a wrought product. Some wrought products are available as plate, but not as pipe, fittings and flanges. It is important to specify a material that is readily available in the required forms.

giving them much more work later on. Corrosion resistance is added at the specification stage and once the equipment is built, it is very difficult to add it on later.

For any corrosion engineer to justify his position in a company, when management questions the cost of employing him or her, they just need to show them this paper and point out what the costs will be if they DON’T employ them. Once you sack a corrosion engineer and the failures start happening, it is too late. ■

Another consideration is expected life. For a short, limited life, low cost materials, such as carbon steel and cast iron may be acceptable. However, many projects now have design lives of 25 to 40 years and serious consideration must be given to the most appropriate CRA to give a reliable life, while minimizing costs. The considerations when selecting materials for pumps were discussed in detail by Francis and Phillips12 and these can be easily extended to other components.

References 1. E B Shone, R E Malpas and P Gallagher, Trans. Inst. Mar. Eng. 100 (1988) 193 2. R M Kain, Duplex Stainless Steel ’97 conference, Maastricht, Holland, October 1997, KCI, page 627 3. R Francis, Stainless Steels ’87, conference held in York, UK, Sept. 1987. Published by IOM. Page 192 4. R Francis, G Byrne and G Warburton, The Corrosion of Superduplex Stainless Steel in Different Types of Seawater, Paper 11351, Corrosion 2011, Houston, TX, USA, March 2011, NACE International.

Once a material has been selected, the corrosion engineer needs to think what testing, in addition to ASTM, or whatever specification is being used, is needed to guarantee good quality. Francis et al made some suggestions for the additional requirements for duplex stainless steels7.

5.NORSOK M-001 Rev 4, Materials Selection, August 2004.

6.NORSOK M-650, Qualification of Manufacturers of Special Materials, Rev 3, April 2004.

7.R Francis, G Byrne, G Warburton and J Wilson, QA/QC Tools to Ensure the Quality of Duplex Stainless Steel Components, Paper 1096, Corrosion 2012, Salt Lake City, UT, USA, March 2012, NACE International.

When the material has been selected, then the engineer needs to consider what tests might be required on delivery, to verify that the material is in the correct condition. There are a limited number of non-destructive tests available, so for some alloys this may be difficult.

8.G Rorvik, L A Marken, I M Kulbotte, M Aursand, S Olsen and K S Karlsen, Influence of Intermetallic Precipitates on the Mechanical Properties and Environmental Cracking Resistance of Duplex Stainless Steel Fittings-A Case History (Part 1), Duplex Stainless Steels 2010, Beaune, France, October 2010, KCI. 9.S Mahajanam, H Rincon and D McIntyre, Mat.Perf. 49, 4 (2010) 56

6. Conclusions The main conclusion from this discussion is that, without a corrosion engineer, the consequences in additional costs and lost production can be enormous. In addition, the corrosion engineer needs to be involved at all stages from design to delivery.

10.E Ryengen and C Wintermark, Lessons Learned from Heat Treatment of Components in 22Cr and 25Cr Duplex Stainless Steel (and other materials), Duplex Stainless Steels 2010, Beaune, France, October 2010, KCI. 11.E Turbeville, F Busschaert, S Benum and B Hadsen, A Summary of Recent Experiences on Designing and Fabricating Subsea Oil and Gas Production Systems with 22Cr and 25Cr Piping Materials, ibid.

If you hire a corrosion engineer at the beginning of a project, they will cost you a little money. If you do not hire them, don’t feel bad about it, as you will be

EXPERT WITNESS JOURNAL

12.R Francis and L Phillips, Cost Effective Materials Selection for Pumps, Pump Engineer, 1, 1 (2003) 44

46

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 47

Aviation Litigation GMR Consultancy take a brief look at what's involved in being an aviation expert witness.

Litigation is a fact of life in aviation, and aviation litigation relies heavily on the use of expert witnesses to analyze the technical facets of an accident or incident and to explain them in terms that judges, juries and authorities can easily comprehend.

opinions on the cause of the accident and whether or not airmen breached their standard of care.

Some aviation testifying experts have full time jobs as aviation professionals and merely testify on a part time basis. Others (often retired) make a living as forensic experts.

If you're involved in aviation and especially if you're an aviation professional you might someday find yourself in the role of a consultant to Lawyers, insurance companies or the aviation authorities. You might even wind up as a "testifying expert witness" rendering opinions on causation or other issues,or you might find yourself testifying as a fact witness because you saw an accident or incident occur, or have specific knowledge about issues that are in dispute.

Many experts involved in aviation litigation never testify in court. Technically qualified aviation professionals are often retained by lawyers, insurance companies, governmental agencies in order to investigate, analyze and perform tests regarding the issues involved. In order for a consultant's identity and work product to be confidential, the consultant must be working for a lawyer in anticipation of litigation.

Aviation Experts are usually involved in the creation of demonstrative evidence. Demonstrative evidence can be as sophisticated as a computer animated recreation of the accident with real time tapes and flight data or merely a simple collage of

In the aviation industry there a many areas of expertise,if the case is one arising from an accident, this person (usually recognized for his/her expertise) is hired to analyze the crash and provide

EXPERT WITNESS JOURNAL

47

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 48

photographs. Demonstrative evidence is very useful in explaining aviation concepts and how the crash occurred.

Itâ&#x20AC;&#x2122;s no accident that people come to us.

The aviation industry is very complex and those involved in the litigation process need experts in different areas, for instance expert pilots may be well schooled in aviation weather, but they are usually not meteorologists, so an expert meteorologist may be needed to provide vital evidence.

At GMR we are experienced in providing Aviation Expert Services in complex, high value claims involving Commercial, Private, Military and Air Show ďŹ&#x201A;ying incidents for Civil and Criminal litigation. Expert disciplines - Fixed Wing and Rotary, Flight and Simulator Instruction, Air TrafďŹ c Control, Aerodrome Management, Engineering and Maintenance, Wind Turbine Development, Meteorology and Cabin Crew Management.

Convincing experts are those who have personally evaluated all important evidence. The pilot expert who has recently flown the model of aircraft involved in the accident is more persuasive than the one that merely studied the Flight Manual. The reconstruction expert who has personally examined the debris is better than the one who studied the photos. The product liability expert has tested the failed part can be more persuasive than the one who merely studied all the blueprints which were used in its design.

by Claimant and Defendant Solicitors and accredited aviation professionals O Established International reputation; references available O Instructed O Licensed

GMR Consulting 33 St. Jamesâ&#x20AC;&#x2122;s Square, London, SW1Y 4JS Tel: +44 (0) 207 129 1416 Other ofďŹ ces in the UK and USA APIL Recommended Experts

GMR Consulting have provided expert testimony worldwide and have been instructed by plaintiff/ claimant and defendant in highly complex civil and aviation litigation involving commercial, military and private flights together with airshow flying accidents. â&#x2013;

www.gmrconsulting.com

4$,+% '#,3* .)+.''1+.)

4+,&+.) '15+%'2 .)+.''1+.) %%40#3+/.#, '#,3* #.& #('38 1#%3+3+/.'1 #.& #1$/. /./7+&' .5'23+)#3+/.2 #2 #(' ')+23'1'& .)+.''1 1#+.#)' #3'1 '.31#, '#3+.) #+.6#3'1 .)1'22 #.& ,//&+.) %#,&+.) #.& 41.2 /1'.2+% *#13'1'& .)+.''1 .5'23+)#3+/.2 '0/132 /413 33'.&#.%'2 #22'8 ,#%' ,3*#- /.&/. " ! ',

#7

/$+,'

' -#+, 2#6#,2* $3%/..'%3 %/'$ 666 2#6#,2* %/-

EXPERT WITNESS JOURNAL

48

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 49

Regulatory Compliance Personal Advice

by Anthony Coyte FPFS (Fellow of the Personal Finance Society) Before the mid 1980s there were no common standards applying to those giving financial advice.

The introduction of rulebooks by the evolving and merging regulatory bodies has helped raise the bar while setting a benchmark. This article seeks to explain why it is important, when considering cases of poor financial advice, to not only be able to navigate the rulebooks but also to have the technical knowledge and competence to be able to separate good outcomes from bad. Understanding the steps involved in delivering advice should help inform lawyers as to what to look for in an expert.

seeks to demonstrate that in all regulated fields, following the rules is only one aspect. Technical competence and real experience of dealing with the rules in practice is equally important.

In addition, it should be remembered that the rules are a moving feast. The regulator overseeing personal financial advisers, for example, has morphed from FIMBRA through the PIA, to the FSA and now the FCA. In cases involving negligent financial advice, often the harm is not discovered until years after the cause. Bearing limitations in mind, knowledge of the rules at the appropriate time is, therefore, key.

Financial Services regulations apply widely to product providers and those giving advice. The FCA handbook reportedly stands 6ft 3ins high when printed and although not all sections will apply in a particular case, a regulatory expert will need to be a specialist. This can make finding the right expert difficult as few organisations will have a wide scope covering all aspects. Looking for individuals, can be hit and miss.

Purpose of Regulation The need for Retail Financial Services regulation arose largely as a result of repeated cases of mis-selling where ordinary retail clients were sold unsuitable or inappropriate products by poorly trained, commission hungry, sales staff. Some argue that regulation has done little to stop that, though our experience tells us the number of cases of negligent advice would be much higher in the absence of regulation.

With such a broad scope, this article focuses on rules applying to personal financial advisers. It EXPERT WITNESS JOURNAL

49

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 50

Now, with the ban on commissions and customers paying fees, there is now far more potential for poor or confused advice especially where the customer seeks to limit costs and asks for a focused service or the adviser simply takes an order. The financial adviser, unlike a solicitor, is not used to being stuck between this particular rock and hard place. To tell a client they have another more compelling or conflicting need to address is difficult when there may be an additional cost.

Poor advice continues, in some part through laziness and ignorance, but also due to the perverse incentives, that despite regulatory pressure, still abound. The response has been an attempt to change the market place through the banning of commissions and move from a purely rules based system to one focused on the application of principles. The objective, being to improve outcomes for investors.

Rules, Principles and Guidance Usefully the Regulator provides help to advisers through its rules (in this context, mainly found in the Conduct of Business Sourcebook - COBS) and in setting out guidance, some of which is considered below. To understanding whether or not a financial adviser has been negligent, the COBS are a key starting point for any expert.

However, our experience shows that it is often easy to follow the rules (tick the right boxes) and yet provide the customer with poor advice. Recognising this, overarching principles are also applied.

The problem with principles becomes one of enforcement, because to understand whether or not a principle is breached the expert needs to apply his or her experience and skills.

An adviser should not make a recommendation if they have not obtained sufficient information to support it. Knowledge of the rules is, therefore, the first step, but understanding whether or not enough information has been obtained to support a recommendation can only be judged by a competent adviser. Indeed, the issue may be deeper as although on its face one recommendation is supported by the collected information, there may be an alternative that would have been more suitable.

An Advice Gap It is argued the Regulator has created an advice gap. In the ideal world it is important to understand all of a customer’s needs and objectives, including their importance and timescales. This helps the competent adviser evaluate all options.

But as this is a costly exercise and it has lead to many advisers refusing to deal with those who won’t pay or cannot pay for the service.

Alternatively, advisers taking short cuts will not have the evidence needed to support a recommendation.

Knowing Your Customer The staring point of the advice process, having agreed terms, is to know your customer and understand their needs. Before regulation, in the early 1980s, a couple of questions might have sufficed. Although taking short cuts may have exposed the adviser, it was not a regulatory breach.

Today, prior to making a personal recommendation, a firm must take reasonable steps to find out and record enough detail about the customer and to be able to relate it to the service provided. As well as basic details, the adviser needs to gather details of the customer’s financial situation (income/ expenditure, assets/liabilities and savings/investments). The adviser must assess the customer’s needs before making a recommendation. What was once done using a single side of A4 now takes considerable time if done well and may involve completion of a 64 page booklet.

An option is to offer “focused” or “limited” advice which carries risks of misunderstanding the nature and extent of the service. It is clearly important for both the adviser and customer to understand the terms of engagement in these situations.

Knowledge and Experience Part of understanding suitability is an assessment of the client’s knowledge and experience in the investment field relevant to the product or service being recommended. This is often a complex area.

Clearly at one end of the scale there are those who through illness or age, lack the capacity to deal with their affairs. However, demonstrating, recording and testing that a client has the requisite knowledge and experience is in practice extremely difficult since gathering evidence has the potential to be insulting to the customer. It is only at the complaint stage that a customer is likely to volunteer a lack of understanding.

In a commission based environment where richer customers generally cross subsidised poorer ones, regulation broadened the scope and detail of the needs assessment section of the advice process. This placed a significant time and cost burden on the adviser to identify and prioritise often conflicting requirements. The cross subsidy made it practical to deliver the same service to all customers.

EXPERT WITNESS JOURNAL

50

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 51

customer how and why the recommendation meets the needs and personal goals that have been previously established.

Attitude to Risk An additional essential element to knowing the customer is being able to assess their attitude to risk. Risk is often key to assessing suitability and determining the competence of the advice.

Assessing the way in which information regarding risk is collected and interpreted will often be critical in determining whether or not there has been negligence.

This is usually done through a suitability report that is tailored to the customer. It should explain the reasons for the recommendations, highlight risks, set out costs (charges and potential penalties) and set out a balanced view. It should be clear, fair and not misleading. Often advice will include the recommendation to replace one set of financial products with another. Here the full costs and consequences (for example, tax liabilities, loss of guarantees, investment penalties) should be spelt out. Charges should be compared, with comparisons on a like for like basis. If the advice is focused or limited the suitability report should be clear where objectives are omitted. To be complete, the report should set out possible disadvantages.

The regulator will look to see if there is a consistent way in which this is done. Definitions of risk categories need to be clear and meaningful to the customer. Relevant facts will include financial resources, age (and age of dependents), health, tax status and objectives. Known as “soft facts”; goals, timescales and ability to comprehend risk are all part of the mix as is an analysis of current and projected economic conditions, current and projected investment returns and the potential impact of changes to these on the individual customer.

Records need to be kept for a minimum of five years. In the case of pension transfers, opt-outs and Free Standing Additional Voluntary Contributions, indefinitely.

We are currently at an interesting point in the economic cycle, if indeed it is a cycle, in that traditionally cautious customers would generally be more heavily invested in fixed interest than in other asset classes. With yields, politically and mathematically more likely to rise than not, after advice and product charges, other than a deposit (within compensation limits) is there any such thing as a cautious investment product?

Again, the rules are clear but it is unlikely that those without the qualifications and experience of an adviser will know whether or not a suitability report is complete. And, if incomplete, has the omission been the cause of a loss?

To answer that question the expert will need to understand the standards for assessing the client’s risk profile. Was it robust and compliant with the rules and guidance issued at the time? But equally important, does the recommendation, in the environment at the time, match?

Specialist Financial Services Consultants and Expert Witnesses Our business is to guide, challenge and inform Financial Services firms. We offer compliance leadership, which means we know what good looks like. Our specialists work setting standards, are highly qualified (Fellows of the PFS, IFP and CISI) and have many years of experience in advising both retail and professional clients.

Changing Circumstances Unless risk is reviewed regularly there is also a real danger that advice becomes inappropriate over time. Adviser propositions, with the demise of commissions, have moved from transactional purchases/sales to the delivery of an ongoing review service, meaning advisers need to recheck risk at regular intervals. Many financial advisers are unaware of the burden that this change has put upon them and small busy practices will, no doubt, have clients who do not benefit from a regular review. The result is likely to be an increase in complaints.

Experts cover IFAs, Wealth Managers, Private and Retail Banking, Collective Investments, Broker Dealers, Private Equity, Venture Capital, Wrap Platforms, Life and Pension providers. We carry out investigation work and can advise on suitability standards, due diligence standards, risk management and controls.

The broad nature of our experience means we have the right expert for all investment matters.

London Office – 4 Millbank, Westminster, London SW1P 3JA Tel: +44(0)20 7399 4980 Fax: +44(0)20 7629 8002 Contact info@complyport.co.uk

Recording Suitability Once the financial adviser has decided on a recommendation the next stage is to explain to the EXPERT WITNESS JOURNAL

51

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 52

is only those with knowledge and experience that will be able to identify these.

Looking Beyond the Rules In summary, a good knowledge of the FCA Conduct of Business Rulebook sets a foundation for assessing advice. Without it, the expert will be struggling. However, care needs to be exercised as many rules breaches, though technical, will not lead to a loss to the customer. Alternatively, it is also often the case that an adviser will be able to navigate through the rules without an apparent breach yet still provide incompetent advice.

In addition, rules generally follow, rather than lead, professional standards. Recently, rule changes have belatedly shut the stable door on unregulated collectives after many customers were advised to purchase illiquid and often sham investments.

Selling these to ordinary retail clients has now been banned. Professionals knowing the risks and judging the inability of all but the most sophisticated customers to understand the products steered clear, others didnâ&#x20AC;&#x2122;t take reasonable care and were sucked in. At the time the rules (perhaps not the principles) were followed. Today we have yet another another developing mis-selling scandal where client losses can be substantial.

The FCA principles are perhaps a better place to start but by their nature they are high level. In terms of giving advice to the public, the principles to conduct business with due skill, care and diligence and pay due regard to the interests of customers and treat them fairly are at point, but compliance with these is not limited to following a rulebook. It can only be judged by experts with qualifications to give advice.

Using a financial services expert in this context to assess suitability, determine responsibilities and understand whether or not best execution took place can in the long run save considerable cost especially where losses exceed the Financial Services Ombudsman limits. â&#x2013;

There is sometimes a fine line between one product and another that can have a huge bearing on whether or not a recommendation is suitable and it

Is your opinion worth a million?

Towards the end of last year, Apple awarded one expert witness ÂŁ1 million ($1.75 million) to construct a damages figure in the case against Samsung.

Many of the witnesses in the case were professionals who specialised in user interface technology, patent protection and wireless communications.

Obviously this was an exceptional case.

But the UK is almost certain to follow suit in terms of an increasing demand for forensic specialists and digital technologists capable of rising to new investigative and disclosure challenges.

Make yourself available by starting with your profile on the No.1 Google ranked website www.expertwitness.co.uk and complementary platforms.

Find an expert using the only Free Searchline facility in the UK on 0161 834 0017

EXPERT WITNESS JOURNAL

52

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 53

Revenue Recognition: Changes Afoot

By Dr Nigel Sleigh-Johnson, Head of ICAEW’s Financial Reporting Faculty The fact that the two boards have been able to come up with a solution that is almost fully converged is an achievement in itself, given how different the current respective standards are. It has been described by IASB’s chairman, Hans Hoogervorst, as the ‘jewel in the crown’ of the boards’ convergence efforts. The journey has been long and at times rather arduous. Earlier drafts of the standard were criticised for being difficult to apply in practice and for lacking in clarity.

However, following extensive consultation and re-deliberations, many of these wrinkles have been ironed out, meaning that the final standard appears to be both conceptually sound and broadly operational in practice.

Few financial numbers are subject to as much scrutiny as revenue. It provides crucial information to investors and other stakeholders seeking to understand and assess a company’s performance and prospects. Therefore, it is important that both companies and investors all over the world get to grips with the new revenue recognition accounting standard recently published by the International Accounting Standards Board (IASB) and the US Financial Accounting Standards Board (FASB).

The new revenue recognition standard is the culmination of collaboration between the IASB and the FASB dating back to 2002, when the two boards first embarked on the project to replace the existing revenue rules. The new standard will help eliminate global differences and conflicting requirements.

Implementing the new regime will not be without its challenges, of course. Businesses that offer complex ‘bundles’ of goods and services, or long-term service contracts, are likely to find the new standard challenging. Examples include telecom companies selling packages consisting of a telephone and a service contract, and car dealers selling vehicles with extended warranties and insurance. Other sectors also likely to feel the impact are real estate, construction and software.

For these companies, the standard change may present a formidable logistical challenge. They will have to assess the impact of the standard on all revenue streams and determine what customers pay for each element of goods and services sold as packages. This can be a complicated task.

US Generally Accepted Accounting Principles (GAAP) currently consist of numerous industry-specific and transaction-specific requirements that are sometimes conflicting. This can result in economically similar transactions being accounted for differently. Conversely, existing International Financial Reporting Standards (IFRSs) are more principles-based and contain fewer detailed requirements. However, they can be difficult to apply to complex transactions and are lacking in guidance in some areas.

The overall result is that there are currently significant differences in how and when revenue is recognised and reported, making it difficult to compare reported revenues across companies, industries and capital markets. But that will all change from 2017 when the new standard (labelled IFRS 15 in IFRS) – which clarifies when revenue should be recognised, how it should be measured and the disclosures required about contracts with customers – comes into force.

EXPERT WITNESS JOURNAL

While the total amount of revenue recognised will not change, its timing will. Take the following simple IFRS example: a company offers a ‘free phone’ with a two-year contract. The telephone has a standalone selling price of £200 and the contract for telecoms services is £25 per month. Under the current standard, the company would typically not

53

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 54

recognise any revenue up front, recognising instead £25 per month over the life of the two-year contract. Under the new standard, the company would typically allocate the revenue from both the telephone sale and the provision of telecoms services on a pro rata basis – based on the price the company would charge if it sold the same goods and services separately to similar customers in similar circumstances. This would entail recognising some revenue up-front – £150 in this example – and a smaller amount every month for the duration of the contract, namely £18.75. The difference may not look that great, but when differences are aggregated across many thousands of contracts the total impact could be highly significant.

For many other businesses – such as those undertaking straightforward retail transactions – the new standard will generally mean only limited change.

Nevertheless, as it offers very different guidance from the current standards, it is important that all companies consider carefully and early on how they may be affected. It could mean that a business would have to make changes to, for example, its information systems and processes, internal controls and bonus plans. And that is not done overnight. ■

Mr R N Brueton

Dr Paul Emberton Consultant Musculoskeletal Radiologist BSc, MB.ChB, FRCR

Consultant Orthopaedic Surgeon MB BS, MRCS, LRCP, FRCS (Lon), MD (Lon), BA, MA

Dr Paul Emberton has a special interest in skeletal radiology.

He has a wide range of Musculoskeletal experience both Diagnostic and Interventional. Dr Emberton has over 20 years experience of skeletal MRI/CT work.

Mr Brueton is a Consultant Orthopaedic Surgeon, based in London.

His radiological experience includes: ❖ Arthography ❖ Lumbar Foraminal Root Injections (greater than 1,000 procedures) ❖ Cervical Foraminal Root Injections (greater than 2,000 procedures) ❖ Facet Injections (lumbar/cervical/occasional thoracic) ❖ Musculoskeletal Ultrasound ❖ Lumbar Discography (greater than 300 studies) ❖ Cervical Discography (greater than 100 studies)

With a particular interest in the management of trauma, especially pelvic and acetabular fractures.

He has operated on over 70 acetabular fractures.

His expertise in the treatment of fractures of the upper and lower limbs is considerable.

Dr Emberton has undertaken specialist expert witness training with Bond Solon.

Contact: Mr R N Brueton 45 Grosvenor Road London N10 2DR Tel: 0208 442 0464

Contact Department of Radiology Queens Medical Centre, Derby Road Nottingham, NG7 2UH Tel: 0115 924 9924 Fax: 0115 970 9962 Mobile: 07975 665 536 Email: snr.embo@gmail.com

EXPERT WITNESS JOURNAL

Email: bruetons@ar2.net

54

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 55

Expert Witness Regulation An undercover BBC investigation

by Panorama broadcast this summer revealed how some expert witnesses are willing to hide the truth in breach of their professional obligations.

The programme found experts in handwriting, CCTV analysis and animal behaviour who appeared to sidestep their ethical duties. It raised the issue of whether expert witnesses should now be subject to some form of regulation.

Ministry of Justice rejected a proposal from the Law Commission to impose a new law giving courts greater powers of scrutiny of expert testimony.

One of the present problems with experts is that they come from a wide variety of disciplines, so there is no single regulatory body to cover them all. As Nick Deal, barrister and lead expert witness trainer with Bond Solon, the UK’s leading provider of expert witness training, explained: “In the disciplines which are part of a professional body, such as the Royal Institute of Chartered Surveyors, members are subject to the codes of conduct of those organisations.

As an industry, expert witnesses have never been regulated, although there have been calls in the past for greater powers to police them. In 2009, the Law Commission expressed concern that defendants were at risk of being wrongly convicted on the evidence of “charlatan” expert witnesses. A series of notorious cases in which convictions were overturned after concerns over flawed expert evidence represented the tip of the iceberg, it said.

“If their conduct as an expert contravenes provisions of the code, the professional body could investigate and bring them before their conduct committee. The professional body would have to have been informed of the alleged misconduct by referral from an individual or organisation or the judge in a trial.

In recent years, miscarriages of justice such as the cases of Sally Clark and Angela Cannings, both convicted of killing their babies and then cleared on appeal, have highlighted the difficulties.

Five years ago, the Civil Justice Council's Expert Committee investigated greater policing of experts but it was decided that 'there was no appetite' for regulation. Similarly, last year, the EXPERT WITNESS JOURNAL

“But some disciplines do not have regulatory bodies. Some experts may not be members of a relevant professional body.”

55

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 56

Attempts have been made in the past to regulate experts in individual fields. In 1997, for example, the Forensic Science Working Group recommended an independent registration council for forensic experts to secure the confidence of the courts. Despite the limited initial objective, the attempt was not successful.

However, one must take into account pressure from legal aid cuts and the limited time and money available. Despite the negative findings of recent reports into the reliability of expert witnesses, many operating in the field believe regulation is unlikely. Most feel that training is more important, and that on-going training to ensure continuing familiarity with the rules would raise standards.

In 2011 the Supreme Court ruled in the case of Jones v Kaney that expert witnesses could no longer enjoy protection from liability for negligence. Experts can now be sued if their work is found to be deficient. Experts are currently bound by civil, criminal and family procedural rules but they are not obliged to belong to a professional body. Although training is regularly encouraged, including the Protocol for the Instruction of Experts, it is not mandatory.

Nick Deal said: “To enforce regulation, there would probably need to be one overarching body, to which anyone who wanted to be an expert witness would have to belong. I think this is unlikely.” Mark Solon, solicitor and founder of Bond Solon training, said: “The easy answer is further regulation. However, there already exist clear court rules requiring expert witnesses to tell the truth and to remember their duty is to the court and not the party paying them. Since the case of Jones v Kaney, experts are liable in contract and negligence for their opinion.

Professional bodies regulate their membership and can introduce disciplinary proceedings.

Under every flat stone of regulation there needs to be a lurking regulator. Further regulation requires supervision and enforcement for which there may be political will but not adequate funding. Experts should ensure that they are up to date both in their professional field but also in their skills of being an expert witness. This is achieved through training.”

The civil and criminal procedural rules state that those giving expert evidence have a duty to the court above their duty to the person paying for their services. In criminal cases, expert witnesses have an obligation to assist the court, and they must remain objective and express only genuinely held opinions which are not biased in favour of either party.

Similarly, in civil trials, experts must be more than hired proponents of their side’s case. The Practice Direction on Civil Procedure Rule 35 states that “It is the duty of an expert to help the court” and that this duty “is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom he is paid”. The rules are strict and demand that an expert should provide objective, unbiased opinion, and should not assume “the role of an advocate.”

Opinions vary between expert witnesses on the subject of regulation. Dr Ravinder Varaich, a dental surgeon and expert witness, believes regulation by her own professional body is sufficient and that further regulation would be burdensome. She said: "When you work professionally as a dentist you are bound by the General Dental Council guidelines. In your everyday working life you are expected to be honest and trustworthy and uphold the profession. This also extends to your personal life. So if a dentist was, for example, to behave inappropriately while under the influence of alcohol, or, even to post an inappropriate comment on social media, you could be reported to the GDC. If I was caught, for example, being fraudulent or lying that would be seen as bringing the profession into disrepute and I would have to explain my actions. If the GDC thought I had breached its guidelines I could be

Experts can play a crucial and important role in family court cases, often commenting on whether parents have the ability to care for their children or have treatable psychological problems. Yet a report produced in 2012 by the Family Justice Review said there were "serious issues" with the quality of some psychological reports and that the courts' reliance on them was causing "unacceptable" delays. Some 20 per cent of psychologists used as experts were not deemed qualified, the review found, and 65 per cent of expert reports were judged to be of poor or very poor quality.

EXPERT WITNESS JOURNAL

56

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 57

suspended. So the rules of my professional body are very strict.

positive accuracy rate of laypersons was the same as that of handwriting examiners; both groups were correct 52% of the time." The court's conclusions were that "the technique of comparing known writings with questioned documents appears to be entirely subjective and entirely lacking in controlling standards.”.

"We are already regulated by our professional body so to then be regulated by someone else might feel a bit of a burden. They would need to set up standards and methods for checking and that would no doubt involve a fee. I am not against further regulation but do I really want to be paying another say £500 to be regulated by another body when we already have such strict guidelines in place?"

"One suggestion to increase integrity would be for all British courts to insist that expert witnesses have the Cardiff University Law School Bond Solon Criminal Expert Certificate. It would, of course, require a lot of lobbying by Bond Solon management. This would not necessarily raise technical competence, but it would raise legal awareness.

She added: "Each expert report requires a signed statement of truth stating that I understand my overriding duty is to the court and that my report is truthful and accurate in accordance with the civil procedure rules. I therefore feel that by signing this statement of truth, this also binds us legally and ethically. This statement is a promise to the court to show that the report is accurate. I therefore question if regulation would act to deter those that do not take the signed statement of truth to the court seriously, or their obligations as a professional to be honest and truthful."

“In addition the great advantage of the CUBS assessment is that it is done by an independent university rather than by a group of fellow professionals. If all expert witnesses were required to have the certificate before they could act in court, it could be withdrawn if an expert was found to have contravened his signed CPR Part 35 statements. No certificate would mean no court appearance.

However, Adam Brand, a graphologist who works on questioned documents, feels further regulation is necessary, either in the form of mandatory training or on the insistence that two experts are used in court.

"However, I think the key is to avoid single experts, even though there is a drive in this direction to save costs. If each side has its own expert, the court can examine both sides, rather than rely on one person whose impartiality might be impaired by misplaced loyalty to a particular client - even though that particular expert had signed a 'statement of truth'.”

He said: "No matter how well qualified, or experienced or how many super memberships an expert witness has, a court will want to decide for itself whether it considers a person an appropriate expert witness. So the courts already act as regulators.

Rod Appleyard, an expert witness and independent expert surveyor to the fenestration industry also supports the idea of regulation.

“A good expert witness should be trained as with any discipline. They should be very much at the forefront of their discipline. We, as expert witnesses, are stepping into an arena of which we know very little when we start out and as such we have to learn a whole new set of rules.

"As for the competence of expert witnesses, that is a difficult issue to regulate. Sir Roy Meadow claimed there was a less than a 1 in 73 million chance of two babies in one family dying of Sudden Infant Death Syndrome, so Sally Clark was wrongly convicted.

“We must always remember that our opinions are on trial. If we do not believe that we are correct in our opinion and we cannot support this with good solid facts then we will not only lose but will also tarnish our reputation.

"For handwriting experts the situation is equally troubling. One court in the USA, after the famous Daubert v Merrell Dow ruling, stated that questioned document techniques had not been fully tested and one test showed that "the true

EXPERT WITNESS JOURNAL

57

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 58

“Long gone are the days when just to know your discipline was enough. You now need to know how the courts work and how you are expected to work within that framework.

Simon Jelf, a barrister and trainer with Bond Solon, expressed his dismay at the Panorama programme and said once again it underlined the importance of training.

“I am a firm believer that, as with solicitors, barristers and the like, expert witnesses should also be regulated. It is all too easy to set oneself up as an expert and take money. I have seen many that have done this and their performance in court is nothing more than a shambles, much to the detriment of the client.

He said: “We are dismayed to see that the ‘hired gun’ is still out there. Experts must ensure that they understand the relevant rules and procedures and that their overriding duty is to the court.

“The two most important qualities of an expert witness are honesty and objectivity, as that is where their credibility comes from. The experts shown on Panorama risk damaging the credibility of the profession.

“It still amazes me how many experts cannot even write a report and then give good reasons for their view. I have seen an expert turn up to give evidence in a Homer Simpson tie, cord jacket and jeans to another who just had not written the report and had to ask the court for time to acquaint himself with the document.

“We take good money for our knowledge and services and as such we owe it to the clients and the legal team to be well trained and competent.

“Experts are often unsure what to do when a client puts pressure on them to omit matters or arguments that would be favourable to the other side. The vast majority understand the importance of standing firm on key issues, but some are unsure what to do where the evidence is more marginal. In our training courses, I advise experts to imagine how they would feel if they were asked about it in court; if they would not feel comfortable explaining why they had omitted it, they should leave it in.” ■

“I feel that regulation of experts is the only way to achieve a sound professional base for what is now regarded as a very important segment of dispute resolution.”

Mr R Scott-Watson

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

Reporting since 1990. Over 18,000 reports.

Cardiff University Expert Witness Certificate 2014.

Fully trained in CPR, Court appearance (3 per year) and report writing.

Low velocity impact traffic accident cases accepted.

Clinics in Stourbridge, Coventry, Bristol, Swindon and Oxford Home and prison vists undertaken.

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

EXPERT WITNESS JOURNAL

58

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 59

Public (Mis)Perceptions of the Pathologist: What can they Contribute as an Expert Witness?

by Dr Liz Soilleux Consultant Pathologist/Honorary Senior Clinical Lecturer, Oxford University Hospitals NHS Trust, and Fellow, St Hugh’s College Oxford There are many misconceptions about the role of the pathologist, frequently derived from the media.

Before considering the pathologist’s role as an expert witness, this article will give an overview of the role of the pathologist.

from the operating theatre, outpatient’s department and, less commonly, general practitioners. These specimens are examined macroscopically, dissected if required, and histological slides are produced from them. Slides are examined by microscopy (figure 3), leading to the generation of a diagnostic report. Specimens range from tiny biopsies (skin specimens, endoscopic biopsies and core biopsies taken under radiological control) to major organ resections, including colons, kidneys and breasts or sometimes multiple organs. Many pathologists also report cytology specimens (figure 4), which consist of individual cells smeared onto slides (as opposed to very thin pieces of tissue cut and carefully stuck flat to slides). Cytology specimens can be obtained from scrapings (e.g., of the cervix), from fluid (e.g., cyst contents) and from aspirating cells from more solid structures with a very small needle (e.g., from lymph nodes or “swollen glands”). Making a histological or cytological diagnosis involves examination of the morphology (shape of cells and their relationships to each other), possibly refined by the detection of specific diagnostic molecules by immunohistochemistry (figure 5) or in situ hybridisation and/ or the use of molecular techniques to detect specific DNA or RNA sequences or abnormalities.

Role of the pathologist: CSI? Quincy? Silent Witness? A scientist? A psychologist? A psychiatrist?

No, actually a medical doctor, who has undergone five or six years of undergraduate training and at least seven years of postgraduate training and who has completed at least two gruelling postgraduate examinations, leading to the award of fellowship of the Royal College of Pathologists (FRCPath). Some pathologists, like myself, will also have completed a higher research degree (e.g., MD or PhD) and may engage in ongoing research activities. So, what do pathologists do all day? The media might suggest they chase dangerous criminals, in between undertaking high profile postmortem (autopsy) cases and making adrenaline-fuelled court appearances. In every rumour there has to be a grain of truth.

Clinical pathologists: While a variable proportion of pathologists in each of the UK’s pathology departments, undertakes some postmortem work (figures 1 and 2), the majority of pathologists’ time is employed in dealing with specimens received Picture 1 above, dictating a report in the mortuary

EXPERT WITNESS JOURNAL

59

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 60

Additional activities of pathologists: Pathologists have variable involvement in teaching of undergraduates, clinical students, trainee pathologists and other medical or paramedical staff, including their own laboratory staff; research; reading and writing articles to maintain up to date practice; giving evidence at occasional coroners’ inquests and attending meetings at regional, national and international level. Within their department the pathologists work within, or more frequently head, a team of laboratory staff, many of whom have BSc or MSc degrees in biomedical sciences. In my own case, I spend a considerable amount of time undertaking research related to lymphomas, leukaemias, immunology and cardiovascular disease, as well as chairing the Education Subcommittee or our academic society, the Pathological Society of Great Britain and Ireland (PathSoc). The major focus of PathSoc is promoting pathology as an academic clinical specialty, in which research activities are strongly encouraged.

Figure 4 above, Cytology refers to the assessment of individual cells that were “sucked out” of tissues (e.g., from breast, thyroid, lymphoma node or salivary gland) or taken from a fluid specimen (e.g., from the chest or abdominal cavity). Compared with histology, there is no “architecture”. This means that, although the shapes of the individual cells can be assessed, the arrangement of those cells with respect to other cells in the tissue of origin cannot, as the cells are no longer in that original configuration with respect to each other, either because they were floating in a liquid or because the aspiration process disrupted them.

Forensic pathologists: Returning to the original, media-based stereotype of the pathologist, I should mention that among our number, we harbour a very small minority (1 – 2 % at most) of forensic (Home Office) pathologists. Their existence is a little more like CSI, although often rather less exciting. They work as part of a supraregional consortium and are not attached to individual hospitals. They represent a pool of expertise that can be drawn upon by the police to perform autopsies under circumstances where there is a suspicion of criminality. As well as performing autopsies, their role includes the collection of relevant forensic material, attending crime scenes and giving evidence in Coroners’ court and criminal court settings, but they do not pursue criminals!

Figure 3 above, Histology of a high grade lymphoma (diffuse large B-cell lymphoma) with the standard H&E stain. Each cell has a purple nucleus surrounded by pink cytoplasm. The cells’ morphology is assessed using this stain.

The pathologist as an expert witness: The pathologist can assist the legal profession in a number of ways. The most obvious is reviewing the biopsy diagnosis of another pathologist. Biopsy diagnoses, particularly in the setting of cancer, are the results on the basis of which patients’ treatments are planned and rough estimates of prognosis are given. Therefore, biopsy misdiagnosis can have catastrophic consequences for patients. Under such circumstances, the pathologist may be able to give a clear indication of causation, although frequently the situation is less clear-cut. For example, wording in the original report may be unclear or slightly EXPERT WITNESS JOURNAL

Figure 5 above, Immunohistochemistry is used to stain cells that are positive for the molecule of interest (brown in this case, but other colours can be used). This diffuse large B-cell lymphoma is positive for CD20, which confirms that the cells in it are B-lymphocytes and that it is a lymphoma rather than some other type of cancer.

60

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 61

misleading and this may have been compounded by misinterpretation by the pathologistsâ&#x20AC;&#x2122; clinical colleagues, perhaps in a setting of poor communication between the two.

and the expert witness pathologist will be able to assess whether appropriate referral pathways were followed to ensure correct diagnosis. Lymphomas and leukaemias, for example, can be subclassified into a wide variety of different subtypes that may be treated with very different therapeutic protocols.

Often the techniques for their accurate subclassification are only available in tertiary referral centres.

Such techniques, known as ancillary techniques, include immunohistochemistry and more recently introduced molecular techniques for detection of particular abnormalities of the DNA or RNA in the tumour cells. These ancillary techniques are now applied to a variety of cancers and the expert witness pathologist will be able to advise as to whether appropriate ancillary techniques have been applied.

An expert witness pathologist might also comment on turnaround time of the biopsy report, whether or not all relevant prognostic parameters were commented upon and whether or not the reporting pathologist followed appropriate diagnostic pathways. Clearly a prolonged turnaround time for biopsy reporting might allow an aggressive cancer to progress and worsen prognosis, besides causing the patient significant anxiety. The Royal College of Pathologists publishes Minimum Datasets for reporting of cancer specimens. These are put together with wide consultation, with all pathologists in the UK being given the opportunity to contribute. It is, therefore, relatively straightforward for an expert witness pathologist to check a report against the relevant Minimum Dataset to ensure that all prognostic parameters have been commented upon in the pathologistsâ&#x20AC;&#x2122; report. For many tumour types, particularly uncommon tumours such as lymphomas and leukaemias, review by a specialist pathologist in a tertiary referral centre is mandated. This is primarily because other pathologists do not see such tumours frequently enough to maintain adequate expertise

Pathologists can also review material to assist with causation, either by performing a second autopsy or by reviewing autopsy reports and histological material from an autopsy conducted by another pathologist. However, their remit can be considerably wider than just reviewing autopsy material.

An experienced and well trained pathologist, who conducts autopsies, often has a much better understanding of complex pathophysiology than many colleagues in other branches of medicine.

This is because autopsy practice both necessitates

Figure 2 above, undertaking a post-mortem

EXPERT WITNESS JOURNAL

61

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 62

this understanding and provides an opportunity for continual professional development in this area.

Such a pathologist can therefore be very helpful in additionally reviewing the patient’s notes to untangle and assess contributions of complex interrelated pathological processes and assist with causation.

Less commonly, as in other areas of medicine, an expert witness pathologist may be called upon to review the professional conduct of another pathologist. Usually, such a review is undertaken on behalf of the General Medical Council following expression of concerns. The review may look at factors such as diagnostic accuracy, whether or not all relevant prognostic parameters were commented upon in cancer reports and whether or not the pathologist followed appropriate referral pathways for complex cases, as well as assessment of turnaround times and interactions with co-workers, including colleagues in pathology, pathology laboratory staff, secretarial staff and colleagues in other specialties.

solicitors. A few, including myself, have undertaken formal training (in my case the Bond Solon/ Cardiff University Expert Witness Certificate in Civil Law) and there is an increasing awareness among the wider medical profession of the need for formal training and a clear understanding of the Procedure Rules (part 35), including any recent amendments.

Conclusion The role of the pathologist involves making diagnoses on histological (small biopsies/ larger resection specimens) and cytological material (fine needle aspirates from breast, thyroid, lymph node and salivary gland, as well as fluid specimens e.g., from the chest or abdominal cavity). These diagnoses underpin treatment choices and estimation of prognosis. Some pathologists undertake autopsies, but, with the exception of forensic pathologists, this is not their main activity. Pathologists can assist the legal profession in a variety of ways, including reviewing original diagnoses and the approach of the original reporting pathologist, undertaking second autopsies or reviewing an autopsy report with any accompanying material, as well as commenting on complex interrelated pathophysiological processes with the aim of helping assign causation. ■

Training and experience as an expert witness: Most pathologists have little or no formal training as an expert witness. Many will have learnt how to write medicolegal reports and/ or conduct themselves in Coroner’s court or other courts from colleagues or learnt on-the-job with assistance from instructing

Dr Elizabeth Soilleux

Mr Terence J Duffy

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

MA, BM, BCh, FRCS

Consultant General & Breast Surgeon

Practising Consultant Haematopathologist and Autopsy Pathologist based in Oxford Honorary University Senior Clinical Lecturer and fellow of St Hugh's College, Oxford.

Consultant Breast and General Surgeon North Staffordshire Nuffield Hospital Previously Lead Clinician (Breast) University Hospital of North Staffordshire

Expertise in: Haematopathology - histopathological assessment of lymph nodes, bone marrow, thymus, spleen, lymphomas, leukaemias, myelomas, myelodysplastic syndrome, myeloproliferative disorders, benign conditions, including infections, molecular tests in haematopathology.

Autopsy (post mortem) pathology

Appointed in 1984, I have a special interest in Breast Disease (benign and malignant including delay in diagnosis, breast injury and breast surgery) also in Hernia Surgery.

I have over 20 years experience of Medico-legal reporting.

Address: Merry Tree, Baldwins Gate, Newcastle-under-Lyme Staffordshire ST5 5ES

Contact: Tel: 01865 220535 Fax: 01865 220519 Mob: 07798 643879 Email: elizabeth.soilleux@ndcls.ox.ac.uk 3 Roman Road, Wheatley, Oxford OX33 1UU

Tel: 01782 680 199 Fax: 01782 680 199 Mob: 07734 601 881 Email: tjduffy@merrytree.net

EXPERT WITNESS JOURNAL

62

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 63

Expert View Choosing an Expert Witness Dispute resolution analysis: How can instructing solicitors ensure they appoint the most appropriate expert witness for a case?

Chris Connelly, head of the expert referral service at online and print publisher Expert Witness, identifies the key areas to look for in researching expert witnesses, and warns that using an expert advisor instead may not prove cost effective in the long run.

after viewing their CV, terms and conditions and examples of previous cases. It may also be prudent to ask for testimonials from solicitors and/or judges who have used the expert’s services before.

Another helpful pointer can be if the expert has undertaken specialist training in court room skills and report writing. (These details are displayed on the expert’s profile on our website, and it is an area that we actively encourage all our experts to undertake and continuously develop.)

And finally, experience is key—ask to see a sample report. If you are shown a professionally written report then in 99.9% of cases that is what you will go on to receive. Be honest and upfront with the expert regarding payments and schedules.

What should an instructing solicitor look for when identifying potential expert witnesses and advisors in terms of skills, qualities, experience etc?

The instructing solicitor should look for the best expert for the particular case—obviously this can vary from case to case. A personal injury instructor may well base their instruction on cost and request an expert nearest their client’s location, whereas an expert for a potentially complex and lengthy case would instruct the best expert available.

To determine the best expert, check their professional experience, continual training/ research developments and expert witness experience. Also check if they have worked for any of the other parties or as a single joint expert (SJE).

In all cases we at Expert Witness would advise talking directly to the expert in the first instance, EXPERT WITNESS JOURNAL

What is the best time an instructing solicitor should seek to retain or ‘reserve’ an expert witness or advisor?

This should be done as soon as it becomes clear that an expert’s services will be required.

Establishing a schedule and updating the expert with any developments is essential in a successful working relationship.

63

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 64

What happens if an expert changes to an advisor (and vice versa) and when would this be advantageous?

This may be advantageous in certain family and construction law cases where an expert advisor may mediate.

Where an expert (advisor or witness) is instructed solely on cost then the potential for an unprofessional report will increase.

As previously stated an expert witness is fully aware of his/her duty to the court. The danger of an expert advisor having material edited or used in partial context is a concern. To paraphrase Oscar Wilde, ‘It is far more damaging to pay too little for a service than too much.’

Do you have any practical tips to help instructing solicitors identify the issues involved to ensure they find the best expert for the case?

Some basic research may need to be carried out initially in order for the instructing solicitor to gain a proper understanding of, for example, a medical condition, and therefore the issues in dispute. This will enable the instructing solicitor to approach the appropriate specialist, rather than someone with broad but not sufficiently in-depth experience.

Various organisations, including Expert Witness, have an on-line database, allowing solicitors to search for an expert by their area of expertise. We always look to portray our experts’ details in such a way that their areas of expertise are clear.

Instructing solicitors are also encouraged to seek guidance from us directly on instructing the correct expert. At Expert Witness, we deal with instructions and liaise with experts on a daily basis, giving us the experience to know which areas of expertise and sub-divisions are relevant to a specific case.

What are the different skills required for an expert witness and an expert advisor?

An expert is an expert—it seems that the level of instruction is what is changing. I would assume that costs are driving this.

Skill sets would be very similar in the area of expertise that an advisor and expert witness share.

However, an expert witness would be expected to have undertaken some specialist training in court room procedure and report writing.

In this respect we would view an advisor as part of the legal team and the expert witness as a third party with his/her duty to the court.

What information should be given to potential experts before they are instructed, and how can the instructing solicitor best retain confidentiality and privilege?

As far as possible, names and personal circumstances should obviously be protected.

However, it is important to be specific as possible as some sub areas of expertise (particularly medical) can easily fall outside an expert’s remit.

We would expect all our experts to respect confidentiality and conduct themselves in a professional manner, as I am sure they do.

This matter should also be covered in both sides’ terms and conditions of instruction.

What are the advantages of giving evidence concurrently or using a single joint expert (SJE)?

SJEs would seem to be the best way forward in that both sides have agreed on the expert and stand by the expert’s testimony, therefore removing any hint of partiality. For both sides to agree (although this may be rare) to an SJE report or testimony firmly establishes the expert’s position and duty to the court.

Hot-tubbing (or concurrent evidence) is another way forward and looks to be a positive logical step, although I have yet to speak to an expert who has partaken in it. The only problem I can foresee with hot-tubbing is that strength of personality may win out rather than straight evidence, although this will be in a minority of cases.

What are the pros and cons of retaining an expert advisor?

Expert advisors do concern me as they may be considered ‘part of the legal team’ by the instructing solicitor, whereas an expert witness’s role is more clearly defined. Every expert witness’s overriding duty is to the court, not to the instructing solicitor.

I feel that the line has the potential to become blurred and that an advisor’s views may carry less weight. The advantages of retaining an expert advisor are primarily cost based or in areas where there is a broader area of expertise such as certain personal injury areas, eg whiplash.

EXPERT WITNESS JOURNAL

What are the pros and cons of using the same expert in a different number of cases?

There are good reasons for using the same expert in different cases, particularly if a good working relationship has been established. Similarly, both

64

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 65

the legal team and the expert will have experience of how the other works. On the negative side, familiarity may lead to instructions that are outside the expert’s remit, for example the assumption that an orthopaedic expert who specialises in upper limb trauma would undertake an ankle related instruction.

If yyou ou n need eed a rreport eport o on nas specialist pecialist s subject ubject tthen hen m make ake s sure ure y you ou instruct instruct a Specialist Specialist Chris Drake, Chris Drake, Dip Dip OTC, OTC, BAPO, BAPO, CUEW CUEW C onsultant Orthotist Orthotist and and Orthotic Orthotic Expert Expert Witness Witness Consultant Chris C hris h has as 30 30 years years of of experience experience in in the the field field of of orthotics orthotics a and nd over over 18 18 y ears of of medical medical llegal egal rreporting eporting e xperience. A sw ell a sh is iin-depth n-depth years experience.

As well as his k nowledge of of orthotic orthotic p rinciples a nd p ractice h e has has specific specific expertise expertise knowledge principles and practice he iin: n: P ost ttrauma rauma o rthotic rrehabilitation ehabilitation Post orthotic N euro-rehabilitation Neuro-rehabilitation C omplex d isabilities Complex disabilities O rthopaedic cconditions onditions Orthopaedic A dult a nd p aediatric o rthotics Adult and paediatric orthotics L ower limb limb b iomechanics Lower biomechanics L ower limb limb o rthotics Lower orthotics C omplex ffoot oot a nd a nkle cconditions onditions Complex and ankle F oot o rthotics Foot orthotics S pecialised o rthopaedic a nd b espoke ffootwear ootwear Specialised orthopaedic and bespoke

Finally, do you have any advice for legal teams to help them improve the way they communicate with the expert throughout the proceedings?

Solicitors should be open, realistic and professional in their dealings and expect the same from the expert. ■ Interviewed by Jenny Rayner.

This interview first appeared on LexisNexis website- www.lexisnexis.com.

Many thanks to Lexis Nexis for permission to reprint, all original rights reserved. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

He has He has a wealth wealth of of experience experience acting acting as as Orthotic Orthotic Expert Expert for for the the claimant, claimant, d efendant and and as as a single single joint joint expert. expert. He He has has undergone undergone full full Expert Expert Witness Witness defendant ttraining raining w ith B ond S olon a nd holds holds the: the: Certificate Certificate of of Expert Expert Witness Witness with Bond Solon and A ccreditation (CUEW) (CUEW) iissued ssued by

by Bond Bond Solon Solon and and Cardiff Cardiff University University Law Law Accreditation S chool. Registered Registered with with the the Health Health & Care Care Professions Professions Council Council (HCPC).

(HCPC).

School.

Consulting C onsulting a at: t: 1 152 52 Harley Harley Street, Street, a able ble to to travel travel tthroughout hroughout the the UK UK ffor or cclient lient vvisits isits w hen rrequired. equired. when O rthotic E xperts L td Orthotic Experts Ltd 5 2 Beresford Beresford Avenue, Avenue, Surbiton Surbiton 52 S urrey, KT5 KT5 9 LJ Surrey, 9LJ Tel: +4 4 ((0) 0) 7 7 2 1 -5 1 4 5 6 8 , Tel: +44 7721-514568, Fax: +4 4 ((0) 0) 2 07 192 3 339 Fax: +44 20 7192 3339 E-mail: iinfo@OrthoticExperts.co.uk nfo@OrthoticExperts.co.uk E-mail:

To use the free expert witness searchline please telephone 0161 834 0017 or email chris.connelly@expertwitness.co.uk

Mr William Stuart Hislop BDS MBChB FRCSEd FDSRCSEd FDSRCPS

Consultant Oral and Maxillofacial / Head and Neck Surgeon

Mr Hislop has been a Consultant Oral and Maxillofacial surgeon at Crosshouse Hospital, Kilmarnock since 1994 and is now also at the regional Maxillofacial Unit at the Southern General Hospital ion Glasgow. He has been an Honorary Clinical Senior Lecturer at the University of Glasgow since 1995.

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

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

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

EXPERT WITNESS JOURNAL

65

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 66

Expert Witness Practice in Orthodontics According to the Dental Protection Society â&#x20AC;&#x153;The UK has become the most threatening and dangerous place to practice dentistry.â&#x20AC;?

The level of private litigation against UK dentists is the highest in the world. Since 2010 there has been a 110% increase in complaints to the regulatory body the General Dental Council.

Expectations.

Orthodontics, has, for many years, primarily treated children and young teenagers. However, over that last decade or more newer techniques with the introduction of less noticeable â&#x20AC;&#x153;invisibleâ&#x20AC;? appliances a greater number of adults are seeking orthodontic treatment.

Dentists are three times more likely to be sued than doctors.

Magazine advertising and marketing techniques of these appliance systems have raised expectations to often unrealistic levels.

In 2013 the Medical Protection Society opened 7830 dental cases of which 6799 were from the UK. The nearest to this figure was Ireland with 314 and the remainder from around the world.

Patient demand is being met by a variety dental providers from specialists to general dental

There are 13 registerable specialisations in dentistry and in order to be named on the General Dental Council specialist list an individual is required to demonstrate higher competence and qualifications in the speciality.

5 00&2 ! #-31 326807&27 57-3)327.67 &2) !*,.67*5*) "4*(.&0.67 " " 57- 57- ! " 2, " ).2

I am only able to discuss my own speciality of orthodontics where my practice in giving expert evidence and opinions on case strength has increased dramatically over the last few years.

326807&27 &2) !*,.67*5*) "4*(.&0.67 57-3)327.67 ((5*).7*) 7*&(-*5 $2.9*56.7< 3+ 32)32 +351*5 3235&5< "*2.35 *(785*5 &7 8< 6 364.7&0 ;4*5.*2(*) .2 &00 &64*(76 3+ 357-3)327.( 75*&71*27 357-3)327.( 685,*5< (0*+7 0.4 &2) 4&0&7* +&(.&0 )*+351.7< &2) )*27&0 75&81& *(785*) &2) 7&8,-7 .27*52&7.32&00<

I have to ask whether the standard of dental practice has diminished, the public more minded to complain or the Regulatory Body more proactive to investigate complaints?

#5&.2*) .2 5*4357 :5.7.2, &2) (5366 *;&1.2&7.32 *).(&0 &: &2) 7-.(6

More complaints?

Figures from Dental Protection demonstrate an enormous increase in claims between 2000 and 2002 with the introduction of â&#x20AC;&#x153;no win no feeâ&#x20AC;? firms of solicitors. This was followed in 2011 with notification of Lord Justice Jacksonâ&#x20AC;&#x2122;s review of legal costs. Then changes to the General Dental Councilâ&#x20AC;&#x2122;s Fitness to Practice investigations in 2005 opened a pathway to a further increase in complaints.

EXPERT WITNESS JOURNAL

326807&7.326 &9&.0&'0* .2 32)32 *27 &2) "866*; %&.7.2, 7.1* :**/6 !*43576 :35/.2, )&<6

#*0

&;

3'

1&.0 &57-31 -371&.0 (3 8/ ))5*66 %&5:.(/ &5/ #82'5.),* %*006 *27 #

66

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 67

In my experience these cases have led to the highest claims and settlement in teenagers and young adults. All dental practitioners are appropriately trained to recognise such conditions and a robust defence is rarely possible.

practitioners. Each with a different level of expertise and training which is invariably reflected in outcomes which may lead to litigation.

The “marketing” of these newer and questionable easier techniques has resulted in a plethora of short weekend courses for general practitioners.

Consent and records.

The onus on adequate consent and record keeping is as important in dentistry as any other medical arena and it is not necessary for this article to expand on this topic. Save but some pertinent points.

The majority of these techniques allow diagnosis, treatment planning and appliance construction by a third party often a commercial organisation outside the UK. Orthodontics by numbers!

A registerable qualification in orthodontics requires 3 years of post-graduate training following a dental qualification taking 5 years. It is not possible to teach to this level in a weekend!

1. Risks benefits and alternatives. Dental paternal ism supposedly disappeared very many years ago. However a small group of practitioners still exercise a “doctor knows best” approach. This is no longer acceptable and can lead to litigation which is difficult to defend. The practice of dentistry and my speciality orthodontics is rarely life threatening. However, damage to or loss of teeth can be life challenging particularly in a young adult.

Whilst, to a trained individual a technique can be taught in a few days it may take many months of clinical experience to know when to use the same and undoubtedly very many years to understand when NOT to use it!

Complaints and litigation against general dental practitioners using such methods resulting in unacceptable and often significant irreversible dental damage has and continues to increase at an alarming level.

2. The second relates to one particular area of record keeping, in dentistry, that has concen trated the mind of the General Dental Council’s Fitness to Practice Committee. General Dental Practitioners take X-rays. General Medical Practitioners do not. The law relating to X-rays (an invasive procedure) is precise. In order to expose an X-ray it must be clinically justified and the result of the X-ray examination recorded appropriately in the clinical records. An X-ray is not a “knee jerk” reaction or request. A repeated failure to justify X-ray exposure, following a clinical examination, and recording the result is likely to come before the General Dental Council’s Fitness to Practice Committee.

Clinical Skills.

In a healthy mouth orthodontic treatment will usually take eighteen months to two years to complete. Only in exceptional cases should treatment take longer and a careful review of the diagnosis and treatment plan would be appropriate in these cases. The presence of dental disease such as decay or gum disease (periodontal disease) is a contra-indication to orthodontic treatment.

Young children rarely exhibit periodontal disease – adults do. Moving teeth in the presence of periodontal disease can be compared with placing a screw in rotten wood. Neither is successful and usually results in further damage. This damage, in the mouth, is often considerable and irreversible with accelerated loss of teeth and associated high quantum in successful litigation.

3. Orthodontics is a three dimensional speciality – moving vital teeth through living bone.

Movement of teeth takes time and this is dictated by the normal physiological process of bone deposition and bone resorption. It takes time and is similar to going on a new journey – one needs a map. The map, in orthodontics, is study models. These are a plaster representation, as a permanent record, of the clinical condition at any one time and at the minimum taken at the commencement of treatment. Study models are essential evidence in any case involving orthodontics. They are fragile and once broken cannot be repeated.

Special instructions need to be provided to secretaries on the postage and storage of such records.

High claims are not only confined to adults and a common claim for a breach in young adults is as a result of a failure in simple diagnosis and the breach is often not discovered until many years later which can fall outside a limitation period.

Upper canine teeth are the commonest teeth to remain unerupted and impacted. A failure to diagnose this by the age of 11 or 12 years can result in serious long term problems with irreversible damage and eventual loss of teeth.

EXPERT WITNESS JOURNAL

67

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 68

more often not advising and/or recording, in the clinical notes, a discussion with patients over risks, benefits and alternatives to a treatment programme.

Familiarity.

It has been stated, by the indemnity societies, that patients rarely sue doctors they like. General Dental Practitioners (generalists) have an advantage over specialists. They have the opportunity of building up a relationship with their patients over a long period of time. A specialist may only see a patient for an opinion or a single course of treatment and may have to explain complex clinical issues at an initial visit. Specialists are more to likely to receive a notice of complaint regarding communication than a general dental practitioner. Fifty percent of patients who complain stated that they were so annoyed at the doctor’s manner that they had made up their mind to complain even before any treatment took place. Generally generalists are more likely to be sued over diagnosis and treatment outcomes than about communication.

2. The second commonest area is competence and training with practitioners relying upon third parties to diagnose and treatment plan. A complaint against a practitioner’s lack of competence to carry out a procedure and inadequate or no training in the technique used is often very difficult to defend.

3. Treatment planning and poor diagnosis flows from the above point. Diagnosis and treatment planning without adequate clinical input invariably leads to poor clinical outcomes.

Summary 1. Orthodontic litigation is increasing.

2. Poor communication is the commonest reason for compliant.

3. Lack of competence and training leads to poor clinical outcomes.

4. The reliance upon third, commercial, parties leaves a practitioner open to complaint.

5. Complete contemporaneous records (clinical notes, X-rays and study models) are a strong defence. ■ Allan R Thom LLM [Medical Law]., BDS., LDS., FDS (Eng & Edin), D’Orth., M’Orth. (Eng), MEWI.

Research has shown that the majority of dental complaints are not triggered by the actual event but because other things have already happened which were not complained of previously. The first being the predisposing event and the second the precipitating event which may lead to litigation.

A review of cases over the past few years in my dento/legal practice indicates that:1. Greater than 50% of cases involve poor communication. This would include consent and

EXPERT WITNESS JOURNAL

68

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 69

Dr Asef Zafar – Exposè Running an Expert Witness Practice Dr Asef Zafar is a Medico-Legal Expert specialising in General Practice cases. He primarily works out of the South-East of England and has 12 different venues in major cities throughout the UK. General Practice Expert Witnesses are prized for their flexibility in their subject matters, being able to diagnose and treat both the soft tissue injuries that occur in most incidences and the psychological impacts that can be left behind.

There have been many different types of cases presented to Dr Zafar in his many years in the Medico-Legal industry. These have included Road Traffic accidents, Pedestrian accidents, Beauty Salon accidents, Supermarket and Shopping accidents, Criminal Assaults and Prison accidents.

Each accident type creates a very different report with respect to focusing on different aspects of the mechanism of injury and treatment. An example of this can be seen between Road Traffic accidents where the focus of the report is on the injuries sustained with their prognosis and Prison accidents where often a large focus is on the amount of treatment given and the possibility of the symptom being prolonged.

As an Expert Witness, Dr Zafar’s duty is to write expert witness reports for the courts. Not only does he ensure that this is done in a professional and timely manner, but he also maintains a high standard in patient care and comfort.

Dr Zafar has over 20 years of experience as a General Practitioner, with 18 years of that being heavily involved in the Medico-Legal industry. He uses this vast background in medicine to provide an accurate diagnosis of each patient’s condition, a plan for further treatment and a detailed prognosis of how long each injury should last. Dr Zafar has gone through intensive further industry specific training courses with Bond Solon and CertMR to ensure that all his reports are produced to an extremely high standard. This training also focused on the necessary skill set to provide confident and precise facts and opinions when called to give evidence in court.

EXPERT WITNESS JOURNAL

Prison Accidents occur more often than some may think and Dr Zafar rarely goes a month without seeing one or two of these clients. This can cause quite an impact to his day, as often he will wait in the prison reception for a few hours just to see the client for just under an hour. These visits regularly produce some of Dr Zafar’s most difficult cases, with symptoms that could be permanent and prisoners with an already low mood being subjected to further anxieties and stresses. Dr Zafar has spent some time as a Locum General 69

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 70

This team of secretaries is also responsible for making Dr Zafar’s clinics run smoothly by ensuring that all the client’s details are received and entered into the system, phoning all of the clients before a clinic and making sure that they know when and where the appointment will be held (in addition to the appointment letter that each client is sent) and giving directions to ensure that all clients attend on time. The team of secretaries is always ready to help clients with any queries that they may have, starting at 8am on a clinic day to ensure that anyone lost before the clinic can receive directions and finishing at 7pm most days to ensure that directions can be given to people who work in the day. Dr Zafar has noticed a significant positive impact in attendance since the secretarial team has started to telephone clients. The clients that do not answer their telephones to confirm their attendance are also the least likely to attend.

Practitioner working in Prisons, allowing him a great deal of insight into how the health care system works inside prisons, where the possibility for an oversight can occur and how best to treat a patient with the sometimes limited resources available.

Alongside prisons, Dr Zafar has also spent time working in Hospitals, GP Practices and on Army bases. This has allowed him a detailed view of the National Health system, including the places where resources and abilities may be stressed. This in-depth view of the different aspects of the Medical industry as a whole has given Dr Zafar a great deal of understanding of the areas in which a patient may have been given under-satisfactory care. This experience is the background that he draws from when producing reports for his Medical Negligence cases.

The Medical Malpractice side of the Medico-Legal industry can be a long and complicated one. The patients that go through the process are often put through quite an ordeal to get to the truth. Dr Zafar focuses on the comfort of Negligence and Malpractice clients when they come in to see him.

He understands that often claiming can be a traumatic and stressful time for his clients and so he tries to bring a calming influence to any examinations. This calming influence can often be seen through the reports as a calmer patient often tends to remember key details that are often lost in stressful moments.

Q&A What first got you interested in the Medico-Legal Industry?

Well, I’ve always been in medicine to help people and the industry is the perfect place to help protect people who have been harmed through no fault of their own.

You’ve been in the industry for quite a few years now, what’s the most interesting case that you’ve seen?

I’ve seen so many ‘non-standard’ cases that I could never chose a most interesting one. I have had rollercoaster accidents, quite shocking problems following beauty treatments and even a patient who was on a double decker bus that tried to go under a low bridge.

Dr Zafar has venues in Southend, Chelmsford, Cambridge, Watford, Norwich, Crawley, Ipswich, Colchester, High Wycombe, Southampton, London and Tunbridge Wells. He attends each of these clinics at least once a month, with the busier clinics held twice a month to help cope with demand. He holds all of these venues to ensure that he catches as wide a range of cases as possible, avoiding the need for a client to travel too far to see him. His venues are carefully selected, with dedicated waiting rooms and private but comfortable examination rooms. Where possible Dr Zafar chooses venues with on-site parking, but obviously in some of the town-centre venues this is sometimes unobtainable. Dr Zafar always makes sure that at the one or two venues where parking is not available, there is public parking available nearby.

Dr Zafar employs a team of secretaries to help clients find the venues and they will often try to make contact with the client beforehand to advise them of the nearest car park.

EXPERT WITNESS JOURNAL

What’s the most difficult symptom that you’ve ever come across in your examinations?

One of the most difficult was most certainly a young lady who came in to see me with quite severe amnesia following head trauma. I spent more time introducing myself to her in the examination than talking about her accident.

Do you find that the accidents that you come across each day have an impact on the way that you drive?

Definitely. I’ve always been quite a careful driver but since starting in this industry I have gained a new respect for the apparent ease that an accident can happen.

You have quite a large team of administration staff, are they all necessary for your day to day running?

Oh 100%. The real trick in my industry is to make sure that all of my clients have the right balance of 70

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 71

both comfort and efficiency. This ranges from making sure that all of my venues are comfortable and have spacious waiting areas to making sure that all of the client’s details are ready to go in our computer system to avoid any delays. My staff are essential for the day to day running of my clinics.

Dr Asef Zafar

General Practitioner and Medico-legal Expert MBBS, MRCGP Dr Zafar is an English trained, GMC registered expert witness. He currently works with various reputable medico-legal agencies and solicitors throughout the UK. He has successfully passed the Bond Solon 5 day training course on Expert Witness Report Writing and has a certificate in Whiplash Disorders (CertMR Part 2).

Does focussing so much on the happiness of your clients not subtract from your profits of the work that you do?

I feel that the comfort and happiness of my clients reflect in both their reports and in their attitudes when questioned later by the instructing parties.

This can only help to increase my work load, and overall make it all worthwhile.

Dr Zafar has experience with the following medico-legal aspects: - Both High and Low speed impact claims, - Whiplash injuries, - Soft Tissue injuries, - Psychological injuries, - Paediatric injuries, - Injuries to pregnant women, - Injuries sustained in the workplace, - Injuries sustained through malpractice/negligence in beauty salons, - Injuries sustained in road traffic accidents or as pedestrians, - Injuries caused by direct trauma and by seatbelts, - Injuries sustained on bicycles and motorcycles, - Dental injuries and much more...

I’ve noticed that on your website you have put quite a bit of emphasis on being able to return a client’s report on the same day as the examination, is this normally the case?

This year more than 95% of my reports were turned around on the same day. The other 5% was mainly made up of Sunday and late evening clients and almost all of them were returned within 24 hours of the examination.

Nearly all of his medico-legal reports are turned around the same day, and medical records are normally reviewed within first 7 days of receipt.

UK Doctors Ltd Ark House,15-17 Exchange Road, Watford WD18 0JD Tel: 01923 224 929 Email: admin@uk-doctors.com Web: www.uk-doctors.org.uk Medico-Legal Venues Below is a list of his medico-legal venues.

East London,Watford, High Wycombe, Crawley,Tunbridge Wells, Southampton, Chelmsford, Southend On Sea, Colchester, Ipswich, Norwich & Cambridge

Dr Asef Zafar and his team can be contacted via admin@uk-doctors.com or on 01923 224 929 and can provide competitive quotes for the production of Medico-Legal and Negligence reports both singularly and in bulk. Dr Zafar is also available to provide home and prison visits within the vicinity of his venues. ■

So you work the weekends too, are there many clients that attend on a Sunday?

I find that more clients will attend on a Saturday or Sunday clinic than any other, so I always make sure to include my busiest clinics at the weekend. I normally run my London, Crawley and Colchester clinics over the weekend, to make sure that as many clients can get access as possible.

EXPERT WITNESS JOURNAL

71

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 72

Reviewing Medical Notes Dr Hugh Koch, Chartered Psychologist and Director, Hugh Koch Associates LLP Dr Bruce Leckart, Clinical Psychologist, Los Angeles, USA Dr Karen Shannon, Chartered Psychologist, Hugh Koch Associates LLP Dr Jacquie Hetherton, Chartered Psychologist, Hugh Koch Associates LLP 2. Clarity of symptom type, site, frequency, intensity, duration, onset and course over time 3. Specificity of intervention (medical and psychological) 4. Motivational factors, especially in relation to employment continuity 5. Pre accident annual frequency rates of GP attendance

Introduction Access to a claimantâ&#x20AC;&#x2122;s medical records from their GP/ Family Practitioner is one of several major and essential sources of information used in formulating an expert opinion for civil litigation purposes (Leckart, 2011) alongside claimant self-report, psychometric testing, robust history taking and other sources of information (family or occupational).

Given that much psychological and medical opinion is based initially upon the account of the claimant, one way of checking their credibility is by comparing their account of pre-accident and post-accident injuries with the medical attendances

How GP data helps opinion formulation Expert opinion formation is enhanced by: 1. Legible records, preferably computerised.

EXPERT WITNESS JOURNAL

72

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 73

recorded. Experts shouldunderstand the various degrees of attendance inconsistencies when providing an opinion.

2. Post Accident – Accident-Specific a. First Month i. A/E Hospital attendance; GP description of accident Stress; Mood disturbance (including nightmares), situational anxiety ii. Diagnosis by GP iii. Treatment by GP (reassurance, psychotropic medication; behavioural advice, referral for counselling or CBT therapy). b. Subsequent Months– i. Further, ongoing symptom description ii. Diagnosis iii. Treatment

A careful analysis of GP records will be followed by a set of conclusions about the significance, presence of absence of GP entries, both before and after an index event. The type of conclusion drawn will include: 1. Evidence of disorder reinforced by accidentrelated GP attendance, diagnosis and treatment, plus duration of difficulties 2. Evidence of other life events and non accidentrelated symptoms reinforced by GP attendance that could explain reactions to index event or indicate exacerbation of index event difficulties.

3. Non-Accident Specific a. First Month b. Subsequent months i. Symptom description (stress, mood disturbance, anxiety) ii. Diagnosis by GP iii. Treatment iv. Adverse life events noted v. Medical disorders

3. Evidence of pre-existing symptoms in the 12 months immediately prior to the index event that could indicate the possibility of aggravation of already existing symptoms.

4. Evidence of earlier psychological symptoms (more than a year prior to the index accident) indicative of vulnerability to later symptoms when stressed, or likely occurrence of later symptoms irrespective of further events.

Why do claimants visit their GP? Individuals typically visit their GP in the immediate aftermath of a significant accident (i.e. within the first 48 hours) to establish any physical injuries and need for appropriate treatment at primary or secondary care levels. They may also express their psychological distress, which the GP may or may not note in his computerised attendance note. At this stage sympathetic listening and reassurance with a review, if necessary, in one to four weeks are the appropriate intervention. Over the next four to 12 weeks, the individual will attend or not attend…

These two behaviours need careful interpretation in the medico-legal context as they can occur for several significantly different reasons, some consistent with valid psychological distress, some not (Lillie and Koch, 2006).

In general, evidence of inconsistencies between the claimant’s account and the medical records needs to be considered in forming an opinion on the claimant’s credibility. One specific point on forensic history, if a person denies a forensic or criminal history that is present in the GP records, this is evidence of untruthfulness. Also GP records are not totally accurate records of a criminal history, and GPs will sometimes omit embarrassing forensic information as not medically relevant.

Categorising GP entries GP entries can be sub-categorised as follows: 1. Pre-accident a. “Accident” Specific i. Previous accident symptom description ii. Diagnosis by GP iii. Treatment by GP b. Symptom Specific i. Depression ii. Anxiety c. Additional (one year pre-index accident) information i. Adverse life events ii. Medical disorders d. Personality or coping style e. Forensic Data

EXPERT WITNESS JOURNAL

a) Attendance At face value repeated attendance for psychological symptoms (e.g. sleep disturbance, mood variability, anxiety) requiring medication and/or psychological therapy and associated occupational dysfunction requiring certification are consistent with a level of disability. Causation will usually be noted by the GP (e.g. accident, other adverse events related or unrelated to the accident). Most GPs are skilled biographers and will note their patient’s account of other adverse events and where the patient has drawn no link between other events and the index accident this speaks for itself, despite when claimants subsequently recall to the contrary. Claimants are typically more accessible to expressing mood and sleep symptoms (depression) to their family doctor 73

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 74

rather than anxiety and nervousness. The former has historically been more “medicalised” and, in the absence of other rapid psychological interventions, treated with medication, whereas the latter anxiety is thought to be “non-medical” and less the province of the overstretched GP.

d) Delayed attendance post-accident Why do claimants delay informing their GP of their psychological symptoms until several months post accident? The various possible interpretations include: • Initial precedence of physical pain over psychological distress • Later distress as reaction to unremitting pain and disappointment with lack of recovery • Genuine “delayed” psychological reaction • Litigation factors e.g. discussion with medico-legal experts; waiting for lawyer to arrange medical assessment

b) Non-attendance Again, at face value, non-attendance post-accident is consistent with low level of disability post-accident. This is especially valid in excluding serious depressive illness and Posttraumatic Stress Disorder (and its related condition, Acute Stress Disorder).

By definition, significant occupational dysfunction will have required certification and hence lack of attendance indicates reasonable work adjustment.

However, non-attendance does not preclude any of the following: mild, variable depression; phobic travel anxiety; mild adjustment reaction; and mild work difficulties.

e) Interpretation of GP attendance notes With the passage of time, an individual’s recall of what they said to the GP many months or years previously becomes less reliable. Claimants are psychologically predisposed (often unconsciously) to the following assumptions: assuming attendance occurred; assuming it occurred “soon after” the index event; and/or assuming no other events or stressors had occurred.

c) Severity and GP attendance It is often assumed that there is a linear relationship between symptom severity and GP attendance.

Thus a lack of GP attendance is taken to denote mild symptoms even though a claimant may report symptoms that are severe and disabling. There are multiple factors that disrupt the relationship between symptom severity and GP attendance (Hetherton, 2013). Specifically, there are many reasons other than a claimant having mild symptoms that account for a lack of GP consultation post-accident. These include: having a poor relationship with one’s GP, having previous negative or dismissive consultations with the GP, a belief that a GP is not psychologically minded and therefore will have little interest in psychological symptoms, an expectation that a GP’s response to report of psychological symptoms will be to prescribe psychotropic medication, shame and embarrassment about reporting psychological symptoms (particularly relevant in men), not wishing to have psychological symptoms detailed in one’s medical notes, a belief that one’s symptoms are trivial relative to the GP’s other patients and having an independent coping style such that going to one’s GP takes place only as an absolute last resort. The above reasons explain why, in many cases, individuals do not consult with their GP and live instead with severe and enduring accidentrelated symptoms, sometimes years post-accident.

Thus although an absence of GP attendance can be viewed as weakening a claimant’s case, there are many reasons why this is not necessarily so.

EXPERT WITNESS JOURNAL

These may or may not concur with what the GP has actually recorded. Concurrence or inconsistencies help clarify ambiguity in medico-legal terms. f) When medical notes say “PTSD” A common finding in psychological reports is for GP and therapy notes to diagnose PTSD but the

74

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 75

expert does not (Hetherton, 2011). This apparent anomaly can be explained by a tendency in clinical settings to focus on symptom presentation with much less consideration of the traumatic event itself. Thus if an individual presents with the trauma symptoms of intrusive thoughts, nightmares, flashbacks, avoidance behaviours and mood disturbance, a diagnosis of PTSD is frequently made regardless of the nature of the triggering event. In contrast, the medico-legal expert pays greater attention to the nature of the trauma itself.

Criterion A of a Posttraumatic Stress Disorder, as defined in DSM-IV-TR, states that the triggering event involves, ‘experiencing, witnessing or being confronted by actual or threatened death or serious injury, or at threat to physical integrity of others.

Thus it is factual. If this criterion is not met, PTSD should not be diagnosed, irrespective of all the other PTSD criteria being met. Symptoms arising from accidents that are relatively minor therefore, or which posed a low risk of serious injury being sustained, should not be diagnosed as PTSD. Even where serious accidents have been experienced, a diagnosis of PTSD in GP records may be invalid if it is written in the notes within the first month of the accident as PTSD cannot be diagnosed until the symptoms have persisted for over one month.

The flow of attendance to a GP may be consistent with a tendency to: • “somatise” distress into physical symptoms • Over-emphasise, magnify or exaggerate pain • Anxious/avoidant responses to stressful situations • Negative or angry responses to conflictual situations The concept of the “egg shell skull” is widely used to decide whether or not the psychological condition would have occurred, taking into account the claimant’s personality or coping-style. Again, rigorous analysis of what is contained in the GP attendance notes, both immediately prior to and immediately after the index event, allows an opinion as to whether post-accident symptoms are accident-related or wholly unrelated to the index event.

Technical problems with GP records These comprise: 1. Illegibility of handwritten notes 2. Non-sequential notes 3. Notes on both sides of sheets and/or upside down, making frequency and sequence difficult to assess 4. Miniaturising or magnifying of poor quality records 5. Presentation on dark pages 6. Use of short hand 7. Non-dated notes

Typically, a more reliable descriptive phrase is that of “Acute Stress”, rather than the full diagnostic label.

Psychological symptoms after road traffic accidents are difficult to communicate in brief notations. Post traumatic Stress Disorder (PTSD) is sometimes used generically and incorrectly, when it is a specific and complex disorder. Indeed, in psychiatry, there is a danger of PTSD being devalued by its over-use.

In addition to these distinctions being important for a medico-legal context, they are also important for treatment recommendations.

Most GP records and correspondence including that of treating clinicians are there contemporaneously for objective clinical purposes, not for litigation purposes. Their contemporaneity is far less subject to the intrinsic unreliability of recall in an interview months or years after an accident, hence their significant utility to the expert and the court.

Conclusion A robust psychological opinion requires careful and rigorous analysis of GP records, whether the purpose/context be preparation of an assessment report, a joint opinion discussion or a court hearing attendance. In some cases, no GP records will be available. However, where these are in existence and available, the lawyer is best advised to obtain a legible chronology of GP attendance to clarify with the claimant what occurred and to highlight to the expert the “facts” of pre-litigation and post-litigation attendance. The expert can make a significant contribution to the legal process by carefully considering the meaning of different GP attendance records, thus reducing unnecessary ambiguity. The GP meanwhile soldiers on and can

Pre accident depression An individual who has experienced and been treated for three discrete episodes of clinical depression is at significant risk of having a fourth. The occurrence of a fourth episode following an index accident will raise a range of opinions.

1. A de-novo episode precipitated by the index event 2. An episode that, although accelerated by the event, was likely to occur at some time anyway 3. An episode that, but for the index event, probably would have occurred anyway (being the fourth of a series of depressive episodes).

This discussion applies equally to other psychological states such as anxiety.

EXPERT WITNESS JOURNAL

75

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 76

make an invaluable contribution with accurate records keeping and clinical observation untainted by lawyer or expert!

Although GP’s are not trained in either psychology or psychiatry and therefore cannot be expected to obtain the detailed types of data that one would typically obtain from a psychologist or a psychiatrist, the GP’s timely and reliable records are invaluable to the court’s deliberations.

Dr Paul Bell

References

Consultant General Adult Community Psychiatrist

Hetherton J (2011) The medical notes say PTSD: The psychological expert says not. PIBULJ. December.

MB Bch BAO, MD, FRCPsych

Consultant General Adult Community Psychiatrist in East Belfast since 1991 having extensive medical management experience and taking especial interest in Child Protection measures, Post Traumatic Stress Disorder, Schizophrenia and improving relationships between Family and Child Care and Mental Health.

Hetherton J (2013) Lack of post accident GP attendance.

PIBULJ, July Koch HCH, Lillie FJ and Kevan T (2006) Perfect Attendance. Legal and Medical (January) Leckart B (2011) Psychological Evaluation in Litigation.

Los Angeles, California

I have acted as an expert witness in psychological trauma and other cases for 20 years

Lillie FJ and Koch HCH (2006) GPs: The primary port of call for the anxious patient? Legal and Medical, 11, November

Department of Psychiatry Knockbracken Healthcare Park Saintfield Road, Belfast BT8 8BH Tel: 02890 565 656 Email: yvonne.mccambley@belfasttrust.hscni.net

Dr Hugh Koch, Dr Jacquie Hetherton and Dr Karen Shannon can all be contacted at www.hughkochassociates.co.uk Dr Bruce Leckart can be contacted at Westwood Evaluation & Treatment Center, Los Angeles, California

Optimum Medicolegal

Optimum Medicolegal are specialists in the rapid turnaround of psychiatric and medicolegal reports with a premium service delivered by a panel of Consultant Psychiatrists.

We aim to provide a typical report with a turnaround time of 5 to 7 working days, on receipt of instruction. Focused treatment plans can also be offered to patients, after completion of a full psychiatric report, to treat psychiatric symptoms and presenting morbidity.

Optimum Medicolegal have significant experience of preparing medical and psychiatric reports since 2009.

We have prepared over 1,000 medico-legal or psychiatric reports, for legal firms and private organisations. Our Expert Witnesses have Courtroom experience.

Private rooms are available for consultations at; St John Street in Manchester.

Sutton House in Warrington.

Rodney Street in Liverpool.

Home visits may also be available

Optimum Medicolegal also have multilingual experts, details available upon request

Address: Suite 202, 792 Wilmslow Road, Didsbury, Manchester M20 6UG Tel: 0161 207 0204 Mobile: 07515 365 070 Email: info@optimummedicolegal.com

EXPERT WITNESS JOURNAL

76

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 77

‘The Long Range Forecast’ The Challenges of the Care Expert in Brain Injury Cases “At one point I was apparently convinced I had to file an article for The Daily Telegraph ghosting for Gary Lineker who was living under my hospital bed while I was sharing it with his wife.”

- James Cracknell from ‘Touching Distance’

Introduction A Consultant Neurologist I once worked with used to say that he loved working with the brain because however experienced he became he would never be in a position where he knew all there was to know about his chosen field. The human brain, its capabilities and seemingly infinite capacity continue to intrigue and baffle scientists and clinicians alike. This is one of the reasons it captured my interest after qualifying as an Occupational Therapist in 1994 and why I myself spent over 10 years as a clinical specialist in the area of Neurology.

In litigation, the most severe and disabling injuries are often those which involve the brain or spinal cord. Whereas injuries to the spinal cord and indeed injuries to the limbs are more tangible and give rise to largely predictable symptoms, the sometimes subtle and unpredictable symptoms of brain injury can leave the assessor, treating clinicians and the family somewhat confounded. Those who have suffered mild to severe traumatic brain injury but whose bodies have physically fully recovered from their injuries, leaving them looking ‘normal’ to the unaware, often present the biggest challenges of all.

EXPERT WITNESS JOURNAL

77

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 78

As care experts we often have but one opportunity to try and ‘get it right’ when it comes to making an assessment of the injured party’s needs, whether instructed by the solicitors for the Claimant or on behalf of the Defendant. On occasion we may have the opportunity to re-visit the Claimant or may have the benefit of medical evidence, information from case managers, treating therapists and support workers with which we can build a picture of their future needs. The statements and evidence of the family usually offers the most useful insight.

The Identification of Need I have been an occupational therapist (OT) for 20 years and an expert witness for 10 of those years.

Regardless of the number of clients I have seen and treated following brain injury, I find this high functioning client group, (which in litigation we sometimes refer to as ‘walking wounded’ or ‘walking heads’), leaves me regularly faced with the battle between facilitation of independence and the encouragement of dependence.

Invariably the majority of head injured claimants are young people who have been involved in accidents where cars have been driven at speed and who, as a consequence of the index event, have been severely injured in the prime of their lives.

The difficulty in making adequate provision for their future via their award for damages is that they have suffered, what I consider, an ‘arrested development’, as young people who were still in education or at the start of their careers. We often do not know what they would have been intellectually and functionally capable of, but for the injury, and have to make educated assumptions about whether they would have had partners, children, stable careers and active hobbies. Some of those who sustain traumatic brain injury are older of course and have stable careers and family lives and then the impact can be more demonstrable even where the management of their symptoms is still far from straightforward.

"Families can provide valuable insights into the patient's character, choices and ambitions, as well as important information on the presentation of difficulties in the home setting. This is essential in initial assessment, and in the monitoring of rehabilitation gain, to minimise underreporting of difficulties when the brain-injured person lacks insight" (From: Rehabilitation following acquired brain injury: national clinical guidelines, BSRM).

In truth however, much of what we recommend in our subsequent reports for the Court will be based on the snapshot we get at assessment interview and our own clinical experience and expertise.

Facilitation is Key So what, in terms of ‘care’ does this brain injured person require? They may be back at work, going to college or university or have found new employment by the time I get to see them several months, and maybe years, after the brain injury.

How can they best be supported to achieve the most in life whilst seeking to prevent them from placing themselves or their dependants in any danger, losing close relationships or failing in their chosen studies or employment? Psychological evidence is often paramount in determining the extent of any behavioural, emotional or intellectual deficits. Identifying appropriate support systems and levels of support to assist the Claimant in managing these symptoms is much harder.

Injured young people tend to have the drive and motivation to get well and invariably want to continue life as they would have had they not suffered the injury. This high level of determination and desire to be ‘normal’ again can mask underlying behavioural, intellectual and cognitive symptoms. It is accepted, and was certainly my clinical experience that our National Health Service does not have the capacity to provide long term rehabilitation to this client group and often they are discharged home with very little advice and support once it is deemed they are functionally independent in basic daily living tasks.

As occupational therapists our core skills and training are focussed around enablement and re-enablement – assisting people with disability, whether mental or physical, to achieve their maximum potential.

‘The purpose of occupational therapy is to enable people to fulfil, or to work towards fulfilling, their potential as occupational beings. Occupational therapists promote function, quality of life and the realisation of potential in people who are experiencing occupational deprivation, imbalance or alienation. They believe that activity can be

Beverley Turner, James Cracknell’s wife puts it succinctly in their description of their experience: “Sadly the window of opportunity to maximise improvement is often neglected due to inadequate NHS resources in the UK. The majority of patients are simply returned to their shocked and frightened families where they have become an impatient, confused and angry stranger in their midst.”

(From: Touching Distance, James Cracknell and Beverley Turner 2013)

EXPERT WITNESS JOURNAL

78

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 79

an effective medium for remediating dysfunction, facilitating adaptation and recreating identity.’

Recent Case Examples I attended Court at the end of 2012 and gave care evidence on behalf of the Claimant, a young man injured at age 18 when he was struck by a car. He suffered orthopaedic injuries as well as a severe brain injury, requiring craniotomy. He was of Bangladeshi origin but had been living with his parents and siblings in the UK since the age of two.

The difficulties of the case centred on the Claimant’s inconsistencies in presentation. He had apparent marked cognitive difficulties causing him to fail even simple tests, lose his way when out and he appeared to be forgetful in everyday life.

Contradictory to this, he was apparently able to study at college, use bus routes alone, make social plans and execute them, and use social networking sites successfully.

(From:The College of Occupational Therapists Code of Ethics and Professional Conduct 2010)

We aim to promote independence, seeking ways of enabling the individual to manage a task either through facilitation or adaptation rather than provision of care. Where a disabled or disadvantaged individual cannot manage daily living tasks without risk or detriment to themselves, the provision of care is of course indicated but always with a focus on allowing them as much independence and autonomy as possible. When considering the high functioning brain injured client our focus remains the same. What can they achieve and what do they need to facilitate this safely and successfully?

The evidence of the Defendant Experts was that he was much more capable than he would appear and that he had exaggerated his symptoms with Experts to maximise his claim. The Claimant’s evidence acknowledged the inconsistencies but was able to prove that he had genuine day-to-day difficulties with functional tasks and lacked insight at times making him vulnerable. What transpired at Trial was that over the course of the three years we as Expert Witnesses had assessed this young man he had changed and so had our views, but essentially he was never going to be able to live the life he had once planned. He had been provided with substantial therapy, support work and case management which had facilitated his understanding of his difficulties and the management of his daily life. However it was largely agreed that in the long term the care and support he would most benefit from would be at a low level allowing him autonomy to seek independence socially and to facilitate potential employment of some kind.

The Purpose of our Recommendations The relatively ‘hands off’ approach OTs often use can jar with Claimant instructed parties when they feel more substantial care packages and formal support may be indicated. Obviously in terms of compensation Claimant litigators are understandably committed to obtaining the maximum amount possible for their clients.

Our role and commitment to the Court as a care expert in civil litigation is to: ‘the principle of the law is that compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong.’

(Lord Blackburn, quoted by Lord Scarman 1980).

Many solicitors feel that this is done through care and case management provision and in some cases where physical injuries or severe psychological disturbance are paramount, big care packages are entirely justified and necessary in order to offer the injured party any quality of life. In the cases of the ‘walking wounded’ head injury it is not so straight forward; although some level of support may be indicated there is a fine balance between facilitation and over provision in terms of enabling them to live a normal life.

The Judge in the case took a great deal of time trying to understand the issues and wrote a lengthy judgement which took some six months to publish and was over 100 pages in length. He concluded that the Claimant’s abilities and long term functional potential was difficult to agree but that some further therapy and then relatively low level care (in the region of 15 hours per week), and case management would always be required to maintain his safety and allow him to achieve employment and enjoy a good quality of life. Justice StuartSmith stated: ‘The purpose of the future care regime should be to provide sufficient support to enable (the claimant) to pursue a

As already noted, the care needs of individuals who fall within this group are unpredictable and their symptoms need to be carefully understood. There is also the issue of engagement with services and, where the client has a history of rejecting care, we need to understand what support they will engage with and how care can best be provided.

EXPERT WITNESS JOURNAL

79

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 80

structured and constructive existence so far as possible, reinforcing constructive routines and being available to assist when he is confronted by the new, the unfamiliar or the complex’

contradictory of the case manager and suggests a reduction in care and support. With any of my recommendations, it is of course imperative that I can justify my views and ultimately stand my ground should discussions with the opposing care expert be required or should the case ever run to trial.

(Mr Justice Stuart-Smith)

I have many other active ‘walking head injury’ cases at the time of writing this report where I am acting on behalf of the Claimant or Defendant as well as under joint instruction. It concerns me in some of these cases that case managers and therapists instructed under the Rehabilitation Code (Ministry of Justice 2007), have instigated large packages of care and support for these individuals which in my view, although well meaning, have fostered dependence. Examples include skilled support workers accompanying the Claimant to the shops when they regularly and capably use public transport and visit town alone, or support workers taking fully physically fit individuals to play badminton or swimming which they could do with friends or family. These tasks are being encouraged and undertaken rather than seeking to facilitate vocational or domestic independence as priorities.

My role then as a Court appointed Expert, is to give my honest and considered views on their future needs, and this can sometimes be

Providing for the Essentials In my view there are some basics which can be argued in most brain injury cases. Firstly, in the first few years after injury and post settlement, good quality brain injury case management is required, sourced from a CMSUK (Case Management Society UK) registered company and who is preferably a member of BABICM (British Association of Brain Injury Case Managers). The Case Manager’s role is not only to organise any therapy and care support but also to act as an advocate for the client and family in trying to understand their situation post injury and how best to cope with it. They also have an essential role in training and supporting employed carers in delivering the optimum support for the claimant.

Secondly, appropriate therapy is often required, and invariably includes some psychological therapy.

Specialist occupational therapy, whether this is

Tel: T el: e 01249 456360 456360 www .hfhca are.co.uk www.hfhcare.co.uk info@hfhconsulting.co.uk info@hfhcon nsulting.co.uk HFH Consulting C has over 20 years of Medico-Legal M experience and of offers ferss a wide range of pr oducts and services that will ensure ensure you y receive receive the very best evidence e. As an Independent products evidence.

Medic co-Legal Consultancy we deal with h catastr ophic injury cases and all of our Experts ar Medico-Legal catastrophic aree highlyy experienced Healthcar Professio onals and trained in Medico-Legall rreporting. eporting.

Healthcaree Professionals Quan ntum Reports: Quantum • Past, Curr ent and Future Future Care Care Current • Rehabilitation Needs • Aids and Equipment • Loss of Services • Expert Physiotherapy • Expert Occupational Therapy

Additional Reports A vailable: Available: • Liability • Desk TTop o op Reviews Evaluations • Functional Capacity Eva aluations • Critiques • Manual Handling & Risk k Assessments Viability • TTissue issue V iability • Specialist Continence Assessments A Retrospective ospective Reviews • Retr Assessments • Immediate Needs Asses ssments

HFH Healthcar H w the NHS, Local Authorities an nd V oluntary o Healthcaree works in partnerships with and Voluntary Sectors in pr ovid ding nurse led quality care care to individuals indivviduals with complex health needs. needss. providing HFH Case C Management specialises in pr p oviding clinical case managemen nt to adults and providing management childr e with a range of injuries and we en ell as complex needs. children well

Medico-legal M ediicco-llegal a rreporting eeppor tin ing bbyy pe people eople w who ho ccare ar are

EXPERT WITNESS JOURNAL

Healthcare

Case C ase Management

Trusted T ruus ted continuity contiinnui uity ooff ccare ar are aatt hhome ome

Moving M ovin ing fforward orwaarrd w with ith cconfidence onfiddence

80

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 81

instigated to facilitate domestic competence or a return to study or vocational activity is also often vital with vocational rehabilitation paramount. This intervention should be time limited. The OT’s role may also include training and education of the individual or family regarding brain injury management.

References: Cracknell J, Turner B (2012) ’Touching Distance’.

London: Random House College of Occupational Therapists (2010) ‘Code of Ethics and Professional Conduct’. London: COT England and Wales High Court (Queen's Bench Division) Decisions (2013), ‘Ali and Caton and Motor Insurers Bureau’. Available at: www.bailii.org/ew/cases/ EWHC/QB/2013/1730.html, accessed 03.09.14

Finally there may be a need for employed care usually in the form of brain injury support workers, either via a specialist agency or directly employed.

The level will need to be decided but will almost always commence at a higher level and be gradually reduced as therapy is completed and the optimum levels of functional independence are reached. It is likely that the care recommended will need to be available flexibly given the nature of these individual’s needs.

United Kingdom House of Lords Decisions (1980) Lim Poh Choo and Camden and Islington Area Health Authority. Lord Scarman, quoting Lord Blackburn in: Livingstone v. Rawyards Coal Co. (1880). Available at: www.bailii.org/uk/cases/UKHL/1979/1.html, accessed 03.09.14

Finally, there will always likely be some low level of additional gratuitous support required whether this is provided by a partner, family or close friends.

The unpredictable nature of the psychological symptoms and the changes in personality or cognitive abilities will require those closest to the individual to be sensitive, patient and able to help their loved one deal with day to day challenges or crises which may occur. Family or a Deputy of the Court may also be required to manage the injured party’s financial arrangements.

Need an Expert fast call the FREE Expert Witness Searchline on 0161 834 0017 Expert Witness Established 1996

Conclusion The honest truth (and the whole truth) will always be that the apparently high functioning brain injured client will always present challenges in predicting reasonable needs and the only measure of whether we as Care Experts are ‘getting it right’ will be in the achievements of these individuals some way down the line. Many of these Claimants will choose not to employ or participate with formal care and support after settlement of their claims and will choose their own path, but for the Expert Witness we need to remember that ‘getting it wrong’ could leave this already vulnerable group at risk of further harm.

“I am saddened but not surprised to discover that many studies of British ‘offender populations’ conclude that 50% of inmates have a TBI. In the UK alone that equates to 40,000 imprisoned men with irreversible brain damage”

Maggie Sargent RGN Nursing Care Expert Maggie Sargent RGN is a leading nursing care expert, who in the last 30 years has herself received some several hundred instructions from solicitors to evaluate care for litigation purposes.

She and her associates cover cases involving brain injury, orthopeadic and general body injury, damage at birth and mesothelioma. In these fields they liaise with medical experts, occupational therapists and architects.

In addition to this the team is also involved in case managing clients who have a wide range of nursing and care needs and they can provide costs of case management reports.

All experts have considerable experience of attending conferences and giving evidence in Court.

(From: Touching Distance James Cracknell and Beverley Turner) ■

Maggie Sargent & Associates Darlingscott Farm, Darlingscott, Shipston-on-Stour, Warwickshire CV36 4PN. Tel: 01608 682500 Fax: 01608 682372 Email: office@maggiesargent.co.uk

Jean Phillips Assistant Director & Expert Witness HFH Consulting Ltd

EXPERT WITNESS JOURNAL

81

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 82

The Cost of Losing a Loved One Expert Witness Journal had the pleasure of meeting Sarah Green, Director of Bunbury Care Agency and one of the country’s few experts in domiciliary care.

Sarah has advised on a variety of personal injury and medical negligence cases involving paraplegia, cerebal palsy, schizophrenia, asbestosis and the demise of a parents as well as less serious cases which only require daily domestics or housekeepers. Sarah said to Expert Witness Journal “The cost of replacing the services of a family member, who has suffered personal injury or indeed death, is not always specifically calculated in a personal injury claim, often the cost of replacing the loss of a spouse’s service to their family is vastly underestimated.

Category of work. For those permanently disabled due to an accident or medical negligence they may need their own full or part time personal carer.

It also needs to be considered whether their dependants will need some sort of domestic assistance in order for their relative to remain in their home.

“The true replacement costs are often considerably higher than those put forward to the courts. For example, the true cost of employing a substitute parent could be as much as £25,000 per annum not withstanding the costs of providing house keeping services. The cost of employing a full time carer in the home could be as much as £30,000 per annum.”

“Most Quantum are based on the standard Ogden tables and some Domiciliary Care is not a standard EXPERT WITNESS JOURNAL

82

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 83

A national newspaper recently highlighted a report into the amount of work modern mothers put into raising their families, a job description that would deter even the toughest applicant. â&#x20AC;&#x153;More than seventy hours a week with no holidays and no payment.â&#x20AC;?

â&#x20AC;&#x153;An elderly gentleman was receiving care assistance from a local agency three times a day. Unfortunately an accident occurred and his flat caught fire.

Although he was rescued, he never recovered from the shock and the effects of smoke inhalation. Sadly he died six months later. His son alleged that a carer had left an electric fire unprotected and failed to return that night. My report showed that the Agency had not abided by all the regulations and outcomes set down in the Health and Safety Act 2008 which is regulated by the Care Quality Commission (CQC) and that they were therefore negligent.â&#x20AC;?

The study calculated that hard working mothers would receive a salary of ÂŁ37,000 if they were paid the going rate for their domestic duties. An audit of how the typical mother spends her time revealed that she puts in longer shifts than a junior doctor!

Sarah describes some of her recent cases. â&#x20AC;&#x153;A three year old tragically lost both her parents in separate car accidents. She would have had to be taken into care had her motherâ&#x20AC;&#x2122;s sister not adopted her. Her Aunt who already had two children, got little financial support from the local authorities or any additional Tax Credits. After assessing the loss of the Mothers Services, Quantum was calculated at ÂŁ200,000.â&#x20AC;?

Sarahâ&#x20AC;&#x2122;s cases cover many areas, for instance she took on the case of someone who was facing a five year prison sentence for money laundering but who was a carer for his elderly parents who would have suffered considerable hardship without their son for five years. After much deliberation the court decided to reduce the sentence to 18 months.

The Bunbury Agency have been providing Domiciliary Quantum and Staff Placement Reports to Solicitors for the past twenty five years. Sarah and her staff deal with all their cases in a factual and compassionate way. They are often dealing with very distressing situations and Sarah feels that if she can make a difference it is all worthwhile. â&#x2013;

â&#x20AC;&#x153;A young mother died in childbirth and her husband claimed clinical negligence. He needed a Maternity Nurse followed by an experienced Nanny and Housekeeper. Quantum costs were calculated at ÂŁ640,000.â&#x20AC;?

0* 0-4 -" $"* 4 3,"-/ &/*".. "-1& " ," & (&./ +)& &(& -4 0 */0) *! / ## ( ")"*/

Are you a solicitor or barrister being asked to manage a case or to provide a legal opinion on matters relating to Pre-Hospital Care including Ambulance Services. No matter if it is a public or private sector provider we can provide expert advice and reporting on all clinical and operational aspects of the provision of emergency/primary care and ambulance transportation:

-+#"..&+* ( ",+-/. #+- "-.+* ( *'0-4 ( &).

(!"-(4 -" %&(! -" +0."%+(! -"

Services available from our network of 'Legal system' aware consultants include: â?&#x2013; Initial summary reports on case strength/suitability.

"$&./"-"! 2&/% + &"/4 +# 3,"-/ &/*"..". "$&./"- +# 3,"-/ &/*"..".

â?&#x2013; Full court reports based on provided evidence and/or

statements.

(( - % -""*

â?&#x2013; Provision of Expert Witnesses for court appearances. â?&#x2013; Provision of Experts to provide ongoing advice to legal teams

during a hearing.

) &( "3,"-/2&/*".. 0* 0-4 $"* 4 +) 222 0* 0-4 $"* 4 +) +0/ 0. "3,"-/2&/*"..

For more information about any of these services please contact: Jamie Todd BSc (Hons), MCPara, NAEMT PA 2298 Tel: UK Office: 0845 643 1461 Tel mobile: 07896 946053 E-mail: expert@prehospitalcareconsultancy.co.uk Web: www.prehospitalcareconsultancy.co.uk

EXPERT WITNESS JOURNAL

83

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 84

Examples how Physical Demonstration During a Consultation Helps Clarify the Truth

by Dr Marta Elian (MD) Consultant Neurologist, Clinical Neurophysiology and Medical Counsellor thank you letter unusually.

Case 2 Following a mild head injury after a road traffic accident a 26 year old man allegedly had several generalised convulsions confirmed by his GP’s letter. When asked to demonstrate the event – he did! An Impossibility as generalised convulsions always occur while unconscious.

Case No.1 In the praise of Demonstrating Physically a Neurological Event 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 neighbours teenage son two football publications and returned with a third one. On both occasions the sixteen year old sister opened the door. She remarked having heard what a nice flat he has; she came over to see it spending five minutes in the flat.

To double check I have asked the accompanying witness to imitate/demonstrate what was observed.

The Demonstration well supported my opinion that the convulsions were not organic in nature.

Two days after this brief visit she indicted him to the police that he “intentionally touched her with a sexual nature without her consent.”

I suggested hospitalisation with video recording as final proof. It confirmed what was clinically obvious that we not dealing with genuine seizures.

He first knew about it at the time of the surprise arrest at home and taken into custody for several days.

Dr Marta Elian

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 a narrow doorway.

Consultant Neurologist and Expert Witness

Dr Marta Elian has provided expert witness reports in neurology for over 20 years. Her specialist areas are epilepsy, motor neurone disease, multiple sclerosis and objective smell tests.

His abnormal behaviour – result of the 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.

She is able to give evidence in court for either claimant or defendant and as a Single Joint Expert.

Her experience includes cases involving personal injury as well as disputes over medical negligence.

To save paying for the use of an interpreter, and his/her time consuming service.

Consultations can be conducted in Hungarian, Romanian, German, French, or Hebrew.

This demonstration made it clear the girl was mistaken misinterpreting his Parkinson’s induced behaviour.

Tel: Fax:

Based on my report he was cleared – I received a

0207 722 5508 0207 483 1761

32a Queens Grove, London NW8 6HJ

EXPERT WITNESS JOURNAL

84

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 85

Dr Marta Elian (MD) is a Consultant Neurologist.

Clinical Neurophysiology and Medical Counsellor with special interest in epilepsy and multiple sclerosis. Medical Counselling covers relationship problems, patients diagnosed as having a chronic or a potentially fatal disease and their families, and also Holocaust survivors, victims of torture, rape, fraud and murder.

Case 3 An 18 year old girl complained of reduced sensation on her left side following a work injury.

On examination she said she feels the pin prick less sharp on the left. The change between the two sides was reported beyond the midline a prerequisite in genuine hypaesthesia. However there was a degree of suspicious inconsistency.

Has been involved in medico-legal work since 1998 providing reports to solicitors and the Legal Refugee Centre.

Her reported hypaesthesia was on the left and on the outer side of the examination table. To test it I instructed her to turn back to front as quickly as possible. The Hypaesthesia remained constant with the side of the table not the side of the body.

Dr Elian is able to give appointments quickly, reports within one week. Fluent in English, Hungarian, German, French, Rumanian and Hebrew. Able to communicate in Italian.

For further information please call: 0207 722 5508

Her complaint was dismissed and no compensation awarded.

These are just a few examples how physical demonstration during the consultation helps clarify the truth. ■

Dr Christopher R Plowman Consultant Neuropsychologist BSc, MSc Clin Psych D, CPsychol, AFBPsS As Consultant Clinical Neuropsychologist, I am experienced in the assessment and treatment of a variety of neurological disorders, including; Acquired Brain Injury, Post-Concussional states, Multiple Sclerosis, Motor Neurone Disease, HIV, Dementia, Stroke, and Parkinson’s Disease. I also have expertise in the assessment of Neuro-degenerative Disorders, Traumatic Brain Injuries, PTSD, Dissimulation, Mental Capacity, Fitness to Plead and Fitness to Work.

I have experience of assessing and treating individuals with PTSD and adjustment disorders as a result of, amongst other things; RTA’s, assault, sexual assault, industrial accident, and medical negligence.

I have provided medico-legal reports for over 12 years, and I am Expert Witness accreditation awarded by Cardiff University Law School and Bond Solon September 2009.

Contact: Rachel Plowman (Secretary) PO Box 15858, Solihull, West Midlands B91 9RN Tel: 0121 7070482 Mob: 07753619708 Email: DrPlowman@inbox.com

EXPERT WITNESS JOURNAL

85

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 86

Rebuilding Lives after Injury

by Rachel Lund, Director OTC The purpose of any personal injury litigation (including clinical negligence) is, as far as is reasonably possible, to put the injured party back in the position they would have been in but for the injury, by means of financial compensation.

Identifying the financial compensation to achieve this, requires a highly skilled assessment of the partyâ&#x20AC;&#x2122;s previous, current and future lifestyle; and an evaluation of how the personal injury or clinical negligence has affected the lives of the injured party by a suitably qualified expert witness. The report of the assessment will include recommendations that enables the party to achieve, as far as is EXPERT WITNESS JOURNAL

reasonably possible, a place they would have been in but for the injury, by means of financial compensation.

The financial compensation is based on recommendations following an evaluation of the partyâ&#x20AC;&#x2122;s current physical, psychological, social and environmental status. The report will identify the effects of the injury on daily living functioning in personal and domestic responsibilities, psychosocial and leisure skills and clarify therapy and care needs required since the injury and in the future.

86

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 87

made regarding previous and current medical status; the social situation, including immediate and extended family, and education and employment history is taken into account.

Occupational Therapistâ&#x20AC;&#x2122;s Skills The occupational therapist is ideally placed to undertake these assessments as they will have attained a professional science degree and worked in health and social care organisations, gaining expertise in a variety of disabilities. They are regulated by the Health and Care Professions Council.

The assessment includes a current clinical profile outlining neuromuscular, sensory integration and cognitive function. Personal tasks include past and present grooming and hygiene, dressing, eating and drinking, functional communication, object manipulation, transfers / mobility and transport.

Emotional and psychosocial skills are identified as they can also have an influence on daily functioning, relationships and social skills.

Occupational therapy takes a whole-person approach to both mental and physical health and wellbeing. Input from an occupational therapist enables individuals to identify and progress towards achieving their full potential. This process puts the occupational therapist at an advantage when considering the recommendations, having taken account of all reasonable eventualities and analysis of effectiveness and outcomes.

Occupational therapists have a critical role in helping people of all ages to overcome the effects of disability. This involves working with adults and children of all ages with a wide range of disability caused by physical or psychological illness, ageing or accident and could include mental health illness, physical or learning disabilities.

The domestic skills section includes the pre-morbid position in a household and the current position regarding shopping, meal preparation, laundry, cleaning, house and garden maintenance. The current housing situation, leisure interests and holiday history, the previous and current therapy situation, are all discussed and recorded.

By establishing the medical and therapy history and the pre-morbid and current situation in each section, equipment needs can be recommended.

These facts allow calculations to be made as to retrospective and future care needs for the tasks that the injured party is unable to achieve independence in, despite the equipment recommended.

Occupational therapists take a critical role in helping people of all ages to overcome the effects of disability, find solutions to everyday problems, advice on approaching a task differently, using equipment or assistive technology, adapting living or working environments, and finding strategies to reach chosen goals. Consideration also includes a comprehensive evaluation of a clientâ&#x20AC;&#x2122;s home, school or work place. Tasks are divided into the separate actions required to make up the whole task so that difficulties can be analysed.

Considerations affecting the assessment Background There is a need to report the main points of the pre-morbid position, the index incident itself and the treatment and therapies undertaken to date.

This ensures that the report reads as a complete document. However instructing solicitors do not require a detailed analysis of all events. A general description of the pre-existing medical problems and the highlights of the events since the index incident are suffice to give a background of the current position.

Intervention is customised to improve performance of daily living activities and tasks, and to enable achievement towards personal goals and build a sense of identity. This includes adaptive strategies and equipment, advice and training, guidance and education to those caring for the injured person.

The holistic approach focuses on adapting the environment to the injured personâ&#x20AC;&#x2122;s needs to maximise their independence and full potential.

Occupational therapists can make a difference to a life, giving a renewed sense of purpose, opening up new horizons, and changing the way a person feels about the future.

Provision to date This should include the involvement of other professions in both statutory and private organisations and the perceived effectiveness of their intervention and ongoing involvement with the injured party. Therapeutic input may not have achieved the goals set out, the input may not have been robust enough or may be financially constrained, and provision may have been restricted as a result of staffing difficulties or problems with service delivery. These constraints have a direct

The Assessment for the Report The injured party is assessed based on the injuries that have been sustained along with specific treatment and therapies received. Consideration is EXPERT WITNESS JOURNAL

87

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 88

deficits. Cognitive function includes orientation in time and space, concentration, memory and insight. These will influence cognitive integration which includes problem solving, judgement, organisation and planning.

bearing on the recommendations for the future made in the report if a need is identified that cannot be realised.

Medical status The current medical status identifies the problems encountered in the present and the severity of those difficulties. The level of bladder and bowel continence and how that is managed, which include awareness of the need; mobility to access the nearest toilet; physical ability to transfer on and off the toilet, assistance with clothing, wiping and redressing. Other medical considerations could include skin problems, epilepsy, pain management, sleep and appetite problems that can have a marked influence on daily life. Further consideration are the influences of environmental factors such as heat, cold or noise and the effects of the injured party’s emotional adjustment, personal habits such as smoking, alcohol and drug intake and prescribed medication can all have an influence on their current functional status.

Recommendations Personal daily living tasks Having established the current level of functioning the next stage is to establish how to improve the situation by identifying how this influences personal daily living tasks and discuss and offer solutions to these difficulties, with the aim of increasing independence. This involves a detailed assessment and discussion on all grooming and hygiene, eating and drinking and dressing tasks, as well as receptive and expressive communication in its many forms plus transfers, mobility and transport. In each category a detailed analysis is required to ascertain the specific difficulties and what alternatives can be offered to increase independence. This could include rails, a shower seat, bath aids, specialist cutlery, alteration to clothing, use of information technology, progressing to how the injured party mobilises in and out of or on and off everyday items such as beds, chairs, baths, cars or negotiating steps and stairs. Recommendations can then progress to walking aids, wheelchairs for indoors and outdoors and transport needs for driving a vehicle or travelling in a vehicle with other equipment required on each journey. There are specific adaptations that can be made to equipment that would enable the injured party to manage independently and without it they would be dependent on another person for these tasks.

All these need to be considered in the recommendations.

Social status The family situation and their dependents influences the support required within the family, alongside the roles they would have undertaken in their own lives. Family members may have to give up paid employment or a business, and retired parents may have to alter their own plans to recommence their previous supportive role within the family. This takes the effects of the index incident into the extended social environment and skill is required to ensure that, as the structure of families becomes more complicated, that these are taken into consideration. Educational, work and employment history identifies ambitions, hopes and dreams that will need to be supported and reconsidered in the recommendations.

Emotional and psychosocial skills Any traumatic event will have an emotional effect on a person’s ability to function on a daily basis.

The pre-existing personality, self-awareness and confidence will influence the inevitable effects of a traumatic event on a person’s emotional and psychosocial skills and their ability to adjust emotionally and function in daily life. This can include feelings of grief and a sense of loss, a sense of vulnerability, a change in perception about future plans, how stress is handled, mood experienced day and night, perceptions of the needs of others, dependency, how they interact with those closest to them or socially outside the immediate household.

Physical assessment Height and weight are considered with orofacial function which includes swallow and sucking.

Spinal function in the cervical, thoracic and lumbar regions with upper and lower limbs need to be assessed for range of movement, muscle tone and power and dexterity / gait pattern. These all effect an injured party’s ability to mobilise within their own environment and outdoors.

Sensory assessment Sensory integration identifies touch, proprioception (awareness in space), with ocular control with auditory, olfactory and gustatory awareness with postural balance to ascertain any neurological EXPERT WITNESS JOURNAL

88

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 89

experience difficulty remembering what they did for their disabled child in comparison to a sibling that is uninjured. This section often requires a sensitive and timely approach to encourage recall gradually to maximise the accuracy of the care provided.

Domestic daily living task/homemaking/work The basic needs of households for shopping, meal preparation, laundry and cleaning will be influenced by a disability to some degree or another. Alternatives need to be recommended to maximise independence in tasks undertaken prior to the index incident, which could include kitchen gadgets specific for someone with a disability, or adjusting the environment to allow for maximum use of the kitchen. Household and garden maintenance are also included in this section and the pre-existing position will influence the recommendation. Where no alternatives are possible the shortfall of need is transferred to the care section where assistance will be required, calculated and costed. Recommendations may be required for work responsibilities such as parenting, employment or a caring role.

Care and assistance required in the future is based on the assessment of the current functional situation and the level of independence that each recommendation is likely to provide. The effectiveness of each item of equipment, or the therapy provided with adaptations to the environment offers the injured party the maximum opportunity to put them back in the position they would have been in but for the injury, by means of financial compensation as far as is reasonably possible.

Opinion

Housing/leisure/rehabilitation The specifics of the environment in which the injured party lives usually becomes increasingly important in how they function. It is vitally important that the injured party is able to maximise their independence within their home, and adaptations may be required to allow for this.

Reorganising part of the environment or repositioning items even a few inches can have a positive effect in the life of someone seeking to regain as much of their previous lifestyle as possible.

My experience in light of the Jackson Review, is that requests for occupational therapy/care reports are as high as ever. In major multi-million cases the recommendations of the occupational therapist are the highest proportion of the claim, which is usually the care and assistance required by the injured party. In light of this, the current Law S ociety Commission (LSC) codified rate for occupational therapists is ÂŁ68 per hour, with a proposed further 20% reduction to ÂŁ54.40 per hour is frankly an insult to the professionals involved and many refuse to accept instructions at that rate. Furthermore this is not supported by The College of Occupational Therapists and furthermore it is less than the cost of a junior occupational therapist working in the NHS! Expert fees should reflect the complex nature of the work described in this article. If this is not recognised, the injured party, having been seriously injured through accident or clinical negligence, could be adversely affected. The injured party requires the appropriate professional representation to identify their disability related needs with reasonable and robust recommendations and detailed costings, to be presented to the Court.

Leisure pursuits and social activities often have to be reviewed and adjusted to accommodate a disability or the chance to re-establish ambitions and interests. These could also include opportunities for rehabilitation to be undertaken in a leisure pursuit, such as Riding for the Disabled, swimming or a specialist activity holiday. Therapy input is included in the recommendations to allow rehabilitation to continue, to minimise deterioration and monitor functional progress.

Retrospective and future care The need is based on the need for assistance following a traumatic incident, events during the recovery period and adjustment to permanent disability in the life of the injured party. Provision of care and assistance can come from immediate family, extended family, friends and neighbours. It is often difficult to ascertain what was provided, by whom, and for how long. Caring for a loved one is a natural human response and is difficult for some families to accurately recall what they did naturally.

For example, parents of a disabled child can EXPERT WITNESS JOURNAL

In a different role as a case manager working with families after settlement, the need for specialist expertise continues to be required, to ensure that the recommendations are implemented, taking account of the familyâ&#x20AC;&#x2122;s current situation and future plans. This role keeps an expert witness firmly grounded in realistic outcomes and further enhances the expertise required to assess and write authentic medico legal reports.

89

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 90

The role of the case manager is to assist the injured party and their family to rebuild their lives which can include a move to more suitable accommodation, purchase of suitable equipment and gradually establish a care regime with paid assistants who are suitably trained, supporting the care provision at home. For people who are unable to undertake paid employment, research is required into activities that can be accessed within the community environment. In addition the case manager would ensure all therapy and agencies involved achieve an overall team perspective, whilst acknowledging cost effectiveness. The appointment of an occupational therapist as the case manager also enables the injured party, their family and support workers to receive regular advice on equipment needs.

Miss Helen Marie Fernandes MB BS FRCS (Sn) MD

Consultant Neurosurgeon Consultant Neurosurgeon with Addenbrooke’s NHS Trust Cambridge since 2002, with Neurosurgical experience from 1995. I deal with general neurosurgical problems, am lead Paediatric Neurosurgeon and also have a major interest in complex Spinal Problems. I am Visiting Consultant in Neurosurgery at four other nearby Hospitals, was Associate Director of Postgraduate Education for Addenbrooke's Hospital until 2012 and Honorary Visiting senior Research Fellow at the University of Cambridge and University of Edinburgh. I was recently awarded the Greg Wilkins Barrat International Visiting Surgeon award by the American Association of Neurological Surgeons and was recognised in the Times Newspaper as one of the Top 50 UK surgeons in 2011 and Top 100 Children’s Doctors in 2012. I have a research background and have published to my peers.

I have experience in writing reports as an expert witness since 2002, mainly in Personal Injury cases (ratio: claimant 50%, defendant 40%, joint 10%), Paediatric non-accidental injury (prosecution 40%, defendant 40%, joint 20%) and Medical Negligence (claimant 30%, defendant 70%) and have made several court appearances in that capacity.

The critical role of occupational therapists, helping people of all ages to overcome the effects of disability is a privilege, to be able to use professional skills to make a difference to those who have experienced a traumatic, life changing event and assisting them to rebuild lives after injury. ■

Contact: Mrs Annie Bannister Tel: 01223 416 393 Fax: 01223 411 223 Email: helen.fernandes@addenbrookes.nhs.uk Department of Neurosurgery, P O Box 166, Addenbrookes Hospital, Hills Road, Cambridge CB2 2QQ

Dr Roger Slater Consultant in Anaesthesia & Intensive Care

MBChB. BSc. MRCP. FRCA. FICM Consultant in Anaesthesia and Intensive Care in NHS practice since 1989.

Preparing medico-legal reports for 15 years.

Has published peer review papers and articles in anaesthesia and intensive care practice.

Tel: 07710 280 348 E-mail: rogermslater@btinternet.com Correspondence address: Church Lodge Little Wenlock Telford TF6 5BD

EXPERT WITNESS JOURNAL

90

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 91

Nurse Expert Witness Service and Medico – Legal Service Established in 2013, Apex Health Associates has quickly established a reputation as one of the UK’s leading medico legal support companies.

We combine healthcare and legal expertise to provide outstanding professional support services to clinical negligence and personal injury firms, and offer added value and innovation to clients.

Our highly experienced team of senior nurses provides clear and expert witness reports specialising in liability cases for nursing and health, and all complying with the Civil Procedure Rules part 35.

We began life as a medical notes and records processing company, and were established by directors Scott Lister and Jamie Borg. Both worked in senior positions in the NHS in London and around the UK for many years, giving them a wealth of clinical expertise and knowledge. Scott is also dual qualified as a non-practising solicitor, having worked for several Tier 1 City of London clinical negligence and personal injury firms, therefore bringing useful insight into the needs and expectations of instructing solicitors.

Our Expertise We pay particular attention to detail and ensure quality checks are in place to ensure reports are accurate, objective and address all the issues required.

Nurse expert witnesses: liability and quantum service Our Chief Nurse, Rhian Evans, brings her many years’ experience of clinical work in the UK and overseas to her role managing our expert nurse witness service. Rhian has been closely involved in recruiting and organising training for the expert nurses on the Apex Health Associates’ panel.

Apex Health Associates’ highly experienced panel of senior registered nurses can provide expert witness reports. We specialize in liability and quantum cases for nursing and health, and all reports comply with the Civil Procedure Rules part 35. Because we only engage senior clinicians who maintain clinical practice in their area of expertise and undertake continuous CPD, we know that we are offering clients the best possible support in assessing and managing cases or preparing for litigation.

EXPERT WITNESS JOURNAL

91

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 92

Our specialities include • mental health • wound care and wound management, • medication errors, • nursing negligence, • hospital acquired infection, • care of the older person (including falls) • personal injury including manual handling and lifting injuries • bariatric • practice nursing • community nursing • medical and surgical nursing • palliative care • accident and emergency • intensive care • respiratory care • paediatrics • plastic surgery • cosmetic/aesthetic

Secure online records system Soon after establishing Apex Health Associates, we received a package of notes and records that had been badly damaged in transit. We realised that the risks of sending patient data in this way were considerable: as well as loss, theft or damage in transit, notes could be lost when in the possession of third parties such as experts. As well as jeopardising patient confidentiality, data loss could expose law firms to complaints, reputational damage or penalties from the ICO. Furthermore photocopying notes can cause vital information to degrade, and handling large document bundles is difficult, laborious and potentially confusing.

Our secure online records system uses innovative technology to significantly reduce the risks and costs associated with handling paper records.

Records are scanned to litigation standard and checked for quality and accuracy, while radiology images are embedded for easy access. The scanned records are then encrypted and hosted in a highly secure data centre using dedicated UK servers and backups to ensure the security and integrity of confidential personal data.

In order to further ensure quality, we only invite nurse expert witnesses to join our panel following a rigorous recruitment and vetting process. All of the expert nurses are clinically credible and practice at a senior level. We have also developed our own bespoke training programme to provide the expert nurses with up to date information and education.

All of the nurse experts are available for instruction and can complete breach of duty reports on an average turnaround of 6 – 8 weeks. Shorter timeframes can be negotiated where necessary.

Instructing solicitors can access records (and share them as appropriate with experts or defendants) using secure ID and password protection.

Photocopying and postage costs, as well as the risks of loss or damage are thereby eliminated, while time spent preparing bundles is also reduced.

Accessing and sharing one electronic copy avoids possible confusion among users.

Medical notes and records

A successful first year

Unlike other companies offering medical notes and records services we only work with practising nurses who are registered with the NMC and have considerable post-qualification experience. As such we were the first medical notes and records company to insist on this criterion as one of several quality assurance indicators. Apex Health Associates therefore brings a uniquely high level of clinical expertise to the sorting and pagination of notes and records, and a professional insight that informs the production of detailed or summary chronologies. This allows us to liaise with clients to identify key clinical issues that may otherwise be missed by litigation teams, allowing cases to be managed effectively and facilitating the instruction of experts.

Since its establishment just over a year ago, Apex Health Associates now employs a team of four people, with access to a wider team of freelance consultants around the UK. Our panel of expert witnesses is growing steadily.

EXPERT WITNESS JOURNAL

Our clients include some of the industry’s leading personal injury and clinical negligence firms.

Alongside several major City of London firms, we are also retained by a number of large regional practices as well as smaller firms. Levels of repeat business are extremely high and much of our new business comes from word of mouth referrals.

During the last 12 months we estimate we have sorted and paginated over 100,00 pages of medical notes and records. Our secure online records service is used by most of our clients, and has 92

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 93

Apex Health staff, from left to right, Jamie Borg Scott Lister and Rhian Evans.

Come and say hello to the Expert Witness Journal staff at the Bond Solon Annual Conference

avoided the physical transit of multiple files of patients’ personal clinical data since its launch in January. Our nurse expert witness service only launched in mid-July but is already very active.

We maintain excellent industry relationships, including facilitating networking between healthcare and legal professionals, providing volunteer support on the AVMA helpline, and organising teaching sessions in several leading hospitals. Our combination of high level clinical and legal expertise allows us to offer a range of services and level of quality that our rivals simply cannot match, and we are looking forward to a bright future and steady, sustainable growth. ■

Friday 7 November 2014 At The Church House Conference Centre, Westminster, London, SW1P 3NZ.

Visit our webpage at: www.apexhealth.net email: info@apexhealth.net Tel: 020 36332213 NURSE EXPERT WITNESS SERVICE Clear and concise reports of specialist nursing opinion

Mr Ian Nelson Consultant Orthopaedic Spine Surgeon

$SH[ +HDOWK $VVRFLDWHV· QXUVH expert witnesses are highly TXDOLÀHG DQG H[SHULHQFHG QXUVHV who practice at a senior level around the UK.

MB BS, MChOrth, FRCS

Owned and managed by senior nurses, we have expert and detailed knowledge of clinical, medical and nursing care issues.

He has regularly written Personal Injury reports as instructed by claimant and defendant solicitors since 1988. He has appeared in Court on two occasions in 2012. Mr Nelson restricts his area of medicolegal expertise to all aspects of spine injuries and disorders

Mr Nelson has an excellent knowledge of general Orthopaedics with a special interest in spine surgery.

We offer specialist opinion across a wide range of disciplines, and all reports comply with Civil Procedure Rules Part 35.

Contact: Level 2, Gate 6, Brunel Building, Southmead Hospital, Westbury on Trym.

Bristol, BS10 5NB

For more information please visit www.apexhealth.net or telephone 020 3664 9659 or 020 3663 9392.

Tel: 0117 414 1620 Contact: Mr Ian Nelson Secretary Mrs Mary Burns Email: mary.burns@nbt.nhs.uk Web: www.bristolspinesurgery.com

EXPERT WITNESS JOURNAL

93

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 94

New Eye Disorder Innovation from UCL Drugs used to treat blindness-causing disorders could be successfully administered by eye drops rather than unpleasant and expensive eye injections, according to new research led by UCL scientists that could be a breakthrough for the millions worldwide suffering from age-related macular degeneration (AMD) and other eye disorders.

UCL Institute of Ophthalmology The NHS is currently overburdened with patients who need repeat eye injections and the numbers are set to rise exponentially over the next ten years.

Demand is so high that injections are difficult to administer, time-consuming and very expensive.

The treatment also carries a risk of infection and bleeding, increased by the frequency of recurrent injections into the eyes.

1 in 5 people over 75 have AMD with well-known sufferers including actress Dame Judi Dench and author Stephen King. The research findings are significant due to growing patient numbers and an increasing demand for the eye injections that halt the progression of the disease.

In the USA, well over one million ocular injections were given in 2010. In the UK, 30,500 injections were estimated to have been given in 2008 – a 150fold increase in 10 years.

The research, demonstrated in animal models and published today in nanotechnology journal Small, demonstrates that it is possible to create formulations of tiny nanoparticles loaded with the AMD drug Avastin and deliver significant concentrations to the back of the eye.

Effective delivery of drugs to the retina of the eye is considered one of the most challenging areas in drug development in ophthalmology, due to the presence of anatomical barriers. It was previously

Lead author Professor Francesca Cordeiro (UCL Institute of Ophthalmology) said: “The development of eye drops that can be safely and effectively used in patients would be a magic bullet – a huge breakthrough in the treatment of AMD and other debilitating eye disorders.

Mr Jeffrey S Hillman Consultant Ophthalmic Surgeon MB ChB DO FRCS (Edin) FRCOphth I am a Consultant Ophthalmic Surgeon and was an NHS Consultant at St James's University Hospital and Hon Senior Lecturer in the University of Leeds for 25 years and continue in private practice. My interests are general ophthalmic medicine and surgery with special interests in cataract surgery, intraocular lenses and glaucoma as well as trauma and medical negligence.

“The current treatment of injecting drugs into the eye is uncomfortable, detested by patients and often needs repeated monthly injections in hospital for as long as 24 consecutive months. It’s impossible to exaggerate the relief patients would feel at not having to experience injections into their eyes.”

I have been preparing reports supported by Literature references in personal injury and medical negligence cases for over 20 years.

Between 1992 and 2012 I have advised in 1118 cases, 66% for Claimants solicitors and 30% for Defendants solicitors and 3% on joint instruction to bring my figures up to date.

I have a rapid response facility for cases with tight time constraints.

“The development of eye drops that can be safely and effectively used in patients would be a magic bullet – a huge breakthrough in the treatment of AMD and other debilitating eye disorders.

EXPERT WITNESS JOURNAL

Contact: 135 Wigton Lane, Leeds, West Yorkshire LS17 8SH Tel: 0113 268 9601 Fax: 0113 237 0884 Email: Jeffeye@btinternet.com Website: www.mrhillman.com

94

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 95

thought that drugs used to treat AMD such as Avastin and Lucentis have molecules that are simply too large to be effectively transported in an eye drop.

The paper includes functional data showing that the avastin administered stops the blood vessels from leaking and forming new blood vessels, the basis for wet AMD.

First author Dr Ben Davis (UCL Institute of Ophthalmology) added: “There is significant interest in the development of minimally invasive systems to deliver large drug molecules across biological barriers including the cornea of the eye.

This technology has been patented by UCL’s technology transfer company UCL Business and the researchers are seeking commercial partners to accelerate development. ■ Links The UCL Institute of Ophthalmology is the oldest and largest centre for ophthalmic treatment, teaching and research in Europe. The Institute has been awarded the highest possible rating by HEFCE during the last three Research Assessment Exercises (5**) and has received the Queen's Anniversary Prize for its achievements. As well as world-class research, we are involved in graduate training of research students (MD, MPhil, PhD) and UCL undergraduate and taught graduate teaching - because the researcher of tomorrow is critical to our goal of improving sight.

“We have shown in experimental models a formulation system to get substances including Avastin across the barriers in the eye and transport them across the cells of the cornea. In theory, you could customise the technology for different drugs such as Lucentis, commonly used for AMD treatment in the UK, as it is a smaller molecule than Avastin so likely to be delivered effectively via this method.

“All the components we used are safe and well established in the field, meaning we could potentially move quite quickly to get the technology into trials in patients – but the timescales are dependent on funding.”

Visit www.ucl.ac.uk for more information

Mr Anwar Zaman

Consultant Ophthalmic & Retinal Surgeon

Professor Charles Claoué

MA, MRCP, FRCOphth.

Consultant Ophthalmic Surgeon BA, BChir, MB, MA (Cantab), DO, MD, FRCS (Eng), FRCOphth, FEBO, MAE.

Anwar Zaman is a Consultant Ophthalmic Surgeon and the Clinical Director at the University Hospital, Nuffield Hospital and Park Hospital in Nottingham.

Specialising in; 1) Advanced Cataract Surgery: Surgery for Astigmatism, Multifocal and Accommodating Intra-Ocular Lenses; Small Incision Surgery (Phakoemulsification) and "No Needle No Patch No Stitch" Surgery.

His experience includes cataract surgery, medical and surgical retina as his areas of expertise.

2) Excimer Laser and other Refractive Surgery Techniques for Myopia, Hyperopia, Astigmatism and Presbyopia; PRELEX and LASIK.

He has published many papers within his areas of expertise and has been performing medical legal work for 12 years.

3) Corneal Disease and Surgery including Corneal Transplants/ Grafts, Anterior Segment Reconstruction.

Reports for medicolegal work are available, including personal injury and medical negligence cases. Professor Claoué is a Bond Solon and Professional Solutions trained medical expert witness in ophthalmology, and a Member of the Academy of Experts.

Contact: Secretary: 0115 919 1039 Tel: 0115 924 9924 Ext 44827 Email: anwar.zaman@nuh.nhs.uk

Contact: Miss Nadia Bouras Tel: 020 8852 8522 Fax: 020 7515 7861 Email: eyes@dbcg.co.uk Web: www.dbcg.co.uk D.B.C.G. (UK) Ltd 36 New Atlas Wharf, Arnhem Place, London E14 3SS

Address: Queens Medical Centre University Hospital, Nottingham, NG7 2UH

EXPERT WITNESS JOURNAL

95

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 96

Novel Device Successfully Treats Central Sleep Apnoea in Heart Failure Implantable system improves sleep and heart function with no mask required A novel device implanted under the skin like a pacemaker successfully treats central sleep apnoea (CSA) in heart failure patients, according to research presented today at the Heart Failure Congress 2014, held 17-20 May in Athens, Greece.

The Congress is the main annual meeting of the Heart Failure Association of the European Society of Cardiology.

The one year results of the remede® system pilot study were revealed for the first time by lead author Professor William T. Abraham from the Ohio State University.

He said: “The remede® system is the first fully implantable device to treat central sleep apnoea in heart failure patients. Unlike traditional mask based therapies – which have been shown to work only in some patients under certain conditions in CSA – the remede® system is acceptable to patients and improves their sleep and heart function.”

He added: “Patients using the device tell us they haven’t slept so well in years. They have more energy and can do their normal daily activities without falling asleep. They also don’t have to fight with a mask.”

CSA is a comorbidity in approximately 35% of heart failure patients and doubles the risk of death.

Until now there was no proven treatment. The remede® system uses unilateral transvenous phrenic nerve stimulation to prevent CSA before it occurs. The pulse generator is implanted under the skin like a pacemaker, just below the collar bone, and a wire is threaded into one of the veins near the phrenic nerve.

Professor Abraham said: “The device stimulates the diaphragm via the phrenic nerve, causing the diaphragm to contract. It regularises the patient’s breathing pattern throughout the night, rather than waiting until the patient stops breathing to react.”

The remede® system pilot study was a prospective, multicentre trial in 46 patients with moderate to severe CSA who were implanted with the remede® system. The primary endpoint was a reduction in apnoea hypopnea index (AHI) at three months

EXPERT WITNESS JOURNAL

96

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 97

compared to baseline with six and 12 month data also collected.

heart became stronger, with significant improvements in left ventricular ejection fraction. Professor Abraham said: “These are changes that generally correlate with improvement in long term clinical outcomes.”

The one year results, revealed today, show that the remede® system led to substantial benefits in sleep parameters including a reduction in AHI, a reduction in the time spent with low blood oxygen levels overnight, and improvements in sleep efficiency and REM sleep.

He continued: “The major problem with mask based therapies such as continuous positive airway pressure (CPAP) is patient acceptance and compliance. Up to 50% of patients can’t or won’t wear a mask so their sleep apnoea is untreated or inadequately treated.”

The remede® system also improved important cardiac endpoints such as heart rate variability, which is a measure of autonomic balance. Patients were less sleepy and their quality of life improved, according to the Minnesota Living with Heart Failure Quality of Life questionnaire.

Professor Abraham concluded: “All heart failure patients should be screened for sleep apnoea and those with OSA should be offered a mask based therapy. Patients with CSA are good candidates for the remede® system which can improve their sleepiness, quality of life and potentially their clinical outcomes.”

Professor Abraham said: “Patients with the remede® system feel better, they are less symptomatic, their quality of life is improved, and the underlying mechanisms that lead to heart failure progression such as autonomic imbalance are improved.”

The pivotal trial for US regulatory approval is ongoing and is set to enroll around 150 patients in the US and Europe. Results are expected by the end of 2015.

Favourable effects on the structure and function of the heart, called reversed remodelling, were also demonstrated. In patients with the implantable device, the heart got smaller, the left ventricular diastolic volume decreased significantly and the

Authors: ESC Press Office Jacqueline Partarrieu - press@escardio.org Tel: +33 6 22 83 45 76

Dr Khalid Mahmood Consultant Cardiologist MB ChB MRCP (UK) Mr Khalid Mahmood is a Consultant Cardiologist and the clinical lead for cardiology at The Solihull Hospital in the West Midlands.

He has experience in Non Invasive and Invasive Cardiology including a lead role in the Transoesophageal Echocardiography service, supportive roles in stress Echocardiography, pacemaker clinics and cardiac CT service.

Mr Mahmood is proficient in permanent pacemaker insertion, cardiac catheter work, diagnostic catheterisation (left and right heart) and has experience in interventional cardiology.

Mr Mahmood has clinical governance expertise as lead in quality control of transoesophageal echocardiography. He is involved in audit, informal appraisals with senior colleagues and attendance at grand rounds/MDT meetings.

Tel: 07795 460 224 Email: khalidmahmood99@hotmail.com Spire Parkway Hospital 1 Damson Parkway, Solihull, West Midlands B91 2PP

EXPERT WITNESS JOURNAL

97

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 98

The Shape of Things to Come: Study Predicts Increase in Adult Obesity Prevalence in Almost all European Countries by 2030 Ireland among those with highest projected rates Rates of obesity and overweight in both male and females are projected to increase in almost all countries of Europe by 2030, according to a statistical modelling study. However, the forecast rates vary throughout the 53 Euro-region countries, with projected male obesity levels ranging from 15% in the Netherlands and Belgium, to 47% in Ireland. The highest obesity prevalence in females was projected in Ireland (47%), and the lowest in Romania (10%).

In almost all countries the proportion of overweight and obesity in males was projected to increase between 2010 and 2030 - to reach 75% in UK, 80% in Czech Republic, Spain and Poland, and 90% in Ireland, the highest level calculated.

The lowest projected levels of overweight and obesity were found in Belgium (44%), and the Netherlands (47%). Similar trends in overweight and obesity were projected in women, with Ireland again showing the greatest proportion (84%).

The study, from investigators which included the WHO Regional Office for Europe, was presented at the EuroPRevent congress in Amsterdam in May 2014, by Dr Laura Webber from the UK Health Forum in London.(1,2)

Similarly, the projected proportions of male obesity were found high in Ireland (58%), Greece (40%), Czech Republic (38%) and UK (35%). The lowest male obesity prevalence was projected in Romania (10%).

In reviewing the results, she said: "Our study presents a worrying picture of rising obesity across Europe. Policies to reverse this trend are urgently needed."

The study also highlighted several other trends, notably that the projections "show little evidence" of any plateau in adult obesity rates throughout Europe. In England, for example, although the increase in obesity prevalence trend is less steep with recent data than with historical data, levels are still set to rise and rates in 2030 and will be much higher then than in 1993.

Behind her concerns lies a statistical modelling study which incorporated all available data on body mass index (BMI) and obesity/overweight trends in all 53 of the WHO's Euro-region countries. Such modelling, said the authors, "enables obesity trends to be forecast forward providing estimates of the dynamic epidemiology of the disease". Definitions were based on the WHO's standard cut-offs healthy weight (BMI ≤24.99 kg/m²), overweight and obesity combined (BMI ≥25 kg/m²) and obesity (≥30 kg/m²).

EXPERT WITNESS JOURNAL

In explaining the variations in projected obesity levels between countries the investigators note the possible effect of "economic positioning" and "type of market". " The UK and Ireland, where obesity prevalence is among the highest, possess unregulated liberal market economies similar to the US, where the collective actions of big 98

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 99

multinational food companies to maximise profit encourages over-consumption,â&#x20AC;? they write. "The Netherlands, Germany, Belgium, Sweden, Denmark, Finland and Austria possess more regulated market economies." Obesity is, however, a multi-factorial disease.

Commenting on the public health implications of the study, Dr Webber said: "Given the complexity of obesity, the United Nations has called for a whole-of-society approach to preventing obesity and related diseases. Policies that reduce obesity are necessary to avoid premature mortality and prevent economic strain on already overburdened health systems. The WHO has put in place strategies that aim to guide countries towards reducing obesity through the promotion of physical activity and healthy diets."

She added that the results of the present study may be underestimates "given what we know about increasing prevalence of overweight and obesity in childhood across Europe", as well as the poor data availability in many countries with which to make more certain estimates of the future. â&#x2013; Authors: ESC Press Office E-mail: press@escardio.org Tel: 00 33 6 25 24 60 27 European Society of Cardiology

Dr J Harry E Baker Consultant in Rehabilitation Medicine & Spinal Injuries BSc, MB BS, LLM, FRCP.

Consultant to University Hospital of Wales NHS Trust (at Rockwood Hospital) since 1985.

Particular areas of expertise spinal injuries (acute management and rehabilitation), head injury, rehabilitation, amputee rehabilitation, pain states in relation to foregoing.

Experience includes advising on accident site handling (NHS and VAS ambulance services) and in relation to prevention and handling of recreational spinal injury.

Reports prepared for quantum, for causation, for negligence especially in relation to aquatic, equestrian, motorsport and recreational injury; immediate handling post accident; medical negligence.

Experience in preparing reports, conferences, giving evidence in Court, single joint expert, post Woolf reforms.

Tel: 02920 578 091 or 02920 554 167 (inc link) Fax: 02920 553 034 Mobile: 07970 636 493 Email: milfield@aol.com 56 Bridge Street, Llandaff, Cardiff, South Glamorgan CF5 2EN

EXPERT WITNESS JOURNAL

99

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 100

Failure to Examine the Evidence: The Importance of the Accurate Report of the Medical Expert Witness Dr Angus Strover FRCS gives an in-depth overview Practitioners five Radiologists and several independent Physiotherapists who treated the Claimant over a period of five years.

Introduction 1. The duty of an Expert Witness is to supply his/her opinion to the Solicitorsfor the Claimant or Defendant so that, based on the relevant facts, an unbiased judgement may be made at Court.

7. The plethora of written reports and letters between the professional staff treating the Claimant and the eight admissions to Hospital with the attendant nursing reports, the ward charts physiotherapy records and the pathology, radiology and theatre records that the Expert Witnesses had to scrutinise became a Herculean task which was difficult to be achieved in the time constraints required by the Court.

2. A doctor may be judged to have been negligent in the treatment of a patient because the Judge may have relied heavily upon the opinionof the Expert Witness for the Claimant without questioning the factual evidence that had been used to support the opinion of the Expert Witness.

8. The Court Case resulted in an obvious misjudgement based entirely on the opinions of the Expert Witness whose report was used unchanged by the Solicitors for the Hospital (First Defendant) and the Solicitors for the Claimant

3. In this respect the Expert Witness for the Claimant is in a very responsible position in the decision-making of the final judgement of the case.

4. In the illustration which I supply, the case went to the Appeal Court at which the Judge said “In this case there is no realistic prospect of changing the Judgment. The Judgment stands without review.”

9. The total facts were never displayed as evidence in Court and the final judgment was surprising in the extreme . I will give the order of events and a summary of evidence as shown by the Hospital records from the three hospitals involved, the five surgeons ,the Physiotherapy records and the radiographs from the three venues.

5. The Judge had read the opinions of the well-qualified Expert Witness for the Claimant.

However , during the 5 years during which the Claimant underwent 10 operations with more than 30 separate radiographs it would have been imperative for the Expert Witness to relay the evidence to the Court in chronological order.

10. I hope that the case record will be interesting and informative. All names and places shall be “anonymised “ but the time-scale between which the 10 operations were performed shall be approximately correct. Enjoy the reading and please return your answers to the questions of each episode.

Angus Strover FRCS.

6. In fact the Statement of the Expert Witness for the Claimant was based upon information gathered from the records of three hospitals, four Orthopaedic Surgeons, two General EXPERT WITNESS JOURNAL

100

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 101

3. The Operation: An operation to correct the high riding patella of the left knee was arranged as a “short stay” case in a private Hospital.

The Case History 1.The Claimant: The Claimant is a business man 46 years old.

Presenting symptoms: pain in both knees referred to a well-known Knee Surgeon in a large central town.

4. The Anaesthetic: The operation was performed under general anaesthetic and a femoral nerve block to alleviate the immediate pain was provided by the Anaesthetist.

5. The Post-Operative Orders: The post-operative orders written by the surgeon emphasised the need for crutches and a brace to support the knee until the femoral nerve block had worn off which is usually expected to occur at about two or three days after the operation.

The Claimant gave a history of anterior knee pain aggravated by activities such as going up and down stairs and aching at rest. Examination showed signs of patellofemoral crepitus and tenderness.

2. The Diagnosis: Appropriate radiographs showed the condition known as Patella Alta or “high riding patella”.

6. The Faux Pas: In the early evening following the operation of the patient had recovered from the general anaesthetic and requested help to go to the toilet. There were specific instructions with regard to patients who wish to go to the bathroom after having had a femoral nerve block . These instructions were explicit and were backed up by the surgeon’s hand-written orders.

Figure 1 above.

In figure 1 (above). The patellar height is measured with the knee in full extension with the quadriceps tight (as described by a French Orthopaedic Surgeon Dr Bernageau in 1969). A horizontal line is made on the lateral radiograph beginning at the proximal extent of the trochlea (line T), and a line parallel to it (line P) is drawn from the distal extremity of the patellar articular cartilage. The distance between the two parallel lines gives a measurement known as the “T/P” ratio. The smaller the distance between the two parallel lines the more severe is the degree of patella alta.

The instructions were that, whilst the femoral nerve block was currently active, the patient should not be allowed out of bed without supervision by a nurse. A post-operative knee brace should be locked at 0 degrees and the patient should use crutches in the presence of a senior Nurse or Physiotherapist.

No brace was applied to the limb and there were no crutches available at that time.

The Senior Nurse did not apply a post-operative brace, could not find a commode and the Claimant was helped to the toilet in the ensuite Bathroom of his private room by the support of the Senior Nurse and a visitor.. The Nurse left the Claimant standing in front of the toilet and closed the toilet door to allow privacy as requested by the patient.

In this case the “T-P” ratio was very small indicating that the patella was almost not engaging with the trochlea when the quadriceps were tight and the knee was fully extended. The patellar tendon was very long and in other words this was a case of severe patella alta.

Although the Claimant told the Nurse that the front of his knee was numb, neither the nurse nor the patient had tested the active movements of the quadriceps muscles to assess whether they had recovered from the effects of the femoral nerve block.

7. The quadriceps muscle had not recovered from the local anaesthetic nerve block and, as the Claimant attempted to lower himself onto the seat of the toilet, the left knee joint collapsed uncontrol-

Figure 2 above. The ‘Skyline views’ of the patelo-femoral joint show no evidence of maltracking medically or laterally. It was therefore decided to correct only the height of the patella by tubercle transfer of 2 cms.

EXPERT WITNESS JOURNAL

101

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 102

lably and twisted as the patient fell with his full weight onto the hard bathroom floor with an audible â&#x20AC;&#x153;crackâ&#x20AC;?.

8. The Radiographs: Radiographs requested that night showed a long spiral fracture of the diaphysis of the left tibia originating at the weak spot where the tibial tubercle had been removed and held with a screw and tension band wire and progressing halfway down the shaft of the tibia. There was also a separate fracture of the metaphysis close to the epiphysis which entered the tibial plateau between the medial and lateral tibial condyles.

11. The Post-Operative Orders: The patient was nursed in the Trendelenburg position (the foot of the bed elevated to improve venous drainage and prevent deep vein thrombosis) with the Continuous Passive Motion Machine (CPM) in bed and was required to stay in bed for the first 48 hours when he would be expected to be mobilised with crutches with Physiotherapy instructions.

9. Four views of the fractured tibia: Taken on the night of the accident. They show comminution of the fractured and fibula without severe displacement (figure 3 below).

1

2

3

Antibiotics were to be administered for 5 days and pain relief medications were to be given as required.

12. The Post-Operative Recovery: Following gentle Physiotherapy in bed for three days, the Claimant progressed onto crutches partial weight-bearing on the affected leg, and by the tenth postoperative day he was asking to be sent home.

He was domiciled several hundred miles away and would need to fly home accompanied by a nurse and by his Partner.

4

Radiographs taken on the night of the accident

10. The Emergency Operation: An emergency operation was performed the following morning with the application of appropriate screws and plates with intra-operative radiography using an image intensifier resulting in a good reduction of the fractures.

Mr Angus Strover Consultant Knee Surgeon In 1988 Mr Strover founded the Droitwich Knee Clinic, the first private knee surgery clinic in the UK for treatment of knee disorders, where he is a Director and member of the board.

The two antero-posterior views and two lateral radiographs show that the plate and screws have been successful in reducing the tibial fractures.

The fibula has been left to heal without internal fixation.

Mr Strover has specialised in ligament reconstruction at the knee, meniscal transplantation, cartilage transplantation, knee a rthroplasty and patello-femoral conditions including patella alta, dislocation of the patello-femoral joint, the plica syndrome and a simple method of correcting patella alta. He has been a specialist in knee surgery from 1985 to retirement in 2011, he now concentrates on medico-legal cases where injuries to the knee joint or the lower limb are concerned.

United Surgical Services 64 Springfields, Bugle, Saint Austell PL26 8SJ Area of work Nationwide Tel: 01726 338 126 Mob: 07791 870 719 Email: angusstrover@gmail.com

The two antero-posterior views (above) and two lateral radiographs (top of next Column) show that the plate and screws have been successful in reducing the tibial fractures. The fibula has been left to heal without internal fixation.

EXPERT WITNESS JOURNAL

FRCS

102

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 103

PROFESSOR SIMON CARTER CONSULTANT SURGEON

The Claimant was seen daily by the Physiotherapists and by the Surgeon (Surgeon 1.)

The Claimant was mobilising well with crutches partly weight bearing and gaining confidence day by day.

MB, BS, FRCS, FRCS (G), RCPS

Consultant Orthopaedic Surgeon at the Royal Orthopaedic Hospital, Birmingham.

Member of British Orthopaedic Association, Member of European Musculoskeletal Tumour Society, Member British Orthopaedic Oncology Society, Past President of the International Society of Limb Salvage Surgeons.

Blood results and the daily nursing records showed that there was no infection. The temperature, pulse and respiration (TPR) charts recorded no abnormalities and arrangements were made for the Claimant be taken to the local Airport by ambulance and boarded by the Ambulance Crew.

He was to fly the 600 miles home and arrangements had been made for the Claimant to be picked up at the local airport near his home where he would be taken to his home by again by the local Ambulance facility.

Areas of expertise, Trauma and Orthopaedics, Medical Negligence, Bone and soft tissue tumours.

Contact: Toni Brindley Tel: 0121 378 0700 Fax: 0121 378 0700 Email: toni.brindley@btclick.com

The Claimant’s patient records were to be taken with him and passed on to the General Practitioner and the local private Physiotherapists who were to visit him at home on a daily basis. ■

138 Whitehouse Common Road Sutton Coldfield, West Midlands B75 6DP

Ajit Ambekar

Mr William Scott

MCh.Orth., FRCS(Eng), EWI

Consultant Orthopaedic Surgeon

Consultant Orthopaedic Surgeon

MBBS (London), FRCS (England)

Cardiff University Law School Certificate as Medico-legal Expert

Mr William Scott is a Consultant Orthopaedic Surgeon.

He has wide experience in general orthopaedic conditions both in assessment and surgical management, with emphasis now on the management of shoulder and upper limb conditions.

I am able to prepare expert witness reports and give evidence in court in my specialist areas of: • Orthopaedics and Bone and Joint Trauma • Muscle-tendons, peripheral nerves and soft-tissue injuries

Areas of exerptise; Orthopaedic & Trauma Surgery Shoulder Hand, Wrist & Upper Limb Hip and Knee injuries Personal Injury Road Traffic Accident Whiplash Falling Tripping and Slipping Fitness to work

Extensive experience in management of fractures in adults and children – (Exception: certain types of pelvic and cervical spine fractures.)

I will act for either claimant or defendant and also as a Single Joint Expert (Exception: ‘Breach of Duty’ Report in Clinical Negligence arena.)

As a Member of the Expert Witness Institute, London, my reports are in compliance of CPR 35, corresponding Practice Directions and the Civil Justice Council Protocol for Expert Witnesses.

Mr William Scott has extensive experience in medico-legal reporting including report writing, giving evidence in court and has acted as a single joint expert.

He is familar with the Jackson reforms.

As a Fellow of the American Academy of Orthopaedic Surgeons with Expert Witness Affirmation I am also able to provide percentage evaluation of Permanent Impairment, ‘DASH’ Score and the Judicial College Guidelines Category of Disability for international jurisdictions.

Bromley Medical Chambers Kinnaird House 37-39 London Lane, Bromley, London BR1 4HB Tel: 0208 460 5544 Email: amcalisterdilks@bromleymedicalchambers.co.uk

I am prepared to undertake reasonable travel if necessary.

T: 020 7467 8309 / 07922 607 948 E: aa@ortho-trauma.uk / ajit.ambekar@me.com 10 Harley Street, London W1G 9PF

EXPERT WITNESS JOURNAL

103

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 104

Whiplash and Associated Injuries

by A J M Birnie, FRCS(E).

The report states: “Whiplash-associated disorders are usually self-limited. In a cohort of persons compensated for whiplash injuries occurring in Quebec, the median time to recovery (end of disability compensation) was 31 days. Fifty-five percent of the cohort filed claims for whiplash only; 1.9% of these were still disabled 1 year after their injury.”

Whiplash and associated injuries are a range of mainly soft tissue injuries to the neck and back that affect a number of occupants of motor vehicles hit from the rear or from the side by other vehicles, as well as occasionally from other causes.

The symptoms from the neck injuries frequently do not develop for several hours and may not have developed until after an early visit to a doctor or an Accident & Emergency Department.

The authors seem to be basing their opinion on the fact that only 1.9% had an absence from work of longer than 1 year. No evidence was produced to suggest that these people who had gone back to work were symptom free.

A significant majority of these neck injuries are mild and clear away within a week or two leaving no lasting ill effect. Most complete recoveries take place within three weeks.

Many of these who returned to work after a period will have done so once they realized that their symptoms had reached a plateau. Some may have had adaptations to their jobs or moved to lighter ones.

A few victims appear to lose their symptoms over one to two months. In my experience these have not made a full recovery and continue to have persisting tenderness and/or pain at the limit of one or more neck movements.

A few papers show that a number of the victims have symptoms that worsen with time. I have seen 45 victims for a second medico-legal report. In 44 of these the tenderness was more widespread on the second occasion and in many of them the neck movements were more restricted.

In my experience of nearly 2000 whiplash victims with established symptoms, any victim with symptoms lasting more than a few weeks is, on the balance of probabilities, not going to recover completely in the absence of effective treatment.

I have also seen several of these on at least one further occasion. Deterioration continued and seemed to do so more quickly in the young physically active claimants.

Various published papers show that after a few weeks the majority of the remainder slowly improve over several months but do not improve thereafter. As a result, any symptoms persisting at three months are almost certainly going to be permanent in the absence of effective treatment.

As the deterioration progresses, a clinical picture emerges that is virtually indistinguishable from fibromyalgia and some develop arm and hand symptoms.

Numerous doctors state that all whiplash injuries recover over one to two years. I have seen no evidence of this opinion in any published paper except for The Scientific Monograph of the Quebec Task Force on Whiplash-Associated Disorders (Spine Vol. 20, 8S, 1995) which makes such a claim but produces no evidence to back it up.

Back pain appears to develop in a significant minority of whiplash victims, usually a few days after the relevant accident.

Unfortunately very little has been published about this problem but one published paper states: “Patients presenting with backache were never ultimately symptom free.”

It discussed a few papers, in all of which a substantial number of the victims had long-term problems, but produced no paper in which all the victims had recovered.

EXPERT WITNESS JOURNAL

104

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 105

Basically I agree with this statement except that I have seen a few victims who settled down within a few days of the onset of symptoms.

outlining a successful treatment although a couple of recent papers show a slow movement towards my technique.

In my experience, pain and tenderness in the dorsi-lumbar region tends to spread slowly in all directions; upwards to possibly join up with any pain in the neck and upper thorax, sideways as far as the lateral abdominal muscles producing the clinical picture labelled “nonorganic” by Waddell et al and downwards to the pelvis from where it may spread down the backs of the legs.

Physiotherapists frequently claim, or are given the credit for, improvement in the first few months, but as spontaneous improvement is usually taking place then, it is difficult to evaluate the benefits of physiotherapy at that stage.

There is no real evidence that standard physiotherapy is beneficial after the first few months. Most defendants do not appreciate this and continue to send claimants to physiotherapists who almost never produce any benefit.

Many defendants are unaware of this temporal spread and do nothing for the claimants for many months after receiving the expert’s report. During this delay a number of claimants stay off work waiting for treatment lose their jobs and end up struggling to obtain further employment which may be at a lower wage level.

I have been using trigger point therapy for over thirty years and I have been experimenting with various treatments for whiplash injuries for a good number of years. The following is my personal unpublished experience.

Radiographs frequently show straightening of the normal curvature of the cervical spine and occasionally an angulated deformity. Occasionally a fracture will be seen.

Bowen Therapy, ice packs and cold sprays are beneficial when applied within hours of the relevant accident.

Low level laser treatment and frequent injections of local anaesthetic etc. are helpful in the early stages.

Claimants should be urged to seek such treatment in the early months after injury. In later stages the area of trouble is usually too large for this by which time the necessary treatment is beyond the capabilities of the average doctor or physiotherapist.

I have noticed that many of the MRIs show death of the small muscles close to the bases of the spinous processes in the affected region.

The treatment of whiplash seems to be very poor world-wide. Indeed I know of no published paper

Mr A J M Birnie

Ultrasound therapy with the machine at moderately high power is very successful in the later stages if applied frequently and frequently needs to be supplemented by spinal manipulation in any problem that has been present for over six months. If properly and frequently applied, this regime nearly always results in clearing of the symptoms.

Consultant Orthopaedic Surgeon FRCS GMC

Tel: 0191 373 4457 Fax: 0191 373 4457 Alternative contact Mrs Davison (Sec) Tel: 0191 584 4614 Fax: 0191 565 5998 Email: ajmb@ajmbirnie.com

Some defendants use my recommendations about ultrasound to instruct their favourite physiotherapist to use ultrasound at moderately high power. This almost always fails because these physiotherapists are accustomed to using ultrasound at low power which almost never produces a reaction. They have probably never used the moderately high power technique previously and do not know how to interpret the responses of the patient. As a result I am only aware of two therapists in the Durham area who consistently produce good results. ■

Eshwood House, Acton Road, Esh Winning, Durham DH7 9PL Rooms also at: 8 Grange Terrace, Stockton Road Sunderland SR2 7DF

A J M Birnie, FRCS(E). 2014 EXPERT WITNESS JOURNAL

105

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 106

Prolonged Pain of Accident Investigation Investigations into fatal accidents are taking too long and prolonging pain and upset for bereaved families say lawyers, as the Scottish Government consults on improving the inquiries process.

APIL is supportive of recommendations made by Lord Cullen, which have been the subject of the consultation which closed on Tuesday (9 September). The proposals include the introduction of preliminary hearings so that administration can be resolved early on, and a flexible approach to inquiries for diseases as, for example, asbestos may be the cause of several illnesses in workers in a shipyard and individual inquiries may not be necessary.

“The real problems lie with the huge delays before the matter gets as far as an inquiry,”explained Gordon Dalyell, Scotland representative of national not-for-profit group the Association of Personal Injury Lawyers (APIL).

But Mr Dalyell said that implementing Lord Cullen’s recommendations alone will not solve the delays. “While we welcome improvements to the way the fatal accident inquiries are carried out, without proper organisation and speedier investigations at the outset the reforms are really a dead letter”.

“It can sometimes take years for a fatal accident inquiry to get underway because of delays in investigations by the Health and Safety Executive and the Crown Office in deciding whether one is necessary,” Mr Dalyell went on.

“Not only do delays make a difficult time drag on for the deceased’s family, which deserves answers, it also means that any safety failings which could have led to the death are left unaddressed and remain to put others at risk. Unfortunately this is the norm.

In one case the inquiry into the death of a teenage girl in 2004 has only completed in July this year”.

APIL (Association of Personal Injury Lawyers) is a not-for-profit organisation whose members are dedicated to campaigning for improvements in the law to help people who are injured or become ill through no fault of their own.

For more information the Association's website at www.apil.org.uk.. ■

Dr Joshua Adedokun

Mr Roger Helm

FCARCSI, FRCA, FFPMRCA

Chronic Pain Expert

Consultant Orthopaedic Surgeon MB, ChB, FRCS (Eng), FRCS (Edin( (Orth)

Dr Adedokun has extensive clinical experience in the management of various Chronic Pain Syndromes including persistent Neck, Back, Neuropathic or Complex Regional Pain Syndrome especially following Personal and Occupational Injuries. He also has wide experience in Medical Negligence claims.

Consultant Orthopaedic Surgeon at Doncaster Royal Infirmary since 1991. General Orthopaedic/trauma practice with a special interest in hand and upper limb surgery. Royal College specialty tutor for 10 years. Over 25 research papers published in international journals.

Listed on the UK register of Expert Witnesses, an APIL expert, Member of Society of Expert Witnesses, Expert Witness Institute and is a Sweet & Maxwell accredited Expert Witness 2014.

Over 15 years experience in Personal Injury and Clinical Negligence medico-legal work including report preparation (several hundred yearly), conferences and Court appearances and lecturing. Approximately 80%

Dr Adedokun accepts instructions from Claimants, Defendants and as a Single Joint Expert. He covers Manchester, Liverpool, Leeds, Birmingham & London. Other locations and Domiciliary visits can be arranged.

Contact: Monika Stenton Email: RogerHelm@aol.com Address: Park Hill Hospital, Thorne Road Doncaster DN2 5TH Tel: 01302 865131 Fax: 01302 864205 Mob: 07796 958255 Area of work South Yorkshire and Nationwide

Contact person:

Lisa (Medico Legal Manager) Tel: 01625 526 665 Mobile: 07885 913 912 Email: expertpainreports@gmail.com Suite 6, Wilmslow House, Grove Way, Waterlane, Wilmslow Cheshire, SK9 5AG

EXPERT WITNESS JOURNAL

106

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 107

Landmark €1.75m Personal Injury Case which had been supplied by the UK firm, had been faulty, and Neil Hudgell Solicitors started representing the victim in March 2010.

NEIL Hudgell Solicitors has secured a landmark legal victory – which included the setting of an international precedent for future cases - by securing a German aircraft worker who lost an arm and a leg at a UK airport €750,000 in personal injury compensation.

However, the matter became complicated when the ground-handling company joined the German airline as a co-defendant to the claim, pointing to a signed contractual Agreement between them which contained an indemnity clause in relation to liability for accidents.

The case, handled by senior lawyer Jane Woodcock, has taken four years to settle on behalf of the injured engineer, with the law firm having to battle for the case to be heard under English law.

This left the possibility of the case having effectively to be pursued against the German employer and to be decided under German law, which operates in a very different way with regard to employer’s liability claims.

Having initially appeared to be a straight-forward case in terms of identifying liability, it soon became the most complicated of Mrs Woodcock’s 30-year career – involving firms of solicitors, barristers and witnesses in the both UK and in Germany, and ending in a High Court of Justice ruling in London.

Claims are not able to be brought against German employers unless they can categorically be proved to have been ‘grossly negligent’, which on the facts of this accident was not the case.

The engineer, who was highly experienced and worked for the German airline, had been called to service to a tyre under the nose of an aircraft at Manchester airport when the accident happened in November 2008.

“Despite the severity of the injuries sustained I initially thought this would be a straight-forward case on liability, but in the end it was without doubt the most complicated of my career, involving solicitors and barristers on behalf of insurers in England and Germany, High Court hearings and much delicate and complicated negotiation,” said Mrs Woodcock.

He was handed a faulty nitrogen rig by a ground handling company based at the airport - which wrongly measured pressure in BAR rather than the internationally used psi - leading to the tyre inflating to a pressure 14 times higher than expected. Standing less than a metre away at the time, the worker lost an arm and a leg when the tyre exploded.

“The crux of the matter was whether or not the case should be decided under German law, and this potentially had a huge impact not only on my client in terms of the settlement he would be entitled to, but also in terms of the repercussions for all other parties involved.”

An 18-month investigation by the Air Accident Investigation Bureau confirmed the rig used,

EXPERT WITNESS JOURNAL

107

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 108

injuries is still working today, and we have to say has been very well supported by his employers throughout the matter, finding him a new role and providing full support and re-training.” ■

The matter was further complicated by the operation of the German Social Accident Insurance system and the relevant German Social Accident Insurance body seeking to recover their financial outlay in relation to cost of care, prosthetics, lost earnings, aids and equipment already provided and to be provided in the future to the victim – a figure in excess of one million euros.

Neil Hudgell Solicitors, named after the managing director, began life in 1997 after Neil decided to set up on his own with the aim of delivering legal services to his local community. Neil previously worked for a larger practice but decided to go it alone as they didn’t share his ethos and commitment to the concept that client care should be the core of any good law firm, not profit. Since then, Neil Hudgell Solicitors has consistently grown year on year by ensuring the organisation focuses on what’s important: keeping clients happy. More recently, the firm has increased in size due to acquisition and increased marketing activity. The firm has offices in Hull, Leeds and Central London and acts for clients throughout England and Wales.

Their ambition is to be recognised as one of the leading no win no fee solicitors firms by 2014 from both a client and industry perspective.

This left Mrs Woodcock’s client in danger of missing out on substantial damages he was entitled to under English law, but she dedicated much of the next two years to ensuring this didn’t happen, often snowed under a mountain of paperwork from all parties involved at her desk in Hull.

The applicable law argument was resolved in the High Court of Justice in London, where His Honour Judge Brian C Forster QC found in favour of her client and the English Defendant.

Ordering that the case be determined under English law, he stressed the airline could not ‘rely upon exclusions and limitations around German Social Accident Insurance’.

Visit www.neil-hudgell.co.uk for more information.

He also concluded that the UK-based ground-handling company’s claim against the airline should also be considered under English Law, together with the German Social Accident Insurance’s claim against the two firms.

With a trial date set for March 2014 for a judge to value compensation, the German airline and UK ground handling company contacted Mrs Woodcock and agreed a joint settlement, for her client totalling €750,000.

They also settled with the German Social Accident Insurance, taking the total value of the case to €1.75m.

“This was a really complicated case, but one in which we knew we had to win to secure our client the damages he deserved,” said Mrs Woodcock.

“It has now set a precedent for future cases involving German employed nationals sustaining injury whilst working in the UK. “In the end the two defendants came to an agreement as to how they settled the damages payable to my client and the offer came to us without saying how much each had paid.

“We were just delighted to bring the case to a successful conclusion for our client, who through his sheer determination to overcome his catastrophic EXPERT WITNESS JOURNAL

108

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 109

Whiplash Injuries

by Professor Charles M Court-Brown MD, FRCS Ed (Orth) Professor of Orthopaedic Trauma, University of Edinburgh The term ‘whiplash’ or ‘ whiplash-associated disorder’ is generally applied to a soft tissue injury of the neck with symptoms such as neck pain and stiffness, thoraco-lumbar pain, shoulder weakness, dizziness, visual disturbances, headaches, memory loss, arm pain and parasthesiae, impaired concentration, temporomandibular dysfunction and psychological distress. The condition was recorded in the Edwin Smith Papyrus written in Ancient Egypt between 2800 - 3000BC but the modern variant was described by John Erichsen, a British physician. In 1866 he gave a series of lectures on ‘railway spine’ a condition which made patients feel ill and shaken and also made then anxious and depressed. He stated that patients had symptoms for months or years but he did not believe that the patients were malingering. The term ‘whiplash’ was first used by HE Crowe in 1928 when he described 8 cases of neck injury in a lecture in San Francisco.

and up the back of the seat. The neck hyperextends and then flexes forward. This movement is not always prevented by neck rests and it has been estimated that 75% of neck rests are incorrectly positioned. If the neck rest is too low it acts as a fulcrum for neck hyperextension and flexion. One would think that improved car seats with higher, correctly placed, neck rests would reduce the incidence of whiplash injuries but the incidence of whiplash injuries is actually increasing.

Mechanism

Classification

There is evidence that modern seat designs cause more whiplash injuries than the car seats used in the 1980’s and 1990’s. Car seats in these decades were more yielding when compared with modern seats. As stronger seat frames were introduced neck displacement increased and more people suffered whiplash injuries. In women the neck is thinner and less rigid than in males and women have twice the risk of whiplash injuries.

The classification which is most widely used to define the grade of whiplash injury is the Québec classification which is shown in Table 1. There are four grades of whiplash-associated disorders with Grade I patients complaining of neck pain and associated symptoms but having no objective physical signs. At the other end of the spectrum Grade IV patients have neck pain and associated symptoms with evidence of a cervical fracture or dislocation. Most patients present with Grade I or II symptoms.

The Québec Task Force on Whiplash-Associated Disorders stated that whiplash is an accelerationdeceleration mechanism of injury transfer to the neck. They stated that it might result from rear-end or side impact motor vehicle collisions but could also occur as a result of diving or other mishaps. However most whiplash injuries are caused by low velocity road traffic accidents.

About 90% of road traffic accidents occur at speeds of less than 14 mph and it is mainly in these accidents that whiplash injuries occur. They occur as a result of the effect of differential velocity on the head and upper torso. They are most commonly caused by a rear-end collision which results in more severe symptoms than other types of collision. In a rear-end collision the trunk is forced backwards EXPERT WITNESS JOURNAL

Epidemiology.

The incidence of whiplash injuries continues to increase in the United Kingdom. The Association of British Insurers estimates that there are 1,500 whiplash claims each day in the United Kingdom 109

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 110

and that the cost of these claims is ÂŁ2 billion/year.

In the United States the incidence is about 400/105/year and it has been estimated that the overall economic burden is $3.9 billion/year which rises to about $29 billion if litigation costs are included.

Diagnosis The diagnosis of whiplash is clinical and a careful history must be obtained from the patient. X-rays are not usually helpful. The most common radiological finding is pre-existing degenerative disease, which is usually seen in older patients, and a slight loss of the normal lordotic curve of the neck. Patients with pre-existing degenerative changes on their x-rays have a higher prevalence of pain after 2 years. MRI scans are not indicated because of a high rate of false positive results. They have however been used in a predictive capacity. A study of patients with Grade II or III whiplash injuries (Table 1) showed that if a post-injury MRI scan showed medullary or dural impingement by cervical discs the patients all had persistent or increased symptoms 2 years later. This was not the case if the MRI scan had no or slight changes. Obviously if a patient presents with a neurological deficit or the clinical signs of nerve root compression an MRI scan is required.

A review of the type of accident shows that in drivers with whiplash injuries 51.9% are injured in rear-end impacts, 27.2% in frontal impacts and 16.4% in side impacts. The equivalent figures for passengers are 54.3%, 21.3% and 12.2% respectively. The literature shows that 30-35% of whiplash injuries occur in males and 65-70% in females. It also shows that the risk of sustaining a whiplash injury is greater in rear seats than front seats.

The most interesting aspect of the epidemiology of whiplash injuries is the variation between countries.

In the United Kingdom 70% of road accident personal injury claims relate to whiplash injuries whereas the equivalent figures are 47%, 32% and 3% in Germany, Spain and France. Studies have shown that in Lithuania and Greece recovery from whiplash injuries averages 2 â&#x20AC;&#x201C; 4 weeks and patients do not develop chronic symptoms. By contrast in the United Kingdom, United States, Canada, Netherlands and Australia the symptoms last longer and a significant number of patients develop a chronic whiplash disorder. The reasons for these differences are unknown but they probably relate to interactions between the individual and legal, medial, economic and societal factors which affect outcome and compensation. It is said in that Lithuania and Greece there is no compensation culture!

A recent study has examined whether occult fractures play a role in chronic pain after a whiplash injury. The study used single photon emission computed tomography and found a high prevalence of occult cervical fractures after a road traffic accident but the fractures were not associated with neck, head or arm pain.

Early treatment Much has been written about the acute treatment of whiplash injuries. Broadly the discussion can de divided into a number of questions.

Should the neck be mobilized or immobilized?

The literature indicates that immobilization, in a cervical collar, after a whiplash injury is less effective than active mobilization. Acute mobilization of the neck appears to be associated with reduced pain intensity although the literature is not clear as to whether active mobilization is better than advising the patient to act as usual. There is good evidence that active mobilization is associated with reduced pain intensity and some evidence that it may improve range of motion although there is no evidence that one exercise regime is better than the others. Active mobilization is more effective in Grade I and II whiplash injuries than in Grade III injuries. There is also some evidence that chiropractic treatment may be helpful but better evidence is needed to prove that spinal manipulation is a worthwhile treatment.

Presentation The most common symptoms after a whiplash injury are neck pain and stiffness which occurs in 82-100% of patients and a headache which occurs in 54-66% of patients. The headache is usually occipital. However patients will also complain of thoraco-lumbar pain, arm pain and parasthesiae and temporomandibular pain. In addition between 5-9% of patients will develop sub-acromial impingement and present with a painful shoulder.

A further 38% have been reported to describe brachial plexus irritation. They may present with a neurological deficit but these rarely conform to myotomes or dermatomes and it is likely that most apparent neurological deficits are related to pain.

EXPERT WITNESS JOURNAL

110

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 111

many variables that need to be considered in this type of study but it does seem possible that overtreating people with whiplash promotes the development of chronic illness behavior.

How useful is patient education?

Existing research does not suggest that providing educational information during the acute phase is beneficial. However the literature does not indicate whether education can facilitate treatment with other modalities such as active mobilization.

Recommended early treatment Most authorities believe that early treatment should not be delayed as there is evidence that delay in treatment increases the risk of the patient developing chronic symptoms. Patients should be treated with physiotherapy or another exercise regime. Analgesia and non-steroidal anti-inflammatory medication should be used. There is no clear definition as to how much treatment should be undertaken.

How useful is pharmacological treatment?

The use of analgesia and non-steroidal anti-inflammatory medication is common after whiplash injuries. The use of non-steroidal anti-inflammatory medication has been shown to result in an improved range of cervical motion two weeks after injury. It has also been shown that in Grade I and II whiplash injuries unsupervised range-of-motion exercises, non-steroidal anti-inflammatory medication and analgesics give similar outcomes.

Late treatment If the whiplash symptoms persist treatment is often ineffective. Exercise regimes may be instituted and the patient may be referred to a pain specialist.

The literature indicates that the use of facet blocks results in a median rate of recurrence of 50% within a week. It has also been shown that radiofrequency neurotomy of the facet joints results in a 50% return of pain after 9 months. Cervical fusion may be indicated for brachalgia and analysis of the literature shows that it is successful in 32% of patients. In patients with sub-acromial impingement a sub-acromial decompression is successful in about 50% of cases.

The use of high-dose methylprednisolone given soon after injury has also been investigated. A study showed that its use resulted in a significant reduction in disabling symptoms, the total number of sick days and the sick-leave profile. However it was a small study and methylprednisolone is not routinely used in the treatment of whiplash. It should also be noted that if it is used in elderly patients there may be significant side effects.

How useful are other treatments?

There is some evidence that pulsed electromagnetic field therapy may be effective in the treatment of whiplash but the sample sizes in the studies were relatively small and more information is required.

Laser acupuncture has been used but the literature indicates that it is no more effective than a placebo.

A recent study has shown that in late whiplash cases cognitive behavioural therapy can be effective if used as an adjunct to other treatment methods. It is associated with a higher rate of recovery and symptom improvement, particularly in females.

Can patients have too much treatment?

There is a body of evidence that indicates that the intensity of treatment affects the time to recovery.

One might expect better results in patients who have more treatment but the literature indicates that there is actually an inverse relationship between the number of health care visits made within the first 30 days and the time to recovery. A Dutch study examined the intensity of treatment in patients who had had whiplash symptoms for more than four weeks. They compared ‘education and advice’ by general practitioners with ‘education and exercises’ by physiotherapists. The general practitioners averaged 3.9 treatment sessions and the physiotherapists 12.7 sessions. One year after injury the general practitioner group reported lower levels of neck pain and headache. There are

EXPERT WITNESS JOURNAL

Outcome Not unexpectedly there is some variation in the reporting of outcome in the literature. There are many variables which affect outcome but the literature suggests that about 55% of patients are symptom free by 3 months, 70% by 6 months, 75% by 12 months and 80% by 2 years. One review showed that 14% of patients still had significant pain at a mean of 8 years after injury. It has been shown that 93% of patients who are asymptomatic by three months remain asymptomatic after two years. However there is often little improvement after one year.

The symptoms associated with a worse prognosis are the rapid onset of pain, the severity of neck

111

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 112

in the general population. There is no doubt that the outcome after whiplash is dependent on a combination of physical and psychological factors.

pain, radiation of pain to the upper limb, headache and hospital admission. In addition older age, lower educational achievement, part-time employment, pre-existing neck pain, low back pain and previous whiplash injuries are all associated with a worse prognosis. It has also been demonstrated that non-manual workers return to work twice as quickly as manual workers and that self-employed patients are half as like to take time off work, but take longer to recover. Pre-existing psychological disease is also a predictor of a worse outcome. The physical signs associated with a worse outcome include neurological deficit, neck stiffness and neck tenderness. Not surprisingly the more severe the grade of whiplash injury (Table 1) the worse the prognosis.

The effect of litigation There is a widespread view in the media that we live in a ‘compensation culture’ and that claimants’ symptoms improve after resolution of their case.

Proponents of this view suggest that the low level of litigation in countries such as Greece compared with the United Kingdom, United States and other countries confirms that this is the case. However, while some patients may pursue litigation for this reason, there is good evidence that in general this is not the case. There is evidence that continuing litigation is associated with more severe pain.

Analysis of systems that employ no fault compensation show that claims are settled more quickly but a Canadian study showed that while a change in Saskatchewan to a non-fault system resulted in fewer claims the patients had more severe symptoms and the pattern of whiplash disease was unchanged. A recent systematic review of the effects of compensation found no evidence of an association between litigation and poor health following whiplash injuries.

It is important to define whether the post-accident symptoms related to whiplash are specific to whiplash or are also encountered in other injuries of a similar severity. A recent study compared the outcomes of whiplash injuries with other injuries such as ankle or shoulder sprains or superficial wounds and abrasions. One year after the accident more patients with whiplash injuries complained of non-recovery of health status and of the occupational effect of pain than non-whiplash patients. However the conclusion of the study was that it was sociodemographic factors, the pre-accident psychological history and post traumatic stress disorder that influenced the prognosis rather than whether the patient had a whiplash injury.

Table 1 Grade Definition

Psychological outcome Patients with whiplash injury not infrequently display psychological symptoms as well as physical symptoms. These include depression, post-traumatic stress disorder, impaired concentration, a somatoform disorder and driving anxiety. Most patients have a normal behaviour profile after injury but with persisting pain they develop psychological sequelae. It has been shown that the psychological response to whiplash is similar to that seen in patients who have multiple fractures.

Once psychological problems develop their progression is related to the pain suffered by the patient. It has been shown that there is minimal psychological improvement between 3-12 months after injury. However driving anxiety improves fairly quickly and only 4% are unable to drive after 3 months. All patients can drive after 1 year. Mood disorders one year after injury are twice that seen

EXPERT WITNESS JOURNAL

I

Subjects with neck pain and associated symptoms in the absence of objective physical signs.

II

Subjects with neck pain and associated symptoms in the presence of objective physical signs and without evidence of neurological involvement.

III

Subjects with neck pain and associated symptoms with evidence of neurological involvement including decreased or absent reflexes, decreased or limited sensation, or muscular weakness.

IV

Subjects with neck pain and associated symptoms with evidence of fracture or dislocation

The Québec Task Force classification of grades of whiplash-associated disorders.

112

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 113

Recommended papers Hours M, Khati I, Charnay P, Chossegros L, Tardy H, Tournier C, Parrine A-L, Luanté J. Laumon. One year after mild injury: Comparison of health status and quality of life between patients with whiplash versus other injuries. J Rheumatol 2014; 41:3 doi:10 (Epub ahead of print)

Prof Charles M Court-Brown Professor of Orthopaedic Trauma MD, FRCS Ed (Orth)

Spearing NM, Connelly LB. Is compensation “bad for health”? A systematic meta-review. Injury 2011; 42: 15-24.

Professor of Orthopaedic Trauma at the University of Edinburgh.

He has a particular interest in the management of orthopaedic injuries, including both upper and lower limb injures and fractures of the pelvis, spine and neck (including whiplash injuries). He has extensive experience in the surgical management of all fractures and in the treatment of complications related to fractures.

Yadla S, Ratliff JK, Harrop JS. Whiplash: diagnosis, treatment and associated injuries. Curr Rev Musculoskelet Med 2008; 1: 65-8.

He has considerable experience in emergency and trauma surgery and has extensive knowledge of the injuries caused by road traffic accidents, falls, trips, assaults and other hazards.

Barnsley L. Whiplash after motor vehicle crashes. BMJ 2013; 347;f5966 doi

Côté P, Soklaridis. Does early management of whiplashassociated disorders assist or impede recovery? Spine 2011; 36: S275-9.

He has written 8 books and over 150 papers on trauma and its treatment. He has extensive medico-legal experience and averages about 300 new instructions annually.

Gargan MF, Bannister GC. The rate of recovery following whiplash injury. Eur Spine J 1994; 3: 162-4.

Contact: Prof C M Court-Brown Craigesk House, Lothianbridge EH22 4TP, Tel: 0131 660 4227 Email: ccb@courtbrown.com

Chen HB, Yang KH, Wang ZG. Biomechanics of whiplash injury. Chin J Traumatol 2009; 12: 305-14.

Bannister G, Amirfeyz R, Kelley S, Gargan M. Whiplash injury. J Bone Joint Surg (Br) 2009; 91-B: 845-50.

Radanov BP, Sturzenegger M, Di Stephano G. Long-term outcome after whiplash injury. Medicine 1995; 74:281-97.

■

Dr Ravi Ayer BM BSc MRCS FRCR

Consultant Musculoskeletal Radiologist Expertise in all aspects of musculoskeletal radiology including • Imaging of musculoskeletal trauma, fractures and soft tissue injury • Spinal Trauma imaging • Bone and soft tissue cancer imaging • Sports injury • Musculoskeletal infection • Degenerative and rheumatological disease • All aspects of musculoskeletal imaging • Plain film • Ultrasound • Computed Tomography (CT) • Magnetic Resonance Imaging (MRI) • Arthrography • Fluoroscopy

Dr Ravi Ayer is available Nationwide Telephone (mobile): 07919 366 411 E-mail: raviayer@gmail.com Website: www.mskrad.co.uk

EXPERT WITNESS JOURNAL

113

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 114

RCOG Champions Patient Safety The ethos of patient safety should be ingrained into the professional development of every doctor throughout their careers, placing the patient at the centre of their care, states a new Working Party report published in October 2014 by the Royal College of Obstetricians and Gynaecologists (RCOG).

This new report, Becoming Tomorrow’s Specialist, follows two previous strategic reports, High Quality Women’s Health Care and Tomorrow’s Specialist, and provides a framework for professional development for all specialists at all stages of their careers.

The report calls for the current CPD programme to be enhanced to ensure it is aligned to the individual’s job role and the needs of the patient and the service. This tailoring of CPD should be carried out throughout a doctor’s career and will be personal to the individual doctor. It will be more patient-focused and places greater emphasis on reflection, enabling specialists to learn from their experiences and review challenging clinical cases.

It also needs to enhance non-clinical skills such as team working, leadership, patient advocacy and safety.

The report also calls for a major review of the continuing professional development (CPD) programme to make sure it is aligned with appraisal and revalidation, with a greater emphasis on patient safety within the process.

Matthew Long MD, FRCOG

Following the Francis inquiry, the RCOG published its Manifesto for Change last year which emphasised the need for putting the patient first, zero harm and patient safety, creating outstanding leadership and working together as teams of professionals, the importance of regulation, inspection and accountability and a focus on metrics and outcomes.

Consultant Obstetrician, Gynaecologist & Mininmal Access Surgeon Mr Long is a consultant in obstetrics and gynaecology with over 25 years experience in looking after women with related health issues.

Mr Long has medico-legal experience preparing expert witness reports in cases related to: ❖ The obstetric management of labour and delivery ❖ Urinary incontinence and pelvic floor problems, including prolapse ❖ Minimal access surgery including hysteroscopy, laparoscopy and treatments for menorrhagia.

These principles are all embedded into this new working party report. Becoming Tomorrow’s Specialist calls for a robust patient safety culture to be part of career development for the newly appointed specialist. It makes a number of recommendations including the development of a patient safety module in the educational package for the new specialist, and for there to be champions in patient safety within the specialty.

EXPERT WITNESS JOURNAL

Mr Long is fully compliant with the GMC and RCOG regulations on specialist registration and continuing education.

P. O. Box 302, Horley, Surrey RH6 9TB T: 01293 822 344 E: matthewlong@nhs.net

w: www.specialistgynaecologist.co.uk

114

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 115

The report also looks at core clinical skills, developing as a specialist and buddying, coaching and mentoring which emphasise the importance of being part of an integrated team and outline the different areas of support that exist for new specialists.

development of all specialists. The improvements to our CPD programme will also be of huge benefit to the patients we serve with greater emphasis on non-clinical skills such as team working, patient advocacy and safety.

“Moreover specialists need a network of support and guidance, not only for career guidance and clinical education, but for learning about patient safety and fostering an environment of openness and transparency.

Implementation groups will be set up to ensure that the recommendations in the report are taken forward, particularly around the review of CPD. Ian Currie, Chair of the Working Party and RCOG Vice President for UK Affairs, said: “Following the Francis report, the focus on patient safety has never been greater and the RCOG is committed to ensuring that this is embedded into everything we do.

“Implementation of the recommendations is fundamental if this report is to be of value to each and every one of us. The main themes in the report are also of interest to all healthcare professionals and it could be used across other specialties.” ■

“Becoming Tomorrow’s Specialist ensures that a patient safety culture is part of the future

For more information visit vww.rcog.org.uk.

Ensure that you receive every copy of The Expert Witness Journal The Journal is written by experts for experts, instructing solicitors, barristers and legal professionals To subscribe at the special introductory offer of £20.00 for a year’s subscription including postage Please call 0161 834 0017 or e-mail info@expertwitness.co.uk

EXPERT WITNESS JOURNAL

115

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 116

Urology Foundation Highlights Embarrassing Bodies…

• This also corresponded with 39% of those in full time employment finding it embarrassing

The Urology Foundation surveyed more than 1,000 men and women across the UK to gain an understanding and insight of their knowledge of urology health and if they think it’s important to them. It found the following results:

However, students and those not working found it most difficult to talk about urology issues, (49% and 43% respectively) compared with 23% of those in retirement.

• 16% of the UK do not know what urology is, while one quarter do not know what areas urology covers.

The male bias against willingness to discuss symptoms and the fact that they are less likely to know what urology covers is more troubling when considering the following:

Urology is the branch of medicine covering the male and female urinary tract and the male reproductive organs: so the kidneys, bladder and all the tubes that link them together, and in men the prostate, testicles and penis as well.

• Men are more affected by urology matters – in fact urological cancers are far more prevalent in men.

Urology conditions and diseases include urinary tract infections (UTIs), cancer of the urology organs, kidney stones, chronic kidney disease, incontinence and erectile dysfunction.

• Prostate cancer is the most common cancer in men (40,000 men diagnosed each year, and up to 10,000 men die from it every year) • 72% of bladder cancer sufferers are men

Over a third find talking about urology conditions embarrassing.

• Men and the younger generation (16-34) are most embarrassed when talking about urology conditions (39% and 48% respectively).

• 62% of kidney cancer sufferers are men Urology conditions and diseases are far more common than the public realise.

A fifth of all cancers diagnosed are urological, either affecting the bladder, kidney or male reproductive organs and with today’s unhealthy lifestyle coupled with an aging population we expect this to get worse in the coming years.

• Londoners and the Scots were the most shy (41% and 42% respectively).

• While those in the South East (excluding London) and Wales were the least shy talking about their urology health (both at 28%).

Louise de Winter, Chief Executive of The Urology Foundation said: “If people are unaware of the symptoms, or are too embarrassed to talk about them, a delay in diagnosis can be life threatening.

It is imperative that we break down the barriers so that more people are aware of urology conditions and the symptoms and can act upon them promptly.”

More surprising was the finding that people were shyer talking about their urology health, the higher up the socio-economic scale they were: • 39% of those in socio-economic group AB found talking about urology matters embarrassing, compared with 30% in SEG DE

EXPERT WITNESS JOURNAL

116

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 117

Key Facts Prostate disease and cancer are thought to affect one third of men aged over 50 in the UK 4 people die every day from bladder cancer Chronic kidney disease also affects 9% of all UK adults Urinary incontinence affects 1 in 3 women aged 18+ About The Urology Foundation The Urology Foundation believes that better research and education brings better treatment, diagnosis and prevention of all urological conditions.

These include cancer and diseases of the prostate, kidney, bladder and testes, male infertility, erectile dysfunction and incontinence.

The Foundation was established in 1995 as the British Urological Foundation (BUF). Since 1995, they have funded over 170 scholarships and research grants, and have arranged training programmes for hundreds of urologists.

This work they do is urgently needed. Hundreds of thousands of people are diagnosed with urological conditions in the UK each year. Many millions more are affected worldwide. â&#x2013; Visit www.theurologyfoundation.org

Mr Simon Fulford

Mrs Robyn J S Webber

MBBS, FRCS (Eng), FRCS (Urol)

Consultant Urologist

Consultant Urological Surgeon

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

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

MD, FRCSEd (Urol)

Consultant Urologist based in Fife, Scotland.

My medicolegal areas of interests are; personal injury, pelvic and genitourinary trauma, clinical negligence in all aspects of urological surgery, including delayed diagnosis and complications related to implanted surgical materials.

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

I also maintain a general urology practice.

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

Mrs Robyn Webber P O Box 29237, Dunfermline KY12 2DZ. Tel: 07915 423924 Email: medicalreport@btinternet.com Web: www.robynwebber.co.uk

EXPERT WITNESS JOURNAL

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

117

AUTUMN 2014

editorial 9:Layout 1 10/14/14 2:12 PM Page 118

Sculpted to Stand Out Introducing the new NX 300h, a totally new kind of Lexus. With it’s wide stance, bold Lexus ‘Spindle Grille’ and exquisite front and rear LED lights, the NX 300h refuses to go unnoticed.

Powered by our latest Full Hybrid drivetrain, this breakthrough Lexus delivers smooth and agile handling combined with incredible environmental performance, with CO2 from just 116kg/km and up to 54.3mpg (combined.)

The dynamic touch continues through to the interior of the NX F Sport, which features exclusive leather F Sport steering wheel and seats, with added support while cornering. Drilled sports pedals, scuff plates and silver coloured, carbon look inlays complete the look. The F Sport also features unique instruments, displaying G-forces in the multi informational display, along with steering angle, throttle position and brake pressure.

Outside, 18-inch alloys, F SPORT grille and front spoiler lip attract even more attention. Inside, driving enthusiasts will enjoy a perforated F SPORT leather steering wheel and highly supportive leather sports seats built using ‘integrated foaming’ technology.

Tuned by the team that developed the LFA supercar and RC F high performance car, the new NX F Sport comes equipped with sports-tuned suspension and performance dampers as standard.

It can also be specified with the option of Adaptive Variable Suspension for an even more engaging driving experience.

Aluminium pedals and carbon look inlays complete the sports interior. With Adaptive Variable Suspension adjustable for extra responsiveness, the NX 300h F SPORT delivers a smooth yet dynamic crossover experience.

Inside the beautifully finished interior you’ll discover intuitive technology that makes your life simpler. The NX 300h range starts from £29,495.

Contact your local Lexus dealer for more information and to book a test drive.

The new NX F Sport is unmistakably dynamic, with a bold and distinctive front spindle grille featuring special ‘L-mesh’ inserts, a lower front spoiler and black door mirror housings. Exclusive 5-twin-spoke alloy wheels with a dark metallic finish underline the vehicle’s dynamic character.

EXPERT WITNESS JOURNAL

118

AUTUMN 2014

COVERS ISS 9:Layout 1 10/14/14 11:26 AM Page 2

phone:

0161 348 7843 0161 348 7844

PROF. PAUL TIPTON

email: web:

enquiries@drpaultipton.co.uk www.drpaultipton.co.uk/exper t-witness

EXPERT IN THE FIELD OF DENTISTRY

LOOKING FOR A DENTAL EXPERT WITNESS FOR A NEGLIGENCE CASE? Professor Paul Tipton is one of the UK’s leading dental expert witnesses.

Regularly featured in the Top 20 most influential dentists in the UK (Dentistry magazine), he has extensive experience dealing with a range of negligence cases.

In 1992 he was awarded the Diploma in General Dental Practice (DGDP) by the Royal College of Surgeons UK and became a specialist in Prosthodontics in 1999.

He is currently President of the British Academy of Restorative Dentists (BARD) and visiting Professor at the City of London Dental School. With over 25 years experience in his field, he has trained more than 3,000 of the UK’s dentists and continues to be one of the most prominent figures in the industry and on the global speaking circuit.

To secure Professor Tipton’s services, whether acting for defendant or claimant, please call today

Professor Tipton’s commitment to clients: ● To deliver expert witness advice as a leading specialist in the field of dentistry in a timely, professional and concise manner. ●

To issue concise, accurate and clear reports to assist the courts with their decision.

●

To ensure communication is paramount throughout the process.

COVERS ISS 9:Layout 1 10/14/14 11:26 AM Page 4