Expert Evidence…

RE: Kennedy v. Cordia Services [2014]; Prescott v University of St Andrews [2016] CSOH 3

Construction disputes shares a significant overlap with complex personal injury and/or non-construction professional negligence matters  where the strength of expert evidence is often the difference between a positive or negative outcome for the client.  DAC Beachcroft UK have published a commentary on  the above recent Scottish cases (hence the use of the innately appealing title “pursuer”). The commentary is particularly notable in underlining the core shibboleths of leading expert evidence at trial:

  1. Is expert evidence necessary?
  2. Choice of expert.
  3. The importance of focusing the expert’s attention on the key issues likely to be in controversy at trial and the often disastrous consequences of failing to do so.

JSF (04.02.2016)

“The instruction of expert witnesses is one which continues to be loaded with uncertainty for litigators.   The choice of expert and whether they are required certainly has implications for certification but more significantly can change the face of a case as evidenced by the facts in Kennedy v Cordia Services [2014].  The decision of the Supreme Court in this case is pending and it is anticipated that once issued will clarify at least some of the ambiguities.  The Inner House had deemed much of the pursuer’s expert evidence to be inadmissible, and in a strongly worded Opinion had commented that this health and safety expert had not offered any more evidence than “a reasonably inquisitive and intelligent person might have discovered by looking material up on the internet.”  Care then must be taken when selecting an expert and we shall keep you updated in respect of the ultimate decision.

On a similar note, problems arose for the pursuers in terms of their expert in this mesothelioma claim.  The pursuer, who had been a lecturer at St Andrews in the 1970s, failed to prove that he had contracted mesothelioma as result of asbestos exposure in the course of his employment with the University during a period of extensive renovation.  He raised an action against the University after being diagnosed with peritoneal mesothelioma in July 2012.

The Court held that in order for the pursuer to succeed in establishing negligence he must demonstrate the actual level of asbestos to which he was exposed.  Only then could the Court consider whether the exposure was more than de minimis and whether the risk of developing mesothelioma was foreseeable. The Court also accepted that an assessment of exposure levels was necessary to establish causation in a mesothelioma claim, and even more so in one involving peritoneal mesothelioma due to its relative rarity.

Whilst nowhere near the same scale as in Kennedy, the court was critical of the evidence presented by the pursuer’s expert witness, an experienced engineer from Cadogans.  She had been asked to estimate the Pursuer’s likely levels of asbestos exposure, based on various factual scenarios arising from the evidence presented to the Court by witnesses.  She advised, however, that she was unable to do so as there were no asbestos concentration measurements available for the library works. She considered she could only estimate the potential maximum exposure levels, which she did using health and safety literature from the time, which showed a range of asbestos fibre release from various processes. She explained “it was not her practice to calculate or attempt to calculate cumulative exposure levels because minimal exposure was, in her view, sufficient to cause harm”.  The court, however, were of the view that without an assessment of cumulative exposure they could not assess whether the exposure was sufficient to cause harm, and following on from that whether it was foreseeable for the purposes of establishing negligence.

The court also found the pursuer’s recollection of events to be unreliable, and his memory of the era to be “at best fragmentary”.  The court was careful to point out that “the process of attempting to remember events in the distant past is an inherently fallible one” and that this was not a criticism of the pursuer’s honesty or integrity.  It was noted that the allegations of exposure lead in oral evidence differed from those the pursuer had earlier given to his treating oncologist and in an application for benefits.  The court highlighted that even if the pursuer’s evidence had been accepted then the case would still have failed due to the expert’s limitations in assessing the cumulative asbestos exposure.

The case highlights the difficulty in leading factual evidence in long-tail disease cases, where the events in question have happened many decades previously, but this is a case which ultimately failed due to an expert being unprepared to provide the court with key information required to establish the claim.”

[Authors – DAC Beachcroft LLPAnnis Mackay and Caitlyn Maccabe]

For further relevant reading please have regard to the following papers from the Codex (CBA Annual Construction Law Conference November 2013):

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