I had a good talk with a client recently about investigating the cause of three personal injury accidents.  And what’s possible, in the case of one, when there’s not enough time to thoroughly investigate the accident to the standards of civil procedure rules governing experts.  We both learned something.

I was reminded that an experienced tradesman can look at a structure and report if construction is similar to what he has seen on other sites.  He would not comment on the adequacy of design and construction, which would be outside his area of expertise, just what he saw and it’s similarity.  This would be valuable.

Also, that an expert could be retained as a consulting expert and do a scaled back investigation consistent with the time available rather than as a testifying expert who must meet the requirements of civil procedure rules. (Ref. 1)

An initial hypothesis as to cause can be based on the data available, as limited as that might be.  That’s how science works.  For example, counsel’s description of what happened, reading some documents, and/or a cursory site examination.  It’s important to remember, however, that an initial idea about cause is not necessarily conclusive and could change with a detailed investigation. (Ref. 1)  Sometimes quite significantly.  The tyranny of the obvious can cause grief.

It’s the same in many applied scientific fields.  For example, in medicine where the final diagnosis and successful treatment plan – following the SOAP process, might be quite different from the initial diagnosis and plan. (Subjective gathering of data/evidence, Objective gathering, Assessment of data, Plan)  (Ref. 2)

(Remembering is important because too often experts are retained after a case has been taken and the final technical conclusion might not support counsel’s assessed merit of the case)

My client learned that a forensic investigation takes time if it’s to meet the strict requirements of civil procedure rules governing experts, like Rule 55 in Nova Scotia.

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I was asked by my client if I could investigate a catastrophic failure resulting in personal injury and issue an expert’s report a few days later.  It would be difficult to examine the property after that.

I couldn’t, of course, and meet the requirements of Rule 55.  A few days might be just enough time to do preliminary work like read documents on the case and visually examine the site.

There is time to investigate the other two accidents discussed with my client.  I know the expertise needed for the major accident.  It appears clear cut.  That for the more minor accident – still serious and painful, is less clear but will possibly involve four areas of expertise: Design, construction, a trade and construction inspection.

References

1. How experts are retained in civil litigation is changing – and the changes are good for counsel and the justice system.  Posted May 1, 2014
2. Using SOAP notes in forensic engineering investigation.  Posted February 6, 2014