EWCA Civ 1223 (CA)
Did the judge disregard the expert evidence in favour of an eye witness?
This was an accident at Southampton Container Docks, when a 600 tonne press was being moved onto the quay. It fell while the tug pulling it did a U-turn. The issue in the case was what had caused the press to fall was the driver of the tug going too fast to do a U-turn safely (or did he take the turn too tightly)? At first instance the judge found, despite the evidence of a single joint expert who concluded that the tug was going too fast, that on balance of probabilities, the fall was caused because washers and bolts holding the press in position had worked loose. An eyewitness gave evidence that the tug was moving at a speed of about 4kph, which was not too fast for the manoeuvre.
The issue before the Court of Appeal was whether the judge had erred in disregarding the evidence of the single joint expert and/or preferring the evidence of the eyewitness.
The single joint expert’s report was clearly to be considered as evidence in the case, on all issues it addressed. It would be a rare case that it should be disregarded. The judge however did not disregard it, and in some ways accepted the evidence. The report was however unequivocal in concluding that the accident had occurred because the tug was moving too fast and/or took the turn too tightly. There was no evidence to reach a clear conclusion that the loose washers and bolts had in fact caused the accident instead. The judge was wrong to take the eye-witness’ account in isolation, and to disregard the expert’s evidence on this point. The only conclusion open to her if she had taken the evidence as a whole was that the accident happened because the driver of the tug was moving too fast and/or turned too tightly.
This case shows the importance attached to the views of an SJE particularly where those views are plainly stated. That is not to say that eye-witnesses are unimportant but that their evidence has to be viewed in context. A refusal to accept the evidence of an SJE has to be based on a logical and objective assessment of the evidence as a whole by the judge.