A routine recommendation in witness preparation is to keep answers as short as possible, preferably to answer with a “yes” or “no,” if possible.  This case provides an interesting counter-view from the Bench: that “one-word answers” might reflect an unwillingness to “engage in meaningful dialogue,” potentially indicating partisanship.  The judgement dealt with expert evidence in considerable detail, and in doing so provides some rare and interesting insights about the impact of the demeanour of experts while they give evidence.

Background

The plaintiff (the Patient) had woken in extreme pain, lying on the floor on his left arm, with no recollection of how, or when, he came to be on the floor.

He called for an ambulance and was taken to hospital, where he underwent emergency surgery to relieve the severe swelling that had cut off the blood flow to his arm.

His recovery was long and complicated.  Despite several further surgeries he suffered significant muscle loss and nerve damage, and he took action against the hospital, claiming damages said to arise because of unacceptable delays in undertaking that initial surgery, heard in Toon v Central Adelaide Local Health Network, [2025] SADC 98.

The hospital argued that extensive, irreversible damage had already occurred well before his arrival at the hospital – which meant that earlier surgery would not have resulted in a different outcome. Complicating the determination of the facts was the Patient’s then “extensive drug use” which together with pain relieving medications post‑surgery pain levels meant that he did  not have a “clear and true memory of what occurred”.

Expert evidence

The Patient arranged expert evidence from two former experienced vascular surgeons.

The evidence given in Court by the First Expert varied from the evidence in his written report.  In two instances this was because he said, he had changed his opinion.  The Court explicitly declined to accept his evidence that “he ‘thought” he had communicated his change in opinion to his instructing solicitors, and noted that counsel “was taken by surprise by the change.”

Two other changes arose because the First Expert realised that he had incorrectly relied on information in his instructions, rather than the hospital records.

The Court found that his failure to provide a supplementary report to his instructors following his changes of opinion was a serious matter, and that his failure to advise his instructors of his amended opinions impacted his reliability and credibility as a witness.

It said that he:

was not an impressive witness. He was suspicious while being cross examined, and often combative. He at times attempted to guess what counsel was seeking in cross examination, rather than simply answering the question. His evidence was inconsistent in several areas. His attempts to cover up his changed opinions was not the behaviour expected of an expert witness. I find that I cannot rely upon [his], where it is not supported by other evidence.

The Court found that the Second Expert was:

reluctant at times to engage in meaningful dialogue, rather giving one word answers.”  He gave some evidence based on incorrect detail and was “combative and argumentative and did not always address the question put to him…at times unrestrained and rude in his responses to the respondent’s counsel…[and] not an impressive witness.

By contrast, the hospital’s expert was:

an impressive witness…[who] at all times, attempted to assist the court, including explaining and breaking down complex medical issues…[and] his answers were balanced, considered and were not partisan.

Outcome

The Court preferred the evidence of the hospital’s medical experts – that the damage had already been done by the time the patient was admitted to hospital, and found that there was no breach of duty of care.

Some of my (busman’s) holiday reading was about the 1931 “blazing car” murder trial.

I would be surprised if many recognised the case name, but R v Rouse is the source of an often-quoted example of an expert who was completely discombobulated by a curly first cross-examination question, in this case: “what is the coefficient of the expansion of brass?”

The effect on the expert’s evidence was such that the jury was later instructed to consider the truth of his opinions “irrespectively of whether he appeared rather foolish” in giving them!

Background

Albert Rouse suffered serious injuries from his service in World War One. Following his return and his recovery from his wounds, he worked as a commercial traveller for a company selling braces.

In late 1930 Rouse took out a £1,000 life insurance policy naming his wife as beneficiary, and attempted to fake his own death by setting his car on fire.

He visited a lover (one of several, it transpired) immediately after the fire.

She identified the burnt-out car as his from a newspaper photograph, and contacted the police.  He was swiftly arrested, and charged with the murder of the unidentified man whose body was found in the car.

The circumstances were newsworthy in themselves, but the case attracted even more public attention following newspaper reports that Rouse had several children via at least three bigamous marriages, and that he had described his lovers as a “harem” and “an expensive game.”  It appeared that his plan to fake his death was an attempt to secure a ‘fresh start,’ free from obligations to financially support his children.

Rouse told the police that his car caught fire when he had stopped to answer a call of nature.  He said that he asked his passenger – a hitchhiker, whose identity he did not know – to fill the petrol tank from a jerry can, and speculated that the hitchhiker’s cigar had ignited petrol fumes, causing the fire.  He told police that he had tried and failed to rescue the passenger – somehow now trapped inside the car – and had then panicked, and fled.

A forensic examination identified a loose joint on a pipe between the fuel tank and the carburettor.  The prosecution case was that Rouse, apparently a handy amateur mechanic, had loosened the nut on the union joint to speed the flow of petrol.  The defence argued that the union nut was loosened by the fierce heat from the fire, and that no human agency was involved.

The Expert Evidence

Expert evidence was provided about the position of the body in the car – whether the body been placed in the car; the cause of the fire; and the loosening of the union nut, which is the focus here.

The expert whose confidence was so shattered by Birkett, Mr Isaacs, was not an expert as is normally engaged – rather, he was one of two “public spirited volunteers”[1] who came forward following newspaper reports of the evidence provided by the prosecution expert, Colonel Buckle.[2]  Buckle was an electrical engineer by training with extensive experience in fire investigation, who testified that the union nut was a “full turn loose,”[3] and that it was inherently unlikely to have become loose, accidentally.

Isaacs gave evidence contradicting the opinion of Colonel Buckle: that in his practical experience as an insurance fire investigator “it is invariably found at all fires that have been very intense that [such] nuts are loose.”[4]

The famous challenge to Isaac’s credentials is as follows:[5]

Birkett: “What is the coefficient of the expansion of brass?”

Isaacs: “I beg your pardon?”

Birkett: “ Did you not catch the question?”

Isaacs: “I did not quite hear you.”

Birkett: “What is the coefficient of the expansion of brass?”

Isaacs: “I am afraid I cannot answer that question off hand.”

Birkett: “If you do not know, say so. What is the coefficient of the expansion of brass? What do I mean by the term?”

Isaacs: “You want to know what is the expansion of the metal under heat?”

Birkett: “I asked you what is the coefficient of the expansion of brass? Do you know what it means?”

Isaacs: “Put it that way, probably I do not.”

Birkett: “you are an engineer?”

Isaacs: “I daresay I am.”

Birkett: “Let me understand what you are. You are not a doctor?”

Isaacs: “No.”

Birkett: “Nor a crime investigator?”

Isaacs: “No.”

Birkett: “Nor an amateur detective?”

Isaacs: “No.”

Birkett: “But an engineer?”

Isaacs: “Yes.”

Birkett: “What is the coefficient of the expansion of brass? You do not know?”

Isaacs: “No; Not put that way”

The question was unplanned – in “The Art of Advocacy” Birkett said:[6]

…whether it was inspiration or what it was I don’t know, but my first question in the cross-examination of the man certainly wasn’t in the brief. I said, “Tell me, sir, what is the coefficient of the expansion of brass?” And he didn’t know. I am not sure that I did, but he couldn’t ask me questions and I could ask him, and he didn’t know. And from that moment, of course, it was easy.

The other volunteer, Mr Cotton, was a colleague of Isaac’s, and he gave similar evidence.  Birkett asked him a similar question, which he dealt with more confidently:[7]

Birkett: “You know the coefficient of the expansion of metal?”

Cotton: “I am afraid I cannot answer that question.”

Birkett: “They are in any little diary that an engineer has. Have you got an engineer’s diary?”

Cotton: “Yes.”

Birkett: “Does it contain all the coefficients of expansion??”

Cotton: “Yes, But I do not study them.”

It is not clear whether the coefficient of the expansion of brass was an important issue.  Birkett’s acknowledgement that he did not himself know the answer to the question that he asked, suggests that it was not, and he did not raise the matter of the loose union nut in his closing speech.

In summing up Justice Talbot said:

I do not think anybody would say that Mr Isaacs made a very brilliant appearance in the witness box, but you may think, and probably will think, that that was mostly because he did not confine himself, as he more prudently would have done, to what he knew…but it does not mean that he is not telling me the truth about his experience. That is a matter which you might weigh quite irrespectively of whether he appeared rather foolish when he was tackled [about] the cause of this phenomenon.

Outcome

Rouse was found guilty.  That verdict was confirmed on appeal (which rejected extensive new evidence about the tendency of union nuts to loosen by themselves), and he was executed.  Prior to his execution he wrote a letter to a newspaper in which he said:[8]

Then I got out of the car, taking my attaché case, the can of petrol, and the mallet with me. I walked about 10 yards in front of the car and opened the can, using the mallet to do so. I threw the mallet away and made a trail of petrol to the car. I took the mallet away with one purpose in view. Also I poured petrol over the man and loosened the petrol union joint and took off the top of the carburettor. I put the petrol can back in the back of the car.

I ran to the beginning of the petrol trial and put a match to it. The flame rushed to the car which caught fire at once. Petrol was leaking from the bottom of the car. That was the petrol I had poured over the man and the petrol that was dripping from the union joint and carburettor.

The fire was very quick and the whole thing was a mess of flames in a few seconds.

His victim remains unidentified.[9]

Comment

Neither Isaacs nor Button (nor those providing new evidence for the appeal) were able to provide a scientific reason to explain the practical experience to which they testified.

Birkett dealt with Isaac’s evidence quickly and effectively – but it appears that he was dealing with a problematic opinion advanced by an inexperienced and under-prepared expert (if that), which may equally have been dealt with by a more orthodox cross-examination.

Notes:

[1] “The Trial Of Albert Arthur Rouse,” Helena Normanton, page xxxi.

[2] Normanton, page 241.

[3] Normanton, page 60.

[4] Normanton, page 241.

[5] Contemporary reporting from each of The Times and “The Trial Of Albert Arthur Rouse” Sydney Tremayne (at page 290); records a slightly different exchange to that recorded in Normanton at page 244 and shown here.

[6] 1048 The Canadian Bar Review 1947, (www.cbr.cba.org/index.php/cbr/article/view/1346).

[7] Normanton, page 253.  Tremayne (page 296) does not record the question being put to Cotton, but The Times does.

[8] Normanton, Appendix II, page 297.

[9] See https://www.bbc.com/news/uk-england-northamptonshire-33426167.

Background

A husband and wife sought compensation for “debilitating and lifelong” respiratory system injuries due to exposure to toxic chemicals from the installation of spray polyurethane foam (SPF) insulation in their home.

They said that the Installer failed to ensure that they were absent from the house during installation, and failed to ensure that the house was properly ventilated post the installation.

The Installer accepted that the chemicals involved were highly toxic – his staff were required to wear a full protective suit with breathing apparatus – and also that the claimants suffered from Reactive Airways Dysfunction Syndrome (RADS) as diagnosed – but disputed negligence and causation.

The Installer’s defence relied heavily on the evidence of an expert toxicologist – which was rejected in its entirety, and the plaintiffs won substantial damages.

The Installer appealed, arguing that the trial Judge was wrong to exclude all of the Toxicologist’s evidence, given that it was uncontradicted by the plaintiffs.

“Hired Gun” experts

In Duffy v Brendan McGee & Anor [2022] IECA 254, the Irish Court of Appeal set out the importance of expert impartiality, and commented on the challenges posed by the use of so-called “hired gun” experts:

“Very frequently, the evidence of the expert will be decisive to the outcome, particularly where, as here, there are complex scientific or medical issues arising.  Some of the most high-profile miscarriage of justice cases have arisen from serious failures on the part of experts.  It is right therefore that the law expects and demands the highest standards of experts.  This has found expression in many judgments and more recently, rules of court.

“Unfortunately, the hired gun syndrome is one with which all lawyers are familiar and is perhaps an inevitable by-product of adversarial litigation…It may be an overstatement to say that one can always get some expert to subscribe to one’s point of view, but there is nothing to prevent litigants with deep pockets consulting any number of experts until one is found who will support the case being made.  As matters stand, there is no obligation to disclose such information to an opponent.

The Evidence of The Toxicologist

The Appeal Court identified several concerns with the Toxicologist’s evidence, including:

• “…rather extraordinarily” he had purported to give an opinion on Irish law which was “entirely beyond his competence and entirely inappropriate for a supposedly independent expert.”
• He did not rely on his own research or expertise, but rather on two papers which were not independent peer reviewed scientific papers.
• His evidence was predicated on the Installer’s instructions on strongly disputed crucial issues, and he “made no attempt to consider, and evidently avoided considering, any alternative scenario.”
• He repeatedly accused the plaintiffs of lying, “referring to their evidence as deception and misrepresentation” and “steadfastly refused to withdraw his allegations of deception” despite clear evidence to the contrary.
• He purported to give a medical opinion on psychiatric and skin complaints, “an area clearly outside his competence and advanced for no obvious purpose other than attempting, again improperly, to undermine the plaintiffs’ case.”
• He relied upon documents from the EPA to support his arguments but in cross-examination “sought to disavow the documents, saying the EPA was wrong.”
• He gave evidence that was contradicted by his own statements in a podcast interview titled “SPF Lawsuit Avoidance” (which is still accessible via youtube).

The Court concluded:

“…any one of these matters on its own would tend to strongly suggest an absence of objectivity and impartiality on the part of [The Toxicologist], but taken in combination, can only be described as a wholesale abdication by [The Toxicologist] of his duty as an expert witness.  I share the trial judge’s experience of never having encountered such an approach to giving evidence by an expert witness before our courts.  [The Toxicologist] impermissibly donned the mantle of a partisan advocate in his efforts to discredit the claim of the plaintiffs.

It is simply not possible to adopt some kind of curate’s egg approach to this evidence, as counsel for [the Installer] suggested, and I am satisfied that the trial judge was perfectly correct to exclude [the Toxicologist’s] evidence in its entirety.  There was in this case such an abject failure to comply with the most basic obligation of an expert, namely, to be objective and impartial, as to render all of [the Toxicologist’s] evidence inadmissible.”

Comment

There is no obligation to disclose “expert-shopping” in Ireland, which is true for most jurisdictions.  The South Australian District Court has an anti-shop framework – a party seeking an expert report must provide a copy of the instructions to the other parties (Uniform Civil Rules 2020, rule 74.2), and parties must share copies of all expert reports, whether they intend to rely upon them, or not (rule 74.3) – but I’m not aware of anything similar in any other jurisdiction. 

In an earlier blog I wrote about the decision in New Aim Pty Ltd v Leung [2022] FCA 722, a decision in which the Federal Court rejected an expert’s written and oral evidence in light of the extent of lawyer involvement in the drafting of the expert’s report.

Background

Apparently prompted by what was described as a “remarkable” timeline – a sixteen page report delivered on the day after the expert has received the letter of instruction, the Court paid careful attention to the process by which the report was prepared.

The Court found that “most of the report was, at least initially, the product of drafting by the lawyers” that was “well beyond permissible guidance” and meant that the Court could not be satisfied that the opinions in the report “truly represented the expert’s honest and independent opinions” – and concluded that the report should not be admitted.

The Appeal

In New Aim Pty Ltd v Leung [2023] FCAFC 67 the Full Court held:

• A question might not “be formulated at the time the expert [is] first retained – and in fact might be finalised after discussing the issues with the expert.
• The issue of a final letter of instructions containing the final form of the questions to be answered by an expert, shortly before an expert report is finalised, was in fact “a common occurrence.”
• Ordinarily a report would be drafted by the expert, but there were circumstances such as “physical, language or resource difficulties” in which the legal practitioner’s involvement might be appropriate.
• The primary judge had “erred in rejecting the entirety of the evidence of [the expert].”

The appeal was successful.