COVID REPEATS 33: YOU’LL NEVER GET TYRED OF THIS: AN EXPERT REPORT THAT WAS “EXTRAORDINARY IN ITS PRESENTATION AND SHOT THROUGH WITH BREATH TAKING ARROGANCE”:
This is “experts” week for our stroll back through various posts on this blog. In September 2017 barrister Brian McCluggage for sent me a copy of the decision of Her Honour Judge Belcher in Hatfield -v- Drax Power Ltd (18/08/2017) which contains robust criticisms of a witness called on behalf of the claimant in that case. (Brian also told me that the claimant agreed to pay the second defendant’s costs on an indemnity basis from the date of exchange of witness statements.
(I have attached a copy of the full judgment here. Hatfield v Drax Power and SG Transport 17.08.18.judgement).
“That arrogance came over in the witness box. He plainly felt he was right and everyone else was wrong. Indeed, I made a comment to that effect during the course of his evidence. Furthermore, after he had completed his evidence, he sat in the well of the court shaking his head from side to side, evidencing his disagreement, and, judging by his face, his disgust, with the evidence being given by Mr Mutch, the first of the Defendant experts to be called.”
The claimant was driving an articulated vehicle that came off the road causing him serious injury. His case was that this was due to the road surface and defective tyres. Expert evidence was called by both parties.
THE JUDGMENT ON THE CLAIMANT’S EXPERT EVIDENCE
“The Expert Evidence
46. I now turn to the expert evidence, at this point solely as to the extent, if any, to which it assists me in determining the condition of the road at the time of the In my judgement it is instructive to start with the order granting permission for the calling of expert evidence. That appears at B1: 74-76. In that order the Claimant has permission to rely upon evidence from Professor Vantsevich “… in respect of vehicle dynamics and stability”. The First and Second Defendants have permission to rely upon expert evidence of Mr Damien Mutch and Dr Darren Walsh respectively, in each case “…as to causation of the accident”. The reports of Professor Vantsevich address specific questions that he was asked and in particular, (i) whether a difference in circumference of the tyres had the potential to affect the differential and cause lock- up, and (ii) if so, what effect that would have had on the handling of the vehicle and(iii) whether the wet/muddy road surface would have had an effect on the handling of the truck especially if the differential had locked. It is unsurprising, against that request, that his report is highly technical and principally deals with issues in relation to the diameters of the tyres and/or issues said to have arisen out of re-cutting, and on the effect of those matters on the vehicle handling.
47.I recognise that English is not Professor Vantsevich’s first language although he works and lives in the United States. He claimed to understand his duties as an expert as set out in CPR Part 35 a copy of which had been provided to him. I am in no doubt at all that he had no proper understanding of his duties as an expert. In the course of cross-examination, he accepted that the theory he was putting forward was precisely that, theory and only one possible explanation for the accident. He said that he simply responded to the questions in his instructions. He made no attempt to evaluate the alternatives and, in particular, the alternative explanations for the accident being put forward by the defence experts.
48.Professor Vantsevich’s evidence was extraordinary in its presentation and, frankly, shot through with breath taking arrogance. His stance throughout was that he was right and everybody else was wron. That stance appears, first of all, in the joint statement of the experts in the following extracts. Professor Vantsevich “….observes that Dr Walsh and Mr Mutch need to take an undergraduate university course on vehicle dynamics to understand the assumptions and their relevance to the circumstances of the incident.” (B2:889, paragraph 22.214.171.124); “… Strongly recommends the [defence] experts to attend a vehicle dynamics course to understand the subject matter of Professor Vantsevich’s report (B2:890, paragraph 126.96.36.199); “…. Would like to point out that the two [defence] experts also have problems with understanding both the second law and the third law of Newton…(B2:894, paragraph 3.7.2); and “…encourages them to learn the engineering meaning of “possible” and “probable”.” (B2:901, paragraph 3.19.3).
49. The same arrogance is self evident in his replies to Part 35 questions put to him by the Second Defendant. In rejecting one point put to him for comment, he goes on to assert that his response is “high school physics” (B2:712, Answers to 10.2). In other places he fails to assist the court by dealing with the matters put to him. At question 9, he was asked to assume that the trial judge finds as a fact that the tyre patterns on the surface of the road show a clear pattern without signs of skidding, and he is then asked whether such a finding would invalidate his hypothesis. Rather than answer the question, he simply says “I cannot accept your weak hypothesis to find a “clear pattern without signs of skidding” (B2:711, Answer to 9.1) . Not only does that fail to answer the question, it also fails to recognise that it is for me, as the judge, to make the findings of fact in this case.
50.That arrogance came over in the witness box. He plainly felt he was right and everyone else was wrong. Indeed, I made a comment to that effect during the course of his evidence. Furthermore, after he had completed his evidence, he sat in the well of the court shaking his head from side to side, evidencing his disagreement, and, judging by his face, his disgust, with the evidence being given by Mr Mutch, the first of the Defendant experts to be called. I made it clear to Professor Vantsevich that that behaviour was unacceptable and whilst, on the whole, he managed to contain himself, I did catch him on further occasions shaking his head at the evidence given. That conduct is wholly discreditable to an expert witness in our courts. I have never seen it before, even in cases where experts are poles apart in their opinions.
51. Further, by the end of Professor Vantsevich’s evidence, the whole of his case based on a difference in diameter as between the tyres on the drive axle of the Tractor Unit had fallen away, not because Professor Vantsevich resiled from it, but because Mr Pennock was forced to concede that the other evidence in the case was such that he could not succeed on a case based on any difference in the diameters of the tyres.
52. Professor Vantsevich conceded in the witness box that he was wrong about the first two troughs in the tachograph representing slippage of the wheels and that the defence experts were correct in saying those troughs represented the vehicle slowing prior to manoeuvring around bends in the road. It has to be said that this concession was first made (and properly so) by Mr Pennock on day 2 of the trial. Professor Vantsevich first made the concession in the witness box, notwithstanding his refusal to accept this point in the joint expert report in yet another paragraph referring Dr Walsh and Mr Mutch to a university course on vehicle dynamics (B2:893, paragraph 188.8.131.52).
53. Prior to trial Professor Vantsevich had refused to accept that there was a five second period of acceleration prior to the collision and had insisted there was only one second (B2:412, paragraph 5). From the witness box he suggested that was a typographical error, an explanation I found less than convincing.
54.Prior to the trial Professor Vantsevich prepared his report expressly on the basis that the lift axle was lowered at the time of the In the joint report Professor Vantsevich accepted that the lift axle was in fact raised at the time of the accident (B2: 888, paragraph 2.2). The effect of that was that the calculations that he done in relation to the friction coefficient of the drive axle when compared to the peak friction coefficient were wrong. The calculations depended upon the mass borne by the drive axle, and how that mass is spread across the tractor unit axles will depend upon whether the mass is spread between two axles only (with the lifting axle raised) or across three axles with the lifting axle lowered. Prior to the trial Professor Vantsevich had not bothered to re-do the calculations to address the factual change. Indeed when it was put to him in cross-examination that his calculations were done on the basis that all three axles were in contact with the ground, his first response was that he would need to check that. When some surprise was expressed by defence counsel that he did not appear to know the basis on which his own report was put before the court he then said “It is most likely I did the calculation with the axle raised”. I regret this was typical of the totally defensive and unhelpful attitude evinced by Professor Vantsevich throughout his evidence.
55. Having re-done the calculations overnight, the effect was to change the calculation from one where Professor Vantsevich had concluded that 25% of the available reservoir friction had been used (hence on his case inevitably allowing slippage on the mud/slurry), to one where 44% of the available reservoir friction had been used. In answer to questions the previous day (before he had done his recalculation) Professor Vantsevich agreed that if the ratio reduced from 95 or 96% to say 50%, then the degree of slippage would be very much less. Asked if he would agree that if the ratio was about 60% the truck would be reasonably stable with only modest risk of slippage, Professor Vantsevich said “I would say it’s on the edge of risk. If the current friction coefficient is 55% – 60% of peak friction coefficient, a tyre in poor road conditions can start skidding aside. At 33%, he said the driver is safe in terms of the risk of tyre slippage.
56. Professor Vantsevich redid his calculations overnight to reflect the raised lift axle and that produced a ratio of 44%. Notwithstanding the answers given the previous day that 55 to 60% would be on the edge of risk, Professor Vantsevich maintained that the ratio of 44% still produces a very high risk of slippage. He told me the ratio represents an exponential curve rather than a straight line on a graph, such that an increase from 33% to 40% is a very significant increase. In my judgement that was clear evidence of Professor Vantsevich seeking to maintain a case on behalf of the Claimant rather than genuinely assisting the court. No doubt he would have been hugely embarrassed to admit that having done the proper calculation, he was in some difficulty sustaining the case, but that is the proper and responsible course of action to be taken by an expert properly carrying out his duties to the court. Mr Cowan described this conduct by Professor Vantsevich in relation to this particular issue as most egregious. I agree. All of the factors I have set out militate against any findings based on the expert evidence given by Professor Vantsevich.
57. In his closing submissions Mr McCluggage described Professor Vantsevichs approach in his reports as advocating a theory rather than investigating the accident, and that it is for that reason that Professor Vantsevich fails to give any consideration to other potential causes for the In my judgement that is an entirely accurate and proper criticism of Professor Vantsevichs evidence. Far from being here to assist the court, in my judgement Professor Vantsevich was here to advance a theory and to promote the Claimant’s case.
58. Both defence counsel made other points of valid criticism against Professor I consider it unnecessary to go through any further points. It seems to me that the whole instruction of Professor Vantsevich was ill-conceived, and that a great deal of money and court time has been wasted by the manner in which he has approached this case and in which he gave his evidence.”
Later in the judgment the judge considered the views of the defendants’ experts and concluded:-
“I have no hesitation in accepting the evidence of the defence experts in preference to the evidence of Professor I reject Professor Vantsevich’s theoretical possibility, particularly in circumstances where he accepts that he was, in effect, instructed simply to explore that as a possibility. He was forced to accept there could have been other reasons for this accident. He told me his theory is one of a 100 possibilities. Asked how his theory stands up in the absence of repeated accidents or other problems on the Road, Professor Vantsevich resorted to this being a particular combination of circumstances which had all happened to come together for that truck on that Road. He said it will happen again one day. I regret that these answers were wholly implausible, clutching at straws in my judgment to support his theory which had collapsed under sustained forensic cross examination.”