In recent months, BC Legal and other defendant industrial disease specialists[i] have observed an incipient trend in the way that certain claimant firms are handling their cases, exclusively in relation to proving breach of duty.
Noise-induced hearing loss (NIHL) claimants appear to be more frequently testing their ability to rely on supplementary engineering evidence in cases where a single joint expert (SJE) has already been agreed, instructed and published a report.
Some examples of this novel application have reached the County Courts and, in this article, we assess whether claimants’ opportunism has been met with reasonable prospects of success.
The archetypal facts of a target case would be a (multi-defendant) claim, which is allocated to the fast track with express permission to obtain a report from a SJE. The report would be disclosed to both parties and its findings would be detrimental to the claimant’s case. For example, the report might conclude that he/she was exposed to noise levels that were not excessive, i.e. that their daily personal noise dose was below the ‘action levels’ (as specified by the applicable iteration of the Control of Noise at Work Regulations / under common law). The claimant might then send Part 35 questions to the acoustic engineer, who would respond in a manner that does not deviate from the preliminary report.
On account of the fact that breach of duty cannot be established with the available evidence, the claimant would apply to the court for permission to rely on separate evidence (presumably indicative of tortious noise exposure), produced by an alternative acoustic engineer. This application might also request that the trial be vacated, that the claim be re-allocated to the multi-track, that the SJE be thereafter regarded as the defendant’s expert, that a joint-statement be prepared between both experts and that oral evidence be given at trial.
We recently resisted an application, brought by Walker Prestons Solicitors, where the proposed claimant expert was Mr. Adrian Watson, of Watson's Expert Services Limited. Incidentally, we are currently awaiting the listing of a similar application, brought by Baker Coleman Solicitors, which is also intent on instructing Mr. Watson.
In the former case, the SJE [Mr. David Gregory of Strange, Strange & Gardner (SS&G)] applied his experience to the facts and reduced his estimate of noise exposure, given the conventional ‘non-cutting time’ for wood saws. Part 35 replies further exposed that the noise immission level (NIL) would not have exceeded 100 dB(A), falling short of R2(a) of the Coles, Lutman and Buffin Guidelines (CLB 2000), for the purposes of establishing medical causation.[ii] The claimant’s application was dismissed on 7 January 2020 and permission to appeal was rebuffed on the papers. A successive oral application for permission to appeal was refused on 1 April 2020 and the action is now proceeding to trial.
In the latter case, the SJE (Ms. Laura Martin of SS&G) referred to a historic noise survey in her report, but did not disclose the details of this survey, due to a potential breach of confidentiality. However, the claimant took umbrage with the accuracy and relevance of the survey cited, even though the SJE was simply being judicious. Their 1st application was refused on 2 March 2020, but permission was given to put Part 35’s to Ms. Martin. Their 2nd bite at the cherry (essentially an identical application, except that a desktop report has now been obtained) is yet to be listed.
Elsewhere, other defendant firms have documented mixed success at application hearings.[iii]
On one reported occasion, citing the ‘balance of grievance test’, as first discussed in the unreported case of Kay v West Midlands Strategic Health Authority and further elaborated on in Bulic v Harwoods & Ors  EWHC 3657 (QB), worked in the claimant’s favour. Although the Judge could not exercise their discretion to validate criticism aimed at the SJE, the claimant effectively argue that the expert had caused them to experience a ‘real sense’ of lost faith, which could be remedied by allowing them to depart from the SJE’s report.
It would perhaps be preferable, therefore, for the High Court or Court of Appeal to pass judgment on this issue.
In the interim, we maintain that defendants should resolutely oppose applications for own engineering evidence in fast-track NIHL claims.
Occupational deafness claims are characteristically low in value (in most instances) and acoustic engineers are sufficiently experienced to adequately prepare jointly instructed reports that can be relied upon. It is therefore contrary to the overriding objective and utterly disproportionate to risk losing a trial date, elongate the length of trial (if re-allocated to the multi-track) and build costs, all for the sake of obtaining an unnecessary 2nd report.
Lord Woolf, at paragraph 29 of Daniels v Walker  EWCA Civ 508, stated that:
‘If, having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence’.
This threshold test was modified by his Lordship again, in MP v Kent Healthcare NHS Trust  EWCA Civ 1703, at paragraph 28:
‘… where parties agree that there should be a single joint expert, and a single joint expert produces a report, it is possible for the court still to permit a party to instruct his or her own expert and for that expert to be called at the hearing. However, there must be good reason for that course to be adopted. Normally, where the issue is of the sort that is covered by non-medical evidence, as in this case, the court should be slow to allow a second expert to be instructed’.
Plainly, it cannot be said that there is ‘good reason’ to allow surplus expert evidence in run of the mill NIHL claims.
Furthermore, the importance of the value of the claim in an assessment of proportionality should not be diminished by claimant submissions in support of their applications. As the former Master of the Rolls emphasised, at paragraph 29 of Daniels:
‘In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert. In many cases it would be wrong to make a decision until one is in a position to consider the position in the round. You cannot make generalisations, but in a case where there is a modest sum involved a court may take a more rigorous approach. It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances. At most what should be allowed is merely to put a question to the expert who has already prepared a report’.
[i] Kirtana Davda, ‘Departure from the Single Joint Expert’ (February 2020 BLM) <https://sites-blm.vuturevx.com/93/2917/compose-email/departure-from-the-single-joint-expert.asp> accessed 11 May 2020.
[ii] Coles RRA et al., Guidelines on the diagnosis of noise-induced hearing loss for medicolegal purposes. Clin. Otolaryngol. 2000, 25, 264-273. <https://www.bc-legal.co.uk/documents/CLB%20Guidelines%202000.pdf> accessed 14 May 2000.
[iii] Powers v Hadfields Transport Ltd & Others, before DJ Isles,at Manchester County Court, on 6 February 2020 (unsuccessful application vs BLM).
DDJ Midwinter, at Leicester County Court, on 12 February 2020 (successful application vs BLM).