WHEN YOU HAVEN’T CALLED YOUR OWN EXPERT BUT WANT TO CRITIQUE THE EXPERT FOR THE OTHER SIDE: THIS IS NEVER GOING TO BE EASY

In White & Ors v Secretary of State for Health and Social Care [2022] EWHC 3082 (KB) Jeremy Hyam KC (Sitting as a Deputy Judge of the High Court) considered the issues that arise when a party has not called its own expert witness on an issue, but based its case on a critique of the other side’s expert. The case is a tragic one, where every sympathy exists for the claimants and the deceased person.  However given that it was clear that the claimants had expert evidence, but elected not to disclose it, the fact that they were not successful is, perhaps, not a great surprise.

THE CASE

The claimants brought an action under the Law Reform (Miscellaneous Provisions) Act 1934, alleging that the deceased person’s asbestosis was caused or materially contributed to by negligent exposure to asbestos whilst working for the defendant.   The exposure was said to take place from the use of asbestos Bunsen burner pads whilst the deceased person work in laboratories.

THE EXPERT EVIDENCE

The parties were given permission to call expert engineering/occupational hygiene evidence.  The claimant identified an expert, and it is clear that a conference took place with that expert and claimant’s counsel. However the claimant’s report was never disclosed.

THE QUESTION OF HOW THE DEFENDANT’S EXPERT EVIDENCE SHOULD BE APPROACHED
    1. In respect of engineering/occupational hygiene evidence, although the Claimants identified an appropriate expert occupational hygienist in accordance with the Master’s direction, and a draft report was prepared and a conference with Counsel held, no such report was ever served by the Claimants. The consequence was that the only expert occupational hygienist evidence before the Court was that of the Defendant’s expert Mr Graeme Hughson, dated 1st July 2022. That report was accompanied by 5 lever arch files of relevant literature in respect of the developing knowledge of asbestos over time.
    1. An issue arose at trial as to the extent to which it was open to the Claimants, having:-
(i) declined to serve any expert occupational hygiene evidence of their own;
(ii) declined to pose Part 35 questions to the Defendant’s expert; and
(iii) declined to seek an order permitting that expert to be cross-examined as to the contents of his report,
nonetheless to impugn the evidence or expertise of the Defendant’s expert on the matters in his report. In particular, the Claimants argued that:-
a) insofar as Mr Hughson’s evidence of fact is in conflict with that of the deceased, it is the latter which should be preferred;
b) insofar Mr Hughson’s evidence of opinion is no more than an unreasoned assertion, or based on assumptions other than those accepted by the Court, it must be rejected.
c) where Mr Hughson gives a reasoned opinion on a matter within his expertise the Court may be willing to accept it, though it is under no obligation to do so.
    1. I considered these submissions in the light of the Court of Appeal’s decision in Griffiths v. TUI [2022] 1 WLR 973 where the majority of the Court of Appeal – Asplin and Nugee LJJ; (Bean LJ in strong dissent at §99) held that there was no strict rule that the court was bound in all circumstances to accept the uncontroverted evidence of an expert witness which complied with the formal requirements of CPR Pt 35; that, rather, such evidence fell to be evaluated and assessed by the court in the usual way, and the approach to be taken, and weight to be given, to such evidence would depend on the circumstances of the individual case, the nature of the report itself and the purposes for which it was being used in the claim.
    1. The approach indicated by the majority of the Court of Appeal is the approach which I intend to adopt to Mr Hughson’s evidence. I do not read that case as saying that the factors alluded to above in relation to the decision of the Claimants not to serve evidence of their own, not to pose Part 35 questions, and not to seek to cross examine Mr Hughson, are irrelevant to a proper evaluation of Mr Hughson’s evidence and the weight that may be given to it. I consider that the correct distillation of paragraphs §65-67 of Asplin LJ’s judgment in Griffiths is that I should have regard to these matters as part of all the circumstances, and while not bound to reach conclusions which accord with the views of Mr Hughson, any departure from a properly reasoned opinion of his on matters of expert assessment which are within his expertise would require cogent explanation.
    1. Ultimately, as the Court of Appeal in Coopers Payen Ltd v. Southampton Container Terminal Ltd [2003] EWCA Civ 1223 observed:
at the end of the trial the duty of the court is to apply the burden of proof to all the evidence in the case which will or may include both evidence of fact and evidence of opinion which may interrelate“.
  1. In the present case that interrelation is plainly important. Mr Hughson is not a witness of fact, but he does have very considerable expertise in assessing likely exposure to asbestos dust in claims of this type. He has previously been employed as a scientific technician and a senior scientist by the Institute of Occupational Medicine advising clients on management of asbestos in buildings routine air monitoring for verification of asbestos containment, and assessment of operator exposures. I have considered the entirety of the written evidence both factual and expert and together with the parties’ submissions when reaching my conclusions below.
THE RESULT

The judge found for the defendant.  The defendant’s expert evidence was not definitive, however it was helpful and provided the court with helpful guidance on the standards that applied at the relevant time.

    1. Thus having regard to the evidence of Mr Hughson, and in the absence of any expert evidence from the Claimants to the contrary, my answers to the questions derived from Jeromson and Bussey posed above are as follows:
(i) Should Sefton Hospital in either the first period of employment (1949-1960) or the second period of employment (1973 to 1990) have been aware that the exposure to asbestos dust which his work involved gave rise to a significant risk of asbestos-related injury? No: in respect of both the first and second period. I have found that the exposure to dust was not more than minimal and certainly not at a level which would have triggered a duty on the Defendant to take precautions or seek advice on what precautions to take.
(ii) If yes, did Sefton Hospital take proper precautions to reduce or eliminate that risk or at the very least seek advice as to what, if any, precautions he could take. Not applicable. There was insufficient exposure to trigger the duty to take precautions or seek advice.