PROVING THINGS 145: WHEN EXPERTS ARE OF NO HELP AT ALL: IT IS THE FACTS THAT WON IT

I am giving a seminar on “Expert Witnesses and Liability” at the APIL Annual Conference in May.  The judgment of HHJ McKenna (sitting as a High Court judge) in  Al-Iqra & Ors v DSG Retail Ltd [2019] EWHC 429 (QB) gives a clear example of the difficulties that can be involved.   The judge based his decision on the factual evidence, it appears that the expert evidence was almost an irrelevance.

“I am afraid that I have not found the evidence of either expert helpful in this case. Although both experts gave their evidence with apparent confidence and some plausibility, they were both deeply unsatisfactory witnesses.”

THE CASE

The claimants brought an action for damages for personal injury following a fire at their home. Their case was that the fire started as a result of a defective heater that had been bought from the defendant. The provisions of the Consumer Protection Act 197 meant that liability was established if the claimants could establish that there was a “defect” in the heater.  The main issue in the case was whether the heater was, in fact, the cause of the fire.

THE JUDGE’S VIEW OF THE EXPERT EVIDENCE

  1. The expert evidence in this case has been extensive. There are a large number of reports taking up the best part of a lever arch file. However, neither of the experts actually visited the Property. Their opinions derive from a review of a substantial volume of photographs of the scene, an inspection of the limited remains of the Heater and an examination of a second-hand example of this particular type of heater.
  2. Mr Galvin’s final substantive report is dated 13th August 2017 whilst Mr Jones’ report is dated 19th June 2018 to which Mr Galvin responded in a further report of 23rd August 2018. They produced a joint statement dated 27th September 2018.
  3. In essence, Mr Galvin, although he was unable definitively to determine the exact mechanism that led to the ignition as a result, he said, of not all the component parts of the Heater having been recovered, concluded on the basis of his technical assessment arising from his examination, that the Heater was the source of the fire and that the likely cause was the ignition of fluff that had accumulated within it. He discounted all other possible causes.
  4. Mr Jones, on the other hand, concluded that the physical evidence was insufficient to determine precisely where in the lounge the fire had started or how it was caused and that there was no evidence of any defect in the Heater having caused the fire. Although he could not completely exclude the possibility of the fire starting as a consequence of a fault in the Heater, he considered that the condition of the remains of the Heater were more indicative of a fire starting to its rear and causing the failure of glass items before the Heater itself collapsed making it highly likely that the Heater was not the source of the fire. He put forward a number of other possible causes of the fire which he maintained could not be excluded ranging from the children having gained access to a source of naked flame from the gas hob in the kitchen to other possible sources of energy in the lounge such as a four gang extension lead, an overhead lamp, possibly failed bulbs and a transformer used in connection with a fish tank.
  5. He was critical of Mr Pitt’s investigation and pointed out that, contrary to Mr Pitt’s observation, the greatest damage to the fabric of the sofa was on a diagonal section and not on the nearest part of the sofa.
  6. He was unconvinced by Mr Galvin’s theory as to the ignition of accumulated fluff because it would have produced an acrid smell which would have been noticeable and in any event, would have not have been able to ignite the plastic casing of the Heater. Moreover, when the eBay procured heater was examined there was no evidence of any sustained fire, only some charring of burnt fluff on the grill and even when a blow torch was applied to the casing, a sustained fire did not result.
  7. I am afraid that I have not found the evidence of either expert helpful in this case. Although both experts gave their evidence with apparent confidence and some plausibility, they were both deeply unsatisfactory witnesses. Mr Galvin, it seems to me, lacked balance and his adherence to the theory that fluff was the likely cause was difficult to reconcile with the lack of any carpeting in the lounge and Mrs Begum’s own evidence as to the clean and tidy state of the lounge as well as the evidence derived from the experts’ attempts to set fire to the specimen heater using a blow torch as well as the condition of the grill of that heater.
  8. As for Mr Jones, he was in my judgment plainly partisan in his approach. He was anxious to leave open as many possible causes of the fire as possible, however, remote, such as, for example, arson or accidental human agency and he was equally anxious to promote other possible causes. He was prone to be disparaging about Mr Galvin, in a manner wholly unbecoming in an expert whose role it is to assist the court with the benefit of his experience, and regularly misquoted from documentation. He seemed unwilling to give any credence to the eye witness evidence of Ms Begum and sought to undermine the competence of the investigations carried out at the scene by Mr Pitt and Mr Steele. His questioning of the description of the extent of the Claimants’ injuries, albeit that he withdrew that section of his report, was particularly unsatisfactory as was his questioning of Ms. Begum’s movements.

THE CLAIMANT SUCCEEDED BECAUSE OF THE EVIDENCE OF FACTS

    1. The principal issue in this case is whether the Claimants can prove on the balance of probability that the Heater was the source of the fire. The Defendant for its part submits that the Claimants cannot and indeed goes further to suggest that such evidence as there is points the other way. Thus, it is said that there is no evidence that the Heater was even switched on at the material time, that it was self-regulating with two temperature control devices and conformed to various EU standards and despite over 16,000 having been sold, there was no evidence of any such heaters been implicated in any other fire so that if the Heater was in same way implicated, it must have been as a result of misuse rather than any defect. In short, there was nothing to indicate or suggest that the Heater was in any way unusual still less defective. Nor, it was submitted, was there any plausible explanation for how the fire would have started in the Heater whilst there were other plausible explanations such as the extension lead and the transformer used in connection with the fish tank.
    2. For my part, I am not persuaded by the submissions made on the Defendant’s behalf. The fact that there have been no previously reported cases is plainly not determinative any more than the fact that the Heater has various safety features and conformed to various EU standards. Still less am I persuaded by the blatant advocacy of Mr Jones.
    3. To my mind, the key to the issue of liability in this case is not to be found in the opinions of the experts but rather from an assessment of the factual evidence regarding what was witnessed at the time of the fire and what was discovered by those investigating the origins of the fire in its immediate aftermath. The evidence of Ms Begum is absolutely crucial in this case. That evidence has been consistent throughout and is corroborated independently by those who investigated the cause of the fire on the day.
    4. Ms Begum was plainly a credible witness (indeed the Defendant, to its credit, did not seek to suggest otherwise, merely that she was mistaken in her recollection with the passage of time and the obvious trauma of the events in question.) To my mind, she gave her evidence in a calm and considered manner and where she could not remember even on key issues such as whether or not she had switched on the Heater that morning, she was prepared to say so. Her account was also internally consistent.
      1. I have no hesitation in accepting the substance of her evidence and in particular that the Heater would have been switched on as she said in order to warm up the lounge notwithstanding that it was August and that the temperature was at the material time some 15 degrees; that neither the TV nor the overhead light were switched on; that the home cinema was not even plugged in to the mains; that she did not in any way misuse the heater; that it was not located too close to the sofa or indeed any other item of furniture; that on entering the lounge she did indeed see flames and smoke emanating from the Heater and not from behind the Heater and that she saw the flames from the Heater catch on a throw located on the sofa. Her evidence on this aspect was particularly compelling.
    5. That evidence, as Mr Jones conceded, if accepted, means that the Heater must have been the source of the fire and it self evidently excludes other possible causes such as the extension lead and the transformer, although, of course, as he pointed out, it does not explain the cause.
    6. As I have recorded, significant emphasis was placed in the evidence of Mr Jones as to the existence of fragments of glass and the inference that those fragments were on the floor before the Heater fell to the floor implying that the fire was well established by the time the Heater fell which, it is said, relying on Mr Jones’ evidence, points against it being likely that the fire started in the Heater and the fact that the photographs suggest that the Heater was not adjacent to the area with greatest damage to the sofa. However, the exact mechanism of the events leading to the presence of the glass is not known and, as Mr Galvin pointed out, might have resulted from movement of debris during fire-fighting activities and, as for the point about the location of the Heater relative to the area with greatest damage to the sofa, the fact of the matter is that the sofa was highly combustible and was substantially destroyed on any view and it is impossible to know whether and to what extent items were moved either during the fire-fighting process or indeed the subsequent investigative process. To my mind, whether taken together or singly, these matters are not such as to undermine confidence in Ms Begum’s recollection of the events in question.
    7. Moreover, and importantly, the evidence of Ms Begum is corroborated by those who actually carried out an investigation of the scene of the fire on the day in question. Mr Pitt spent a considerable period of time at the scene. His conclusions, although not tested in cross examination, were based on his investigation of the actual scene of the fire and with the benefit of 25 years of relevant experience, and as such merit serious consideration. Whilst it is unfortunate that his contemporaneous notes are not available, it is reasonable to infer from the work which he undertook, as evidenced by the large number of photographs taken, that he would have considered other possible sources of the fire such as the extension lead and the transformer for the fish tank and the like – indeed the photographs clearly show the extension lead – and it is frankly inconceivable that as an experienced fire investigator he would not have considered them as possible sources of the fire, and it is to be inferred from the conclusions noted contemporaneously and in his statement that he rejected them.
    8. If, as I have concluded on the balance of probabilities, the Heater was the source of the fire, then it follows, by necessary inference in the absence of misuse, that it was defective and it matters not on the authorities that the Claimants are unable positively to identify the specific mechanism or cause of the ignition although, as I have recorded, Mr Galvin has put forward a possible theory. Indeed, given the ferocity of the fire and the fact that not all the component parts of the Heater were recovered, it is perhaps not surprising that there has been no definitive identification of the actual defect.
    9. The Heater was used by Ms Begum in an entirely normal manner and yet it ignited spontaneously in circumstances where it should not have done. It plainly therefore fell below the standard of safety that consumers such as Ms Begum were reasonably entitled to expect and was defective within the meaning of the Act.
Disposal
  1. For all these reasons therefore, I would give judgment in favour of the Claimants with damages to be assessed.