WHEN A CLAIMANT RELIES ON EXPERT EVIDENCE TO PROVE LIABILITY: THE (NOT SO) SLIPPERY SLOPE TO FAILURE
I am grateful to barrister Frederick Simpson for sending me his note of a decision where the claimant relied heavily on expert evidence in order to establish their claim. There were weaknesses in the report which contributed to the claimant’s case failing.
FREDERICK’S NOTE OF THE JUDGMENT
“In Birch v Butlers Balti House Limited (unreported, CC at Sheffield 7 December 2021, HHJ Siddiq) the Claimant sought damages for personal injury following a slip in the Defendant curry house.
In support of her claim the Claimant provided an ‘expert’ report prepared by a company which holds itself out as providing “Independent & Impartial Floor Testing and Floor Safety Assessments”. The expert recorded his instructions as being “to conduct floor slip resistance testing and to examine any contributory factors that could have led to a slip incident.”
In pursuit of the first of those the expert conducted a pendulum test on the Defendant’s floor. A pendulum test, for the uninitiated, consists of a swing arm tipped with a piece of shoe rubber which is swung so that the rubber brushes the floor. The distance which the arm swings past vertical reveals the amount of friction exerted on the rubber by the floor surface, giving a ‘slip resistance value’. A higher number is better. The test is conducted with the floor dry and then with it slightly wetted, giving readings applicable to different conditions.
In pursuit of the second the expert’s report discussed a number of factors potentially relevant to a slip. He commented extensively on the matting available for customers to wipe their feet, concluding that it was “probably not sufficient … to allow water to be dried effectively from soles and heels”. He considered potential contaminants which could end up on the floor, including beverages, foodstuffs, grease, water and moisture from outside. He discussed floor cleaning. He opined that “the floor surface ‘will’ become WET or CONTAMINATED from sources typical in this restaurant”.
Having considered these things the expert reached a number of confident conclusions. On the basis of the lowest pendulum test values he recorded he stated, in bold capital letters in a bright red box, that the result for the floor was ‘FAIL’. On the basis of his discussion of contaminants and the cleaning regime, he concluded in bright red bold capital letters that “THIS FLOOR DOES NOT PROVIDE a safe floor environment”.
The Defendant disagreed with the report, and asked Pt 35 questions. In answer to those questions the expert:
- Cited guidance from the UK Slip Resistance Group that “Pendulum testing should not be considered to provide a pass/fail value.” But he explained that the results themselves were too complex for “laymen, courts, judges, legal representative, claimants, defendants and insurance firms” to understand and so “Floorslip therefore simply give a ‘Pass / Fail’ criteria”;
- Admitted that (despite his comments on the suitability of the Defendant’s matting) “FloorSlip were not instructed to investigate water absorbency of the various matting types visible with the restaurant premises” and that he “did not venture behind the bar area” so that “If there was a mat situated there, then I did not see it or inspect it”;
- Conceded that all of his comments about potential contaminants were “by inference” and/or “Generic” because “the kitchens were not in operation or the restaurant even open while testing” and “Floorslip have not been provided with any restaurant specific documentation”. But he took the view that this didn’t matter because “having tested within many Indian restaurants, and eaten in a great deal more, the dishes and sauces listed on the menu are very similar to every other Indian and Tandoori restaurant that both I and my colleagues have ever eaten in.” He remarked that “I am unsure from your question if you are suggesting that an Indian restaurant with a bar may not actually serve dishes with sauces or drinks full of liquids from the bar. That has certainly been the case in every meal I have eaten in similar premises.”
Perhaps unsurprisingly HHJ Siddiq found that the report was “deeply flawed” and that he was not entitled to make the findings he had purported to reach. For that and other reasons he dismissed the claim.
As this was a QOCS case the Defendant cannot enforce its costs, and the Claimant (or whoever funded her legal expenses) is left with what apparently amounted to well over £10,000 of legal fees in pursuit of an unsuccessful claim. The expert billed £897 for his work.”