Summary of legal argument on the admissibility of the evidence of expert witnesses
The jury were sent out and told to return at 10.30 am the following morning (15:4:01)
Mr Walker informed the Court that he intended to enter a submission of no case to answer on both counts of manslaughter when the prosecution case rested.
The prosecution pointed out that the original Liebherr manual needed to be fetched from the crane, as the one supplied to the police by Liebherr was a later version.
Mr Walker insisted on having D.S.Graham Bartlett present rather than Miss C.Barringer (HSE) when the taped interview with Martell was played because he wanted to ask Bartlett about Martell having being informed that he would be prosecuted. This was ruled irrelevant.
Mr Walker for the defence was objecting to certain aspects of the evidence of expert witnesses arguing that they were merely the opinions of these witnesses. Mr Walker did not ask for editing of the interview tapes apparently the jury were to be given a transcript. However Mr Walker was objecting in particular to the use of the following words/phrases:
Dangerous to take loads above operatives
Possibility of clam shell grab closing was foreseeable
Neither I nor others in post (Mr Walker wanted just “I”) – it was agreed there should be no references to the opinions of others unless challenged in cross examination.
“I conclude inappropriate system used”.
Mr Walker objected to Dr Tom Hinks saying, “unsafe when out of sight of the driver” apparently he could say what could have been done.
He objected to Dr Hinks saying it was not safe to lift loads over persons or to lift loads from the clam shell grab.
Likewise he objected to Dr Hinks saying that the possibility of operatives going within the grab was foreseeable and that it was a patently unsafe system of work.
Mr Walker objected to expert witness Barry Clinch saying,
“It was a patently unsafe system of work”.
“The system of work was extremely dangerous for workers in the hold because the crane driver can't see”.
“Even with very long chains fitted there would still be a danger”.
Mr Walker submitted it was generally not open to expert witnesses to say what is dangerous. From personal expertise he might be able to identify a potential risk.
He argued that to say something is dangerous is meaningless – crossing the road is dangerous etc.
Road traffic accident statistics define dangerous as standards falling below that of a competent driver.
“The issue is not whether there is a danger – that's obvious as there has been a fatal “accident”. Bear in mind the limits on expert evidence, scientific or technical subjects outside the experience of the jury. Danger is a jury decision not for the expert witness to say. They could say I've never seen this system before but not it's dangerous that is simply a lay opinion”
“The witness can say the grab could accidentally close because of equipment error or inadvertent operator control but to say it is unsafe is a value judgement, not a matter for expertise.
“In my opinion it is not safe to lift loads over operatives”, is again his opinion. British standards says lifting loads over operatives should be minimised. Foreseeability is a relative concept.
Mr O'Connor submitted that this was an artificial limitation on expert witnesses. The nature of certain risks from the operations was well within the range of expert opinion. He said that an expert could take an overview and say e.g. it is dangerous not to have a machine maintained. He could look at it and say:
a) What is the risk?
b) What happens if that risk comes to fruition?
c) How likely is it for the risk to become reality?
We submit that a Health and Safety expert can give evidence on all three.
Walkers opinions on b) and c) are surrendered by his cross examination of Stallard:-
“You are a specialist …, you have advised …., safer system of work”. In the defence speech to the jury he spoke of 50 years experience and “a safe system”.
Miss Barringer this morning expressed a similar opinion to that of Dr Hinks and Mr Clinch and that went unchallenged. The defence has the chance to call expert witnesses to express the contrary view. We submit there are no such witnesses.
The role of the expert is to take an overview of questions a), b) and c) not to take them in isolation.
This sort of evidence is often produced in court. There have been few authorities quoted by the defence.
No-one suggests there is a legally set standard of gross negligence; it is supremely a jury question. The jury creates the standard.
The judge intervened saying, “Mr Walker says the consequences of risk in this case are blindingly obvious”.
Mr O'Connor responded, “The answer to question b) is obvious, but it is legitimate for witnesses to point it out. The answer to question c) is the vital issue.
The reference can be found in Archbold paragraph 1066”.
“ An accountant could give an opinion that transactions could have no legitimate purpose.”
“Dangerous” is not the ultimate issue in cases of gross negligence.
The defence has employed wilful misinterpretation of evidence from Stallard, a man totally unqualified in health and safety. He is qualified solely in the mechanics of safe lifting of loads.
What is sauce for the goose should be sauce for the gander.
Dr Hinks' conclusion is a core of prosecution evidence and should be allowed to stand. Reasons for that conclusion can be brought out in cross examination.
By the same principle Mr Clinch's evidence should proceed. Otherwise the prosecution is being penalised because the expert's opinion is strong. It seems to be O.K. to say, “a bit dangerous” but not, “extremely dangerous”.
The judge said, “Mr Walker objects to a number of passages in the statements of Mr Clinch and Dr Hinks containing the words “dangerous” and “highly dangerous”. They should omit these and confine themselves to identifying the risks.”
Mr O'Connor replied that “dangerous” was the third category of opinion. Stallard was allowed to talk about “safety” as an opinion, the matter was talked about extensively.
The judge said that in his view Mr Walker's submission should stand except the witnesses could say, “It creates a potential risk”. It would be alright to say “It is a potential risk to lift loads over persons”. “Foreseeable” was admissible but not “danger” or “dangerous”.
It was admissible to say, ”I have never come across this system before”, but no more than that.
To Dr Hinks' conclusion “The inappropriate lifting attachment creates risks to employees”, the objection is not upheld.
Mr O'Connor then told the judge that he had obtained a statement from Jordan's (the company at which Mr Stallard alleged he had seen a similar system of work using a clam shell grab), which stated that they did not possess a clam shell grab.
The judge replied that Mr Cresdee from Jordan's might need to be called as a witness.