ASSESSING POTENTIAL RISKS FACED BY ROAD AUTHORITIES AND COUNCILS FROM ROAD ACCIDENTS
Issue: December/January 2009
Forensic engineers are often used to conduct in-depth collision analysis and reconstructions following an accident. A forensic engineer’s job is to identify the causes and contributing factors in different types of incidents, and to synthesise all relevant aspects, including the role of the drivers, the vehicles, and the environment. The reconstruction is accomplished by detailed synthesis of the available information, and applying the laws of physics and engineering methods such as motion, energy and momentum, and more recently computer modelling, to the analysis. As forensic engineers, DVExperts International has been involved in hundreds of different cases. Many of these cases have resulted in a local council, shire or road authority being sued for negligence and breaching its duty of care to road users and pedestrians alike. Each instance is unique in its circumstances, yet there are clear, pervasive themes which flow throughout. DR GEORGE RECHNITZER, MAXWELL SHIFMAN and SHANE RICHARDSON prepared a paper on the role of forensic engineers for the 2nd Local Road Safety and Traffic Engineering Conference held in August on the Gold Coast. The paper which follows was delivered to the conference by Maxwell Shifman, and sought to briefly outline the role of a forensic investigation or expert witness in litigation, and some ways of reducing risk.
Understanding Plaintiff & Defence Expert Reports
Collisions can be catastrophic events, resulting in serious injury or even death. Litigation for compensation is invariably sought, whereby the injured parties can seek large amounts of damages for loss of income, pain, suffering and loss of amenity. Expert witnesses are often brought into legal proceedings to shed light on complex or technical issues which can be misunderstood by the layperson.
The role of the expert is to reconstruct the incident circumstances and provide an independent opinion on causation and, directly or indirectly, liability. The issues raised can relate to aspects such as road design, roadworks, maintenance, vehicle design and driver actions. Typically, in such cases, the forensic expert will be provided with access to all relevant documentation, be it public or otherwise, which relates or leads up to the incident.
Irrespective of whether an expert’s report is for a plaintiff or defence case, the duty of an expert witness is first and foremost to assist the court in making its determination; they are not supposed to take sides and represent their client. Thus the findings reached by an expert can potentially be adverse even to their own client.
However, where an expert has been engaged by a lawyer acting on behalf of a plaintiff, if the evidence is sufficient, it is possible for an expert to take an ‘offensive’ focus, which may lead to allegations that the other party has been deficient or negligent in some way which has caused or contributed to the injury or damages sustained. The defence expert, on the other hand, will usually seek to either disprove the plaintiff’s allegations, or demonstrate mitigating factors including that whatever was done was compliant with any standards or requirements, and that the plaintiff has contributed or may be largely responsible for the resulting incident and injuries.
From our viewpoint, such forensic reports need to be able to demonstrate a robust appreciation of all the factors, without omission of any key elements. We find that in a number of cases ‘expert’ reports are assertion based and opinionated rather than scientific and evidence based. Any assertions or opinions must be explicitly explained when they are used, rather than being relied on as fact.
Experts in Court
Whilst there may be a robust basis for expert reports, the adversarial based court system does not necessarily allow proper evaluation of the competing testimony of experts. All too often the level of clarity expounded in the court on expert technical matters can be a function of the barristers and judge’s knowledge and interest to deal with the technical matters. One can leave the court feeling that the judge or jury were not really given the opportunity to understand where presented evidence was misleading or not scientifically based.
The evolving practice of requiring experts to conference and “hot tub” does have its challenges but also it benefits. A recent experience, where four experts [including one of the authors] were required by the court to answer a number of set questions, provided an opportunity for the experts to get to know each other in a largely non-hostile environment, and then collectively present evidence and answer questions for the court. There was a major difference in being able to provide an expert opinion to the court without the usual level of adversarial cross-examination by a barrister, but rather fellow experts were given the opportunity to individually concur or provide differing opinion, without being cut short. Clearly there are risks to both the plaintiff and defence positions, but where properly conducted, and with experts properly briefed, this system could gain traction.
The other aspect of the adversarial system in our courts is that it is not necessarily supportive of improved safety outcomes. While realising this is not the intention of our court system [compared for example with the Coronial system], where claims are against councils or other road authorities, a “win” for the defence should not preclude such agencies learning from any identified possible defects. Thus such agencies should differentiate between winning a case and being willing to implement recognised safety improvements as a consequence of an incident. The fact of a change post incident should not of itself lead to an assumption of negligence, as tempting such a conclusion may be for a plaintiff.
The other concern apparent from litigation is that where risks have been identified in a road system and a remedial action program is scheduled to be undertaken sometime into the future, few agencies take temporary intermediate steps to reduce risk in the meantime. For example, where level crossings have been identified for upgrade, which may take one or two years to implement, a serious or fatal collision could [and in some instances have] resulted whilst waiting for the upgrade. Clearly other low cost risk reduction measures should and can be implemented in the interim, including warning signs, reduced speed limits etc.