Expert Reconstruction Evidence in RTA Liability Cases: Two Recent Salutary Warnings
Two very recent RTA liability cases in which I appeared highlight the importance of careful and complete expert reconstruction evidence. Both were unusual cases but really do bring home the importance of thorough – and thoroughly tested – expert evidence.
In Atkinson v Kennedy & Others [2024] EWHC 2299 (KB), the Claimant was 7 years old and had just been collected from primary school by a friend’s mother, along with a friend who was a little younger. The three were waiting together to cross a suburban road near to the school. The area was subject to a 20mph limit.
The Defendant was driving a tipper lorry, on his way to make a delivery to a nearby home. He was turning left into the junction the Claimant was waiting to cross.
As the Defendant made the turn into the side road, the Claimant and her friend made their way off the pavement and into the road. The Claimant was struck by the third axle of the lorry and suffered very serious lower limb injuries.
There were many issues at trial, most not particularly relevant to this article. For these purposes, there are a few important points to bear in mind. Firstly, although there were many witnesses to the accident, most were not called by either side. That included the lady who had collected the Claimant from school. Instead, the Defendant relied on their police witness statements, together with limited live evidence. The lorry driver also gave evidence. Secondly, the only claim by the Claimant was in respect of the Defendant’s driving – there were no separate allegations against his employer (also a Defendant) regarding his training, audible warnings on the lorry etc – although such matters were raised at trial.
The Defendant’s driving before the accident was also in issue. He had a somewhat chequered driving history. In relation to the accident itself, he had missed the 20mph limit signs, had exceeded the speed limit through the school zone and did not actually see the group of three waiting to cross the road. It was really on those matters which the Claimant’s case eventually hung, for reasons which will become clear.
The Defendant did see the Claimant make her way off the pavement but only in one of his nearside mirrors. He brought the lorry to a stop, albeit not in time to prevent the accident.
There were reconstruction experts on both sides: Stuart Blackwood for the Claimant and Charles Murdoch for the Defendants. They were agreed on many issues save, perhaps unsurprisingly, for some of the key issues.
It was not in issue that the Defendant had slowed to within the speed limit some tens of metres before the turn and that the lorry was travelling at about 11mph during the turn itself.
The Defendant’s case focussed on the accident itself. On the Defendant’s expert evidence, the accident could not have been avoided. The Claimant had made her way off the pavement after the lorry had begun to pass her (that much was agreed) and with the combination of realistic PRTs, brake build-up time and other factors, the Defendant could not have avoided the accident whatever happened. Charles Murdoch had carefully considered all of the alternatives.
The approach of the Claimant’s expert was rather different in many ways. Many are not relevant to this analysis – but gave a substantial amount of cross-examination material. Critically, it appears that he only considered what might have happened had the Claimant walked from the pavement. That was a controversial approach. As above, most of the witnesses to the accident were not called, although their evidence was relied upon. Their evidence was telling as several of them, including the mother who had collected the Claimant, said that the Claimant had run from the pavement. Some evidence to that effect also came from the transcripts of the 999 calls.
That left a lacuna in the Claimant’s expert evidence: could the Defendant have avoided the accident if the Claimant had run from the pavement? Not only did Mr Blackwood not address that issue in his report, he also didn’t consider it in the Joint Statement, despite it having been raised by Mr Murdoch both in his report and in the Joint Statement. Mr Murdoch had considered both scenarios, and indeed had ruled out ‘full speed’ running as a possibility on the evidence.
It only became apparent during cross-examination that Mr Blackwood agreed that if the Claimant had run out, there was nothing the Defendant could have done to have avoided the accident, even had the lorry been travelling at a lower speed.
The claim failed. The Judge found as a fact that the Claimant had run out and hence the accident could not have been avoided. He also rejected the suggestion by the Claimant that the Defendant should have been travelling more slowly than 11mph, referring to the witnesses who had expressed the view that they didn’t consider him to have been driving too fast at the material time. The Defendant’s earlier driving history and his failure to adhere to the speed limit before the accident were also not relevant.
Szwarc v Jackson (judgment available here), handed down yesterday, could not have been more different on its facts yet raised similar issue of expert evidence.
The Claimant was agreed to have collapsed drunk at the entrance to a private car park on a residential estate. He was lying on the ground in such a position that the view of him was greatly restricted by a hedge growing perpendicular to the car park entrance.
The Defendant turned left into the car park and ran over the Claimant. The first time he saw the Claimant was after his front wheels had run him over and exited the car to investigate. His view of the Claimant was also obscured by a sticker towards the bottom left of his windscreen, put there by the car leasing company, in about the same position as the tax disc would have been in previous times.
The key factual issue was the path the Defendant had taken into the car park. His evidence was that he had taken a narrow line into the car park – i.e. one close which remained close to the nearside kerb – and that that was his usual practice, not least because there was a blind bend about 30m beyond the entrance, around which cars often came too fast and on the wrong side of the road.
Again, there was expert evidence on both sides: Peter Sorton for the Claimant and Pete Davey for the Defendant.
The expert evidence developed in a perhaps slightly unusual manner. Mr Davey both attended the site and used the police laser point cloud scan to map the Defendant’s view. He measured the Defendant’s actual eyeline in an attempt to replicate his view as far as possible. He considered the Defendant’s evidence as to the line he said he took into the car park, concluding that the Defendant would have had no view of the Claimant – what little / short view he would have had would have been obscured by the sticker. At our request, his evidence included an animation using the point cloud data, from the Defendant’s likely perspective.
Mr Sorton took a rather different approach, both figuratively and literally. His reconstruction was carried out by his assistant using cameras, not the laser scan data. He proposed that the Defendant would likely have taken a wider line – in effect pulling to the right before turning into the entrance – and in doing so he would have gained a view of the Claimant, even if only for a short time – but long enough to have stopped before the accident if he had been keeping a proper lookout.
The Defendant took many issues with Mr Sorton’s approach – but central to the Defendant’s case was that the Claimant’s expert evidence did not consider the Defendant’s view had he taken the path he referred to in his evidence.
Mr Sorton’s evidence (via his assistant, who was also called to give quasi-expert evidence as to the reconstruction itself) was that the Defendant could not make the turn from the narrow line without clipping the raised kerb, something the Defendant denied happened. In fact, Mr Davey had also taken an exemplar car to the scene as part of his reconstruction turn and had (as a matter of fact) been able to make the narrow turn without clipping the kerb. His animations also showed that the car did not clip the kerb on the narrow line.
The Claimant’s expert evidence therefore did not contain any analysis of the Defendant’s view of the Claimant had the Defendant taken the narrow line: i.e. the only line in the lay evidence. Rather, Mr Sorton proposed that the Defendant must have taken the wider line but did not analyse the view from the narrow line in his report. Neither did he seek to do so in or after the Joint Statement, when it was clear that Mr Davey had undertaken such an analysis, based on the lay evidence.
As in Atkinson, that gave rise to an imbalance in the expert evidence: the opinion of the Claimant’s expert as to the likely outcome based on one of the key factual scenarios was far from clear.
Mr Sorton accepted for the first time in cross-examination that the Defendant could not have seen the Claimant had he taken the narrow line. As a result, the Claimant’s case had to change: to aver either that the Defendant did, as a matter of fact take the wider line, or that he ought to have done so. The former was rejected as a matter of fact by the Judge based on the evidence. In any event, Mr Davey had later modelled the wider line and found that his results based on the point cloud did not match Mr Sorton’s reconstruction and that there would not have been a useful view of the Claimant. The Claimant’s alternative case was also rejected – the Court finding that it was not pleaded but also that the Defendant was not negligent for taking a narrower line.
It is curious that both cases highlight effectively the same issue so close in time, albeit in different ways.
Firstly, it is critical that the expert consider all of the physical and the lay evidence in the context of their reconstruction – and to consider the evidence which does and does not fit, providing such explanation as they can.
As part of that, the reconstruction should be as accurate as possible – laser scans often providing a gold standard for modelling, provided that any limitations are recognised and discussed. By way of example, in Szwarc the hedge had been cut back by the time Mr Davey attended and the decision thus taken to rely on the police laser scan taken on the day as the laser scan he carried out would have been misleading as to the sightlines. Further, Mr Davey measured the Defendant’s eyeline within an exemplar vehicle and mapped that position into the laser scan model – to give as accurate a view as possible of the Defendant’s view, whilst still recognising that no such replication can be entirely accurate and explaining why.
Next, it is vitally important to test your expert’s view of the evidence and to ensure that the expert does not leave other evidence either out of consideration or untested. Although there were many other issues in both cases, success / failure in both cases came down to core issues of expert evidence – to the extent that it was not necessary for the Judges in each case to deal in their judgments with many of the other issues.
This may seem like an obvious point but in both cases, the Claimant was represented by highly proficient legal and expert teams. These things should not be taken for granted and serve to emphasise the need to ensure your expert deals with all evidential issues.
The other aspect worth reiterating is the need to get your expert to help the Court. Again, this may be an obvious point but it worth exploring.
Judges may be inexperienced; they will almost certainly not have the luxury of visiting an accident scene; they may also find it hard to visualise aspects of the case. Visual advocacy is often far better than text, to coin inelegantly a well-known moniker.
Laser scans were available in both cases, allowing the experts, if they so chose (or were instructed) to model the scene, to place objects in the model and to animate items within the model. Not only are these models of great use for the experts, they can be of great use to the Court.
Here, the Defendant’s experts in both cases were asked to prepare animations. In Atkinson, that animation was used not only to show the path and speed of the lorry but also to show the Claimant’s view as she left the pavement – showing that she had moved off when the lorry had already started to pass her – in essence, not only did it show that the Defendant himself (in his cab) had already passed her as she left the pavement, it also showed that she ran directly into the side of the lorry, which took up much of her field of view as she did so.
In Szwarc, not only did the animation show the Defendant’s path but it was crucial in accurately depicting his likely view – and the effects of the hedge. Indeed, the latter point was particularly important as the hedge had been cut back before Mr Sorton’s photo-reconstruction, a necessary weakness of a photo-based approach in that case.
It would be remiss not to thank those instructing me in these team efforts: David Burn and Emily Skinner at Keoghs, instructed by Steven Duffy of Collingwood Insurance in Atkinson and Sophie Lawless and Jackie Fulford at DACB, instructed by Andrew Mangan of RSA in Szwarc.
