Negligence – Damage – Expert witness – Garden wall between properties collapsing in high winds – Appellants alleging groundworks in respondents’ garden causing wall to collapse – Judge finding condition of wall not affected by works – Judge criticising expert witness for exceeding role – Whether judge erring in law – CPR 35.3 – Appeal dismissed
The appellants and the respondents owned neighbouring properties that were separated by a wall constructed of soft red brick in lime mortar. The wall, which was old, leaning and poorly maintained, collapsed in high winds in October 2001. At the time, the parties enjoyed a good relationship. However, in September 2007, the appellants issued a negligence claim against the respondents in the county court. They asserted that the wall had collapsed because the respondents had deposited a large quantity of earth against it when excavating a swimming pool on their property. It was common ground that the immediate cause of the collapse had been the high winds, but the appellants argued that the wall had been rendered more vulnerable by reason of the groundworks on the respondents’ land, in particular the pile of earth abutting the wall and the compaction of material adjacent to it.
The judge found that the respondents had been undertaking works at the relevant time, but not of the nature alleged by the appellants. He concluded that given the insubstantial nature of those works, they were not likely to have had any material effect on the ability of the wall to resist wind pressure. Accordingly, the judge held that the respondents were not liable in negligence for the costs of rebuilding the collapsed wall. In so concluding, he dismissed a question raised by the appellants’ expert witness as to why the wall had not previously collapsed during stronger gusts of wind, the speed of which had been measured at a local weather station, and commented that the expert had appeared to go beyond the usual role of an expert witness.
The appellants appealed, contending that the judge had: (i) acted unfairly towards the expert witness; (ii) failed to recognise one of the theories put forward by the expert for why the wall collapsed, namely the “rainwater theory”; and (iii) erred in placing limited value on evidence regarding wind speeds recorded at the nearby weather station.
Held: The appeal was dismissed.
(1) The judge had been unduly critical of the expert in characterising an e-mail sent to the appellants and copied to their solicitor as appearing to go beyond the usual role of an expert witness because it had advised them about the evidence they would need to meet the other side’s case. He had also been impliedly critical of the expert’s response to that comment to the effect that he owed a dual duty to the court and to his client.
It was inherent in CPR 35.3 that an expert owed a duty to his client as well as to the court. Experts were often involved in investigating and preparing cases from an early stage. There was nothing inherently objectionable, improper or inappropriate in an expert advising his client on the evidence required to meet the opposing case; it was often the professional duty of an expert to proffer such advice. The expert’s opinion was often, if not usually, dependent on the precise nature of a factual situation that he had to assume to some extent to have existed. There was nothing improper in pointing out to a client that his case would be improved if certain assumed features of an incident could be shown not to have occurred or, conversely, if features assumed to have been absent could be shown to have been present.
(2) However, the rainwater theory was never likely to be accepted. The judge had made it clear that his main reason for concluding that the respondents’ works were unlikely to have had any material effect on the ability of the wall to withstand wind pressure was not the poor view he had formed of the expert’s evidence but, rather, the insubstantial nature of the work in so far as it concerned contact with the wall or disturbance of the soil. His finding that the appellants could not show on the balance of probability that the works had increased the pressure or any other forces exerted on the wall seemed both principled and right.
(3) Both parties’ experts had given evidence broadly to the effect that the measurement of wind speed at a station that was remote from the site could not be regarded as necessarily typical of the wind speed hitting a wall within a cluster of buildings in an urban area. That view derived from the common experience that the effects of wind could be localised. The appellants’ argument, that an old and poorly maintained wall had not fallen down in high winds in the previous 14 years so some minor works in an adjacent area must have made all the difference, was not persuasive. Thus, there was nothing in the point that the wall had apparently withstood higher winds on earlier occasions.
James Newman (instructed by the Bar Pro Bono Unit) appeared for the appellants; Kevin Leigh (instructed by Ellisons Solicitors, of Colchester) appeared for the respondents.
Eileen O’Grady, barrister
