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OPENING STATEMENT by Martina Wilson, Business Development Manager Vibration-related upper limb disorders – hand-arm vibration and carpal tunnel syndrome

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Safety experts call to protect shop workers and customers

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E-coli compensation bill set at €227m

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Investigation or destruction

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Don’t let glass and glazing be a pain ...or is that a pane

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Noise pollution

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Altering and refurbishing Victorian and Edwardian houses

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Fraud is on the increase

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Reform Order has addressed tenancy discrepancy

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Veterinary forensic entomology

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Road works – potentially a cause of RTA’s

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Civil unrest and digital evidence

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Meteorology in legal cases

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Is it a ‘real’ gun, an ‘imitation’ or a ‘toy’?

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Write baby write – why cowboys are still cool

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The experience, evidence and opinion on pain

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Myofascial pain: a recognised clinical entity or a creation of personal injury litigation?

The expert witness in Scotland

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What is RSI?

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Racket sport injuries

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How little girls’ love of horses can have tragic consequences

VTE (venous thrombo embolism) and knee surgery

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Rehabilitation in acquired brain injury – the new frontiers

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How an educational psychologist can help

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FII – thinking the unthinkable

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The role of psychosocial and other social factors in causing heart attacks

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The silent killers in our midst

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Laparoscopic surgery – a telescopic view of surgery yesterday, today and tomorrow

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Precancerous changes in the breast and sentinel lymph node biopsy

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EXPERT CLASSIFIED

MEDICAL ISSUES 37

Toxicology: oral fluid drug testing

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Mediation: how to serve your client best

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The pitfalls of forensic DNA analysis

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Watching the defectives…

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Partially collapsed boundary garden wall – getting your facts correct

Medico-legal back pain – compensation is not a substitute for normality

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Bringing the numbers to life – financial & operational simulation for commercial disputes

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You could not make it up... but some did!

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Financial sector expert witnesses

Your Expert Witness 43

Osteopathy and whiplash injuries

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

YWV

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Opening Statement

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he country is, rightly, still reeling from the shockwaves created by last month’s spate of rioting and looting – what contributors to various message boards referred to as ‘shopping by riot’ – in many of England’s major cities. Indeed, one of the offices of Your Expert Witness is barely a mile away from where shops were set alight and others plundered. Knees have been jerking and the hangers and floggers have been, metaphorically at least, hanging and flogging. One of the most insidious – yet seemingly innocuous – results of the judicial backlash has been the rush to advocate the monitoring of mobile phone data and social network sites and even restrict access to the web at times of crisis. In his article on page 27 of this issue, Paul Vella of Evidence Matters Ltd quotes exactly such a process being used by authorities in San Francisco. Indeed, when asked about Twitter’s role during the escalating violence in London, Metropolitan Police Acting Commissioner Tim Godwin is quoted as saying that he had contemplated seeking the authority to switch it off. The threat is seen as a real one by Eric Schmidt, the boss of Google, who criticised David Cameron’s call for rioters to have access to social media restricted. He likened the internet to a mirror of society. “It’s a mistake to look in the mirror and decide to break the mirror,” he said in a TV interview. “The fact of the matter is, whatever the underlying problem was, the internet is a reflection of that problem, but turning on and off the internet is not going to fix it. You better fix whatever the underlying problem was.” Schmidt had warned back in June that such action could be used by repressive regimes in the Arab World in the wake of the so-called Arab Spring. Google itself has been involved in a running battle with the Chinese Government over the issue. Back in this country, it seems the mobile telephone companies have pre-empted the authorities by offering to disclose data before being asked. Never, it seems, has Hobbes’s concept of Leviathan been so apt.

Martina Martina Wilson Business development manager

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Vibration-related upper limb disorders Hand-Arm Vibration and Carpal Tunnel Syndrome by ANDY NICHOLL BSc, MPhil, Dip Physiology, Dip Occ Hygiene, MBOHS, MFOH, MIoAcoustics

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espite a recent spate of guidance and regulation, Hand-Arm Vibration (HAV, or more accurately, Hand-Transmitted Vibration) is still causing injuries. Anyone involved in the construction industry – especially road and rail building and maintenance work, shipbuilding, grounds maintenance, forestry, heavy engineering and fabrication, mines and quarries – will have come across the problem, and will probably know of people suffering from exposure to hand-arm vibration from powered handheld tools. Much of my work is concerned with calculating or estimating how much vibration people have been exposed to over their working lives, and comparing this with information in the various standards and the regulatory limits which have been published over the years. The other major part is doing the same thing for noise in cases of alleged noise-induced hearing loss – but that’s another story.

Effects The symptom which comes immediately to mind in cases of vibration exposure is finger blanching or Vibration White Finger (VWF). It is generally recognised now that excessive vibration of the hand causes damage first to the fine nerves which supply the blood vessels, which in turn affects the blood vessels, causing the blanching. At the same time, vibration can cause tingling and numbness in the fingers as the nerves are affected. Where the vibration exposure is prolonged and intense the blood supply to the finger tips stops completely, with the result that gangrene can set in. As well as nerves and blood vessels, vibration may also affect the joints, muscles and connective tissue of the hand and forearm. A common effect on muscles is the loss of grip strength in the hand. A further area still under debate is that of the causation of Carpal Tunnel Syndrome, a painful and disabling condition caused by a thickening of the connective tissue overlying the ‘tunnel’ where the major flexor tendons, blood vessels and the median nerve pass into the hand. This thickening causes compression of the tunnel contents, leading to tingling, numbness and pain when moving the hand. Vibration is reckoned to be twice as likely to cause CTS when combined with forceful movements of the hand such as holding heavy tools or pushing hard whilst using them. Carpal Tunnel Syndrome became a reportable industrial disease (A12) in 1993.

History People have been exposed to hand-arm vibration ever since the first grindstone was used for sharpening knives and swords. This was the earliest form of pedestal grinder. More serious problems began when the pneumatic drill was invented in around 1850. The first recognised publication

Necrosis from excessive vibration exposure on the problems associated with HAV was that of Dr. Andrea Corsini in 1907, followed by Prof. Loriga in 1911, both in the Italian Factory Inspectorate at that time and reporting on marble quarry workers. The first major work on vibration effects was a series of studies by Dr. Alice Hamilton in 1918 on the hands of Saskatchewan quarry workers, even including biopsies of the blood vessels in their affected fingers. She was also the first to find a link between the severity of HAV symptoms and the temperature – cold weather increased the rate at which the quarry workers suffered HAVS. Vibration in the shoe-making industry was highlighted in the Chief Factory Inspector’s report in 1931, and in 1936 the Cork Medical Journal reported a case of a man using a pedestal grinder to fashion cutlery in his garage. This man suffered so badly from HAVS, despite warnings from his doctor, that his fingers eventually lost all their blood supply and turned gangrenous. Thankfully there seem to be few such severe cases nowadays. Many reports of shipyard and aircraft construction workers suffering from HAVS were published in the 1940’s. In 1954 the Industrial Injuries Advisory Committee acknowledged the problem but rejected the prescription of ‘vibration white finger’ as an industrial injury due mainly to the difficulty of differentiating between possible causes. It took a further 31 years until 1985 for VWF to become a prescribed industrial disease (A11), reportable under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations).

General awareness of HAVS The Court ruled in 1997 that the National Coal Board should have known of the effects of vibration as early as 1973, but this was a large nationalised industry carrying out research into the prevalence of VWF in mining (working for the IOM, I helped to carry out some of the NCB’s vibration measurements in the late 1970’s). For smaller companies the date of knowledge is generally between 1985-1987, based on the prescription of VWF as a reportable disease under RIDDOR in 1985 and the appearance of BS6842 in 1987. This Standard showed how to measure vibration exposures and tabulated a dose/response relationship. Other milestones include the categorisation of symptoms by Taylor & Pelmear in 1975, further refined as the Stockholm Workshop Scale (1987) in use today. Much of the medical evidence unfortunately relies on subjective statements of the claimant. Nine years after the IIAC prescription of VWF, the HSE published HandArm Vibration, Guidance Document HS(G)88, in 1994. By then the whole of industry should have been aware of the effects of vibration and should have been assessing and controlling exposures. Regulation finally came in the form of the Control of Vibration at Work Regulations 2005, which set statutory limits on the vibration exposure of employees, together with a requirement for vibration risk assessment and control.

What now? Exposure is a function of vibration level and exposure time. Vibration levels of hand tools continue to be reduced by better design which can reduce the need, for example, of grinding. Health surveillance for at-risk workers was instituted in the 2005 Regulations and this should detect not just those affected by high levels, but also HAVS due to longer-term exposure to much lower levels of vibration. Industry is better informed about methods of control – elimination, substitution and job rotation. I look forward to a time when claims for vibration injury are far fewer than at present. R

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Safety experts call to protect shop workers and customers

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ealth and safety experts are calling for more care to be taken, when refurbishing retail premises, in a drive to protect shop workers and customers from unnecessary risk. In light of recent scares, members of the Institution of Occupational Safety and Health (IOSH) from the construction and retail industry are reminding retailers of the seriousness of exposing their customers to risk. David Ackerley, chair of IOSH’s Construction Group, said: “When any retail outlet is being refurbished those involved should be aware of the potential risks that making aesthetic and structural changes can have, not only to workers, but anyone in the vicinity. “In the current economic climate it’s understandable that people are looking to save money where they can. However, when looking to make any sort of saving, they must not put lives at risk. Shop fitting is a serious business and more care and attention needs to be taken when it comes to dealing with hazards like asbestos and respirable crystaline silica (RCS) dusts.” Health and safety professionals and business owners from both the retail and construction industry will gather later this month in Daventry, Northamptonshire, to discuss the issues surrounding retail refurbishment. Steve Clark, chair of IOSH’s Retail and Distribution Group, said:



“I have worked in the retail and distribution field for 18 years and completely understand the issues both construction contractors and retailers face when embarking on a refurbishment project. “From a retail perspective, the whole process needs to be managed stringently. There is no room for mistakes, especially when the general public and staff are still going about their day to day business at the same time.” The event, run jointly by IOSH’s two biggest industry groups, looks at shop revamping, assessing the pros and cons of different methods. Talks from the National Association of Shop Fitters, Capita Symonds, ADSA, Cathedral Interiors and Sainsbury’s Group will give those from the industry the opportunity to share best practice advice and ideas. This event is particularly timely as it follows a national retailer being found guilty at Crown Court for failing to protect staff, workers and customers from the possibility of being exposed to asbestos during a major refurbishment of one of their stores. q


E-coli compensation bill set at €227m

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n cases of food poisoning it is usually the people who have been poisoned who sue for compensation from the purveyors of the food that poisoned them. In the case of the e-coli outbreak affecting Germany earlier this year it is the European taxpayer who is forking out the cost of a government pointing the finger of blame without first making sure of its facts. The German government was quick to blame Spanish cucumbers for the epidemic – an assertion that proved expensively erroneous. In response to an outcry from the Spanish farmers thus accused, and many more who were forced to destroy crops because the bottom had dropped out of the market, the European Commission payed out around €227m in compensation. The virulent strain of the e.coli bacterium claimed 28 lives in Germany, with at least another further 300 cases reported. The outbreak particularly affected vegetable farmers, with sales of salad crops being severely damaged. Following the discovery that Spanish cucumbers were not the source, bean sprouts from Northern Germany were suspected. That turned out not to be true either. In June the EU’s agriculture commissioner Dacian Ciolos, announced an initial compensation plan whereby farmers would receive 30% of the cost of unsold crops. This was rejected by France, Spain, and Italy. The offer was later increased to 50% of the market price. He is quoted as saying at the time: “We are doing as much as we can with the current financial means available. We don’t know how things are going to evolve. We cannot predict. At the end of June we will see where we stand.” In July the Commission announced the acceptance by member states of a final figure of €227m. Dacian Ciolos stated: “The use of CAP funds needs to be fully justified. Several member states supplied

complementary information on their demand for compensation last week. Today, we have a clear picture of the total demand for compensation. To be able to pay the totality of the demands, I propose to increase the available budget. This will ensure that we properly support our vegetable producers in these difficult economic times for the sector and allow the reimbursement of all Member State demands for the period from 26 May to 30 June. “From the start of the crisis I said I was very keen to show Europe can react quickly when it needs to. I will now propose to the College of Commissioners to endorse this budget increase in the shortest time possible to make it possible for Member States to pay this EU support to the entitled producers soon.” q







Investigation or destruction by ROY ILOTT, Chartered building Surveyor

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his may be the choice confronting experts in many disciplines. In my area of building pathology not all defects are visible and exposure for the required analysis can damage, or even destroy, the very information we are seeking. Locating the source of a water leak, the bond of some sealing mastic or confirming the construction or insulation of a partition are prime examples. Thus, where there is a case of damp penetration into a basement, removing the render will probably damage the waterproofing. Only in one incident, several years ago, was the waterproof membrane so independent of the enclosing skin of plastered blockwork that it was clearly possible to see, via an inspection opening, that the tanking was inadequate. However in the majority of such incidents the waterproofing layer, of say a bitumastic product, is ‘sandwiched’ between the render and a backing wall. As the protective and decorative layers are removed, the waterproofing layer is also damaged and partly removed. Thus we cannot say whether it was free of tears, gaps or blemishes which would allow water to penetrate. Only by experience is it possible to identify the probable adequacy of such a treatment based on the revealed information. It is possible to investigate within the cavity of a wall or floor with an optical probe which only causes a 20mm hole, but the wall still needs to be repaired and decorated. Tiles can be lifted off a roof, but how large an area needs to be examined before a clear report can be produced on the workmanship of the roof cladding? How much of a ceiling should be removed to confirm the construction of the floor or roof above? How many similar scenarios exist in other professions I do not know, but it

would be interesting to have a discussion on this aspect of our work. Usually the instructing solicitor is aware of the limitations and potential damage caused by exploratory work. However, some solicitors rarely venture into the world of diagnostic reports by expert witnesses in other professions, let alone in construction. One legal analysis of the recent Jones V Kaney decision, which I read recently, suggested that the outcome increased the importance of an expert exercising caution from the outset to ensure accurate and consistent advice and opinions are given within the constraints of their obligation to the Court. Thus I would suggest that we need to ensure that the likely damage caused by the investigation, and the possible inconclusive information which may be produced, should be clearly set out and acknowledged by the parties, especially within a Single Joint Expert instruction. We know that we are required to state the various opinions which might exist within our reports, but there was still concern expressed in this Judgement that this is not always the case. Therefore, particularly in light of the recent decision by the Court that experts can be held liable for negligence, we need to be certain that the limits of our work are clearly defined, understood and recorded. This prepares the parties for the obvious conclusion that, as a defect is examined, the outcome may not be the black and white one which the opposing parties hope for. I do not think we can always rely on their legal representatives to provide the cautionary warning, that shades of grey are sometimes the outcome. On occasions the opening up works which I have attended has provided a clear swing into the black and white, and sometimes the most insistent party has been proved wrong, but not always. It is possible that more extensive investigations into a building project or survey are required than those carried out by the original defending party because the costing of remedial work is required or an assurance as to the extent of defective work is requested. In such situations the surveyor may have to cause such ‘damage’ that extensive costs are incurred in reinstatement works. This raises the question of who pays for these reinstatement works. While the final decision may contain a judgement on this matter, in the meantime the occupying party may have to either pay for the remedial work following the expert’s investigations, or accept a reduced standard of finishes. The cautionary note from Jones v Kaney is that an aggrieved party, especially if it is their building which has been examined, could start a claim for unwarranted damage and consequential distress. Whilst this may be successfully resisted, we all know through our professional work how time consuming and distracting contesting a vexatious claim can be. We are appointed to use our experience and expertise to assist the Court in reaching a decision and, in doing so, to state alternative options and opinions. I suggest we also need to be mindful of the recent decision, and should therefore (for example in considering a surveyor’s negligence case) state that, without removing a specified element (floor/ceiling/wall finish), we will not be able to give an opinion on information beyond that provided by a visual inspection. If we are then instructed to carry out more destructive investigations, should this instruction perhaps also determine who pays for a named contractor to reinstate the finishes and decorations to the pre-existing condition, and against a fixed price quotation? Current practice is frequently to agree a budget fee to inspect and report against a stated brief. Perhaps, especially being mindful of the cost constraints, we should in future make the scope of the initial inspection clearer. Then, after we have carried out the initial inspection, and a more intrusive investigation is considered necessary, we must be careful that the cost, need, outcome, damage and disruption of the exploratory investigation is clearly understood and confirmed by the partry(ies) and their lawyers before the work is commenced. Unfortunately, in clarifying the initial brief, we may run the risk of losing the instruction to a less prudent surveyor. q




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Don’t let glass and glazing be a pain ...or is that a pane by R. APPLEYARD MSc BSc(Hons) FRICS FCIArb MCIOB MEWI, Chartered Building Surveyor

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e see it every day, we rely upon it to keep the weather out and us warm. It is in every part of our lives and we take it for granted – until it is not there. In the last fifty years glass, and fenestration in general, has moved from being a Cinderella of construction to a highly technical part of the fabric of a building. Just in passing, are you aware that the first double glazed unit was patented in 1949 by an ex WWII fighter pilot? This was two sheets of glass and a spacer of wood all held together by glue. Not much change there if you think about it, not a very good design and it did not reign long – that is how far we have come in innovation. Glass is now thermally efficient, UV protective, anti glare, almost self cleaning and a myriad of other high tech specifications. You can have soft coat, hard coat, body tint ...and so the list goes on. We then look at the spacer bar which can be rolled aluminium, carbon, simple extruded plastic or the very popular warm edge type. Did I mention that the air gap can have gas injected into it, which can be argon or krypton, all to enhance thermal efficiency? The industry is always on the look out for a better product. We have good old wood (which is now engineered), thermally broken aluminium, PVCu maintenance free (well almost) and the new kid on the block, timber faced aluminium. We have French doors, patio doors, bi-folding and cassette slide aside doors. They can be opened and closed automatically, driven by temperature – or you can even open them by hand! The latest is to send a signal from your phone which will shut the doors and draw the curtains. We do not need keys, now we have swipe cards, auto fingerprint recognition and even handles – its all so James Bond! If that is not enough we have glass that with a flick of a switch can go from normal to opaque, blinds within the double glazed unit and, if we still feel the need to push that bit further, LED’s embedded in the actual glass that will twinkle at the push of a remote. Double glazed unit size is not an issue for those with deep enough pockets, the world record stands at 32m long by 3.1m high – and believe me that is big. So fenestration is not just a frame with a bit of glass, it is much more than that. I ensure that I am equipped with the latest investigating aids that allow even the most complex defects to be detected along with identification of the specification present. This is what I believe the client wants and expects. The fenestration industry is moving exceptionally fast, even in times of recession. We are now seeing the first triple glazed units appearing in buildings and, as experts, we are expected to be abreast of these innovations. Given that the fenestration industry is so technically advanced it would be foolish to approach any investigation, especially in the roll of an expert witness, without the wide knowledge that allows recognition of the many facets of the discipline as invariably, if it gets to court, in depth probing will occur on what the expert knows and his knowledge base. The courts are littered with experts that don’t know and don’t know they don’t know – and that is dangerous for all concerned in a dispute.

I think that is enough about the glass bit, let's look at the frames it goes into. There are standards that guide all aspects of installation so there is no shortage of provenance to support the assertions of an expert. These include not just our British Standards but also for PVCu we have the British Plastics Federation codes of practice, for timber there is the British Woodworking Federation and for aluminium there is the Council of Aluminium in Buildings. All will give you as much help as they can but are no substitute for experience. The first port of call must be the ‘robust details’ or, in short, has it been put in correctly and is the perimeter thermally efficient as well as being wind and watertight. You would be amazed at the number of times this little, but very important aspect is glossed over as being of no consequence. It would be of no surprise, I am sure, to be informed that the vertical DPC, which all good builders install, or the continuous perimeter seal are often missing or incorrectly configured, only to be found when it leaks in water or is exceptionally cold around windows or door openings. To aid in this aspect, and also allow the checking of the gas presence in double glazed units, I use the most advanced top end thermal camera available. This not only tells me where to look but also gives very detailed images of what I am looking at. To place this in front of a court removes any ambiguity, and I have seldom had any challenge to this aspect of my report. The kit is not cheap, but then good things never are. There are low value cameras about but, as with all things in life, you very much get what you pay for and the low end of the market does not give good images capable of precise analysis. Much of this article is tilted to the domestic side of the industry. However, the commercial side is not exempt from all the same problems, just larger and harder to find. A typical example is when I had a full six-story building where the curtain walling badly vibrated under certain conditions. This investigation was spread over several months as you can imagine and, after very exhaustive testing, it was found that the installers had omitted a small nylon/rubber washer on the fixing brackets with a cost saving on the whole installation of less than £200. Investigation costs? I will let you draw your own conclusions. It is this that sets a true fenestration expert surveyor apart from a general surveyor. I would like to think that this has given you an insight into one of the most transparent products of the construction industry – we see it, but we do not see it. So next time you view a window or a pane of glass, don't look through it, but at it. Never think that it is just a bit of glass, it is much more than that! q • Rod Appleyard is a Chartered Building Surveyor and independent professional, in practice as a building surveyor specialising in the forensic investigation of fenestration and building envelope defects. His scope includes construction and fenestration defects, contractual and specification matters and the adjudication of disputes between householders and their contractors or clients/contractors with contractors. Contact tel. 01274 569912 or go to www.verificationassociates.co.uk

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Noise Pollution A

pollutant is matter or energy which causes or may cause detrimental effects to people, animals, plants or property, directly or indirectly. These effects are typically characterised as material harm or damage. Where then does noise stand within this broad definition? Sound is a form of energy. Sound energy is generated by the movement of a medium, such as air, around a source, be that a machine, loudspeaker, mouth, building or otherwise. Sound is reduced when transmitted to other points as it is transformed into other energy. The remaining energy is then experienced by a listener, usually a person. If unwanted, the sound is noise. If that noise has potentially harmful or detrimental effects then it noise pollution. It is at the point of listening that the fundamental difficulty with noise pollution arises. There are few sounds in our environment which can be said to be truly harmful. Certainly, if one is exposed to the highest levels of noise then hearing damage can occur, but beyond that clear and well-protected situation how can one determine harm? Most people do not experience sound as a constant presence, but rather as a collection of negative and positive noise experiences varying over time. These affect activities to a greater or lesser degree, depending on context. It is this relative, subjective importance of the context which is difficult to establish. Consider how one might spend time on certain activities on different days. Of all these, sleep is the most critical to our well-being and is vital for continued physical and mental health. Sleep is also the major activity we engage in. Disturbance of sleep and the preparation for sleep is, perhaps, the most disruptive of all noise pollution. Arguably, it is more annoying than any other effect as well as being detrimental to health and well-being. Working is the second principal activity for most people, including children

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by JAMES TOMALIN of Aulos Acoustics

in education. Work is generally divided into different types: detail work, requiring high levels of concentration, and routine work, where lower levels of concentration form a respite of sorts. The former controls both the design of workplaces and the worst disturbance one might experience. There are effects on communication, as noise interferes with speech, telephone use, comprehension and learning. Our leisure time is varied and may include activities dependent on concentration (reading, writing, game playing) or comprehension (conversation, films, radio, music). People are highly sensitive to extraneous noise, and better able to identify it, during such activities, particularly in the evening. Annoyance is reportedly high for such interference, but this may be due to factors other than noise level, such as neighbour conflict, lack of privacy or control. Noisier leisure activities, such as using a gym or shopping, may not be as sensitive to interference, but most people have experienced annoyance at some point (excessively loud music, sales staff interruptions). Often we dismiss such emotions, but sometimes they may spoil our enjoyment. Travelling may not seem as subject to interference, but the activities we engage in whilst travelling are. If one is reading on the train and a person uses the telephone or plays music nearby, annoyance and disturbance result. Most people have experienced such interference and reacted emotionally at some time. The effect of vehicle noise is also often underestimated and just opening windows during a car journey can raise noise levels beyond hearing damage thresholds. Many human activities are subject to noise interference in some way, although the impact is determined by an innate ability to process how important our activity seems, what context it is placed in, whether we perceive it to represent a reasonable intrusion or if it might harm our health, enjoyment or achievements. Noise has firm, objective effects, mostly associated with disturbance or interference with communication, but the subjective effects on annoyance, emotion and stress are often determined by the context in which they occur. These latter effects remain a substantial proportion of most investigations and may overlap significantly. Most noise pollution problems are subject to more than one effect, as the potential for overlap between different objective and subjective effects is wide. The interaction between these different areas determines whether a sound can be deemed noise, noise pollution or, ultimately, a noise nuisance. Noise can then be said to follow the normal definitions of a pollutant, but the range of detrimental effects may be heavily influenced by subjective reactions, such as annoyance, and the influence of personal context is significant. Subjectivity and questions of context broaden the scope of any noise impact investigation and increase uncertainty, often leading to a range of interpretations, which many clients and colleagues find frustrating. Nuisance essentially provides one framework for including context in acoustic and non-acoustic terms, with one critical test being that of ‘unreasonable interference with use’. The acoustic expert advises the Court or clients whether noise pollution exists or not, and the degree to which it may be detrimental, then identifies how context may influence the degree of harm or detriment. Context may include the influence of non-acoustical factors such as reasonableness, necessity, social influences, listener sensitivity, mitigation efforts, lack of control, privacy and community activism. Where noise causes objective detrimental effects on people it is pollution. Subjective detrimental effects introduce a range of other influences which are dependent on context and its relative importance: pollution only exists then if a detrimental effect results once context is accounted for. On a personal level, most reasonable people can determine the effect of context for themselves, but it may be hard to appreciate if one lacks the personal understanding or experience of the sound. Also, without knowledge of wider circumstances, such as community needs, judgment of context may be skewed. As acousticians, we provide the understanding, knowledge and experience necessary to place noise pollution in context, and bring resolution to a problem. q


Altering and refurbishing Victorian and Edwardian houses by DEREK MONNERY Chartered Quantity Surveyor

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orking on older properties requires an understanding of how they were constructed in the first place together with the knowledge of likely alterations that may have taken place by the various owners since that time. Cheap repairs can lead to greater costs later, as when slate roofs were replaced with cheap concrete tiles in the latter part of the 20th century. Concrete tiles are much heavier than the slates they replaced, which can lead to overloading, deflection of roof timbers and eventually roof leaks causing internal damage. The only solution when this has occurred is to replace all the roof timbers as well as the tiles. When originally constructed, the lowest floors of these buildings were constructed from timber joists and floor boards. These relied on air vents in the external walls to provide air circulation under the floor, stopping the floor from becoming damp. Often these vents were inadequate in size, or had become blocked over the years, leading to outbreaks of dry rot or wet rot in the floors. It has become normal practice to replace poorly ventilated floors with solid construction, as would be used on new houses today. However, unless this work is done carefully, the damp proof membrane which stops rising damp can be damaged, leading to damp floors and mildew outbreaks in the building. Water penetration into a building can be the seed bed for dry or wet rot. Wet rot is relatively simple to cure, limited to drying out the area and replacing damaged timbers. However dry rot is a fungus which can spread aggressively through a building and can be very expensive to eliminate. Today’s building regulations demand tough insulation standards to floors, external walls and ceilings of houses. When altering old houses, new sections of houses have to be built to current standards, which can be a challenge when joining new sections to old. When adding extra insulation to old houses, it is important to consider condensation, which can occur when moist warm air

meets cold materials. Vapour barriers need to be provided to cater for this, otherwise mould growth can break out which is unhealthy and unsightly. An understanding of the cost implications of undertaking building works to older houses requires specialist knowledge. In recent years I have accepted appointments to act as Expert Witness in disputes over the costs and quality of building works to houses of all ages, including insurance claims for fire and water damage. Recent appointments include advising on a dispute over the correct construction of a roof to a house extension, a report concerning the substandard refurbishment of a house involving the costing of extensive remedial works, and a joint report on a dispute concerning quality and price of the refurbishment of a barn. q • Derek Monnery FRICS is a chartered quantity surveyor who has worked on housing rehabilitation projects for over 30 years.

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Mediation: how to serve your client best

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here is no doubt that mediation as an essential step in civil litigation is here to stay. We’ve seen the Overriding Objective in Part 1 of the CPR; Lord Woolf’s early cases with costs penalties; from Halsey the onus falling on the party refusing mediation to show that their refusal was reasonable; powerful speeches from Sir Anthony Clarke, Lord Phillips and others on the value of mediation, and so on. Yet we still come across lawyers who think that mediation is designed to deprive them of the fees they can earn if a case goes to a full hearing (so long as they don’t lose when costs are assessed) and some district judges – albeit a small minority now – still convinced that mediation is designed to deprive them of their pension. It won’t do – the Ministry of Justice says so. They have to save the enormous cost of the civil justice system and see mediation as a way of keeping litigants out of the courts. We now have small claims mediators in most courts in the land, settling lots of claims over disappointing holidays or toasters which burst into flames, and with the consultation over the county courts, closed on 30 June (the consultation, not the courts!) it seems that we will soon have the small claims limit increased, compulsory mediation before a small claims hearing is allowed, the fast track limit increased perhaps to £100,000 and compulsory mediation information sessions (mandatory since last April in family cases) before a fast track hearing may be held. And all that is on top of the costs changes following the Jackson report.

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by CHRIS MAKIN

So now it really is getting serious. Lawyers have to accept that mediation is a necessary step in civil litigation and become adept at making best use of it. We need to address when to suggest mediation, which side should suggest it and how to use it to benefit your clients. The best time to propose mediation? Try this: “The trick in many cases is to identify the happy medium: the point when the detail of the claim and the response are known to both sides, but before the costs that have been incurred in reaching that state are so great that a settlement is no longer possible.” Nigel Witham Ltd v Smith & Isaacs [2008] EWHC 12 (TCC). And after exchange of protocol letters, the issues in many cases are already clear enough for mediation to be proposed. Indeed, mediation can be done at any stage, and there is nothing to stop the parties mediating even before any formal steps have been taken. Which side should propose mediation? Your side, of course, since that puts the other side at risk on costs generally, and not just within the confines of a Part 36 offer. It’s rather like Northern Ireland, where in the bad old days it used to be said “Vote early, vote often”. So in mediation. To propose it is not a sign of weakness, it is a sign that you wish to do your best for your client. As the mediation approaches, prepare carefully, and insist that your client does the same. I have a standard letter which I issue a week or so before the mediation, which includes lots of notes on how to prepare. For example, make lists of your strong and weak points; decide on your red lines (if you must!); plan your best outcome and your acceptable outcome, and so on; then prepare the same notes as if you were your opponent, because seeing the dispute from their point of view leads to an understanding of where the common ground may lie. And don’t rubbish the other side’s case – they wouldn’t be pursuing it if they thought they were weak. Then brief the mediator, by providing a simple summary of the case (one page of A4 is the ideal, though it never happens!) and provide copies of key documents. But do not, repeat do not, provide the mediator with a full trial bundle. He needs to know the big picture, not the minutiae, and the more detail provided, the less chance one has of settling. Remember that neither side is going to win on every point, a satisfactory settlement is where both (or all) parties reach a solution they can live with. Mediation is about needs and benefits, not about who is right. Decide who is to attend on the day. If the chairman of the company (or the spouse of one of the parties, or an elder in the community) is the real decision-maker ask them to attend. They need to hear the arguments and participate. A mediation is very difficult if the decision maker is absent, doesn’t hear the arguments, and makes decisions on the basis of a series of furtive telephone calls. It is a rare mediation which requires both counsel and solicitor, and I have conducted scores of mediations without ever seeing an expert (though I’ve seen expert reports, and even though my ‘day job’ is as expert forensic accountant). Of course the client should attend, but if counsel metaphorically stands up, sticks his thumbs in his waistcoat and pleads the case formally, we know the chances of a settlement have just evaporated. Unless your client is incoherent, ask him to describe his own case, or at the least ask him to say a few words after the facts of the case have been described by you the lawyer. Unlike at trial, not every point should be propounded. And unlike court, concessions can be made. The whole process is without prejudice, so nothing discussed can be used afterwards. And it is


amazing what a beneficial effect an apology can have, even one as mild as a doctor saying he is sorry that the patient is disappointed with the standard of treatment they received. It’s powerful, and could never be said at trial. On the day, make best use of being in the presence of your client, your client’s opponent and the other lawyer(s). This is a rare opportunity to see the whites of their eyes, to study their body language, to assess their command of the case – and also to assess how your client conducts himself in the discussions, and how that might translate to the witness box. Will your client be chewed up under cross-examination? Does he realise for himself that it would be better to settle? Better to settle now, than fall to pieces at trial. Even if a settlement is achieved which does not win every point for your client, it is often worthwhile to assess the benefit of finality, of not wasting any more management time on litigation, of stopping the

threat of an adverse costs order. If it’s over, it’s over, and that brings its own benefits. And if a settlement is not reached, then although the discussions were without prejudice, you will now know a great deal more about the case, so that a carefully crafted Part 36 offer can be made. That’ll make them sweat! So do grasp mediation with enthusiasm. You have to grasp it, so you may as well enjoy it. It gets better with practice, and your grateful clients will thank you all the more. q Chris Makin has practised as a forensic accountant and expert witness for 23 years. He is one of only 30 chartered accountants so far to have become accredited as an expert witness and forensic accountant - see www.icaew.com/forensicaccreditation/register. He also performs expert determinations. For his mediation website see www.chrismakin.co.uk.

Watching the defectives… by MIKE GRIFFIN of Mike Griffin Heating and Plumbing, East Barnet

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have been working with the BBC Watchdog’s Rogue Traders team since 2008, initially providing a sounding board for the producers and researchers to evaluate the strength of a case against a ‘rogue trader’ and put a value to the real cost of their shoddy and usually over-priced work. The BBC contacted me through my membership of Society of Expert Witnesses as I have been providing CPR part 35 reports for a number of years. I first agreed to appear on the show in a sting on a drains company that had charged a customer £6,000 to spend less than half a day unblocking a manhole in their basement. In order to catch him red handed we set up a blocked drain with half a pound of cooking fat, some old vegetables and a bit of swift cooking on the stove. Everything we did was filmed for evidence, the clear drains before we blocked them, the underneath of the sink as we worked and the replacement of the sink trap afterwards. We tested the blockage and all was set for the ‘rogue’ to walk into our sting operation. Our ‘lady of the house’ is an accomplished actress, used to dealing with ‘rogues’!! The team from Sugerland set up their super mini cameras and listening devices, some you can barely see when holding them in one hand, let alone after they have been secreted around the building. ‘Mrs Martin’ then calls the trader to set up an appointment for the next day, asking about the charges and OAP discounts. The following morning we had an early start as you never know if the trader might turn up earlier than planned. Our home owner was rigged with a radio microphone, a body camera and a tiny ear piece so the team can give instructions and get her to ask specific questions. The trader eventually turned up, late. He proceeds to put no effort into using a sink plunger for 20 seconds. Then within moments of looking into the sink like a crystal ball, he declares that he is “going to have to use specialist equipment to clear this one. You’ve poured a lamb tin down the sink”. Our seasoned ‘stooge’ agrees and indicates the ‘lamb tin’ sitting on the drainer. The traders says he will “do her a favour, and give a set price, plus VAT”, asking our lady to sign a set price agreement. I am reliably informed that this can give him rights under contract law to charge any agreed sum, so don’t do it! The price was way over the amount set out in the phone call the day before, even taking into account the ‘OAP’s discount’. He gets out his ‘specialist equipment’, a common drain snake, and removes the sink trap. After two minutes of shaking the trap into the dustbin outside, less than a minute of using his ‘specialist equipment’, with about 4 or 5 inches of metal spring going down the pipe, he declares the blockage removed.

Matt Allwright and Dan Penteado from BBC Watchdog’s ‘Rogue Traders’

Unfortunately our trader also did a bit extra removing from under the sink, secreting items in a bucket to get them out to his van, including house hold cleaners and soda crystals. After about twenty minutes of washing the trap through with our home owner’s own soda crystals, and generally using up as much time as possible, he proceeds to the billing stage of his well-rehearsed act. The trader left after taking cash in excess of £600, for less than an hour of ‘work’. We did manage to get a little revenge on him though, but that’s another story…. q

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Partially collapsed boundary garden wall – getting your facts correct

by WILLIAM O’BRITIS of Cadogans

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he 30th of March 2011 was a significant day for the expert witness fraternity in the United Kingdom. For on that day, in the Jones v Kaney case, the Supreme Court decided by a majority of five to two that, in England and Wales, the immunity from suit for breach of duty enjoyed by expert witnesses instructed in legal proceedings should be abolished. This reversed a line of authority dating back to 1585. As a consequence it is now more important than ever before for expert witnesses to ensure that they have carried out a thorough investigation and explored all the possibilities. I was involved in a case where the opposing experts fell short in this respect. A boundary wall separated the rear garden of a house from adjacent parkland. The original wall was deemed to be a common wall with the

owners responsible for the half of the wall on their respective sides. The house owners claimed that trees on the park side of one of the boundary walls had exerted pressure on the wall, causing a partial collapse of an eight metre long section, and were pursuing the park owner for damages to the wall. I was instructed to investigate the collapse of the wall and to determine if the trees had caused the collapse or if there were any other reasons for it. I was issued with expert reports prepared for the house owner including a structural consultant’s survey report and an arboricultural consultant’s survey report. In addition, documentation was received from the park owner in connection with the trees adjacent to the wall. I ascertained that the trees adjacent to the wall had been felled four months before the wall collapsed. A visual inspection I carried out at the locus revealed that the house owner, or one of their predecessors, had vertically extended the original 9” thick 1.2 metre high wall with a 1.1 metre high 4½” thick brick wall built off the top of the original. In addition, I observed that the ground level on the park side of the lower original wall was 600 mm higher than on the garden side. My structural calculations showed that the vertically extended wall was grossly inadequate and was incapable of carrying the design wind loads and earth pressure loads applied to it. In addition, my site inspection revealed several significant structural defects in the wall, any of which could have contributed to its partial collapse. One crucial fact I ascertained in my research, which was missed by the other experts, was that on the night of the collapse very strong gales were recorded in the area. In my opinion, it was these gales, together with design and construction defects in both the lower original wall and the upper extended wall, that ultimately resulted in the partial collapse of the upper extended wall section. None of the above items were reported by the pursuer’s experts. Returning to an expert’s loss of immunity against prosecution for breach of duty, where will the line be drawn? It may be difficult to ascertain if an expert is in breach of duty because of a failure to explore all alternative explanations or omission of important basic information relating to the facts. Nevertheless, both of these may significantly influence the outcome of a case. Experts beware! R • William O’Britis is a senior civil/structural engineer at Cadogans. Cadogans accepts instructions relating to engineering and health and safety matters from within the United Kingdom and abroad. Mr O’Britis’ specialisation is in cases related to the construction and building industry, structural failures and malperformance and personal injury cases involving falls, trips and slips. For details of Cadogans’ full range of services and specialist expertise please contact them by telephone, email or fax, or visit www.cadogans.com.

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Bringing the numbers to life – financial & operational simulation for commercial disputes by DR DARRELL JAYA-RATNAM founder of DIEMconsulting Ltd

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umbers are the language of commerce and throughout history applying new techniques to explain and understand these numbers has been key to corporate survival. From the Sumerian cuneiform tablets that recorded grain stocks and taxes paid, through the Japanese rice traders’ candlestick charts for predicting rice prices, to the Dutch accounting methods (imported into Britain in the 18th century) that allowed capital to be raised, all have been stepping stones to ensuring a corporate entity can make the most of its assets and operations. The modern accounting and financial analysis techniques are perfectly adequate for the day-to-day decision making required within an organisation. Ally this to the statistical techniques used in the actuarial world to support loans and insurance, and companies have all the ‘number crunching’ capabilities they need to cope with both dayto-day and strategic decision making plus the occasional crisis of fire, flood and theft. Where this can be insufficient, however, is when a company is faced with a one-off disruption related to something outside their normal business operation. The ‘business continuity event’ is the example many would be aware of, but equally difficult can be non-performance by a supplier on a major infrastructure project (e.g. new IT systems), supply-chain delays during the launch of a new product, strategic mishap (a euphemism for bad decisions by the board) and new legislation or regulations. The reasons that the standard financial analysis techniques are not always useful in assessing these types of problems are, firstly, they tend to be at best infrequent and often totally new so there is little historical data on which to conduct any statistical analysis. Secondly, the impact on individual companies can be quite unique thus preventing read-across from other companies, partly because there have not been enough previous ‘events’ to establish and promulgate ‘best practice’. Faced with these limitations, any dispute over how much failures in performance or decision making has cost a company normally follows this pattern. The company’s recent performance is extrapolated

forward, the difference between the extrapolation and the actual (post‘event’) is claimed as the ‘loss’ and both parties then argue over the significance of other factors such as weather, time of year, currency and interest rate fluctuations and failures in other parts of the system. This approach may well be perfectly acceptable to both parties in a great many disputes. However, it does suffer from 3 weaknesses: • The nature of all human-based systems is that they overcome or get around problems, so the true cost of non-performance or poor decision making may well be hidden by the recovery mechanisms in place. • On the other hand, the loss due to an obvious issue external to the company might be increased due to a far less obvious decision or nonperformance within the company which may have taken place some time ago. • Finally, the outcome of a claim may be more dependent on negotiating or adversarial skill than any well-founded demonstration of what might have happened had things not gone wrong. Financial and operational simulations can provide a better understanding of the contribution of different parties’ actions and decisions to a particular loss. Such simulations differ from typical financial models in that they do not assume the historic relationship between time, inputs and outputs to be constant. Instead, they break a system (i.e. business) down into different stages or processes, simulate how each process effects the next one along and then allow you to test the impact of different shocks or events on the system. Such an approach has been used in a number of different professions from government policy makers to strategy consultants and hedge-funds, all seeking to test ideas and strategies in ‘micro worlds’. Of course, all such modelling does suffer from ‘garbage-in, garbage-out’ so careful management of scope and depth is key, but we have found that the following approach allows us to get this balance right: • Start by creating a causal map of the business. This simply draws out the relationship between the various parts of the business, including suppliers. • Take the stakeholders through the causal map to ensure it captures how they think things are interrelated. This helps with gaining buy-in to the results later on. • Turn the map into a simulation of the business. We use a technique called ‘system dynamics’ as it provides a visual model of the business and performance, but there are many others that could be used. • Finally, run different scenarios through the simulation to quantify the contribution of different actions to the overall loss. Being able to simulate a business and demonstrate, usually live, the effect on revenues, costs and profits of different actions and decisions can provide much greater understanding of what the real contribution to a particular loss might be. The word ‘simulation’ may conjure up the image of teams of computer experts feverishly developing 1,000’s of lines of code to create a virtual world representing the business. In fact, using off the shelf software, a simulation of a business can take as little as a couple of man-days in the case of a simple retail company, only increasing to a few man-months if the

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need is to simulate an entire industry to test major issues such as new legislation or disputes of IPR. We have used this approach to assist with the resolution of a number of disputes between different types of stakeholders over the last decade. The first, in 2002, is an excellent example of how a simulation can cast light an issues where there is no historic data. A major industrial firm was migrating its IT support function off-shore but costs were escalating due, according to the contractor, to the client adding requirements for the back-up facility. The client, however, felt the additional costs were excessive. A simulation of the industrial firm’s operational links to the IT support function (built in a few days) did in fact show that the additional costs of the backup solutions being offered to meet their requirements were reasonable. However, it also showed that (a) the transition to the backup in times of crisis would take much longer than planned, leading to a drop in service levels and (b) there was a much cheaper alternative which would allow standard of service to remain high throughout. This proved to the benefit of both parties as it gave the client a lower cost overall solution and it provided the contractor with evidence on the efficacy of a cheaper backup solution, which they could offer to other clients. A much larger assessment we conducted was for investors concerned about the board-level decision making at a large (listed) semiconductor manufacturer. The board had regularly claimed that fluctuating demand was the cause of hugely fluctuating profits. We built a simulation of the overall industry, from R&D to manufacture and sales, and tested several hypothesis and scenarios. In running the simulations and comparing it to actual industry performance we uncovered several biases and false assumptions affecting decision making at board-level. First, we could show that management had an ‘optimism bias’ being very quick to

build and open new capacity in response to rising demand, but much slower to close old capacity during falling demand. Second, we showed that the rule of thumb for where customers became price sensitive was obsolete, as the use of these particular chips had spread to much cheaper devices such as mobile phones and iPods. Finally, we showed that overall demand grew exponentially and very smoothly but it was the price fluctuation caused by production over capacity that drove profits. Because we simulated an entire industry the effort required was two man-months, but the impact of the insights was correspondingly more significant. The most common issues are around loss of access or loss of attraction for retail organisations. For such organisations the two key ‘sub-systems’ are foot-fall (due to transport and location) and supplies. These can be quite similar so fairly generic simulations can be applied easily to different organisations to quantify the impact of transport disruptions, changes in the local area, benefits or disadvantages of major events. For disputes where past data is unavailable, or not relevant, a simulation of a business and its operations can provide a more accurate view of which actions and decisions actually contributed to a loss and how much the loss is actually worth. q • Dr Darrell Jaya-Ratnam is the founder of DIEMconsulting Ltd which specialises in helping firms generate evidence on the impact of different strategies and investments in order to gain stakeholder support and buyin. He also lectures on Corporate Strategy at Birkbeck College of the University of London, at the Defence Academy on the Role of the Board and has written on business modelling in a number of corporate risk publications.

You could not make it up... but some did!

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gymnast with back trouble, a flying toilet roll holder, an invented wedding engagement, a fake photograph and an invisible wall were among the record number of fraudulent insurance claims detected by insurers in 2010, according to figures released by the Association of British Insurers (ABI). The figures highlight that in 2010 insurers uncovered 133,000 fraudulent insurance claims – up 9% on 2009. The value of these claims was £919 million, also up 9% on the previous year. The most common frauds involved home insurance, with 66,000 bogus or exaggerated claims detected, followed by dishonest motor insurance frauds with 40,000 frauds uncovered. Motor frauds were the most costly, totalling £466 million. Cheats uncovered by insurers included: • A claim for back injuries, apparently sustained from a fall while working in a nightclub, was rejected when Facebook images showed the claimant performing gymnastics and training for a charity run. • A woman’s claim for facial injuries, which she said resulted from a

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falling toilet roll holder in a fast food outlet, was rejected when it was shown that the holder would have had to have fallen upwards to cause the injury claimed. • A claim for injury said to be caused by falling over a wall was rejected when it was proved that there was no wall at the scene of the alleged incident. It is estimated that insurance fraud costs £2 billion a year, adding, on average, an extra £44 a year to the insurance bill for every UK policyholder. Nick Starling, the ABI’s Director of General Insurance and Health, said: “Insurers are working harder than ever to protect honest customers against fraud. Fraudsters continually look for new ways to con insurers, so we are upping our game. Early next year we will be setting up a national Insurance Fraud Register which will contain details of all known insurance cheats. At the same time the first ever national police insurance fraud investigation unit will begin its operations, making it harder than ever to commit insurance fraud.” q


Financial Sector Expert Witnesses by DR THOMAS WALFORD

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xpert witnesses with banking and investment backgrounds have found themselves increasingly in demand in recent years. This is partly due to people in general being more litigious but also, in the financial world, to the economic problems that hit most western economies in 2007-09. In addition, as the investment markets have become more sophisticated, clients of financial institutions have become involved in many new forms of investment instruments, without necessarily understanding the risks associated with them. This latter factor has resulted in many people incurring major losses, in some cases through receiving inappropriate investment advice. However, acting as an expert witness in the world of finance is not limited to disputes between clients and financial institutions. Advice may also address bank versus bank, bank versus custodian and, quite frequently, involve a professional indemnity insurer which is seeking to defend claims and/or claim against other institutions involved in a transaction. In a bull market, the rising market tends to cover a great many of the mistakes. The situation is quite the reverse in a bear market (or after a bear market, as this is when the cases tend to come to the legal system) when even a minor error can result in really quite major losses. The last few years are no exception, with the sub-prime mortgage problems in the US, which then had a major impact on many structured products, the collapse of Lehmans, which was both a guarantor and counter-party to many hedge funds, and the rescue of AIG and Merrill Lynch and a multitude of other banks in the US market. Although many of the problems emanated from the US, the shock waves and implications have been felt throughout the world.

insider dealing and fraud but also with regulatory issues and ability to practise and those involving arbitrators. There is frequently a role for mediation, which provides an alternative or first attempt to resolve the issues prior to the case, and this is often a major opportunity for the sides to do so in private and at considerably lower cost. Banks and institutions with reputations to protect, as well as clients who would wish to see their financial matters dealt with away from the public forum of the court, may find this a very convenient option. Historically, there have been a multitude of experts dealing with claims in the medical and construction fields. These are often highly complicated and specialist areas where only practitioners in the field can determine what has gone wrong and provide the court with advice. However, the world has now become substantially more complicated in just about every field and, as a result, the courts have needed guidance on where liability lies in many cases outside the medical and construction disciplines. Consequently, experts have appeared in many fields and finance is no exception. Frequently deals which involve derivative contracts, interest rate swaps, warrants, credit default obligations, investment advice and the duty of care that a financial institution owes its clients require a specialist to unravel the issues and advise the court on the core aspects concerning which the judge or jury can then make decisions.

The breadth of work involved

The role of the expert has also evolved in recent years – with the Lord Woolf reforms and the introduction of CPR 35 (for Civil Cases) and CPR 33 (for Criminal Cases). The expert is normally appointed by one party but owes a duty to the court to look at all matters relevant to the case. In some instances, generally in smaller cases, the two parties can decide to appoint a Single Joint Expert. However, this is rare in financial disputes. The expert’s role in litigation involves a number of stages. The first and often the most important is in pre-litigation advice, whether a claim exists, and then subsequently on what should be the claimant’s main focus. As a result, I have found that I am frequently called on to write a report very early on in a case to determine whether the case has a prospect of success and subsequently to advise on which are the strongest arguments. Assisting the solicitors with the pre action letters, particulars of claim follows shortly thereafter. If this is done with precision and sufficiently careful targeting it can result in a successful resolution to the case. The expert will normally be provided with all the evidence for the court case and will seek to interpret what has actually happened. With phone logs and emails needing to be disclosed this can run to a multitude of files! The expert is not only concerned with matters of fact but also with seeking to interpret what has happened and giving an opinion on what should have happened and what has gone wrong. Once the expert’s report has been written, exchanged with the other side and any additional issues dealt with, it is then normal for the court to require a meeting between the two experts. This meeting results in a joint statement being produced which will frequently focus on the areas that the court will need to concentrate on. Then, finally, it comes to the case being heard in court and the expert will normally be required to give evidence and be subject to cross examination. My own experience has involved cases that involve nearly all the elements mentioned above – criminal and civil, small and large (even to the point where losses may be $50-100m), investment and banking and both for and against financial institutions. Each of the cases has been really fascinating and has brought up situations which my clients would have hoped to avoid if they could ‘press replay’! q

The UK has impressive systems for looking after both small investors and depositors in the financial markets. The Financial Ombudsman will handle claims against financial institutions where there are financial losses of up to £100,000 and the Financial Services Compensation Scheme looks after depositors by guaranteeing deposits up to £50,000. In the cases of the disasters within the banking system in 2008 in the UK, it was general to safeguard all depositors irrespective of size and, although they may have seen a period of illiquidity, very few have lost money in cases such as Northern Rock or Icesave. However, if the claims are over the prescribed limits, then the only resort is to the court system and, due to the size of the claims, the cases normally have to be heard in the High Court. There are many cases currently in the Civil Procedures System but legal cases in the financial world are not limited to these areas. Perhaps not so common, but no less important, are the cases that have been brought under criminal procedures, dealing with matters such as

The role of the expert

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Fraud is on the increase by DEREK WILLIAMSON of G & Co Chartered Accountants

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nfortunately fraud in its many guises is on the increase. Whether this is falsification of VAT returns, payrolls, company accounting records, false invoice claims for loss of profits or earnings or DWP benefits frauds, they all have a financial aspect. On the business front, employees make false expenses claims, suppliers make false invoice claims and borrowers of money give false information about their earnings or about the securities being made available. Directors will often over value their assets in order to borrow from banks or investors. In the present economic climate we will see an increase in fraudulent activities by individuals and businesses. As a result, more cases will come before the courts and it is vital that solicitors and barristers employ a forensic accountant early in the case to review the evidence and rebut claims made by the Crown Prosecution. In a recent case our clients were accused of Revenue fraud in the IR35 area. HM Revenue assessed tax on the total income of the businesses and so alleged fraud. With our assistance the barristers, before the Judge in a series of hearings, successfully had national minimum wages agreed and deducted. Bank charges, accountancy fees and allowable expenses were also able to be deducted. When the Revenue re-computed their assessments they found they had no case and were forced to drop it. Fortunately the Judge agreed that the case could not be dropped and the clients were found ‘Not Guilty’. Unfortunately, we as tax payers funded this case to the tune of £9 million. On the benefits fraud front we often find that when the alleged fraud is material, the DWP fail to follow correct procedures and also fail to mention benefits that the claimant was entitled to. By reviewing procedures and entitlements we usually find that the alleged crime has been overstated. We have had cases dropped by the DWP as a result of our investigations into their procedural handling of the case. In another case involving alleged mortgage fraud by an accountant and his client, we were able to prove that the accountant had acted correctly, but the client (who prepared his own tax return) was making false Revenue returns. As our client left the court proved innocent, his client was rearrested for Revenue fraud. We were then asked to act to defend the new client and, as the Revenue had used copies of the accountant’s files seized for the earlier case (without the accountant’s knowledge and permission), we were able to have the evidence excluded and so the Revenue case collapsed. When investigating ‘loss of profits’ cases, we always review the regular and normal buying activities of the company together with the last 24 months trading activities to ascertain whether there are any irregularities or ‘down turning’ in the profitability of the business – i.e. was this a ‘genuine’ loss or an ‘engineered’ loss for insurance purposes. When investigating ‘loss of earnings’ we look behind the claim for the pertinent facts. In one case recently, an employee driver aged 67 had been

run over and killed when delivering to customers. The customer insurers accepted liability and offered £50,000 as compensation. We found that the driver’s employers had agreed in writing to employ this person until aged 75 as his wife was severely disabled and relied upon her husband to look after her. As a result we successfully re-negotiated the payout at £250,000. In our experience, solicitors all too often limit the investigating accountant’s scope to the obvious facts. Equally important is that the investigating accountants advise the solicitors of additional investigations they believe should be carried out and the reasons for such investigations. q

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Reform Order has addressed tenancy discrepancy

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ne of the ‘significant events’ for any school student studying history was the period characterised by ‘the enclosures’ – that period in history when agricultural land in much of England and Wales became fenced off from the common people and handed over by Act of Parliament to a small number of landowners. From that period the great bulk of farming activity was carried out by tenant farmers. The growth of industrialisation and subsequent migration to the towns saw the beginning of a long period of decline in the tenanted sector. The introduction of the Agricultural Tenancies Act 1995 halted that long-term decline of the tenanted sector in England and Wales, which has remained stable at roughly one third of agricultural land. However, a number of significant changes were not envisaged and not allowed for by the Act. They include the trend toward diversification of the rural economy, so that farms are no longer purely for farming, and the move towards protection of the rural environment. In its Guide to the Regulatory Reform

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(Agricultural Tenancies) (England and Wales) Order 2006, DEFRA states: ‘The provisions of agricultural tenancy legislation and fiscal rules have placed barriers in the way of tenant farmers seeking to take advantage of opportunities for diversification and to participate in agri-environment schemes.’ As a result a Regulatory Reform Order was put in place by the Government in 2006 to address the discrepancies and provide fairness and clarity. The RRO was passed following consultation with a number of bodies. In particular, the Tenancy Reform Industry Group (TRIG) was reconstituted specifically to advise on the issue.

The recommendations put forward by TRIG for modernising agricultural tenancy legislation were accepted by the Government and form the basis for the RRO. According to DEFRA the reforms introduced by the RRO are intended to: • Encourage diversification by tenant • farmers. • Maintain and improve the viability of • tenanted farms. • Allow restructuring of holdings without • jeopardising valuable rights. • Improve flexibility in the tenanted sector. • Maintain a balance between landlord and • tenant interests. R • To find out more visit www.defra.gov.uk.


Veterinary Forensic Entomology by PETER BATES, Ph.D. MSB. C.Biol. FRES – Veterinary Entomologist

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orensic entomology is used by law enforcement agencies throughout the world to estimate the point of death (post-mortem interval or PMI) of a human corpse through the analysis of its invertebrate fauna. However, forensic entomology can also be applied to animal health and welfare. Under the Animal Welfare Act (2006) (updated 2007) it is an offence to cause unnecessary suffering to any animal. Reasonable steps must be made to ensure that the animal’s needs are continually met, including protection against pain, injury, suffering and disease (including parasite infections). In addition, the Welfare of Farm Animals (England) Regulations 2007 allows for Codes of Recommendations for the welfare of animals to be produced. Although not statutory, livestock farmers are required by law to ensure that all those attending to their livestock have access to the relevant Codes for the species farmed. Although the main aim of the Codes are to encourage farmers to adopt high standards of husbandry, they may also be used to back-up legislative requirements when a person charged with a welfare offence fails to comply with the provisions of a relevant Code. Anyone found guilty under the Act may be banned from owning animals, fined up to £20,000 or sent to prison.

Livestock can be attacked by a number of parasitic insects, mites or ticks living on the skin of the host (ectoparasites), all capable of causing considerable distress and possible death. Consequently actions required to prevent or treat ectoparasites are included in the relevant Code of Recommendations. Failure to follow the Codes can result in considerable animal suffering, which can be considered unnecessary as effective chemical treatments are available to prevent or cure infestations. However, chemical treatment is not foolproof. The ectoparasite must be identified and the correct treatment applied. Skill is required in applying a treatment effectively, some products do not claim 100% efficacy and in some cases the ectoparasite has developed resistance to the treatment. Consequently, it is of paramount importance to differentiate cases of treatment failure from those of definite neglect. Sheep scab and blowfly strike, widespread ectoparasites throughout the UK, make up the bulk of veterinary forensic entomology investigations. Scab, caused by the mite Psoroptes ovis, is a form of debilitating allergic dermatitis resulting in wool loss, intense irritation, epileptiform seizures, scab formation and death. In addition to the Animal Welfare Act 2006 the disease also falls under the Sheep Scab Order (1997), giving Local Authorities the means to prosecute owners of infested sheep when they do not take appropriate control measures voluntarily. Ageing the duration of scab infestation (and therefore the period of neglect) is crucial to a successful prosecution. Unfortunately this is not easy. Early lesions are virtually undetectable and this ‘subclinical’ phase can last for a matter of days, weeks, months or even years before the lesion progresses into the active (visible) clinical phase. The duration of the sub-clinical phase can be influenced by sheep breed, parasite virulence and previous exposure to scab. Thus the animal with the largest lesion is not necessarily the animal with the oldest lesion. Blowfly strike (invasion of living sheep tissue by larvae/maggots of the greenbottle, Lucilia sericata), if not treated can cause considerable suffering and mortality within a flock. An estimate of the duration of strike on an individual animal is essential in order for a prosecution to be successful. One such method compares the species, life-stage (instar) and size of infesting larvae against standard larval growth curves for L.sericata. Although targeted to strike in live sheep, the method has also been used to age larvae taken from strike cases affecting cats, dogs, poultry, pigs and wildlife. Only a small proportion of the L. sericata population will strike sheep, the vast majority are involved in the environmentally useful tasks of disposing of dead bodies and carrion. Consequently, where dead sheep are concerned, it is important to know if the animal died from the effects of blowfly strike or was struck after death. Another aspect of veterinary forensic entomology relates to the EU Animal By-Products Regulations, brought into effect in May 2003. The regulations prohibit the on-farm burial or burning of fallen stock (animals that have died through natural causes) due to the risk of disease spread through groundwater or air pollution. Animals must be taken to/collected by an approved agent for incineration. Prosecutions can occur when carcases are left in situ or illegally dumped. In these cases it is possible to determine the PMI of these carcasses and therefore how long the carcase has been abandoned. Future articles in Your Expert Witness will focus on these aspects of Veterinary Forensic Entomology in more detail. q

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Expert Witness Services for both Civil and Criminal Cases Accident Investigation and Reconstruction Specialist Over 20 years experience ‡Full Reconstruction Reports ‡Locus Reports, Scale Plans, Photographic and Video Evidence ‡Vehicle Examinations ‡Statement Taking ‡Presentation of Expert Evidence at all Levels of Both Civil and Criminal Courts ‡Expert in Accidents Involving all Classes of Vehicle and Road User ‡Expert in Both Temporary and Permanent 7UDI¿F0DQDJHPHQW6\VWHPV ‡([SHUWLQDOO5RDG7UDI¿F2IIHQFHV

NATIONWIDE COVERAGE $FFLGHQW,QYHVWLJDWLRQDQG7UDIÂżF0DQDJHPHQW6HUYLFHV 1HZODQG:LWQH\2[IRUGVKLUH2;-* 7HOHSKRQH0RELOH Email malprice@aitms.co.uk

www.aitms.co.uk 24


Road works

Potentially a cause of RTA’s by MALCOLM PRICE of Accident Investigation & Traffic Management Services

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oad works are an ever present feature on today’s busy roads. In London alone some 500,000 such works are carried out every year. The type of work varies considerably in scale, from a small hole in the road to major road improvement schemes, but one thing they all have in common is a system of temporary traffic management. The presence of road works, and their associated temporary road layouts, can present road users with an unusual or unexpected situation and have the potential to create uncertainty as to what they should do. Road users have to maintain a constant look out for changing conditions and need to be informed of potential hazards well in advance. The nature of such works may also temporarily reduce the level of safety that would otherwise exist under normal road conditions, for example by the removal of permanent features such as safety barriers or the introduction of contra-flow systems. It is necessary to find a compromise between getting the work done as quickly as possible and keeping the traffic flowing freely and safely. The correct use of signing, lighting and guarding will facilitate a safe system of operation whilst the works are carried out, both for road users and the workforce, minimising any hazards. The primary aim of any temporary traffic management system should be to maximise safety. Any temporary traffic management layout should create a safety record that is at least as good as that which exists when there are no works present. The key question to be answered is will anyone coming along the road or footway, from any direction, know exactly what is expected of them? Unfortunately the answer to that question is not always yes. If the signing, lighting and guarding do not adequately address the potential safety issues, things can go badly wrong. So what happens when things do go wrong? In all probability there will be an accident. According to the latest available statistics, in 2009 there were almost 3,000 recorded personal injury accidents where the road layout was a contributory factor. By far the majority of those accidents occurred when road works were present. Add to that the fact that, on average, for each personal injury accident there are likely to have been around eight damage only incidents and you can begin to appreciate the scale of the problems that can be associated with road works. There is a good deal of legislation and guidance in existence that deals with the design and provision of temporary traffic management layouts. Certain types of road works are regulated under the New Roads and Street Works Act 1991 (NRSWA), which requires those organisations carrying them out to provide adequate and safe traffic management. A code of practice, which has legal status under the Act, specifies the equipment to be used and provides guidance on how it should be set out

according to the types of road and works being conducted. For those works that are not within the scope of the NRSWA, Chapter 8 of the Traffic Signs Manual contains a considerable amount of guidance on the design and setting out of temporary traffic management systems. However, whilst Chapter 8 provides a guide to good practice, it does not have the same legal status as the NRSWA Code of Practice. Its contents are subject to interpretation and, although it contains many example layouts, it cannot cover every possible situation. In cases where the traffic management is thought to have been a contributory factor, it will be necessary to establish exactly what was in place and then to make an assessment of the layout in light of the relevant legislation and guidance. The location, type and size of signs, as well as the information provided by them, will be a key focus of the investigation along with the layout of cones and barriers. Another aspect of the investigation will focus on the risk assessment process, which should have been carried out prior to the temporary traffic management layout being designed, in order to establish whether or not all potential safety hazards had been correctly identified and measures put in place to address them. Temporary traffic management is all too often the subject of theft and vandalism, resulting in safety hazards. To combat this problem, there should be in place a suitable regime for the inspection and maintenance of a layout in order to prevent it being compromised. Any such regime will also fall under the spotlight as part of the investigation.q • Malcolm Price, an accident investigator with Accident Investigation & Traffic Management Services, offers expert witness services to the legal profession and insurance companies. Based in Oxfordshire, but covering the whole of the UK, AITMS investigate road traffic accidents. In addition to providing a full range of accident investigation and reconstruction services, Malcolm offers an additional area of expertise in both temporary and permanent traffic management. He is qualified in temporary traffic management, registered with the national Street Works Qualification Register and has many years experience of assessing layouts and conducting safety inspections at road works. As well as carrying out all the more usual investigations, he is also able to fully investigate temporary traffic management systems in order to establish whether or not the relevant legislation has been complied with and guidance on good practice followed. The result is a fully detailed reconstruction report as to the circumstances of the collision and any contributory factors connected to the physical road environment, whether permanent or temporary in nature.

Personal Injury Road Accidents 2009

Source: roadcasualtiesonline.dft.gov.uk

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Civil Unrest and Digital Evidence by PAUL VELLA of Evidence Matters Ltd

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he recent civil unrest in England took many by surprise, not least the mobile phone service providers who were put under pressure to provide records to police. From an evidential point of view, the use of mobile phones in these situations is interesting. In situations like this, the police will seek evidence from many sources including CCTV and still photographs, but will pay particular attention to mobile phone call and text message traffic – once they apprehend one perpetrator, the record of mobile phone calls and text messages made and received will undoubtedly provide intelligence that will lead them to others. The media reported extensively that the rioting and looting was organised using social media, but it seems that once the initial Tottenham protest had taken place, Facebook and Twitter messages weren’t necessarily the driving force they were made out to be and it took those in authority several days to turn their attention to Blackberry Messenger. Blackberry Messenger (or ‘BBM’ for short) is a service available to RIM Blackberry users, which surprisingly has the lion’s share of the youth market (37% according to Ofcom). When you learn that BBM allows two or more people to exchange messages in real time, it probably isn’t that surprising. Critically, BBM allows users to ‘broadcast’ messages to a group of contacts. Its simplicity and flexibility makes it a perfect tool for communicating within a group, and unlike Facebook and Twitter, messages are relatively untraceable. One BBM broadcast for example, made just prior to the outbreak of rioting and looting in Enfield on the Sunday afternoon read, ‘Everyone in edmonton enfield wood green everywhere in north link up at enfield town station at 4 o clock sharp!’ During the week of the riots, Facebook launched a new iPhone application that allowed BBM style messaging. Facebook wisely chose to delay the UK launch of the free application. It seems the police were incapable of capturing Tweets and BBM’s in real time to gather intelligence as to what was going to happen. Jenny Jones, the former deputy mayor of London, blamed an under-resourced police force for this oversight. What was surprising to me was that to hear that Research In Motion, the company that provides the Blackberry handsets and messenger service, were quick to announce that they would hand over Blackberry messages to the police. Whether or not that happens remains to be seen, since security is the main selling point of Blackberry devices, but it may be the case that we see not only BBM’s, but SMS (text) messages that were ‘captured’ and retained by the mobile phone service providers used in evidence. Many of those caught up in the frenzy of the rioting failed to take in to account the amount of evidence that can be retrieved from a device as simple as a mobile phone. Some handsets allow for the recovery of several thousand live and deleted text messages, others may retain GPS location based data, and failing that the call data records can be used to retrospectively determine the approximate location of the phone.

It isn’t just the calls and texts sent by the mobile phone that can provide police with hard evidence. Whilst we find that mobile phones used by criminals tend to be pay-as-you-go rather than contract phones, the top-ups typically record the debit or credit card used and the store location where the top-up is purchased. It is not unusual to see the police relying on in-store CCTV to identify the person purchasing the top-up. In future, protocols may be established that result in mobile phone and social media services being restricted by government, something we have already seen in San Francisco during the recent BART (Bay Area Rapid Transport) service protests. Twenty-six years ago the Tottenham riots following the death of Cynthia Jarrett were preceded by a man stood on a chair with a megaphone announcing “This is war”. Today it seems technology has provided everyone with a personal megaphone. R

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Meteorology in legal cases by John Greetham, Forensic Meteorologist, Coates-Greetham

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he forensic meteorologist carries out an investigation into the weather over a few hours, days and on occasions over many months or even years. But, why do the courts need an expert in meteorology? Although meteorology is an every day science – in that almost everyone understands terms such as fog, snow, rain and hail – the forensic meteorologist is required to examine weather records and offer an opinion based on the minutiae of the science. This, almost always, involves preparing the equivalent of a weather forecast. He is required to explain to the court why, when and where the weather occurred and how it affected the incident. In many cases, such as flooding, the defence of Act of God is offered, but not always successfully (Rylands v Fletcher 1868). Although liability is strict, Act of God is a defence. It is, of course, a matter for the judge in each case to decide whether a particular weather event is an Act of God. The meteorologist’s part is to describe to the court, by means of a written report and if required verbally in the witness box, the evolution of a weather event. From the records, witness statements and other sources he must give an opinion on any matter concerning the weather that affects the case. For example, it may be a question of how much rain fell, how strong the wind was or what time ice formed. On some occasions a forensic entomologist needs to know the weather over a number of days, in particular temperature and humidity, to assess the effect of the weather on the development of fly larvae in a body. The role of the meteorological expert witness is the same as any expert witness – to give an honest and unbiased opinion based on sound scientific principles with supporting data and references to published work. The weather is a matter of record and is well documented, not only in the weather records, but in the case of severe weather events and often road traffic accidents, in newspapers, on television and in witness statements. Although there is a time element involved, the changes of the various weather parameters in terms of time are fixed. It is therefore a problem of spatial separation of the weather events at the nearest weather stations and the weather at the site of the incident that the expert has to consider. The opinion is based on weather data from a variety of sources such as the internet, the Met. Office, witness statements, the media and, on some occasions, CCTV from the site of the incident. Although meteorological evidence is not vital in many cases, occasionally it is very important. Such a case was R v Agis. Mr Agis was the designer of a large plastic multicoloured structure through which the public walked listening to music. The structure was tied down by ropes pegged into the ground. He was charged with manslaughter as well as breaking health and safety rules after the structure lifted off the ground in a park at Chester-le-Street injuring twenty or so people and killing two. The case was heard in the Newcastle Crown Court. The expert for the prosecution gave as his opinion that the cause of the accident was a strong gust of wind which should have been anticipated. CCTV was available throughout the day which was hot and sunny, with very light winds, until about one minute before the structure rose vertically into the air. Trees near the structure suddenly showed violent movement whilst other trees further away were generally still. The nearest weather stations did show quite strong winds at time but the site of the incident was much more sheltered from the prevailing wind than the weather stations. The meteorologist acting for the defence disagreed with the prosecution expert on the wind theory. The defence expert’s theory

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was that the top surface of the plastic structure became very hot and caused air to rise over the structure in a strong thermal and the structure was sucked off the ground. The sudden increase in wind over the nearest trees supported this theory as air rushed in to replace the rising air. In the event the expert for the defence was not called to give oral evidence. It appears that the CCTV evidence was conclusive in destroying the wind theory. The jury could not agree on a verdict and Mr. Agis was found to be not guilty of manslaughter but guilty of breaking health and safety regulations. q • Coates-Greetham was started by John Greetham after a career in the Met. Office spanning 37 years from 1951 to 1988, starting as an observer, then forecaster and eventually in 1986 becoming head of the legal enquiry section as a Senior Scientific Officer. Over the last 26 years reports have been submitted in both civil and criminal cases. Cases have covered a very wide spectrum from murder and rape to minor traffic offences and, on the civil side, personal injury, road traffic accidents and building delays covering many months. His first court appearance was in 1984, just one month after joining the enquiries section. The case was one of murder. A taxi driver was killed when a rock was thrown off a bridge during the miners strike of 1982. A policeman had given evidence that he saw the accused by bright moonlight on a cloudy night with light drizzle. His evidence was withdrawn.


Is it a ‘real’ gun, an ‘imitation’ or a ‘toy’? Having been recently asked to comment on imitation firearms by the BBC News, Philip Boyce of Forensic Scientific, comments further on current UK legislation with regard to ‘imitation’ firearms and the defence of such in criminal cases.

in colour; or is less than 38mm high and 70mm long; or a copy of a pre-1870 firearm. A recent case highlights this. An individual was charged with possession of an imitation firearm in a public place, the item in question was a red coloured BB pistol.

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he UK firearms legislation is one of the strictest in the world, and is constantly being amended to follow trends seen in crime. Section 57(1) of the Firearms Act 1968 defines a firearm as ‘a lethal barrelled weapon’ and it is interesting to note that in the UK the typical ‘firearm’ being used in crime is a converted imitation. However, whilst some are fairly straightforward to convert into projectile discharging weapons using ordinary DIY tools, some are more difficult. The nature and structure of converted imitations is such that they are unpredictable in use and can in fact be as dangerous to the firer as to the intended target. As a result a person found in possession of an easily convertible blank firing imitation (whether it has been converted or not) could be charged with possession of a prohibited weapon under the Firearms Act 1968 (as amended). However, in the case of an unconverted imitation, Section 1 (5) of the Firearms Act 1982 also applies, in other words “one didn’t know that it was easily convertible…”. Section 57 (4) of the Act defines an imitation firearm as ‘anything which has the appearance of being a firearm whether or not it is capable of discharging any shot, bullet or other missile’ and as such there is now a ban on the sale of realistic imitation guns, including BB (plastic 6mm pellets) guns and toy guns. There is also a ban on the sale of non-realistic imitation guns to people aged under 18. Of course there are exemptions to the ban of realistic imitations such as, for instance, the purposes of film and TV production. Dirty Harry wouldn’t have looked too good with a bright pink Smith and Wesson .44” Magnum! Home Office guidelines indicate that such weapons should be coloured over 50 percent in a principal colour at manufacture, in order to distinguish them from real firearms. This point is addressed in legislation, which gives an indication of the intent of the legislators. This can be found in the Violent Crime Reduction Act 2006 part 2 Section 38 (3) and (4). An imitation firearm will not be regarded as realistic if it is transparent or bright red, bright orange, bright yellow, bright green, bright pink, bright purple or bright blue

In defence, and after full examination of the item, I identified it as a non-realistic imitation gun, namely a ‘toy’. Now, had it been black in colour, that’s another story and another possible prosecution/ defence. q

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why cowboys are still cool

Smith and Wesson M&P Victory courtesy of: - http:// commons.wikimedia.org/wiki/File:M&Prevolver.jpg

Write baby write –

by JAMES BLACK LL.B (Hons), proprietor Locateperson.net and ABI Member

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hose of you who don’t like writing reports (and I know who you are so don’t hide) may take some comfort in the fact that neither did the great Sherlock Holmes. However Sherlock had Watson to diarise his work and guess what, you don’t – and he was fictional and you are not! So, unless you are planning to get Arthur Conan Doyle to write a novel about you, heads up and get real. You need to write baby write. You are going to read lots about how to write great reports in the coming months in these pages. There is also a very informative guide coming out from Tony Imossi on the same topic later this year via the ABI and prefaced by myself. Tony has put a lot of experience into its pages and it is a milestone for the association.

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I suppose I could have directed this article to the importance of a beggining, middle and end, or how great report writing will make you a more effective investigator, or how it will exponentially increase your income, or how it will rank you with top professionals. But I’m not going to. Instead I am going to tell you about my shoes and why I am £450 pounds better off for capping off a few rounds from my six-gun and why cowboys are still cool. In February this year I took my church shoes to a leading shoe repairer for an original repair. Six months later they had not returned my shoes and I returned to the company in question. They confirmed they had not returned my shoes and, worse still, they hand no idea


where they were. They were also refusing to replace them because I did not have my original purchase receipt – notwithstanding I had bought the shoes 8 years earlier and not from them. What to do, I mused, as I sipped a cup of café rouge in the local saloon on the high street after a non productive visit to the good retailer in question. This is not happening to me – not here, not now, not in my town! Somebody was going to pay. I reached for my Costco mini six-gun laptop, just as an old time Wild West Cowboy would have reached for his Smith and Wesson. Fast and deliberate. I swept my cappuccino to one side, I removed my jacket. This was personal. I began to raise the lid of my six-gun laptop and load up the chamber slow and deliberate. I began to write a ‘report letter’ to the good retailer. I was going to raid him and fill him full of argument. I was going to send him my report. At the beginning of the report I told him what I was going to tell him. Namely, that my report would document how (1) My shoes had been lost due to his negligence, and that the correct remedy in law for negligence was damages. (2) That he was also in breach of contract, and the remedy for that breach was that he should return me to the position I would have been in but for his breach. (3) Finally I would explain why his defence that ‘I could not prove original purchase’ did not excuse his liability. In the middle of the report I told him. That is, I documented my case with supporting facts and evidence. At the end, in conclusion, I told him what I had previously told him, adding nothing new and requested immediately, in full and final settlement, the full replacement value of the shoes together with carriage from London. In default I would ask the court for an order against him. I put a two-line covering letter with the report and turned the entire word document into a pdf with a cool app I have – a pdf creator called ‘Pdf Pen Pro’. I e-mailed the pdf letter and report to the offending retailer’s head office just as my second cappuccino arrived. A couple of days later Tony asked me to write about the importance of reports. As I sat down, wondering what the hell to write, the postman arrived with my cheque for £450 in full and final settlement for my lost shoes. As I inspected the cheque I was in no doubt about the importance of reports and what I was going to write to you all about today. As I finish this article I am just going onto another client report for which I hold a sum on account. Make up your own mind about the importance of reports – this Cowboy is off to the bank! q

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The expert witness in Scotland by KIM LESLIE, Convener of the Civil Justice Committee of the Law Society of Scotland

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he immunity from suit, previously enjoyed by expert witnesses, has been removed by a recent decision of the Supreme Court. Jones -v- Kaney(respondent)[2011 UK Sheriff Court 13]. The decision was made by majority, Lord Hope and Lady Hale dissenting. There has been a fair bit of coverage about the implications that this decision will have, however, for different reasons, I did a bit of a double-take when reading the judgement. The background is that the appellant, Mr Jones, had been struck by a motor car in March and suffered physical and psychiatric consequences. He consulted solicitors and raised his action for personal injury in court. His solicitors, on his behalf, instructed a clinical psychologist to prepare a report. This was for the purpose of the litigation. In her report, the psychologist concluded that the appellant was suffering from Post Traumatic Stress Disorder (PTSD). Proceedings were issued and liability admitted. Quantum was the only issue in dispute. The appellant was examined by a consultant psychiatrist for the defendant, who believed the appellant was exaggerating his symptoms. The district judge ordered the two experts to hold discussions and to prepare a joint statement to assist the court at trial. The appellant claimed that his expert witness carried out this task negligently. She signed a joint statement that wrongly recorded the content of her discussion and conclusions with the other expert witness. The joint statement, it would appear, wrongly reflected that the appellant had not suffered from PTSD and had been deceitful in his reporting. This was understandably damaging to his claim and he ultimately settled his case for far less than he might otherwise have done. Understandably narked, he must have made the enquiry to his solicitor – “Is there anything we can do?”. Faced with the established principle of immunity from suit for expert witnesses it would have appeared an insurmountable hurdle. However, the case, due to the general public importance, ultimately came before the Supreme Court. By majority it was their decision that the immunity from suit for breach of duty (whether in contract or in negligence) that expert witnesses have relied upon in relation to their participation in legal proceedings should be abolished. Now, back to the double-take. As a Scottish solicitor, I read with some degree of astonishment that the district judge had instructed the opposing experts to hold discussions and to prepare a joint statement. I make no criticism of that. The only reason for the doubletake is that this would be alien, certainly in this type of case, in the Scottish courts. In Scotland, there is still very much a separation in relation to case preparation and the evidence of expert witnesses. Pre litigation, an insurer, in a Voluntary Pre Action Protocol, may ask questions through the pursuer’s agent to their expert. Direct contact is, of course, prohibited. However, when proceedings are issued the adversarial system separates the parties and the experts. I do not believe that adversarial is the most suitable term for our system. This would tend to suggest that there is no dispute resolution or communication between agents. This is, of course, not the case, however it is very much for parties to put their own evidential house in order. The court too takes much more of a back seat. Generally speaking, expert reports are obtained, consulted upon if necessary, and lodged. Where there is a diversion of views, experts are asked to comment upon their opponent’s position. There is certainly no joint discussion or collaboration between experts. It is, however, common to see in expert reports an endorsement or agreement with facts or opinion not in dispute. This is useful as it distills the issue which remains contentious. The court timetable in personal injury cases sets down the date by which all documents or reports must be lodged. There is no judicial input in the majority of

personal injury cases. Routine personal injury cases are, in the main, case flow managed by a timetable. This again would appear to be contrary to the English procedure. In Mr Jones’ case, it was the district judge who instructed the production of a joint statement by the experts. His case, it would appear, was being judicially case-managed. In Scotland we have relatively recently had a review of our civil courts which was chaired by the Lord Justice Clerk, Lord Gill. Judicial case management was considered but discounted for routine personal injury due to the resolute success of the case flow / timetable managed system we have had in operation since April 2003. In Mr Jones’ appeal, the expert said that she felt pressurised to sign the joint statement. By all accounts, it does look as if she has made a mistake, for whatever reason, by signing something that she didn’t agree to. I suppose that is one benefit of the Scottish system where there would be no opportunity for one expert to be pressurised or bombasted by another. The evidence is, of course, tested through cross-examination by opposing Counsel at the Proof. This perhaps brings a different type of pressure but there can be no suggestion of influence when it is your testimony and yours alone. The decision of the Supreme Court will undoubtedly have ramifications for the conduct of expert witnesses. Perhaps rightly so. However, following publication of an article in a Scottish newspaper, comments expressed concerns that experts will no longer accept instruction due to the fear of being sued. I suppose that this, of course, will be a consideration. However, it should be borne in mind that no expert will be successfully sued unless they have been negligent. That said, I would not be surprised if expert witnesses are now carefully scrutinising the terms of their indemnity insurance. R

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Racket Sport Injuries

Love-thirty, love-forty, oh! weakness of joy, The speed of a swallow, the grace of a boy, With carefullest carelessness, gaily you won, I am weak from your loveliness, Joan Hunter Dunn.

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ohn Betjeman was clearly a close observer of the tennis court but playing ‘strenuous singles’, as his muse did, is not without its risks! Sports such as tennis, badminton, squash and racquetball all require a high degree of both cardiovascular and muscular endurance. They are all ‘multi-sprint’ activities with short bursts of high intensity play, many changes of direction and rapid acceleration and deceleration, all of which put considerable stress on the muscles and joints concerned. The repeated high-speed overhead movements during serves and smashes also pose significant risks to the upper limbs in particular. At this time of year, with the tennis season in full swing, there is a great temptation to rush out onto the courts with minimum preparation – but this can lead to disaster. While the upper limbs are obviously at risk in terms of ‘overuse’ or Repetitive Strains Injuries (RSI) to the wrist, elbow and shoulder, the pelvis and lower limbs still have to cope with recovering balance and moving the body quickly into the right position to play the next shot. This can lead to groin strains,

by DR COLIN CROSBY MA(Oxon) FFSEM(UK) FFSEM(I) MB BS LRCP MRCS Medical Director, Department of Sport and Exercise Medicine, London

knee ligament and cartilage injuries, calf and achilles tears and ankle inversions. Even the neck and back are not immune, with overextension in the serve being a particular danger. Most of the problems seen in the amateur player are due to overdoing it without adequate preparation and so it is very important to undertake a fitness programme prior to stepping out on the court. This should involve general cardiovascular conditioning using the cycle, stepper, cross-trainer and running. Interval training with multiple sprints will improve the ability to move rapidly around the court and strength training for the upper and lower limbs is essential for both endurance and power. Core stability training for the lower back, pelvis and abdomen is vital to provide a strong central body in order to control arm and leg position when making the shots. Plyometric work (jumping and hopping) helps develop the ‘springiness’ in the legs which is necessary for the rapid changes of direction. Finally, flexibility training for the shoulders, back and legs helps prevent these areas being damaged by repeated intense movements. It is also necessary to put time aside, before and after playing, for an adequate warm-up and cool-down session. Many injuries are caused by players arriving on the court at the last minute and going straight into the game in order not to waste any of the ‘booked time’ (this is particularly true in squash!) and it must always be remembered that the ‘knock-up’ is a period for practising some hand/eye coordination and assessing the surface, racket and conditions. It is not, in any way, a warm-up – this should have been undertaken before arriving on court. When the professionals knock up before their matches, they will already have had about an hour’s preparation in terms of massage, light cardiovascular exercise and stretching! Other injuries can be caused by changes in the pattern of play, increasing the intensity against younger, fitter opponents for instance or from a sudden ramp in the frequency of matches, as in a tournament or a ‘tennis weekend’ abroad. New rackets tend to have high string tension which can lead to elbow and wrist problems, as can differences in the size of the grip. In general, your grip size should be equal to the distance between the large skin crease in the middle of the palm and the tip of your middle finger. If the racket is significantly smaller than this it will lead to elbow problems, the so-called ‘tennis elbow’, and if it is too large the wrist will be affected. These sorts of problems can usually be remedied quite simply by a visit to the club professional but, if the injury persists, then it is sensible to seek expert attention. In most minor injuries a period of rest, possibly including a short course of anti-inflammatory medication, is all that is required. However, sports physiotherapy may be needed with the more persistent problems along with a discussion with your coach regarding technique, particularly in the serve (shoulder risk), backhand (elbow risk) and topspin forehand (wrist risk). In less than 30% of cases, an expert opinion may be required from a Specialist in Sport and Exercise Medicine (SEM) and an injection of corticosteroid under local anaesthetic may be given. Very rarely (less than 5% of cases) is surgical intervention required but even then it is nearly always possible to return to the sport after appropriate rehabilitation. Remember, “Don’t play sport to get fit – get fit to play sport!” R

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How little girls’ love of horses can have tragic consequences

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number of recent news stories have thrown into sharp relief the risks involved in that so innocent of leisure pursuits – horse riding. The tragic fact is, that despite its seemingly gentile image, equestrianism carries with it the possibility of serious injury and even death. Last month The Star, a local Sheffield newspaper, reported the findings of an inquest into the death of a retired dentist, Mary Chapman, who died as a result of a freak series of events which caused her horse to bolt and throw her to the ground. Her horse, Lucy, was scared by two other horses that were themselves frightened by the noise of a passing motorcycle near an equestrian centre in Derbyshire. The coroner recorded a verdict of accidental death. One week earlier, the Horncastle News in Lincolnshire reported the death of a local woman who had been found dead after setting off on her horse. A major exacerbating factor to horseriding accidents is the fact that a disproportionate number of victims are children, often young girls. Local papers often carry tragic stories of children being thrown from horses or being involved in collisions with vehicles. In March the Court of Appeal dismissed an appeal by the driver of a camper regarding an accident when the van was in collision of a horse being ridden by 14year-old Sally Stoddard in Sunderland. The crash left her with serious injuries to her pelvis – so severe that she may require hip replacement surgeries in the coming years. She was awarded nearly £90,000 in damages, despite the fact that the original court ruling found both Sally and the van’s driver equally at fault for the incident.

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These cases are just examples of situations where horses, humans and machines come into contact. The most celebrated involve pop stars, such as Madonna. Tragically, however, many of the victims are the young children of ordinary people whose daughters just love horses. q

Councils should share costs of child protection expert witnesses

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ocal authorities should meet part of the cost of using expert witnesses in child protection cases, the Confederation of Independent Social Work Agencies (CISWA) has stated. CISWA directors Richard Jack, Philip King and Mark Willis said in an open letter: “We have made the proposal because some solicitors are inclined to avoid using experts who charge above the prescribed rates even where such experts offer a pricing model which is compliant with the rates. Worryingly, these solicitors appear tempted to use low fee practitioners who are unlikely to have the requisite expertise to provide the necessary expert opinion in a case. This will expose children to unnecessary risk and CISWA urges solicitors to stand firm in protecting the family justice system.” The letter said CISWA was “not prepared to simply accept the unfounded, discriminatory and misinformed stance of the Legal Services Commission (LSC) in capping independent social work rates, as opposed to other experts”. CISWA said its members provided courts with advice based on witnesses’ lengthy careers in social work but they could do this only “at a minimum professional rate of £65 per hour”, a fee that reflected the skill level involved and the training and accreditation needed. It proposed that where a local authority is involved in a case, the LSC should pay 100% of the professional hours at £30 per hour, plus all the travel and mileage, and the local authority should then make up the shortfall by paying the fee level above the LSC limit, at £35 per hour. “We consider this is fair to all the parties whilst still complying with the new regulations applicable on funding certificates issued from 9 May 2011,” the letter said. “We do not believe that the LSC have the authority to insist that the local authority pay a proportion of the £30 in circumstances where it is funding the remaining cost per hour of £35. That is neither fair nor reasonable.” But it warned that in cases that did not involve a local authority “then regrettably CISWA members will be unable to offer one of their independent social work experts to assist with a case”. q


Toxicology: Oral Fluid Drug Testing by JOHN WICKS & LOLITA TSANACLIS of Cansford Laboratories Limited

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ver the last 15 years there have been major advances in drug testing and the use of alternative specimens to blood and urine for establishing exposure to drugs has become widespread. The alternatives include hair, sweat and oral fluid. Oral fluid testing has been proposed as a non-invasive alternative to blood and has proven to be a viable alternative sample to urine for detecting drug use. The technique has a similar level of accuracy in detection of drugs and is markedly easier to administer than a urine test, though there are inevitable differences that need to be understood. The detection of drugs in oral fluid is more challenging than detection in urine but advances in technology have eliminated any problems. The detection window for drugs in saliva is shorter than for drugs in urine, making it slightly sensitive as a screen for drug use. The usual period covered by an oral fluid test is typically 36 hours, whereas urine testing covers 3 to 5 days. Urine testing reveals what has been taken but not whether the donor is under the influence of the drug detected. Oral fluid has the advantage over both blood and urine in that it can be obtained non-invasively in conditions where adulteration or substitution is difficult. And it is a sample of choice in ‘for cause’ investigations where blood sampling might not be available or possible. On site testing kits are available for oral fluid testing as they are for urine, though for maximum sensitivity laboratory analysis is preferable and is required for confirmation of the initial screen results. There are a number of collection devices on the market. Most of the commercially available collectors use a proprietary diluent to mix with the sample and have a pad on stick to place in the donor’s mouth that will collect about 1 millilitre of fluid. The sample can usually be collected within one to three minutes, but it is very important to wait 10 minutes in the presence of the donor to ensure that any drinks or fluids held in the mouth have been swallowed before testing. This time can be used to complete all paper work. Oral fluid testing can be turned around in the laboratory within 3 days of receipt of the sample. Applications of drug testing in oral fluid include the monitoring of drug use by drug courts, workplace testing and roadside testing of possible drug-affected drivers. In the workplace, a testing protocol that focuses more on recent drug use that is most likely to affect work performance is attractive to many employers and oral fluid testing fits

that role better than urine. In general oral fluid concentrations of drugs correlate with blood concentrations so that relating the presence and concentration of drugs in oral fluid to performance and clinical effects in the individual tested is more precise than with urine testing. q

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The pitfalls of forensic

analysis D

NA analysis is the most accurate and reliable method for human identification. However, as with any scientific method, forensic DNA testing has problems and pitfalls that can compromise the integrity of the data and ultimately the cogency of DNA evidence. When analysing the results of STR genotyping the forensic scientist has to answer two crucial questions: (1) does the sample contain DNA from a single donor or is it a mixture of several contributors? and (2) has the genotype at each locus been unambiguously identified? Any mistakes in determining the number of contributors or genotype information drastically affect interpretation of the results. The factors affecting the outcome of the DNA testing process can be loosely grouped into five different types: factors related to the donor of the biological sample, factors related to the state of the biological evidence and factors related to DNA testing methodology, human error and contamination. Genetic features of the donor as well as past or ongoing medical treatment can in some cases complicate the interpretation of DNA profiles. The genetic factors are associated with the presence of chromosomal abnormalities, somatic mutations and chimerism. Among the non-genetic factors that can cause anomalous DNA results are blood transfusion and specific surgical treatment (such as bone morrow transplantation) due to a number of illnesses (e.g. leukaemia). For example, people who have undergone successful bone marrow transplantation show a true mixed profile in buccal samples (the main source of DNA evidence from suspects in the UK) five years after the

DNA

by DR ANDREI SEMIKHODSKII of Medical Genomics Ltd operation, while in blood, the donor profile completely replaces that of the recipient. Biological evidence recovered from the scene of crime is usually subjected to various environmental or chemical insults which can cause DNA degradation. In addition, PCR inhibitors are often present in the sample which reduces the efficiency of the PCR reaction. In such cases it may only be possible to obtain a partial STR profile from the sample. As the cogency of DNA evidence is directly affected by the number of informative alleles in a DNA profile, any missing genetic information will reduce the random match probability and consequently the probative value of the evidence. Because DNA extracted from evidential samples is often degraded to a certain degree, developing a robust methodology for dealing with degraded samples is important. A problem of a different kind to the one discussed above is the appearance of extra peaks in a DNA profile besides the peaks for the targeted alleles. These extra peaks can arise from the issues related to the technology of detection of fluorescently labelled fragments, biochemistry of genetic analysis and poor operator technique. In a mixed sample these artefacts can complicate interpretation of the profile and affect the decision as to the number of potential contributors. In addition, artefacts leading to big changes in peak morphology can cause scientists to draw wrong conclusions as to the genotype of the sample even when no extra peaks are present. Human error refers to various errors which happen either because of a one off ‘catastrophic’ event or when a technician systematically performs a certain procedure incorrectly. The example of a one-off ‘catastrophic’ error is incorrect labelling of laboratory samples or accidental switching of samples. Other examples include pipetting errors, which could result in a sample being loaded incorrectly into the genotyping instrument or placed into a wrong tube or lane. Contamination is an accidental mixture of forensic samples with foreign substances, which can be of a biological or non-biological nature. Various forms of contamination have different effects on DNA analysis. As discussed above, contamination with non-biological substances, such as soil or household chemicals, can cause failure of DNA analysis while contamination with some biological agents, like bacteria and the products of their metabolism, can affect the integrity of DNA in the sample. Much more serious from the criminal justice point of view is contamination of samples with biological material of human origin. This type of contamination can affect the probative value of DNA evidence and lead to false conclusions. There are many ways in which forensic samples can be contaminated by human DNA. A person who attended the crime scene before, during or after the crime was committed could have inadvertently added his/her DNA to the crime stain. These could be relatives of the victim, members of the public, police officers or members of the criminal investigation team. In the forensic laboratory, a sample could be contaminated by samples from the same or different crimes or evidential samples could be contaminated by DNA from a suspect’s sample. The laboratory personnel who had access to the sample during the testing process could also have contaminated it with their DNA. People do not need to touch an object to deposit their DNA on it – DNA can easily be transferred through microscopic droplets which are expelled in the air when we breathe, talk, sneeze or cough or by shedding dead skin. The other source of laboratory contamination is sporadic contamination of tubes and plastic ware used in a DNA testing process. As all leading forensic scientists admit, all DNA samples are contaminated with foreign DNA to a certain degree, as it is not possible to avoid laboratory-based contamination completely. q

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Medico-legal back pain Compensation is not a substitute for normality by DR. DEREK EASTWOOD, MB., ChB., FRCA., FFPMRCA Consultant in Pain Management

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t is extremely rare after a rear shunt accident, even at speed, to produce an identifiable source of injury on an X-ray/scan. Injury produces a stretching of soft tissue structures – muscles, ligaments, tendons and joint capsules. Soft tissue injuries have an expected time of recovery of three to six months when seen in an out-patient clinic – but not in the medico-legal setting. In the medico-legal setting claimants are usually more expressive about their symptoms. Medical signs are frequently influenced by psychological overlay and many of the interventions tried – physiotherapy, injections and medication – are often ineffective. Evolving symptoms, usually many months after the accident, are difficult to explain in terms of the original injury. Rarely is the patient perception of damage used as a deceptive ploy for financial gain, more a conscious seeking of recognition for the injury with appropriate compensation. Patients are allowed a degree of ‘poetic licence’ to exaggerate their symptoms and to express to the examining doctor the disruption the accident has caused to their lives. A doctor’s aim when treating a patient is to reduce pain, physical disability and psychological distress (the 3 P’s). It is well recognised in a pain clinic setting that psychological factors and distress are stronger

predictors of outcome than physical examination or the severity and duration of the pain. In the medico-legal setting the level of patient’s distress is quite high. Patients tend to go round in circles without improvement in their symptoms and being assessed by misbelieving doctors. Degenerative changes assume a greater significance and a greater reliance is put on the MRI scan. In a clinic setting, disc bulges and annular tears are very normal findings on most MRI scans with or without symptoms. The question is often asked are these the result of the accident? The answer is invariably no. Patients may have an identical scan but very different symptoms. Dose a flexion/extension injury to a degenerative spine accelerate the degeneration. Commonly a Medical Report states that the patient’s degenerative changes have been accelerated by two to three years from the time of the accident. Where is the evidence? Fracture through a joint will definitely accelerate degenerative changes. We have no evidence that trauma to soft tissue causes accelerated degeneration. In the medico-legal setting the emphasis is on physical injury/trauma. In reality a high proportion of treatments need to be directed towards resolving distress not physical injury. This opens up the mine field of psychological trauma which is a very contentious issue. Pain clinic medical reports often recommend pain management programmes, but to be effective they need to be of at least 100 hours which makes them expensive. The aim of the programmes is to give the patient a thorough understanding of the interplay between pain and emotional problems in the hope that they will be able to cope better with the aggravating factors of stress and depression, pace themselves and improve function. It is particularly helpful with patients who are stressed out by pain and are generally low and sad. Patients need to understand that they will probably continue to have some pain but their ability to adapt and cope should be substantially improved. Pain management programmes are usually the final treatment pain consultants can offer before having to admit that there is little else the profession can provide. Medico-legal reporting for patients with complex bio-psychosocial problems are difficult. It is important not to underplay the physical injury but, at the same time, it is important to draw attention to psychological distress without giving the impression that the patient’s symptoms are all in the mind. q

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Osteopathy and whiplash injuries by Mr JON LEIGH ND, DO, Registered Osteopath

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he most frequent consequence of a road traffic accident is a sudden de-acceleration injury or whiplash. These are frequently dismissed by junior medical staff as being of minor importance and patients are advised to take a combination of non-steroidal anti-inflammatory drugs and painkillers and told that the condition will get better within a few days. The truth is vastly different and it requires an understanding of the injury and the mechanics of the spine to fully appreciate the seriousness of a whiplash injury. When a person travelling in a vehicle at 30mph suddenly stops, the head, being the heaviest part of the body, continues to move, until its motion is arrested by either the head hitting the steering wheel or air bag, or the neck forward bending to its maximum. At this point it starts to move backwards until its reaches the maximum of its backward bending movement. These movements cause a whip to travel down the spine to the pelvis, where it may be reflected from the pelvic basin. The forces acting on the posterior spinal joints when the neck is firstly fully bent forward and then fully bent backwards cause multiple injuries to the posterior facet joints, causing injuries similar to those produced in a sprained ankle. Immediately the muscles that cross the joints and control movement begin to go into spasm to prevent further movement and thus, further injury. This muscle spasm in turn causes the nerve roots, which travel between the muscles, to be irritated which in turn results in the symptoms experienced by patients of tingling or pain in the neck, shoulder, arm and hands. Similar injuries occur when a stationary vehicle is hit rather than a moving vehicle impacting a stationary object. All the injuries will be complicated if

there are any lateral or rotational forces involved, which will occur if the head is turned to one side at the moment of impact. Conservative medical treatment is to immobilise the area, prescribe painkillers and anti-inflammatory medication and hope that the tissues will heal. Some physiotherapy may be recommended but this usually consists of exercises and joints which have restricted movement cannot be exercised into mobility. If spinal joints do not have their mobility restored, then the areas of immobility will remain, as will the muscle spasm and pain. The osteopathic approach to the victim of a whiplash injury is to fully examine the patient and firstly establish that there are no fractures anywhere in the spinal column and that the pain, and other symptoms being experienced by the patient, are of a musculo-skeletal origin. This is accomplished by taking a full case history and where necessary referring the patient for the appropriate x-rays or MRI examination. X-rays are usually taken with the patient standing or sitting rather than lying on their back. This allows the effects of gravity to be ascertained and also helps to establish the patient’s preferred postural position. MRI’s have to be taken with the patient lying on their back but they are able to convey more information. After this part of the consultation the patient is examined and each segment of the spine is carefully moved through its normal range of movement, with a note being made of the mobility present and comparing it with the amount of movement that should be present. This results in a diagnosis, which shows the quantity and quality of mobility that is present at every specific spinal level. Osteopath treatment may then be applied and this is designed to reduce muscle spasm and restore the normal range of movement that should be present. Many patients expect full mobility to be restored immediately but unfortunately this is not usually achieved. This is because, whilst passive mobility is relatively easily restored, the body still has to repair the damage that it has incurred. The time taken to fully restore a patient to full and free mobility and being pain free depends on various factors, including the speeds involved at the time of the impact, the direction of the forces which have been applied to the spine as well as the patient’s age and general level of health. Similar injuries can also occur in the work place when patients are subject either to falls or any form of sudden, unexpected de-acceleration. The same principles apply to diagnosis and the treatment of the injuries. Osteopaths can aid not only in treating the patient who has been injured by a de-acceleration injury but also the lawyer who represents the patient at a tribunal or in court. Detailed reports, delineating the amount of movement found at the primary examination and after the appropriate treatment, can give demonstrative proof that the patient has been subject to real injury rather than one that is less so. It is relatively easy to demonstrate when an injury has been incurred and when pain and loss of mobility is actually present. This differentiation is of supreme value to the lawyer, to either demonstrate the presence or absence of a real injury. Osteopathy is no longer considered part of fringe medicine but since the implementation of the Registration of Osteopaths Act 1993, the General Osteopathic Council regulates all osteopaths within the United Kingdom. The trained osteopath is now part of the specialist team, able not only to assist the patient in their recovery but also assist the lawyer in achieving a positive result for their client. q • Jon Leigh is a Registered Osteopath and has been in practice for 39 years. He has many years experience both in practice and teaching Osteopathic Philosophy and Techniques and running osteopathic training clinics in the UK and abroad. He has had training in writing medico-legal reports and has appeared as a professional witness both for the prosecution and defence. He has also received training as a Joint Expert Witness.

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The experience, evidence and opinion on pain by DR HUGH KOCH and DR NICOLE HAMPTON

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xperience of pain varies considerably in terms of intensity and variability. An individual’s sensitivity and tolerance also varies with gender, ethnicity, personality and culture – all of which interact and need to be taken into account by the expert assessing causation, diagnosis and prognosis on behalf of the court. Over 7 million people in the UK are affected by chronic pain, which is the 2nd most common complaint cited by claimants for incapacity benefits. It is also associated with illness such as arthritis and cancer as well as traumatic events such as road traffic accidents, work and medical accidents. Psychological factors not only contribute to how pain is initially perceived but are also predictive of how individuals will cope long term with ongoing pain.

Medico-legal issues with chronic pain When carefully distilling through the self-report and medical evidence associated with a claimant ‘in pain’ the medico-legal issues, which arise, include: (1) The ‘egg shell skull’ principle – a claimant must be taken ‘as they find him/her’ even if index-event complaints are aggravated by previous health problems. (2) The alternative ‘predisposition’ model in which a claimant’s vulnerability to ill health or pain could be considered causative of a post index-event condition and would have been triggered by another further occurrence in any event. These two issues have been considered in a number of earlier cases including Page v. Smith (1996) and Giblett v. Murrays (1999). The key test of causation arising out of these deliberations and case law is whether the index-event, on the balance of probability, caused, materially contributed to or increased the risk of the development or prolongation of the symptoms of a preexisting disorder, physical or psychological/psychiatric.

Diagnosis of pain-related disorders Clearly much pain experience will have an organic/medical cause which will be assessed and diagnosed by a ‘medical’ expert. In some cases, despite an initial medical diagnosis, the continuation of the pain experience will be difficult to explain in organic terms or becomes a chronic condition which is so complex and compounded by social and psychological factors that the original cause has less, if any, meaning. It is at this stage in any of the above circumstances that a psychological/psychiatric opinion should be sought and typically is. Disorders involving pain are said to fall into at least seven categories: • General medical condition – fully accounts for the physical complaints. • Somatoform Disorder – a history of many physical complaints over several years in different body sites, plus gastrointestinal and sexual/reproductive areas and not fully explained by a known general medical condition. • Pain disorder, sexual dysfunction, conversion disorder and dissociative disorder – does not have multiple somatic complaints affecting a variety or organ systems and sites. Typically pain is adversely affected by psychological factors such as anxiety and depression. • Generalised anxiety disorder – is characterised by worry, not limited to, but including, physical symptoms. • Panic disorder – has somatic complaints occurring only during panic attacks. • Depressive disorders – may have somatic complaints that are limited to episodes of depressed mood.

• Schizophrenia or other psychotic disorders – may have somatic concerns that are of a delusional nature.

Key psychological assessment issues When interviewing a claimant whose presentation has been described as one of chronic pain the following areas require investigation: • Clear history of site-specific self-report or generalised pain onset. This is obtained from claimant self-report plus GP (and other medical) attendance. • Evidence of unrelated prior attendance to, typically, medical practitioners for one or more somatic complaints and associated frequency of such attendance. • Evidence of social factors, including partner and family response to the pain and associated difficulties. • Interview data on how the claimant presents and verbalises his/her pain. • Claimant’s awareness of how psychological factors – ways of thinking, self-confidence, optimism, behaviour and social activity – impact positively or negatively on the claimant’s coping strategies and perception/tolerance of pain. • Reliability of claimant’s history giving – many people have difficulty recalling or giving accurate history due to memory and lack of specificity issues, rather than a wish to mislead. • Truthfulness of claimant’s history giving – this is differentiated from ‘reliability’ although it is clearly at the end of the reliability continuum. This is typically for secondary gain such as financial gain and is ‘conscious’ i.e. intended to mislead.

Joint orthopaedic/psychological assessments

To address comprehensively the several medical and psychological aspects of chronic pain, some orthopaedic/ psychologist teams are currently offering ‘joint appointments’ to lawyers which have the advantage of: • Same day appointment with orthopaedic specialist and clinical psychologist. • Separate reports with agreed conclusions following case discussion between experts. • Appointment within 6-8 weeks. These assessments cover: Orthopaedic • Location of pain – anatomical, organ system • Temporal characteristics of pain and pattern of occurrence. • Aetiology. Psychological • Psychological experience of pain. • Impairment in social and occupational functioning. • Psychological factors in onset, severity, exacerbation and • maintenance of pain. • Exclusion of factitious disorder or malingering. • Use of pain coping strategies.

Treatment and prognosis of chronic pain Psychologists and pain management specialists are actively engaged in providing psychological and medical interventions in cases of chronic pain, addressing the several psychological – cognitive, emotional and behavioural – and social aspects of disability. This can be offered either on an individual (one-toone) basis or as part of a multi-disciplining hospital based pain management prognosis. q

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MYOFASCIAL PAIN: a recognised clinical

entity or a creation of personal injury litigation? by DR. NICHOLAS PADFIELD MBBS, FRCA, FFPMRCA Consultant in Anaesthesia and Pain Management

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n the medicolegal context the diagnosis, even existence, of Myofascial Pain Syndrome remains highly controversial. There would appear to be two camps, ‘believers’ and ‘non-believers’. Generally the former are made up of physiotherapists and pain management consultants and the latter made up of orthopaedic surgeons , neurologists and rheumatologists.

Definition The International Association for the Study of Pain (IASP) defines Myofascial Pain Syndrome (MPS) as a musculoskeletal pain condition characterised by local and referred pain, perceived as deep and aching, and by the presence of myofascial trigger points (MFTrPs) in any part of the body.

History The condition was first described by Janet Travell in 1942 and, having been joined by David Simons a Californian Physiotherapist, many publications ensued. However the ‘orthodox’ medical establishment were concerned that the physical signs of specific trigger points were inconsistent and showed a large variation between observers. This was countered by ‘believers’ that it took particular training to learn to elicit these physical signs and that failure to do so was due to lack of expertise. The ‘non-believers’ cite a paper by Wolfe et al, published in 1992, that concluded that the finding of trigger points was unreliable. However the study was in small numbers and compared fibromyalgia with myofascial pain syndrome with normal controls. In some respects this study is disingenuous as myofascial pain is easy to differentiate from fibromyalgia by taking a good medical history as MPS development is always preceded by some form of injury. Gerwin et al, a few years later in 1997, looked at inter-rater reliability in myofascial trigger point examination and found good correlation, provided the rater had been trained and that the there was agreement on the definition and features of myofascial trigger points. Lucas et al, in 2009, published a systematic review of nine studies and concluded that physical examination could not be recommended as reliable for the diagnosis of trigger points. It would therefore seem that either side can present papers from the biomedical literature to support their view. But…. Pain is defined by IASP as an ‘unpleasant sensory and emotional experience’. There are always going to be ‘emotional experiences’ around personal injury. In such circumstances psychological factors will have a large role to play in the impact of pain from such injury. In the absence of convincing physical features psychiatrists often refer to: (a) factitious pain where distress is unconsciously manifesting as physical symptoms; (b) somatoform disorder where pain is manifest in the absence of physical injury – but note that this is a positive diagnosis where specific criteria have to be satisfied rather than a diagnosis by elimination i.e. ‘I don’t know what else it can be’ and lastly; (c) malingering where there is a conscious exaggeration or manufacture of symptoms for the purposes of secondary gain within a medico-legal context. Their opinion will necessarily be coloured by other expert reports on causation of the physical manifestations of the pain arising from personal injury. A large part of the problem in making a definitive diagnosis of myofascial pain syndrome has been the lack of reliable confirmatory investigations.

Investigations Animal work has revealed higher levels of neuropeptides (e.g.Substance P or Calcitonin gene related peptide), catecholamines (e.g.Noradrenaline) and proinflammatory cytokines (e.g. tumour necrosis factor alpha, interleukin 1-beta, interleukin 6 and 8) in active trigger points. Electrophysiological studies have demonstrated some spontaneous electrical activity attributed to miniature endplate potentials and excessive acetyl choline release in MTrP’s, although these findings should be interpreted with caution. The most convincing evidence to date probably comes from magnetic resonance elastography which confirms the existence of taut bands (a diagnositic feature of MPS), and ultrasound and sono-elestography where MTrPs are hypo-echoic on two-dimensional ultrasound and appear stiffer on vibration sono-elastography. In addition Nidam et al, in 2007, using functional magnetic resonance imaging demonstrated altered cortical signalling in the presence of MTrP’s compared with normals. There were significantly enhanced somatosensory and limbic activity and suppressed right dorsal hippocampal activity, correlating with the emotional as well as sensory changes in MPS.

My view As a practising physician I regularly see patients who fit the criteria described for this condition. They do definitely have readily reproducible MTrPs, which I get to demonstrate to my trainees and get them to demonstrate back to me. A carefully taken history will always reveal some injury that starts this off. Often, but not always sadly, they do get better with treatment which centres around stretch and relaxation, and occasionally this is facilitated with drugs such as pregabablin and duloxetine …and time. Also critical is the recognition and avoidance of factors that aggravate and/or maintain the myofascial pain such as stress and inappropriate muscular activity in terms of demand and duration. Thus an effective multidisciplinary residential pain management program is the gold standard for treatment. I am a believer! Myofascial Pain Syndrome is a clinical entity and not a creation of personal injury litigation. q

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What is PART 1

RSI?

by DR ANTHONY CLARKE FRCP, Consultant in Rheumatology & Rehabilitation, Bath

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epetitive Strain (or Stress) Injury is a relatively newly described condition although physical injury due to work is as old as work itself. The majority of these injuries were due unsafe working practices, with the worker coming into a dangerous, hostile environment with fracture, crushing, burning and laceration often being the result. It is surprising therefore that in our increasingly safety conscious society we should be confronted with a disorder that threatened to bring a whole segment of the economy to a halt. Yet in Australia the incidence and severity of RSI was such that secretarial work seemed to be more dangerous than deep sea diving or coal mining. In the 1970’s increasingly large numbers of people working in settings such as offices and assembly lines started to report persistent and disabling symptoms, usually in the upper limbs, related to their occupation. The huge increase in keyboard work, especially related to data entry on computers led to the concept of overuse injury, often with the appellation tenosynovitis. Sufferers often reported that they were virtually unable to use their upper limbs, either at work or at home. In Australia the condition became known as ‘Kangaroo Paw’. It reached a peak in 1985, with thousands of claims against employers, but within seven years had virtually disappeared. This came about by the

cooperation of the unions, medical experts, the employers’ organisations and the state authorities. The driver for the condition appeared to be union and medical pressure but with common sense and simple measures prevailing, the incidence of RSI reduced dramatically. We now know that there are work practices that can be unsafe, but that often simple ergonomic modifications are all that are needed to prevent damage to the human frame, coupled with a positive, rational approach to dealing with symptoms that may arise. Having said that, pain and functional disability is still seen in a small number of claimants. In this first of two articles I will discuss some of the issues relating to RSI claims. As with any claim for personal injury, certain criteria need to be met for that claim to be proved. These include a failure of duty of care by the defendant leading to symptoms and for those symptoms to be due to a recognisable impairment. As a rheumatologist, I will address the issue of the recognisable impairment first. For simplicity I will confine my remarks to the upper limb, as the overwhelming majority of cases are seen in the upper limb. As noted above, in the early days many of the cases were described as tenosynovitis, despite the total lack of any physical signs to support the diagnosis. It is loose thinking like this that leads to some of the more unreasonable claims. Pain in the arm can arise from a wide range of structures including the neck, shoulders, elbows, wrists and hands, and may be due to problems with bone, muscle, tendons or nerves. Common causes are tennis and golfer’s elbow, cervical spondylosis, carpal tunnel syndrome and nodal osteoarthritis. The last named condition is seen in up to 70% of older women and is a constitutional, hereditarybased disorder, with painful cysts on the finger joints and painful thumb bases. Tenosynovitis is seen, but it usually an acute disorder related to unfamiliar overuse, or secondary to an underlying inflammatory condition. With the widespread availability of diagnostic ultrasound, the diagnosis of true tenosynovitis is simple and cheap, as well as being non-invasive and safe. Carpal tunnel is common and is due to pressure on the median nerve at the wrist. Potentially it is postural, but is seen in arthritis, low thyroid gland function and fluid retention. The full list of causes of arm pain runs to several pages and therefore the point I wish to make is that before any claim goes forward relating to RSI it is essential to get an authoritative opinion as to the cause of the pain. This is not just academic. The overwhelming majority of these conditions are treatable and do not lead to long-term disability. Many of the disorders can be cured with fairly simple measures, including physiotherapy or cortico-steroid injection. Others need further investigation and more prolonged management programmes, but what they do not need is for the patient to lose their job. Next time I will concentrate on two issues – causation and the psychological and cultural aspects of RSI. In the meantime, if any readers have questions relating to RSI, please write to me at Your Expert Witness magazine. q

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VTE (Venous thrombo-embolism) and knee surgery by MR IAN FORSTER MBBS FRCS FRCS(Ed), Consultant Orthopaedic Surgeon

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n uncommon but frightening complication for both patients and surgeons is the occurence after surgery of a DVT or PE. Collectively these changes are known as a venous thrombo-embolism. The reported rate of DVT after arthroscopy is 0.6% - 18%. Some of these are asymptomatic and the 18% figure is disputed. NICE, in their guidelines, suggest that after TKR there is a risk of 60% of DVT. This is not the clinical picture and must include a large number of asymptomatic cases. DVT is a common cause of concern for patients and they take a very sensible interest in its likely occurrence and prevention, particularly those who are familiar with the internet. The site they all favour is NICE which has set out guidelines to prevent venous thrombo-embolism. The problem is that these guidelines are not accepted by knee surgeons at present. This is the area which causes concern for solicitors and their clients. The risk of DVT after knee surgery has been reported for arthroscopy and for total knee replacements. The risk in total knee replacements has been discussed at length and a consensus is being appended gradually. However the prophylaxis for arthroscopy and ligament reconstruction has hardly been discussed at all. Most surgeons used to regard aspirin as the clinical cure to all their ills and we used to give it at the first sign our patients may have such problems. Aspirin was used as a prophylaxis knowing that the risks following its use are very small. Unfortunately aspirin has been shown to be ineffective and thus the dilemma.

It is important to realise that there are many other ways of reducing the risk of DVT and before discussing NICE guidelines I should list these. It is probably true that medico-legally any attempt at prophylaxis would be sufficient to defend a case of venous thrombo-embolism after surgery and complications following drug prophylaxis might mean this is contra indicated anyway. The MDU has stated that provided action can be explained and justified NICE guidelines do not need to be followed. Non pharmacological prevention of DVT includes: (1) Activity – by far the best prevention (2) Graduated compression stockings for a period after surgery (3) Foot and calf pumps initially after surgery. (3) It is likely that the DVT occurs gradually at the time of surgery but only (3) appears at a variable time later

Consent In any consent for a knee operation the possibility of DVT should be discussed with the patient and advice given (a) as to whether to treat (b) what to do in the event of symptoms and (c) an assessment of the risk of the occurrence of a DVT (NICE guidelines).

Diagnosis The usual symptoms are of swelling and calf pain. The patient rings the hospital or their GP and is investigated by Duplex scan. It is important to note that clinical examination is totally unreliable and this is a diagnosis by test. If positive, it is usual to give the patient Warfarin for three to six months depending on current policy. NICE guidelines for orthopaedic surgery suggest prophylaxis in patients with an operation over 1 hour from induction of anaesthesia. Arthroscopy would take around half an hour to perform, for instance and an ACL approximately one and a half hours. A total knee replacement also takes one and a half hours. It is unlikely, therefore, that an arthroscopy would need prophylaxis. There are reports advising that ACL patients probably do not require prophylaxis. We used to use aspirin but have stopped and so only give advice. Total knee replacement would certainly need clinical prophylaxis in our hands (assuming no contra indications) and we would always do this. The policy is to give Clexane or Rivaroxoban. The latter being oral is clearly easier to give. Hospital policy is for a TKR patient to have two weeks prophylaxis and THR four weeks. However the risks remain for 6-8 weeks and we used to give aspirin for six weeks. The downside of the more effective agents is that bleeding is common. A knee full of blood heals slowly and is stiff and the outcome is often poor. Aspirin does not pose any such risk but a paper for BASK (British Association for Surgery of the Knee) showed it to be ineffective. At a BASK meeting in Cardiff a paper was presented which compared the result of VTE prophylaxis before and after aspirin was discontinued. Two groups observed in April 2011, one using Enoxaparin and the other Rivaroxoban, revealed 3 VTE’s but 20 patients (out of 294) had persistant oozing. In 2009, 512 had 21 confirmed PE’s but only 1 haematoma. I should say, before condemning aspirin, that a vote at the AGM of BASK this year in support of aspirin as a means of DVT prophylaxis in TKR was carried almost unanimously. The current state of VTE prophylaxsis is still undecided. There is a body of opinion who still support aspirin despite the evidence and a body of opinion who are concerned about the side effects of the more effective agents. Currently the risk of VTE must be discussed with the patient before surgery and the risks assessed. But provided this is considered in detail any action can be defended. q

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Rehabilitation in acquired brain injury

the new frontiers by LEYLÂ ZIYAL M Phil AFBPSs C Psychol Chartered Consultant Clinical Neuropsychologist

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he last 15-20 years have seen an exponential growth in research and theory in brain injury rehabilitation. This growth has hugely enriched our knowledge base and practice capability in this field, bringing about key developments in the process, scope and structure of our services to survivors of acquired brain injury. We now have a better understanding of the catastrophic impact that acquired brain injury has on people’s lives. We know that in addition to reducing functional effectiveness in the simplest activities of daily living, it fundamentally changes the way that people perceive themselves and are perceived by others. Family, social and work relationships deteriorate and frequently socioeconomic circumstances worsen as well. The combined cognitive and emotional impairments, together with a loss of continuity in the way one experiences oneself, shrink the frontiers of personal mastery, so that people often describe themselves as being ‘unable to even make a cup of coffee’. Their self-esteem fractures and their confidence in the course of their life erodes. The central challenge of rehabilitation today is three-fold: we aim to achieve optimal functional recovery in our patients; we explicitly strive to enhance their adaptive capability by retrieving the person behind the injury and by involving the family in this process; and we aim to achieve results time-effectively, on average in a span of 18 months to two years. We have moved on from a single-strand approach such as behaviour modification or cognitive/functional re-training to a holistic model that encompasses the cognitive, functional, emotional, social and familial consequences of brain injury. We have developed the quality and evidence base of our goalsetting, assessment and progress evaluation to be equal to the demanding challenges of this holistic model. Our goal setting derives from our detailed assessments that now have the capability to determine the extent and severity of the consequences of the injury, to predict the level of likely recovery, to estimate available potential and to identify the treatment and rehabilitation framework that is the most suitable for the patient.

Since our overarching objective is to return the patient to his own preferred and most appropriate context, we now involve him and his family closely in setting the goals that together we must work to achieve. We evaluate progress not only with repeat neuropsychological assessments but also with outcome measures such as HoNOS ABI, functional behaviour analyses, scored performance comparisons on cognitive and functional rehabilitation programmes and the reports of our patients themselves as well as those of their families. We produce an integrated multi-dimensional outcome profile that charts the gains our patients make across time and, above all, that involves and is meaningful to them and to their families. A central element in the design and delivery of this entire holistic strategy is the full involvement and participation of our patients at every point. They are the rightful owners of their treatment trajectory and have the final say as to where and how it will take them. q

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educational psychologist can help How an

by DR IRENE BROADLEY-WESTERDUIN PhD, MSc, Med, BSc, PGCE, Ad. Dip. Sp Ed Chartered and Educational Psychologist

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ach year, across the UK, thousands of children and adults are referred to an educational psychologist for a wide range of emotional, behavioural and educational issues. These assessments and reports provide expertise in psychological assessment and help identify issues such as a general or specific learning difficulty, dyslexia, dyspraxia or social, emotional or behavioural difficulties. A psychological assessment is not just a series of tests. It is an interactive, structured process which aims to profile the client’s strengths and weaknesses, identifying the preferred learning style. The activities make use of standardised diagnostic materials which facilitate an understanding of intellectual abilities and processing skills. A full report will present the results, main findings and recommendations and respond to questions. These reports inform parents, schools, local educational authorities, courts or a special educational needs and disability tribunal (SENDIST) where appropriate. A psychologist can help diagnose and prepare reports for:

• Special educational needs • Medico-legal investigation • Head injury cases • Mental capacity statements • In-care proceedings and to help assess and support adoptive • parents or foster carers • Autistic Spectrum Disorders (ASD) and Asperger’s Syndrome • Dyslexia, Dyscalculia and Developmental Co-ordination Disorder • (dyspraxia) • Emotional, social, behavioural or attention difficulties • Underachievement and learning enrichment • Work related issues due to learning or behavioural difficulties Educational Psychology input can help in situations such as: Case 1: John slipped and hit his head at the swimming pool. An assessment helped to clarify the cognitive damage that had occurred and how to support him at school and verify the extent of his difficulties for the court. Case 2: David’s cystic fibrosis was not identified until he was almost four years old. His solicitor needed to know what extent of the damage was due to late diagnosis and if an earlier diagnosis would have meant that he would have been able to attend school and attain qualifications. An Educational Psychology assessment helped understand David’s learning difficulties and evaluate the extent his cognitive difficulties were a result of his late diagnosis. Case 3: Jenny did not finish school. Her behavioural difficulties meant that she was often in trouble. She struggled to understand and follow instructions and professional concern. Jenny’s lawyer needed to know if she had the mental capacity to respond to questions in court about having access to her baby who had been taken into care. An assessment of her abilities clarified this. Case 4: Max had a statement of special educational needs for ASD and attended a special school. By developing many skills he appeared to be a competent adult. However, he ran into difficulties and his social anxieties and vulnerability meant he was easily manipulated by others. Legal charges were made against him and a verification of his difficulties allowed the court to ensure that he was allowed appropriate compensations while giving evidence. R • Dr Broadley-Westerduin is a Chartered and Educational Psychologist, a member of the British Psychological Society and other affiliated organisations. She has over 28 years experience working as a teacher and an educational psychologist in both the state system and in private practice. She completed a PhD in working memory at the University of Portsmouth and has a Master’s degree in Educational Psychology from the University of Southampton. She lectures in educational psychology at several UK universities and acts as a consultant for clients through Europe, Africa and Japan. Her standing within the profession is such that she has been employed as an ‘expert witness’ in court cases. Dr Broadley-Westerduin can be contacted at: Call 07966 497051, E-mail Irene@eduk8.uk.com, Visit www.eduk8.uk.com

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FII – Thinking the unthinkable by DR CHARLES ESSEX, Consultant Neurodevelopmental Paediatrician

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abricated and induced illness (FII) was first described as Munchausen’s Syndrome by Proxy over 30 years ago. Clearly it is important to differentiate this from understandable parental concern. A parent may have a particularly anxious personality, however I consider it an anathema to describe parents as ‘over anxious’ as I believe that it is a parent’s role to be anxious or even ‘over anxious’ about their children. They may genuinely believe that their child is ill due to misinformation or the parent may even have mental illness. However, when this leads to promoting the sick role by exaggeration, non-treatment of real problems and even fabrication or falsification of signs or induction of illness, then this enters the realm of child abuse. Box 1 shows the range of behaviours that can constitute FII. The majority of diagnoses are made via the history and in the case of young children that is predominantly given by parents. Fortunately, in the vast majority of cases, parents and professionals work together for the wellbeing of the child. It is, therefore, counter intuitive for professionals to suspect the caregivers of giving information to the detriment of their children. FII should be a diagnosis of (almost) last resort. However, if it goes undiagnosed, it can lead to the child undergoing painful and invasive investigations and even operations, missing significant amounts of school, and ultimately psychological problems by believing themselves to be sick when they are not. q

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Range of behaviours in FII • Deliberately inducing symptoms by giving medication, • poisoning or intentional suffocation. • Interfering with treatments by overdosing or not giving • medication or interfering with medical equipment. • Claiming the child has symptoms which can only be verified • by observation. Seizures are one of the most common • examples – around 50% of people whom we believe have • epilepsy have a normal EEG between seizures so it is not • surprising that examination and investigations are normal. • Exaggerating symptoms leading to unnecessary investigations • and treatments. • Falsifying test results. • Getting treatment and equipment which the child does not need. • Describing behavioural or psychological difficulties that the child • does not have.

Features which should alert professionals to FII • Acute symptoms only seen by, or happening in the presence of, • the carer. • The child having inexplicably poor response to treatment or • ‘very unusual’ or unique side effects. • The child’s life and activities being limited beyond that expected • for the condition and the parent using aids that are not • necessary – such as the child going to school in a wheelchair • when there is no need. • Objective evidence of fabrication – such as a urine sample • which the parent says is from the child testing strongly positive • for sugar yet a very short time later the child’s blood sugar • being completely normal. • The carer reporting symptoms and signs that are not explained • by any known medical condition.

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The role of psychosocial and other social factors in causing

heart attacks

by Dr Maurice Pye MB BCh BSc (Hons) MD (Hons) FRCP Consultant Cardiologist

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n increasing body of evidence supports a link between acute and chronic stress and increased risk for myocardial infarction (MI) and sudden cardiac death even though the mechanisms remain uncertain. Data from the Multicenter Investigation of the Limitation of Infarct Size (MILIS) indicated that among 849 patients with acute MI, 48 percent described one or more possible triggers, the most common of which was emotional upset (14 percent).

Anger

One report in 1975 found that stressful life events occurred among 40 of 100 sudden death victims in the 24 hours preceding death. In a large cohort of middle-aged widowers, for example, a 40 percent increase in the mortality rate in the first 6 months was observed following bereavement, more than half of which was attributed to cardiovascular causes. The INTERHEART study was a worldwide study of cardiac risk factors comparing over 11,000 patients with a first MI with over 13,000 matched controls from 52 countries on six continents, In an analysis of psychosocial factors, stressful life events had occurred more frequently within the prior year among patients than among controls (16.1 versus 13.0 percent). Stressful life events specified included marital separation or divorce, loss of job or retirement, loss of crop or business failure, violence, major intrafamily conflict, major personal injury or illness, death or major illness of a close family member, death of a spouse, or other major stress. An increase in cardiovascular events has also been associated with disasters such as after the 1994 Los Angeles earthquake.

There is increasing evidence that anger can have a deleterious effect on the cardiovascular system. Patients with trait anger have a relatively stable personality, but manifest rage and fury more often, more intensely and have longer-lasting episodes. The relationship between anger and coronary heart disease was evaluated in the Atherosclerosis Risk in Communities (ARIC) trial of 12,986 men and women. Compared to normotensive subjects with low trait anger, normotensive subjects with high trait anger were at higher risk for all coronary heart disease events, including acute MI, cardiac mortality, silent MI or coronary revascularisation. Anger in response to stress may be of particular importance for the development of premature MI in young men, one longitudinal study of 1,055 young medical students established anger reactions to stress by self-reporting on a questionnaire administered in medical school. After a follow-up of 36 years, those with the highest level of anger, had a significantly increased risk of premature cardiovascular disease developing before the age of 55, coronary heart disease and MI. An episode of anger may also trigger an acute MI. The Determinants of Myocardial Infarction Onset Study interviewed 1,623 patients within one week of MI and 2.4 percent reported episodes of anger within the two hours prior to MI onset The level of anger corresponded on a scale to the subjects feeling ‘very angry, body tense, clenching fists or teeth.’ The most frequent causes of anger were arguments with family members (25 percent), conflicts at work (22 percent), and legal problems (8 percent). The relative risk of MI following episodes of anger was 2.3, especially during the first two hours after an outburst of anger.

Chronic stress

Other social factors

Life events and other crises

In addition to acute events, chronic levels of stress may also be associated with acute coronary syndromes and  studies of the role of personality in the etiology of coronary artery disease have yielded controversial results. However, there is increasing evidence that hostility, cynicism and anger form a critical ‘toxic’ component of type, a behavior that is associated with enhanced cardiovascular risk.

Anxiety Anxiety can also act as a cardiovascular risk. During a two-year follow-up of 33,999 male health professionals in the United States aged 42 to 77 years the age-adjusted relative risk of fatal cardiovascular disease was three-fold greater for those having the highest levels of phobic anxiety compared to those with the lowest levels.

Depression A wide range of evidence supports depression as a risk factor for cardiovascular disease, both in otherwise healthy subjects and in those with known cardiovascular disease The largest analysis of this issue comes from data on over 93,000 postmenopausal women aged 50 to 79 years participating in the Women’s Health Initiative Observational Study. At baseline, 16 percent of study participants were found to be currently depressed and 12 percent to have a history of depression. At four years, patients with current or previous depression had significantly higher rates of cardiovascular death (0.79 versus 0.52 percent) and all-cause mortality (2.87 versus 2.18 percent) than those without depression. In the worldwide INTERHEART study, depression was significantly more common among patients with a first MI than among controls (24.0 versus 17.6 percent).

In addition to psychosocial factors, a number of other social factors have been identified as triggers of an acute MI such as cocaine use. An acute coronary ischemic syndrome is the most common cardiac pathology associated with cocaine abuse and can occur with all routes of cocaine intake. In a survey of 10,085 adults between the ages of 18 and 45 cocaine use accounted for 25 percent of nonfatal MI’s. Exposure to particulate air pollution also may be associated with MI. In a study of 772 patients with an acute MI, the risk of an MI was increased in the two hours after exposure to elevated levels of fine particles in the air. Exposure to vehicular traffic has also been implicated as an MI trigger. In one analysis, 691 patients with an acute MI were interviewed about activities during the four days preceding the event. Traffic exposure (defined as time spent in a vehicle) occurred during the hour before MI in 75 (12 percent) of 625 patients. Compared to the frequency of traffic exposure during the preceding three days, the likelihood of traffic exposure during the hour preceding MI was significantly increased. During the first hour after a heavy meal, there was a four-fold increase in relative risk of MI over baseline

Psychosocial risk factors in context of overall cardiac risk A person’s overall major risk of an acute coronary event such as a myocardial infarction is much more closely related to their conventional risk factors such as smoking, blood cholesterol, diabetes, family history, high blood pressure, diet, exercise/activity levels than the psychosocial triggering factors. These psychosocial triggers can be seen as acting as additional risk to the conventional risk factors for a heart attack. q

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The Silent Killers in our Midst Specialist Dentist Ed Bonner looks at UFIT, a revolutionary device that assists us to detect and monitor heart disease and diabetes.

Dentists can provide a valuable health service by regularly checking their patients’ blood pressure and informing them when measurements are suggestive of hypertension. As health care providers, dentists should be active in monitoring hypertension, assessing patients’ cardio-vascular status and their ability to withstand potentially stressful procedures, and promoting behavioural changes that can improve overall health.

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he anachronistic notion that body and mouth should be considered separate entities by doctors and dentists is being surely eroded, and dental and medical professionals have begun to take a more integrated approach to oral and whole-body health.

Is your patient’s smile too sweet? While editing a dento-pharmaceutical newsletter, I frequently noted new research about the disabling effects of excess blood sugar, and the disease that trails in its wake. One review stated that, at present, diabetes is the underlying cause of more deaths than breast cancer and AIDS combined. Diabetes is undoubtedly one of the major illnesses of the 21st century. Recently I encountered a brilliant little device capable of non-invasively, painlessly and inexpensively measuring, displaying and storing data for blood pressure, heart and pulse rate, and even blood sugar. The product, the Biosign Technologies UFIT, is the first EU-approved non-invasive blood glucose monitor, and provides reproducible record keeping so essential in

American Dental Association

medico-legal matters today. More about the UFIT anon, but first I want to outline why diabetes is such a problem.

The incidence of diabetes

According to the U.S. Centre for Disease Control and Prevention, new cases of diabetes nearly doubled in the past decade, with one new case per every 100 adults. Diabetes annually kills four million people worldwide and is the fourth main cause of death in Europe. Diabetics die 5-10 years before those without the disease. With increasing obesity and sedentary lifestyles among children and adolescents, the incidence of diabetes is rising in younger populations too. The CDCP predicts 1 in 3 Americans will have diabetes by 2050. Of those diagnosed with diabetes 50% are uncontrolled, a bitter statistic for an illness that can benefit from lifestyle modification and medication. Hypertension and pre-diabetes are two of the most frequently undiagnosed health conditions. Pre-diabetes is the crucial period when the body is just beginning to develop high blood sugar levels, and half of diabetics don’t know they have the problem. A critical factor in preventing and managing the disease is reliable and consistent monitoring of blood sugar levels, and that’s where the UFIT device plays such an important role.

How does diabetes affect health? After 15-20 years with diabetes, 75% will suffer some extent of vision loss, in 10% it will be severe and 2% will become blind. Diabetes is among the leading causes of kidney failure across the world. With increasing longevity, cognitive decline has emerged as a major health care concern. ‘Senior moments’ are a normal part of aging, but lapses in memory, according to new research, could be blamed at least in part on rising blood glucose levels as we age. Reductions in executive function and a slowdown in mental processing appear early in diabetics and persist into old age. More adults may soon be living with mild but lasting deficits in their thought processes. Diabetes is a known risk factor for late-life neuro-degenerative diseases such as Alzheimer’s, but there could be ways to compensate for these declines with proper management. This, of course, is predicated on early detection, which is where the UFIT comes into the picture.

How can this affect dentists and hygienists? • Diabetes impacts directly on patient’s safety. As treating professionals, we need to know if patients have diabetes, what medication they are taking and how controlled it is. • The average age of the patient population is rising, and aging patients are more at risk during dental and surgical procedures. • Some local anaesthetics cause a drop in blood sugar (hypoglycemia), which can trigger medical emergencies for diabetics. • Diabetes affects the effectiveness of many drugs. • Periodontal (gum) disease is three times more likely to develop in diabetics. • Periodontitis can aggravate diabetes by hindering efforts to get blood sugar levels under control and can worsen heart and kidney disease .

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• Diabetes delays healing, worsens gum infections and increases complications after dental procedures or surgery. • Uncontrolled blood sugar can compromise the body’s immunity against bacteria. • Thrush, an infection of the mouth caused by the candida albicans fungus, is very common in patients with diabetes. • Another complication of diabetes is dry mouth, which in turn initiates cavities, infections, soreness and ulcers of the mouth. • Gum inflammation can increase insulin resistance, a crucial aspect of type 2 diabetes.

Cardiovascular disease Cardiovascular disease (CVD) includes high blood pressure, angina, peripheral arterial disease, stroke and coronary heart disease. Nearly 30% of adults have hypertension or high blood pressure. Astonishingly, one-third of those affected don’t even know they have it! The link between CVD and gum disease is two-way: • having severe periodontal disease increases the risk for cardiovascular disease • 91% of CVD patients have periodontitis as opposed to only 66% of patients with healthy hearts.

The UFIT The UFIT monitoring system forms the central part of a heart-friendly approach to dental care, tracking three signs of cardio-vascular health: 1. Blood pressure 2. Pulse rate 3. Heart rate variability It also tracks blood sugar levels, and does this non-invasively. • UFIT makes it simple for medical and dental professionals to track vital signs accurately, quickly and non-invasively. This allows maintenance of comprehensive health records, so essential from a dento-legal perspective. • UFIT’s wrist cuff is comfortable, non-invasive, accurate and easy to use without ever penetrating the skin, thus eliminating painful pinpricks. • All UFIT records are immediately and permanently saved into the patient’s electronic file utilising the practice’s existing software, so a doctor, dentist, nurse or hygienist can readily access these vital health records. • The UFIT is connected to the internet and automatically calibrates itself with every reading, which means all measurements are always correct. • It automatically receives software updates that continuously enhance the functionality of the device.

How does this work for your patients? The doctor, dentist and/or hygienist measures the patient’s blood pressure, blood glucose and pulse at the beginning of every appointment. Vital signs are monitored by UFIT during procedures involving sedation, anaesthesia and medication.

The benefits: By utilising UFIT, a dental or medical professional will be: • providing an holistic approach to healthcare • delivering better quality patient care • keeping medical health records current at all times • complying with professional guidelines • improving patient’s safety • reducing medical emergencies • increasing customer appreciation and loyalty • providing reproducible proof of health record-keeping • managing medical emergency risk and associated liabilities.

The last word So that’s where I came in: dentists no longer exist as a profession in isolation – we are an integral and essential part of that bigger medical world, and any tool or device such as the UFIT that can assist us to play a role in keeping our patients healthier and safer is a welcome addition to our fight against disease. And if it can assist us to avoid medico-legal problems as well, the question is not whether we can afford to use it, it’s a question of whether we can afford not to. q

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Laparoscopic surgery – a telescopic view of surgery yesterday, today and tomorrow by Mr Marcus Ornstein MB ChB FRCS

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aparoscopic surgery ushered in a revolution in surgical practice. And I do not mean the obvious one of being able to operate inside body cavities using tiny incisions. With it came many advances in surgical education, assessment and certification and new ideas about recovery from surgical operations. I am old enough to remember the difficulties encountered by surgeons at that time, between twenty and twenty-five years ago. Most surgeons were horrified at the idea of small incisions, telescopes and instruments at arm’s length – ‘wounds heal from side to side not end-toend’ and ‘big surgeons make big incisions’ were oft repeated and reflect the thinking at that time. But patients clamoured for this new style of surgery, not only because of the small scars but, more importantly, because of reduced pain and rapid recoveries from their operations. A gall bladder could be removed with only one or two nights in hospital, nowadays even as a day case, whereas previously it had meant a seven to ten days stay.

New skills This new surgery required a change of emphasis – an unhurried approach, new ways of handling instruments, coping without threedimensional vision and, especially, coping without tactile sensation. It is, therefore, unsurprising that mistakes were made and unnecessary complications occurred. Surgeons were forced to take stock, design courses to teach the new techniques and formally to assess trainees’ dextrous abilities. This was aided by the ease of inspection of what the

surgeon was doing because there it was, on the VDU screen, for all to see and, indeed, to be recorded, replayed and studied in minute detail.

Learning and assessment Simulators were designed so that surgeons could learn safely and practice the procedures over and over again. Closed circuit television of live operations became possible at meetings and courses and many training courses have become available – in all surgical skills, from basic surgical knot tying to complex cancer surgery and reconstructive procedures. But from this also blossomed courses in other, previously little considered, aspects of surgery such as team working, managerial skills and communication skills. Next Training using a simulator came tests using simulators and this led on to testing a trainee’s abilities in other fields of surgery as well as in laparoscopic techniques. I remember when, not so long ago, it was possible to become a Fellow of the Royal College of Surgeons without any assessment of practical skills apart from a short reference from one’s current consultant (the knowledge base was heavily tested, of course, as it is today). Now there are compulsory skills assessments throughout a trainee’s career.

Patients’ consents There have always been choices to make but not usually with regard to the way a surgical procedure was to be undertaken, ‘keyhole’ or ‘open’, and this has meant more discussion with the patient, which has led to more care in describing any and all forms of surgical procedure. No longer can we just say “sign here” nor does the patient say “whatever you think is right doctor.” Truly informed consent is essential and it is a process, not a single episode. All the risks must be explained and the patient given time to understand what is involved and to assess why these risks need to be taken and what choices need to be made. The surgeon must consider his or her own abilities and decide the appropriate surgical approach, including whether to refer the patient on to a colleague with a different set of abilities if necessary. There is a small list of operations which are almost always carried out laparoscopically – cholecystectomy and hiatus hernia repair being the main ones in general surgery – others for which the laparoscopic approach is inapplicable

Laparoscopic instruments

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and a few where it is still experimental and should only be carried out in large centres specialising in that particular expertise. This leaves a large list of operations for which laparoscopic or open surgery seem equally sensible, such as hernia repair and colonic surgery, with indications for and against in individual patients. Research is continuing and results are being audited so this area is in a state of flux and not only are there no hard and fast rules but opinions change every few months or years. I have recently been involved in two cases concerning the inappropriate use of laparoscopic surgery. The first was a cholecystectomy in a patient who had had extensive intra-abdominal surgery in the past for colon cancer. He had multiple adhesions between loops of bowel making the laparoscopic entry into the peritoneal cavity hazardous and restricting the field of view during the cholecystectomy. Bowel injury ensued, and was not recognised, so was treated late with a long drawn out recovery period including three further operations and multiple dressings for infections. The second case was simpler, an attempted repair of an anterior abdominal wall hernia, which is a reasonable approach, but the patient had not been properly informed of the risks of failure and subsequently required an even larger open operation than she would have had if that route had been chosen originally. In neither case can it be said that the original decision to use laparoscopic surgery would not be supported by any reasonable body of surgeons (Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 583), but were the patients involved at all in the choices of their operations?

Operations today The rapid recovery and reduced pain after laparoscopic surgery have called into question many of the older principles and practises of surgeons, have fuelled the move to early discharge and increasing numbers of day stay procedures and have led to ‘new’ operative possibilities. Hiatus hernia repair, bariatric surgery and rectal prolapse surgery are examples of operations which had previously been considered hazardous because of their prolonged post-operative recovery and have now become commonplace. Other operations with potential complications, such as radical prostatectomy for prostate cancer, have become more straightforward because of the magnification afforded by the views obtained by the laparoscopic camera. Patients with co-morbidities, such as chronic lung or heart disease, can be operated on more safely because of the rapid mobilisation possible with reduced post-operative pain.

Ports for laparoscopic surgery

The future Who knows? Robotic surgery is here to stay. Surgeons are already removing the gall bladder and the appendix through a single port at the umbilicus and others are operating through the mouth, anus or vagina – so called NOTES (natural orifice transluminal endoscopic surgery). And then there are drugs, now, to treat even cancer without surgery so newer and more powerful drugs will be designed. The day may come when surgeons will have to hang up their scalpels – except, perhaps, for trauma and cosmetic operations. But one thing is sure, wherever man is carrying out complex, difficult procedures there will be risks; and where there are risks there will be errors; and where there are errors there will be litigation. q

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Profiling...

Graham J. Cox

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

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

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Precancerous changes in the breast and sentinel lymph node biopsy by TJ DUFFY MA FRCS, Consultant Surgeon

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wo areas of the management of patients with breast cancer often require clarification when medicolegal reports are received. The first is a range of changes in breast tissue that have the potential to develop into breast cancer. While some changes, known as atypical ductal hyperplasia, may indicate a future risk of breast cancer development, it is the condition of ductal carcinoma in situ (DCIS) which represents premalignant change. In DCIS the cells lining the milk ducts undergo visible alteration in their appearance (to resemble cancer cells) and the disorganised manner in which they fill the ducts. Breast cancer occurs when the cells invade through the walls of the ducts to penetrate surrounding breast tissue invading locally and, potentially, spreading beyond the breast. The changes of DCIS rarely produce clinical symptoms or signs and its significance only came to be widely appreciated in the 1970’s and 1980’s. DCIS frequently produces changes on the mammogram and the introduction of mammographic screening resulted in a greater frequency of diagnosis of this condition. Since DCIS is rarely palpable, and is often detected when very small, sophisticated image guided biopsy techniques have been developed to establish a diagnosis. When the lesion is small, sampling error and diagnostic delay may give rise to complaints by the patient. Furthermore it is not fully agreed that all grades of DCIS are premalignant. While highgrade DCIS carries a high risk of invasive transformation, the risk of lower or intermediate grade DCIS becoming an invasive cancer is less clear. Surgical removal may result in cosmetic deformity of the breast, leading to litigation on the basis of unnecessary/deforming surgery. Careful explanation of the nature and relative malignant potential of DCIS, detailed well-documented preoperative discussion of treatment options and the immediate availability of breast remodelling will mitigate the litigation risk. Sentinel lymph node biopsy is now established in the United Kingdom as the standard technique to assess whether breast cancer has spread to the axillary lymph nodes. Prior to its introduction, surgical removal of a variable number of lymph nodes (at least four) resulted in local morbidity including skin sensory change, restriction of shoulder movement, an axillary seroma and, most seriously, lymphoedema (swelling) of the upper limb. By allowing preoperative identification of the first node(s) in the lymphatic chain their histological examination permits a confident assessment of the axilla with minimal dissection. Several hours before surgery a tracer amount of radioactive material is injected beneath the skin of the breast and using a sensitive detector the surgeon can identify the site of the first node(s) in the chain (the ‘sentinel node’) and mark the site prior to incision. Injection of a blue dye beneath the skin 10 minutes before surgery enables visual identification of the node (and the lymphatic channels leading to it) and helps

minimise the axillary volume dissected. Absence of a radioactive signal after sentinel node removal adds to surgical confidence that the relevant nodes have been removed. Since this technique is both reliable and associated with minimal morbidity, use of alternative methods involving extensive dissection to assess the axilla may be difficult to defend if complications develop. q

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