“IT IS ENTIRELY OUTSIDE THE REMIT OF AN EXPERT TO DECIDE WHICH WITNESSES OF FACT HE BELIEVES OR DISBELIEVES”: DEFENDANT’S WITNESS DOES NOT FARE WELL
We are returning to the judgment of Mr Justice Julian Knowles in Allard v Govia Thameslink Railway Ltd [2024] EWHC 2227 (KB). More accurately to the first instance decision which the defendant attempted (unsuccessfully) to appeal. This time in relation to the trial judge’s assessment of the expert evidence. There was a robust rejection of the argument that the expert could base their evidence on an assessment of which witness was telling the truth.
“… it is entirely outside the remit of an expert to decide which witnesses of fact he believes or disbelieves.”
WEBINAR – EXPERTS IN THE COURTS IN 2024 11th DECEMBER 2024
On the 11th December 2024 I am giving a webinar reviewing the key cases and comments on expert evidence throughout the year.
Matters to be considered include:
- Experts reporting outside their expertise
- Experts in fundamental dishonesty cases
- Compliance with the rules
- Conduct and alleged misconduct.
Booking details are available here.
THE CASE
The claimant brought an action for damages for personal injury following the breathing in of a noxious chemical. There was a trial on causation and quantum. The defendant admitted liability shortly before the trial. There was a difference between the parties as to causation. The defendant’s experts view on this was that there was minimal, if any injury, the claimant having chronic underlying conditions.
THE JUDGMENT, AT FIRST INSTANCE, IN RELATION TO THE EXPERT EVIDENCE
At first instance the trial judge, Recorder Cohen KC, preferred the evidence of the claimant’s expert in relation to issues of causation. (The emphasis in bold are ones that I have added, there are original emphasis in the text in the judgment).
“62. [Dr Collins] explains that DCM may cause an irritation to the airways and tissues of the lungs. He continued that in Mr Allardy’s case the inhalation of fumes from this volatile fluid, on the balance of probabilities, caused an irritant exacerbation of his asthma. Not by an allergic response, but rather by physical irritation of the bronchial mucosa. Which may be liked to provocation of dermatitis by abrasion with a fabric or other non-reactive material. In fairly moderate terms, Dr Collins explained that for the foreseeable future, this may cause persistent symptoms from asthma which may be difficult to remedy. The conclusion was that the exposure had made the asthma much worse and more difficult to control and may affect Mr Allardy’s employability. In his opinion, Mr Allardy must avoid inhalation not only of DCM fumes but also fluids and vapours unrelated to DCM may also cause his asthma to be worse. (I have noted that Nitromoors is avolatile solvent, albeit not containing DCM.)
63. After reviewing Mr Allardy in September 2022, Dr Collins’ conclusion was similar but rather stronger in view of the fact that longer had passed. This conclusion noted that the asthma was improved at time of the examination and that there were normal breath sounds without wheezes. His opinion remained, however, that the increased activation of the asthma would persist indefinitely.
…
68. Nothing emerged in the cross examination of Dr Collins which caused him to retract his conclusions or reasoning and nor did anything in his evidence provide me with cause for concern. I must now review the evidence of Dr Hinds which will enable me to decide whether Dr Collins’ evidence has satisfied me of its conclusions.”
“69. Dr Charles Hind is a Consultant Physician in General and Respiratory Medicine. He examined Mr Allardy on 1 September 2022. Like Dr Collins, Dr Hind has reviewed the medical records but, unlike him, he had reviewed the pleadings and also Mr Allardy’s witness statement of 11 February 2021. Amongst the things which Dr Hinds will have therefore seen were GTR’s assertions in its Defence that the area in which the stripping task was done was well ventilated and that the professional report of Socotec showed that the risk associated with DCM was well below the workplace exposure limit for the task and location in which he undertook it. Dr Hinds recorded a second exposure working outside.
70. Dr Hinds’s (sic) conclusions were that the symptoms alleged by Mr Allardy were not consistent with the medical records, particularly on 4 January 2017 which was the day of the incident. Specifically, he could not find anything which suggested that Mr Allardy might have suffered breathing difficulty. His view was that it was more likely that the symptoms of which Mr Allardy was complaining on 4 January 2017 were explained by a chest infection from which he had been suffering and from which there might have been a rib fracture caused by coughing which was not shown by x-ray. In his opinion, the incident had no impact on the natural history of Mr Allardy’s atopic asthma. He also noted that Mr Allardy had been off work because of his skin condition.
71. If I accept Dr Hinds’ (sic) evidence or if it causes me to doubt Dr Collins’ evidence so that it does not satisfy me on the balance of probabilities, no injury or other consequence will have been caused by the incident. That was GTR’s case.
72. Dr Hinds was in Court and listened to the evidence of fact which emerged as to the detail of the incident and with which I have already dealt. This did not affect his conclusion. I will say at once that I found this somewhat surprising. It was common ground between the two doctors that the duration of the exposure and the concentration of the vapour were highly influential to the probability of consequences. Yet, despite there being no dispute between the witnesses as to this, there was no re-evaluation by Dr Hinds of his conclusions. The reason became apparent within the first few minutes of cross examination: Dr Hinds readily accepted that integral to his
reasoning was that he did not believe Mr Allardy as to the symptoms he had suffered. Although he said so with less clarity, the same is likely to be true as to Mr Allardy’s account of the incident. In my judgment, it is entirely outside the remit of an expert to decide which witnesses of fact he believes or disbelieves.
73. Ms Allen has submitted to me that a medical expert can and should form a view as to whether he believes a Claimant. I do not accept this submission as put. Of course, it is entirely proper for a medical expert to say that the medical records are not consistent with what a person claims were his symptoms. However, in failing to appreciate or deal with the possibility that the account of the symptoms provided by Mr Allardy might be true, Dr Hinds has deprived the Court of what evidence he might have been able to give if the Court accepted the truth of that account. What Dr Hinds does not begin to address or explain is the improbably absence of breathing symptoms caused by the exposure to and inhalation of a high concentration of DCM vapour in a confined and unventilated space over a period of 1-2 hours. Although this was not elicited in cross examination, the only likely explanation I can see is that he was persisting in thinking this was a minor and safe exposure to a low concentration in a well-ventilated space. Dr Hinds’ report specifically notes the denial in the Defence that it was denied that he was exposed to harmful level of DCM.
74. In support of Dr Hinds theory, he has looked at and interpreted the medical records. I need to concentrate on 4 January 2017. Dr Hinds has drawn attention to two references:
74.1. The Urgent Care Centre’s note recording no difficulty in breathing
74.2. The GP’s note recording ‘No SOB’ [shortness of breath]. These, he interprets as inconsistent with Mr Allardy having reported that he suffered any breathing difficulty. Perhaps most extremely, Dr Hinds records Mr Allardy specifically denied any shortness of breath. He explained his reasoning to support this supposed specific denial that the GP would have asked the question Are you short of breath or something similar to which Mr Allardy would have replied No. I have added emphasis to reflect Dr Hinds actual words. My view is that this [is] exaggeration by Dr Hinds based on speculation. Shortage of breath can be diagnosed by observation and not merely based on questions and answers from a patient. He cannot safely have gone as far as saying that there was a specific denial by Mr Allardy.
75. The are other points as to why I am doubtful as to Dr Hinds’ theory:
75.1. Both doctors agree that shortage of breath or even wheezing is likely to reduce or abate over time as well as the fact that asthma is episodic so that between attacks there may not be symptoms. Approximately 11 hours had elapsed after Mr Allardy’s exposure to DCM. There is a significant possibility that some of his symptoms had reduced significantly or even abated. Such reduction or abatement is different from the effect which had occurred according to Dr Collins on the mucous membranes of the airways.
75.2. Once again context is important in understanding what both the Urgent Care Centre and the GP were and were not considering in what was an urgent appointment. They were not dealing with an incident of inhalation of a toxic chemical – Mr Allardy did not know that he had inhaled DCM and GTR remained in denial of this for at least 6 more months. I have described this already as diagnosing blind to the facts. That blindness made the recent history of chest infection the obvious thing to be considering. Nonetheless, Mr Allardy was referred to a chest clinic suggesting that breathing issues were in mind. Also, whether it was the Urgent Care Centre or the Chest Clinic who were enquiring as to a COSHH statement itself suggests that they were considering possible causes of symptoms other than the recent chest infection.
Expert Evidence – Finding
76. I have contrasted the evidence of the two experts and I prefer that of Dr Collins which I find conservative, clear and persuasive in reaching a moderate conclusion on the facts. I regret that I find the problems with Dr Hinds evidence do not give me confidence in his expert opinion which, in any event, does not help me in relation to the incident and symptoms I have found.
77. I therefore accept Dr Collins’ evidence and find that injury was caused as he describes.”