EXPERT WATCH: SOURCE OF INFORMATION CLARIFIED (AND OF CRUCIAL IMPORTANCE)

There are aspects of the judgment of Mr Justice Coulson in Palmer -v- Nightingale [2016] EWHC 2800 (TCC) that justify closer examination. In particular the source of information of the expert’s information was illustrative. It highlights the importance of examining closely an expert’s assertion of factual knowledge. In this case the “factual knowledge” was based on the view of a different expert.

KEY POINTS

  • An expert report  commissioned by a claimant was disclosed in a case, the reporting relied upon observations of the scene made by the initial expert.  The existence of the first expert was not, initially, disclosed to the defendant.
  • The claimant was ordered to disclose the factual information of the first expert shortly before trial.
  • In fact the factual observations made by the initial expert were (i) inaccurate in parts; (ii) not helpful to the claimant’s case.

THE CASE

The claimant was bringing an action alleging the defendant had caused a house fire by placing bait blocks too near lighting.

THE EXPERT

The claimant had an expert, Mrs Gosling,  examine the scene shortly after the accident. However her report was not disclosed. She went on maternity leave and another expert prepared the report for litigation. The source of information for some of the matters stated in this report was not clear.
“The day after the fire, Mrs Gosling – a fire investigator instructed by the Claimant’s insurer – visited the site and had discussions with a number of people, including a telephone conversation with the Defendant. She visited again on 28 March. On 3 April she produced what was called a “Preliminary Appraisal Report”. This document, which subsequently formed the basis of much of Mr Smith’s expert consideration on behalf of the Claimant, was only disclosed shortly before the trial.
The following passages were of particular importance:
“Above the plasterboard ceilings of the rooms on the second floor was a layer of reflective-type insulation. The insulation comprised several layers of paper, foam sheets and foils. There was no other insulation in the roof space. The wiring for the ceiling lights was routed through the roof space but I found no evidence of any other cables or electrical items within the roof space. Within the roof space, close to the light fittings I found remains of the rodent poison blocks used by Mr Nightingale. All of the blocks were situated in close proximity to the edge of the hole into which the halogen downlighter was recessed…
I found charring to one of the rodent blocks in an undamaged section of the roof space and therefore it is clear that the charring was caused by heat from the halogen bulb as opposed to the fire. I do not know whether the heat from the bulbs would be sufficient to ignite the blocks or only to char them but testing might enable me to establish this.”
In her preliminary conclusions Mrs Gosling said:
“I consider the most likely cause of the fire to be associated with the halogen light fittings; either an incendive electrical fault or nearby combustible materials (such as rodents, fly, insulation, timber or the rodent blocks) being ignited by radiant and/or conducted heat from the halogen bulbs. Given that Mr Nightingale was the last person to work in the roof space and there had been no reported problems before his visit it is possible that the cause of the fire was associated with his actions (such as placing one of the rodent poison blocks on top of one of the light fittings or moving insulation). …I will arrange to carry out tests with the halogen light fittings, insulation and poison blocks in an attempt to establish whether heat from the halogen bulb would be sufficient to ignite the poison blocks and/or insulation.”
On 17 May 2013, having concluded his investigation, the fire investigation officer noted the evidence of “burning around the undamaged downlighters in the roof space” and concluded that the cause of the fire was “therefore ignition of insulation material in roof space from halogen downlighters”.
Thereafter, four further tests were carried out by the parties in relation to the bait blocks. In chronological order, they were:
i) In June 2013, on behalf of the Defendant, tests were carried out during which a flame was applied to the bait blocks. This demonstrated that, contrary to the manufacturers’ data sheets, the bait blocks were both flammable and ignitable.ii) In September 2013 there was the first round of joint testing by the experts in which attempts were made to ignite bait blocks retrieved from site by placing them on top of or very close to halogen bulbs. A number of different tests were carried out but at no point did any of the bait blocks ignite. Some charring/smouldering was achieved.
iii) In January 2014, the Defendant’s experts again carried out some unilateral testing at Edinburgh University. A total of twelve different tests were carried out in which the bait blocks were placed on or close to halogen lamps. No ignition was achieved, although there was again some evidence of charring/smouldering.
iv) In February 2014 there was a second round of joint testing. Again, however, the halogen lamps did not ignite the bait blocks, which on this occasion had been bought specially for testing purposes.
Accordingly, the tests which Mrs Gosling said in her first report she thought were important (paragraphs 19 and 20 above) were carried out over a period of 8 months, and showed that the hot lamps were not sufficient to cause ignition of the bait blocks but, as she put it in that report, “only to char them”.
Subsequently, Mrs Gosling went on maternity leave, and her role as the Claimant’s expert was taken on by a colleague, Mr Smith. This led to a certain amount of difficulty in respect of the source of some of the information in Mr Smith’s report. In my view, the reasonable queries raised by the Defendant’s advisers in respect of those sources of information were not always dealt with in a clear or straightforward way. However, the belated provision of Mrs Gosling’s first reports, and my order that other factual material recorded by Mrs Gosling was also to be disclosed (but not her statements of opinion or advice), eventually removed most of the unnecessary mystery surrounding that aspect of the case.

THE EVIDENCE

It is interesting to see how this came out in evidence.

“The high watermark of the Claimant’s case (and Mr Smith referred to it repeatedly in evidence) was the discovery by Mrs Gosling of a bait block in another part of the roof that was charred (paragraph 35 above). On the face of it, that might have indicated that, depending on where it was placed, or depending on where rodent activity left it, a bait block might be charred by a hot lamp. Although it did not advance the case as to ignition, it was said to assist the alternative (smouldering) case.
Unfortunately, the evidence about this charred block was unsatisfactory. Mrs Gosling’s preliminary report identified a particular downlighter in the blue bedroom from which she said the block had fallen when she removed the lamp. That is the Claimant’s pleaded case. However, in cross-examination, it became apparent that this was wrong, and the location identified by Mrs Gosling was incorrect. No alternative case was advanced as to where the charred block might have come from. She simply could not say. In a case about a large fire-damaged roof, it was, on any view, the slenderest possible basis for any case on causation.”

THE EXPERT’S DUTY

One issue here lay in the expert’s failure to disclose that someone else had, in fact, examined the scene.   The xpert should have given clearer information about the source of their information.

Rules. Paragraph 57 of the Civil Justice Council  Guidance for the instruction of Experts.

“57. When addressing questions of fact and opinion, experts should keep the
two separate. Experts must state those facts (whether assumed or otherwise)
upon which their opinions are based; experts should have primary regard to their
instructions (paragraphs 20-25 above). Experts must distinguish clearly between
those facts that they know to be true and those facts which they assume.
58. Where there are material facts in dispute experts should express separate
opinions on each hypothesis put forward. They should not express a view in
favour of one or other disputed version of the facts unless, as a result of
particular expertise and experience, they consider one set of facts as being
improbable or less probable, in which case they may express that view and
should give reasons for holding it.”

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