BEWARE OF OVER-EAGER EXPERTS: AN EXPERT THAT SIMPLY ADDRESSES THE POINTS THAT SUPPORTS THEIR HYPOTHESIS IS HEADING FOR TROUBLE

In Rowbottom v The Estate of Peter Howard, Deceased & Anor [2023] EWHC 931 (KB) HHL Sephton KC (sitting as a High Court Judge) was critical of the role of one of the experts in the case.

“A second reason why I do not feel able to rely upon Mr Green is that he did not appear to me to understand the obligation of an expert fairly to deal with all the evidence and not simply to address the points that support his hypothesis. Mr Hunter’s criticism is fair that Mr Green was happy to emphasise the witness evidence that supported his theory whilst remaining silent about those witnesses whose evidence did not.”

THE CASE

The claimant was seriously injured whilst a pillion passenger on a motorcycle which was in a collision with an oncoming vehicle.  The claimant was blameless but the two drivers involved blamed each other.  It was alleged that the motorcyclist was on the wrong side of the road. The judge held that none of the witnesses had seen the accident at the point of impact.  He therefore considered the expert evidence called by the parties.

THE JUDGMENT ON EXPERT EVIDENCE

The expert witness called by the driver of the vehicle gave evidence that asserted that it was the motorcyclist that was on the wrong side of the road.

67. It follows that I conclude that none of the witnesses present at the time of the collision can help me about where the vehicles were at the moment of impact. I must therefore turn to the expert evidence.

1. 1. I have, with some dismay, come to the conclusion that I cannot rely upon the evidence of Mr Green, for a number of reasons.

1. 1. The most basic reason is that in his evidence, Mr Green advanced propositions of physics that were obviously incorrect. For example, he suggested that at the moment of collision, the forward motion of both vehicles cancelled each other out. Since the Vauxhall continued along its path at a considerable speed until it hit the verge, the proposition that its forward motion was cancelled out is palpably false. In my judgment, Mr Green compounded the error when he was asked to account for his statement. Instead of agreeing with the suggestion of Mr Hunter that this was nonsense, he hedged by saying that “how it’s written is not correct” as if some typographical error was responsible for the blunder. A second example is his assertion that “you can’t put fluid under pressure, you can’t compress it.” Whereas I accept that liquids are not readily compressible, the suggestion that fluids cannot be put under pressure is absurd. I am left wondering what is the purpose of the oil pressure gauge in my motor car if the purpose is not to show the pressure in the oil system.

1. 1. A second reason why I do not feel able to rely upon Mr Green is that he did not appear to me to understand the obligation of an expert fairly to deal with all the evidence and not simply to address the points that support his hypothesis. Mr Hunter’s criticism is fair that Mr Green was happy to emphasise the witness evidence that supported his theory whilst remaining silent about those witnesses whose evidence did not. I am critical of the fact that Mr Green relied upon the marks on the upright of the Recycling sign without drawing the court’s attention to the fact that there were several other marks on the upright that were not consistent with his theory.

1. 1. One of the problems with Mr Green’s theory is that there was no mark on the road to evidence his postulated instantaneous turning of the car wheel through 90°, a point made in the reports of Mr Roberts and Mr Davey. When Mr Green was asked in cross-examination to account for the fact that there was no evidence on the road, he mentioned for the first time the theory that the wheel of the car may have been lifted off the road by the motorcycle tyre. It is very surprising that he had not raised this potential explanation during the experts’ discussion or in the joint statement. I formed the opinion that Mr Green made this explanation up as he was giving evidence.

1. 1. A further issue I have about Mr Green’s conduct concerns the perception that his theory involved the motorcycle striking the nearside of the car wheel. It was, I believe, absolutely clear that Mr Roberts and Mr Davey understood Mr Green to be saying this, as appears both from the reports of both men and from their comments in the joint statement, which are directed to demolishing this theory. I reject Mr Green’s evidence that he had made clear in the experts’ discussion that this was not his view; if he had done so, Mr Roberts and Mr Davey would not have wasted ink seeking to discredit the theory in the joint statement. I also reject his (inconsistent) evidence that he did not realise that Mr Roberts and Mr Davey had not understood what he said was his true theory, which was that the motorcycle had struck the offside of the car wheel. It must have been obvious to Mr Green from their reports and from their comments in the joint statement what Mr Roberts and Mr Davey believed him to be saying. I am thus forced to the conclusion that in failing to explain to his fellow experts that they had misunderstood him, Mr Green has not complied with his obligation to help the court understand the expert evidence and in explaining his conduct to me, he has given inaccurate and unreliable evidence.

THE OTHER EXPERTS

The judge was more impressed by the other experts in the case.

1. 1. I was mostly impressed by Mr Roberts’s evidence. I formed the view that he had carefully weighed all the evidence and had presented a persuasive account. I was concerned with his evidence around the photograph that had been taken by Mr Noblet. It was a technical breach of the rules that he had not disclosed that Mr Noblet had taken the photograph. More troubling, in my view, is how Mr Roberts was able to reach a conclusion about the angle of the grinding on the wheel rim and what the implications were using only the photograph and without undertaking a careful examination of the wheel rim. I was not convinced by this part of his evidence.

1. 1. In my judgment, the most convincing expert witness was Mr Davey. He undertook a laser scan of the scene which all of the experts recognised was likely to provide the most accurate representation of the locus. Mr Davey carefully analysed the evidence and presented a fair and, to me, convincing account of the collision in his written and oral evidence. In giving his evidence, he was firm but not inflexible. He was an impressive witness. My conclusions about what happened are largely informed by his opinion.

THE JUDGE’S CONCLUSIONS

1. 1. I find that the collision occurred at the southern end of the tyre mark. The vehicles were in the position illustrated in figures 36 and 37 in Mr Davey’s report dated 7 April 2022.

1. 1. As the experts all agree, at the moment of impact, the front offside tyre of the Vauxhall deflated, the wheel of the car was forced backwards and the suspension assembly of the Vauxhall was largely destroyed.

1. 1. I am persuaded by the evidence of Mr Davey and Mr Roberts that the front offside wheel was then held in an orientation broadly parallel to the direction of travel of the Vauxhall. I accept their evidence that a tyre held in this orientation would leave a mark on the road that was slightly wider than the width of the tread with the edges of the mark more distinct than the centre of the mark. I accept their evidence that the pattern to be expected if the wheel had been dragged across the road perpendicularly to the direction of travel would be dark in the middle with scalloped edges. In my judgment, the photographs show a picture that is much nearer the “parallel” pattern than the “perpendicular” pattern. I reject Mr Green’s evidence that the width of the tyre mark was too wide to be explained by the “parallel” orientation theory.

1. 1. I accept the evidence of Mr Roberts and Mr Davey that if the wheel had been moved across the road in the “perpendicular” orientation, the tyre would have been pulled off the wheel. It was not.

1. 1. I accept the evidence of Mr Roberts and Mr Davey that it is highly improbable that there would have been no mark on the road if the wheel of the Vauxhall had been moved through 90° at the moment of impact. There was no such mark.

1. 1. I am satisfied that the force of the Vauxhall striking the verge was sufficient to wrench the front offside through about 90°. To be absolutely clear, I find that the splaying of the wheel did not occur at the moment of impact but when the car struck and was dragged along the verge.

1. 1. The conclusion I reach about the position of the collision is supported by the oil mark on the road left by the motorcycle. I find that on impact, immense loads were placed on the front forks of the motorcycle, causing the forks to fail and the oil from the forks to be sprayed out under pressure onto the road along the path of the motorcycle. I accept the evidence of Mr Roberts and Mr Davey that producing a line through the path of the oil in the direction from which the motorcycle came leads to the start of the tyre mark, thus supporting the conclusion that this is where the collision occurred.

1. 1. I accept Mr Davey’s view that there would have been insufficient time for Mr Howard to perceive and take any meaningful evasive manoeuvre in response to the movement of the Vauxhall into the southbound lane.

1. 1. I accept the evidence of Mr Roberts that there would be little difference in the impact forces, damage and post-impact movement had the Kawasaki been travelling at 60 rather than 70mph.

1. 1. The experts agree that the motorcycle was close to vertical at the time of the collision. I reject Mr Green’s opinion that this means that Mr Howard realised he was on his incorrect side of the road and was seeking to move onto his correct side of the road. I accept the evidence of Mr Roberts and Mr Davey that since the corner was not a sharp one, the motorbike would not be significantly canted over. In any event, if the motorbike was unusually vertical, that is consistent with Mr Howard realising that he had to try to avoid the Vauxhall on its incorrect side of the road. It does not strengthen the case advanced by Mr Green.

Conclusions

1. 1. In this terrible accident, the claimant was blameless.

1. 1. I have found that the collision occurred when Mr Howard’s motorcycle was on its correct side of the road. I have found that, at the moment of impact, Mr Howard was riding his motorcycle close to the broken white line that marked the edge of his carriageway. I accept the evidence of Donna Coy that there was room in the carriageway for Mr Howard to have moved to his nearside and thus to have avoided the accident. There is no allegation against Mr Howard that he drove too close to the centre line or that he should have moved to his nearside. In any event, I am not persuaded that Mr Howard was negligent in failing to do so. He probably realised that the Vauxhall was drifting across the road but he had no reason to suspect that the Vauxhall would continue to drift onto its incorrect side of the road. Once it was clear that the Vauxhall was likely to pose a danger, there was insufficient perception and reaction time for him to avoid the collision.

1. 1. I have found that Mr Howard was riding slightly in excess of the speed limit. The mere fact that he was exceeding the speed limit by a modest amount did not, in my view, carry with it a foreseeable risk of harm to his passenger. I have accepted Mr Roberts’s evidence that this accident and its consequences would have been no different had Mr Howard been riding at a slightly lower speed. Thus, so far as the allegation of excessive speed is concerned, neither breach of duty nor causation has been proved.

1. 1. For the reasons I have stated, I reject the allegations made against Mr Howard in paragraph 7 of the Particulars of Claim.

1. 1. My findings show that Mr Teasdale drifted onto his incorrect side of the road. The most probable explanation, in my view, is that Mr Teasdale lost concentration. He did not realise he was drifting onto the wrong side of the road. He did not see the motorcycle coming towards him until the last moment. He made no attempt to avoid the collision. In my judgment, this relatively prolonged lapse in concentration bespeaks a serious failure to exercise reasonable care for other road users. Mr Teasdale’s negligent driving caused the serious injuries of which the claimant complains.

1. 1. The Particulars of Claim allege that Mr Teasdale was driving too fast. I reject that allegation: he was travelling at about 50 mph, which was in my view a safe speed at which to negotiate this road.

1. In the circumstances, the claimant’s claim against the second defendant succeeds and there must be judgment for the claimant against the second defendant for damages to be assessed. The claim against the first defendant must be dismissed.