In edition 307 of BC Disease News (here), we reported on an emerging strategy in fast-track industrial disease litigation, which has been employed by claimants to strengthen their position on breach of duty.
Over the past year, claimant parties have shown more inclination to seek their own engineering evidence in noise-induced hearing loss (NIHL) claims where a single joint expert (SJE) has already been agreed, instructed and published a report/answered Part 35 questions.
Why are claimants doing this?
Quite simply, these opportunistic applications are being made when breach of duty cannot be established with the available evidence. i.e. when the SJE has indicated that the claimant’s occupational noise exposure was not excessive, as alleged.
Our previous article made reference to several cases that we were personally handling, in which such applications had been made and heard/listed before County Court judges.
In both cases cited (one brought by Walker Prestons Solicitors and the other brought by Baker Coleman Solicitors), the claimants’ proposed consultant acoustic engineer was Mr. Adrian Watson, of Watson’s Expert Services Limited.
Having acknowledged, back in May, that High Court insight on this issue could prove to be significant, it is incidental that a highly relevant judgment was handed down last week.
Hinson v Hare Realizations Ltd (2)  EWHC 2386 (QB)
In Hinson v Hare Realizations Ltd (2)  EWHC 2386 (QB), the claimant (represented by Walker Prestons) sought damages for NIHL supposedly caused by negligent exposure to high levels of non-attenuated occupational noise, emitted in a Machine Shop, from 1976/77 to 1986/77.
Once allocated to the fast track, the parties entered into discussions over which SJE to instruct. From a pool of proposed experts, the claimant selected Ms. Laura Martin, of Strange, Strange and Gardner, and this was subsequently agreed with the defendant.
However, Ms. Martin’s report (dated 27 August 2019) and answers to Part 35 questions did not point towards noise levels that would have been sufficient to enable the claimant to succeed.
Capitalising on multiple vacated trial dates (purely due to circumstantial reasons), the claimant’s legal representatives spoke with Mr. Watson, in relation to another NIHL claim, and were ‘led to believe that there could be deficiencies in Ms. Martin's report relating to the applicability of the PERA Survey [of Noise in Engineering Workshops (1996)]’.
With notice, further Part 35 questions were put to the SJE to chase up on this accusation, but without notice, the claimant commissioned a supplementary expert report from Mr. Watson (dated 24 February 2020), which was predictably favourable to them.
An application was immediately issued upon receipt of the new report (albeit only 3-days before the date listed for trial). This asked for the trial to be vacated and replaced by a 2-day trial; for the case to be reallocated to the multi-track; and for permission to rely on Mr. Watson’s report, with Ms. Martin to continue as the defendant’s expert.
At 1st instance, Miss Recorder McNeill QC refused the application to adjourn and rely on Mr. Watson and proceeded to dismiss the claim, on the assumption that the claimant had not been exposed to a daily noise dose exceeding 90 dB(A) Lep,d.
In reaching this decision, she exercised her discretion by giving effect to the overriding objective and applying the ‘balance of grievance’ test, per Mr. Justice Eady, in Bulic v Harwoods & Ors  EWHC 3657 (QB):
‘I do not read Bulic as requiring the grant of an application to adjourn, however late it is made, solely because a single joint experts' report is essential to the case, of a technical nature and a party has lost confidence in the expert for good reason. There was no application to adjourn the trial in Bulic. In assessing the balance of grievance, the claimant will be aggrieved at not being able to rely on evidence which might enable him to win his case; but the defendant will also have a strong sense of grievance if this low value case is adjourned for the third time, on the date of trial, with the inevitability of the defendant incurring further very considerable costs, where the single joint expert was proposed by the claimant and where her evidence may well be preferred to that of Mr Watson if the case went to trial’.
Ms. Martin’s report was not reinforced by the same level of detailed calculations as Mr. Watson’s report and it was accepted, on balance, that this gave the claimant ‘genuine reason’ to lose confidence in her as the SJE.
Nonetheless, the Recorder assessed that the discrepancies between the experts on their merits were not so pronounced to conclude that ‘the single joint experts’ opinion [was] obviously lacking in cogency or [displayed] a clear lack of analysis or even partiality’. It was emphasised that Ms. Martin is an expert with ‘appropriate expertise from a well-known firm of experts’.
On appeal to the High Court, Mr. Justice Spencer observed that the claimant had acted in a ‘somewhat presumptuous’ manner by expecting the court to force the defendant to embrace Ms. Martin as their own expert, given the factual background to Ms. Martin’s single joint instruction.
Favouring the defendant’s submissions on appeal, the judge accepted that he faced a ‘significant hurdle’ if he were to be persuaded that the Recorder’s decision was an ‘erroneous’ one. Such a finding would be dependent upon the Recorder having ‘misdirected herself in law or [having] applied the wrong test or [having] taken into account matters which were irrelevant or [having] failed to take into account relevant matters which had they not been taken into account or been taken into account, or should have made a significant difference’, following Eady J, in Bulic.
Arguing that the Recorder’s exercise of discretion to move from single joint expertise to individually procured expertise was subject to a ‘low threshold test’ and did not require ‘exceptionality’, the claimant maintained that their application to abandon the SJE should have succeeded.
Ultimately, Spencer J concluded that the correct approach had been elucidated by Lord Woolf, in Daniels v Walker  EWCA Civ 508, who stated that permission to obtain the desired new expert evidence could be permitted for ‘reasons which are not fanciful … subject to the discretion of the court’. The words ‘subject to the discretion of the court’ were deemed to be ‘important’ in this context.
In fact, it was the appeal judge’s view that the Recorder had approached this discretionary exercise (‘balancing the interests of the parties, taking into account not only the overriding objective but also the interests of justice generally in seeing that cases are decided expeditiously, at proportionate cost and without undue inconvenience to other parties’) in an ‘impeccable’ fashion, having demonstrated awareness that:
- The evidence of the SJE was central to the issues in the case;
- The evidence of the SJE was technical;
- The claimant had good reason for wishing no longer to rely upon that report;
- The application was being made at a late stage in proceedings;
- But for the non-availability of a judge, the case would have been decided in November 2019 without any such application being made;
- The SJE had been chosen by the claimant;
- The claimant had raised questions of the SJE on 2 occasions;
- If the claimant's application was acceded to, what would otherwise would have been fast-track trial would become a multi-track trial with a significant increase in costs; and
- The application had been made at a late stage and, if allowed, would involve the breaking of a fixture with potential waste of court time and inconvenience to other parties.
Thus, the High Court determined that the Recorder McNeill QC had acted ‘well within the generous ambit of her discretion’. Additionally, it could not be said that she ‘erred in law or applied the wrong test or otherwise so misdirected herself that her decision is capable of challenge’.
Accordingly, the claimant’s appeal was refused, with Spencer J surmising, at paragraph 24 of his judgment, that he:
‘… became convinced that the approach of Eady J in Bulic's case, and the approach of the learned recorder in this case effectively following Eady J, was absolutely the right one and even though, in that case and on its particular facts, Eady J allowed the appeal and overturned the exercise of discretion by the judge below, the principles with regard to the appropriate approach of the court to such applications which he set out in his judgment were absolutely the right ones and, more importantly, had been applied appropriately by the learned Recorder in this case’.
Full text judgment can be accessed here.