Should half a dozen people riding an elevation 30 floors up – about 300 feet, expect the same standard of equipment maintenance as half a dozen people flying in a plane at 300 feet?  You would think so.  If the plane falls from the sky people are certain to be killed or seriously injured.  If the elevator free-falls in its shaft the same can be expected for the people on board.

What about a fun-filled Ferris wheel several 10s of feet high at a circus?  (There was one set up near my home recently)  What should the paying public expect?

What’s this got to do with an engineering expert formulating a reliable initial hypothesis on the cause of a building or bridge collapsing, or an elevator failing?  Actually quite a lot, if the reliability of a hypothesis is increased on knowing if maintenance of the structure included independent inspection.

I thought this after a reader told me about,

• the strict maintenance procedures for military aircraft,
• the independent inspectors who swoop in unannounced to check on maintenance, and,
• the small profit margins for civilian companies who contract to do aircraft maintenance.

The Department of National Defence (DND) monitor and inspect the maintenance on military aircraft by private contractors.  Transport Canada do this in a similar way for civilian aircraft.

Who does the independent maintenance inspection for elevators?  Many are failing according to recent news reports. (Refs 1, 2)  We need to know if such a procedure exists if we are to formulate a reliable initial hypothesis on the cause of a failure.  We need to remember that maintenance is the Achilles’ heel of the built environment. (Ref. 3)

We can ask this question about any type of failure or accident in the built environment.  Who does the maintenance of structures – including Ferris wheels, used by the public and who independently ensures it’s done to an acceptable standard?  The owner of the structure?  He’s got his profit margins like the aircraft maintenance companies, and may also think of them as small.

I had these thoughts after Gary Bartlett, P. Eng., Halifax, a retired aircraft maintenance engineer, read a previous blog on the incidence of elevator failure in Canada and the suspect maintenance. (Ref. 2)  He commented on the exhaustive maintenance on military aircraft, the tight profit margins, and the independent government inspectors who would show up unannounced to check that maintenance had been done properly.

Gary and I were classmates in engineering at the University of New Brunswick; he did electrical engineering and I did civil.  He then joined the air force and flew on military aircraft as a radio officer for years.  After that my good friend joined a military aircraft overhaul company as an electrical and avionics engineer.  In time he became vice-president of an engineering design branch.

I subsequently spoke with an aircraft mechanic, Shaun Morin, Edmonton, who confirmed that independent inspectors might drop in on him doing his job, unannounced. They would want to know in detail what he was doing – right down to the toque he used to tighten a bolt.

***

What I’m realizing as I write this item – thinking on paper – is the need for independent maintenance inspection agencies for different structures used by the public, not just aircraft.  Agencies that ensure a maintenance program exists and is being carried out properly.

An engineering expert can increase the reliability of his initial hypothesis on the cause of a failure just by checking that such an agency exists for the structure involved in his investigation.

References

1. Perkel, Colin, What goes up doesn’t always come down.  National Post, page 1, July 22, 2016 reporting on an investigation by The Canadian Press.
2. Unusual data increases reliability in forensic investigation.  Posted July 29, 2015
3. “Maintenance”: The Achilles’ heel of the built environment, and sometimes the cause of failures and accidents.  Posted June 12, 2014

I mentioned in the last year how you can form an initial hypothesis about the cause of a failure or accident with very little data – a few pictures, some knowledge of construction, etc. (Refs 1, 2, and 3)

And in 2012 how construction inspection and maintenance are weak stages in the design-construction-maintenance life-cycle of a structure.  Less attention is paid to these stages, particularly maintenance. (Refs 4 and 5)

I thought last Friday just how accurate an initial hypothesis can be with some hard, cold data from an unexpected source.  I was reading the National Post about the frequency of elevator failures in Canada as found during an investigation by The Canadian Press. (Ref. 6)

Give a forensic engineer information like the following – or similar data on other problems experienced by your clients – and he’s going to quickly tell you the likely cause of your client’s failure or accident – quickly give you a reliable, initial hypothesis:

“Everyday Canadians are trapped in faulty elevators.  Countless others are inconvenienced.  And it’s getting worse.  More than 12 calls per day to fire fighters last year in Ontario – a total of 4,461.  Double the number of calls in 2001.  It’s a crisis now, not one coming later.

“Toronto led the way last year with about 2,862 rescue calls to 911.  Montreal had 1,532 calls.  Vancouver, 428.  Ottawa, 314 in 2014.

“Nancy Lean had a terrifying experience in 2014 as she rode a noisy elevator from the second floor to the basement at York Regional Police Headquarters in Aurora, Ontario.  It jolted when it hit the bottom.  She was okay but she’s nervous in elevators now.” (Ref. 6)

I was also lucky in September, 2014.  I was riding the elevator from an upper floor in Maritime Centre, Halifax – the passport office, when it got stuck mid-floor, high up the building.  We called on the emergency phone and eventually the elevator started moving again and we got off.  I wasn’t nervous and I still use elevators – possibly because many are clean and modern-looking with a nice view of the city from the upper floors.  Some are not, however.

“Insiders told the National Post the real culprit is aging equipment and structural issues, not the increase in elevators.  Maintenance is the problem.

“Thirty years ago a technician serviced 35 to 45 elevators per month for $1,000 per elevator.  Today a maintenance contract is maybe worth $600 and each technician services 100 elevators.  Technicians are loaded up with more and more service calls and have less and less time to do proper maintenance on each.” (Ref. 6)

We don’t need to look far to see the results of poor maintenance in other structures.  An 18 km stretch of Highway #2 outside Moncton, NB, where you are forced into the passing lane because the driving lane is in such poor condition.   A multi-million dollar house in Halifax that has stood empty for several years while the paint peels and the steel railings rust.  A parking garage collapses in Elliot Lake, Ontario.  A bridge falls down in Cape Breton.

Knowing the design and construction process and getting windfall data like that in the National Post makes for an easy call by the forensic engineer on the cause of an elevator failure – a reliable, initial hypothesis.

It’s important during forensic work to be alert to the availability of data from atypical engineering sources at the initial stage of an investigation.

It’s still just initial thoughts on cause – and subject to revision, but quite reliable considering the nature and source of the data in this case.  Reliability is important when counsel is assessing the merits of a case at the start of civil litigation, or a manager is assessing an insurance claim.

Reference

1. Wind, construction crane and inadequate cross-bracing caused Edmonton bridge failure. An initial hypothesis.  Posted March 27, 2015
2. Bridge failure in litigation due to inadequate bracing – City of Edmonton.  But, inadequate for what?  Posted March 15, 2016
3. Thinking about the cause of “wavey”, sagging floors in a building and how Counsel benefits.  Posted April 6, 2016
4. Cause of the roof collapse at Elliot Lake.  Posted July 10, 2012
5. “Maintenance”: The Achilles’ heel of the built environment, and sometimes the cause of failures and accidents.  Posted June 12, 2014
6. Perkel, Colin, What goes up doesn’t always come down.  National Post, page 1, July 22, 2016 reporting on an investigation by The Canadian Press.

The following describes the different fees – the hourly billing rates, charged by professional engineers for consulting services in Nova Scotia.  It’s important for you to know about these because many forensic experts are professional engineers. Time/fee based billing is also the best way of overcoming the uncertainties in forensic investigation without jeopardizing the quality of the investigation.  It’s also the best way of monitoring the cost of civil litigation.

Consulting fees reviewed bi-annually by CENS

I thought of sharing this with you after attending the annual general meeting (AGM) of the Consulting Engineers of Nova Scotia (CENS) last month.  I’m a past president of the Society.  CENS is a registered Society representing the majority of consulting engineers in Nova Scotia.  It’s a member-organization of a Canada-wide association of consulting engineering firms.  There are 62 firms registered with CENS this year, and another firm has just applied for membership.

CENS reviews billing rates bi-annually and suggests average rates like those below   that are representative of those charged by members for different levels of responsibility. (Ref. 1)

Time/Fee-based forensic investigations ensure quality

Time-based methods of billing overcome the many uncertainties that exist at the start of an engineering project – and often as a project progresses, particularly if construction is involved.  A forensic engineering investigation of the cause of a failure or a personal injury accident is an engineering project with a lot of uncertainties.  Not least are unknown follow-up investigations.

I surveyed consulting engineering fees a few years ago and found similar rates elsewhere in Canada and the New England states to those charged in Nova Scotia at the time.  I suspect you would find similar rates elsewhere in Atlantic Canada today.

Principals, specialists and senior engineers rendering individual services on assignments for which they are particularly well qualified could be billed at higher rates than those shown (about 25% higher in New England).  Such assignments include forensic engineering investigation and providing expert testimony (Refs 1, 2)

Often enough, justice can’t be served until the technical issues are resolved, nor a party’s case argued effectively.  A case often hinges on the outcome of the forensic investigation – argument enough for retaining an expert early.  It’s critical that it’s well done by an experienced engineer.  The fees are understandably higher as a result considering the responsibility borne by the engineer.

Monitoring costs

When a forensic investigation is initiated on a time and expense basis, it’s important that Counsel or the claims consultant monitor costs closely without jeopardizing the quality of the services.

This can be done – monitor costs and maintain quality at the same time – by understanding the stages involved in an investigation and the roles an expert can take. (Ref. 3)  You can do this in less affluent cases – the norm in Atlantic Canada, as well as in the more affluent. (Ref. 4)

It helps to recognize that the great majority of cases don’t go to trial – I understand more than 95% – they stop at the expert report stage, or a little before the written report.

It’s also important to understand that the cost of some of the many stages of a forensic investigation are difficult if not impossible to estimate. (Refs 5, 6 and 7)  Then there are sometimes completely unknown follow-up investigations.  In situations like this it’s important to monitor costs at each stage.  There’s project management and cost control literature out there to help you do this. (Ref. 8)

Also remember that you can retain an expert in at least eight (8) different ways.  From a quite low, easily monitored total fee to something more. (Ref. 9)

Suggested hourly rates

(In the following, Leadership/Supervision is short for Leadership Authority and/or Supervision Exercised)

1. Engineer in Training……..$90/hr  Experience: 0 to 4 years.  Few technical decisions called for and these will be of a routine nature with ample precedent or clearly defined procedures guidance. Leadership/Supervision:  May assign and check work of technicians and helpers.

2. Junior Engineer………….$100/hr  Experience: 4 to 7 years. Decisions made are normally within established guidelines.  Leadership/Supervision:  May give technical guidance to junior engineers or technicians assigned to work on a common project.

3. Intermediate Engineer…$115/hr  Experience: 7 to 10 years.  Makes independent studies, analyses, interpretations and conclusions.  Difficult, complex or unusual matters or decisions are usually referred to more senior authority.  Leadership/Supervision:  May give technical guidance to engineers of less standing or technicians assigned to work on a common project.  Supervision over other engineers not usually a regular or continuing responsibility.

4. Senior Engineer………….$145/hr  Experience: 10+  Recommendations reviewed for soundness of judgement but usually accepted as technically accurate or feasible.  Leadership/Supervision:  Assigns and outlines work; advises on technical problems; reviews work for technical accuracy, and adequacy.  Supervision may call for recommendations concerning selection, training and discipline of staff.    

5. Specialist Engineer…….$170/hr  Experience: >15 years.  Makes responsible decisions not usually subject to technical review.  Takes courses of action necessary to expedite the successful accomplishment of assigned projects.  Leadership/Supervision:  Outlines more difficult problems and methods of approach.  Coordinates work programs and directs use of equipment and material.  Generally makes recommendations as to the selection, training, discipline and remuneration of staff.

6. Principal Engineer………$190/hr +  Experience: No limit.  Makes responsible decisions on all matters, including the establishment of policies subject only to overall company policy and financial controls.  Leadership/Supervision:  Reviews and evaluates technical work, selects, schedules and coordinates to attain program objectives; and/or as an administrator makes decisions concerning selection, training, rating, discipline and remuneration of staff.    

***

It’s important for you to know about these suggested fees – a good average of all firms in Nova Scotia.  And to know they’re very close to those charged else where in Atlantic Canada and not far off those charged in New England.  You can then focus on retaining an expert early in a case, monitoring costs closely and not being surprised.

This is important considering the uncertainties inherent in forensic investigation, the difficulty estimating costs, the less affluent nature of many of the cases in Atlantic Canada, and the fact that even the less affluent cases require the same thorough, objective investigation.  It’s important to ensuring the quality of the forensic investigation is not jeopardized.             

References

1. Consulting Engineers of Nova Scotia (CENS), Directory 2015/2016, Halifax, NS
2. Babitsky, MBA, Alex, Babitsky, JD, Steven, and Mangraviti, Jr., JD, National Guide to Expert Witness Fees and Billing Procedures, SEAK, Inc, Falmouth, Mass.
3. Steps in the forensic engineering investigative process.  Posted July 15, 2013.
4. The Advocates Society, Ontario
5. Difficulty estimating the cost of forensic engineering investigation.  Posted July 23, 2012.
6. Why the difficulty estimating the cost of forensic engineering investigation?   Posted September 1, 2012.
7. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts.  Posted November 20, 2013.
8. Project Management Institute, A Guide to the Project Management Body of Knowledge, Newton Square, Pennsylvania, USA (One of many good references on project management and cost control)
9. Peer review costs can be controlled.  Posted January 22, 2016.

I’ve blogged in the past about the importance of measuring in forensic engineering investigation.  About getting on site and getting your hands dirty and mud on your boots. This is particularly true when an engineering failure or a personal injury accident involves the natural environment or the foundations, soils and water beneath the site – wet, messy, untidy places.

Everyone should do this – experts, civil litigation lawyers and claims consultants alike.  Go and see and measure things.

I was reminded of this on Monday when I attended a workshop on Advanced Collision Reconstruction in Moncton – read on, your eyes won’t glaze over at what I tell you, and you may gain some insight into what’s important to experts.

The workshop was organized by the Canadian Association of Technical Accident Investigators and Reconstructionists (CATAIR) and presented by Advantage Forensics Inc, Toronto.  The course instructor was Jason Young, B.E.Sc., M.A.Sc., P.Eng., a senior collision reconstructionist with Advantage.  There was some emphasis in the course on simple measurement with tapes and rulers.  Also considerable emphasis on the analytical technique used by Jason.

Police officers – present and former, professional engineers and others attended the workshop, people who reconstruct accidents.  There’s a lot of very impressive expertise in this field in Atlantic Canada.  We do have a lot of car accidents in the area.  Also people like me attended who practice forensic engineering investigation.  I have a good interest in the techniques used in fields of investigation related to my own.

The session topics were:

1. Crush Energy Analysis
2. Introduction to Collision Biomechanics
3. Rollover Investigations

The topics might look heavy to non-technical people but they rely on simple measurements – first and foremost – and an analytical procedure and software.

We’ve all seen those pictures of horrible car crashes.  Cars and trucks so mangled in some that you are hard pressed to see a vehicle in the mass of metal.  In illustrating his lectures, Jason showed us a lot of pictures like this, also video of simulated field trials and tests.  Head-on crashes, T-Bones, rear end crashes, roll-overs, and pole and tree impacts.

The speed of the cars and trucks in an accident is key information in learning why and how the accident happened – reconstructing it.  No surprise there.  Speed is obtained from analytical procedures – Jason briefed us on one he uses, and software that are fed a lot of simple measurements.  But important measurements because garbage in garbage out.

Two basic measurements are a site survey – like in land surveying of old, and the crush depth.

The crush depth is a simple measure of the length and depth of the hole in the front, side or rear of a vehicle hit by another during an accident.  These measurements give the “damage profile” in accident reconstruction.  It’s not much different than measuring the length and depth of a trench excavated in your garden by a backhoe or yourself.   

The site survey is just that – measuring and describing the location and height of the features that characterize the surface of the site.  These would be the natural features in the terrain, the layout of the road, the position of the vehicles, the location of poles or trees that were hit, and the location of marks left on the ground by the crashing vehicles.  We do this simple kind of survey of a house lot before we build on it.

***

Two measurements – crush depth and site survey, that quantify the mess of a car or truck accident.  There’s more involved, of course – analytical procedures and software, also knowledgeable reconstructionists, but nothing happens until the measurements are taken.

I was delighted recently when I saw the text Performance Guidelines for Basements while looking for another book in my library.  The guidelines are lengthy and comprehensive like many for the built environment – 185 large-format pages.  To some, that would be a lot of guideline for what would seem to be a lowly part of a structure.

• Performance guidelines for basements by the National Research Council (NRC)

This type of easily read guideline is important to non-technical people concerned about failures and accidents in the built environment.

The guidelines were prepared for all parties involved in the planning, design, construction and maintenance of basements.  Pretty well everybody from the pick and shovel guy to the cost control people.  NRC – and similar organizations in the U.S., publish a lot of material on buildings.

Basements – and the foundations down there, are not a glamourous part of a structure.  Except, they just happen to be the sole support of the building above – the most frequently erected structure in the world.  And the basement is often the most complicated to design and construct – if you’re going to get it right.

Other Guidelines

I have other guidelines on different aspects of the built environment.  For example,

• Moisture in Atlantic Housing by the Canada Mortgage and Housing Corporation (CMHC)
• National Building Code of Canada (NBC); a set of guidelines on minimum standards
• Slip, Trip and Fall Prevention, a Practical Handbook by Steven di Pilla.  This text is good on performance guidelines for floors and stairs

I also have guidelines on investigating engineering failures and accidents when good design and construction practices are not followed.  For example:

• Guidelines for Failure Investigation by the American Society of Civil Engineers (ASCE)
• Guide to the Investigation of Structural Failures by ASCE

There are guidelines of sorts in the published surveys of how structures fail.  Knowing how things break, fall down or don’t work properly is a first step to ensuring your structure performs properly.  For example,

• Failure Mechanisms in Building Construction by David Nicastroon.  This text  catalogues and categorizes 209 different ways a building can fail.  It’s very good and readily available.  (Just think, the building you’re in now can fail in these many different ways)
• Also, the ASCE guidelines above contain lengthy sections on some of the primary modes of geotechnical, foundation and structural failure

Errors and Omissions in Guidelines

You might wonder, why bother with a forensic engineer when there are such comprehensive guidelines on getting the built environment right?  A fair question if you didn’t know that the guidelines sometimes contain errors and omissions.

For example, the NRC guidelines mentioned above illustrate an error on page 30 in construction of the footing drainage system.  There’s also an omission in these guidelines – an explanation of the need for a drainage system beneath a basement floor.

I’ve seen errors and omissions in CMHC guidelines.

There’s an omission in the NBC – as I suspect there are in some similar Codes in North America, in the vague guidance on the skid resistance of floors.  (This was the case prior to 2015)  Building inspectors make a call now on this problem but this is not good enough.  I had to get guidance from the English translation of comprehensive German research on a slip and fall case a while ago.  I did this to corroborate information I was getting from literature in the U.S. on practice in some areas there, but not in all areas and not codified.

(The NBC code is periodically updated as it was recently in 2015.  This updating is the case for many performance guidelines)

Also referenced above, the published survey of the 209 ways a building can fail is extremely good but it’s completely silent on foundation and basement failure.  And there are many ways a basement can fail as evident in the 185 pages of the NRC publication.  Quite an omission in the text on buildings.

***

Performance guidelines are good – no one would do a forensic investigation without considering the guidelines pertinent to the failed structure or component.  But not good enough to omit consultation with a forensic engineer at some point during an investigation.  They are a guide only to what must be done and achieved – and some guidelines do contain errors and omissions.

And how the expert can be trained to serve the justice system during cross-examination.  There`s a wealth of information to guide us including books and DVDs prepared by experienced trial lawyers.  Training the cross-examining lawyer must include enlightening him or her about how the expert is trained.

I thought of this when I reviewed the topics for the plaintiff legal practice conference entitled “The Doctor Is In: Medical Elements of Injury Cases”.  It’s planned for June 17th and 18th in St. John’s by the Atlantic Provinces Trial Lawyers Association (APTLA).

The last topic in the two day conference is “Making the Most of Cross-Examining Medical Witnesses”.  The conference organizers beseech lawyers to “Have no fear!.  Veteran Wisconsin trial lawyer, Paul Scoptur, will give you the remedy for curing many of the common mistakes we make when confronting the defence medical expert at trial.”

In helping you correct these mistakes, I’m certain Mr. Scoptur will tell you about the excellent resources available in the U.S. for all experts, not just medical.  Texts, DVDs and training like the following – produced by experienced trial lawyers for experts:

• Cross-examination: The Comprehensive Guide for Experts (a text)
• How to Become a Dangerous Expert Witness: Advanced Techniques and Strategies (text)  (I think the tone of this text is at odds with our attitude here in Atlantic Canada but it does contain some tips on how we can serve the justice system better)
• Cross-Examination: How to be an Effective and Ethical Witness (a DVD)
• The Biggest Mistakes Expert Witnesses Make and How to Avoid Them (text)
• Preparation and Training for Testifying (a consulting service)

(There is a bias in some of this material to the medical expert)

I have some of this material in my library – and a good amount on writing expert reports, and it’s all good.  I’ve also attended some of the conferences and workshops in the U.S..  The products are very detailed and based on study of many 100s of legal cases, if not 1,000s.

Reviewing material like this will help you get a feel for how experts can be trained and further help you correct your cross-examining mistakes.  Reviewing legal practice handbooks helps me practice as an expert.  I’m certain reviewing expert practice material will help you cross-examine us.

Why am I telling you this?  Because cross-examining lawyer and expert alike are contributing to the same thing: Justice for the injured party whether the victim of an accident or the owner of damaged property.  Albeit in somewhat different ways.  To this end, it behooves us to understand each other’s role and how we are trained for this.

.

Experts need to understand the law of expert evidence, including the latest developments.  We inform the justice system.  It’s a good idea to know the rules governing the system.  We can get a lot of what we need to know in Canada from standard text books and Google – I just checked and it’s there – except possibly the latest developments.

I thought of this when I reviewed the topics for the plaintiff legal practice conference entitled “The Doctor Is In: Medical Elements of Injury Cases”.  It’s planned for this June in St. John’s by the Atlantic Provinces Trial Lawyers Association (APTLA).

The first topic in the two day conference is “Waiting Room Reading: Case Law Updates – Expert Witnesses“.  The topic promises to report “the latest developments in the law of expert evidence from Atlantic Canada and beyond”.  And to “identify, summarize and deliver everything you need to know to keep up to date in this fast paced area”.  Including case summaries.

All experts – not just medical, would like to know about these latest developments and would benefit from the knowledge.  The conference organizers must give serious consideration to making this information available to us when the conference is over.

We are reminded often enough that as experts we serve the justice system and are to objectively inform and explain the technical issues to the judge and jury.  We can’t do this effectively unless we know the law of expert evidence – and the latest updates – and have this explained to us in layman’s language.

For example, some of us were fortunate enough to learn about Rule 55 in Nova Scotia, but not all know of it.  A very valuable rule that emphasizes objective and thorough investigation and analysis, and good report writing.  I learned about it from my client after I had carried out a complex investigation but fortunately before I wrote the report.  All turned out well.

Forensic photography documents the physical appearance of a scene soon after a crime, accident or failure occurs then presents this information to the justice system, and does this objectively. (Ref. 1)  These are the main goals.

The forensic engineer also uses the photographs to study the scene again later in his role explaining the technical issues and the cause of the incident to the justice system.  Others also learn about the scene from the photographs.  It is an exacting speciality like all the technologies involved in forensic work.

Police crime scene identification unit

I was reminded of this when I toured the Halifax Regional Police Crime Scene Identification Unit recently.  David Webber, the forensic photographer with the unit, showed me around.  I had met David earlier at a social function hosted by the police department for the Victim Services Unit.

There are 13 people in the identification unit specializing in a number of technologies.  “Lifting” and analysing finger prints from surfaces and trace fluids from clothing are two the public is familiar with.  David does the photography.  We had a difficult time getting together because he was being called out to one murder scene after another over a period of a week or more.

I didn’t get out to a crime scene but did see how David presents his photographs in a book for use by the justice system.  There is nothing in his presentation or the captions – just a single number, to sway what the justice system and others might see in the photographs.

In civil litigation, the photographs could be of a scene where a personal injury accident or an engineering failure occurred, or where an incident was re-enacted by a forensic engineer.

Almost all photographs are taken at or near ground level – what we call terrestrial photographs in engineering.  But you are certain in future to see low level, oblique aerial photographs taken with cameras fitted to drones.  I use this technique now.  The police Identification Unit are looking at using it.

Uses of photographs in court

Photographs can be used in court for illustrative purposes, if admitted by the judge, to: (Refs 1, 2)

1. Support, corroborate and explain the evidence of witnesses,
2. Supply relevant detail in the appearance of objects described in oral testimony,
3. Reveal steps taken by witnesses to arrive at their opinions, and,
4. Affect the credibility attached to a witness’ testimony. (Ref. 3)

A witness uses photographs to illustrate what was seen and done during the forensic investigation and the evidence that was collected.

A photograph can also be used as a silent witness, if admitted, as,

1. Substantive visual evidence.  The photograph is allowed to “speak for itself”.

There is no witness, the photograph stands alone, a silent witness.

Allowing photographs into court

A judge will allow photographs to be tendered as exhibits and admitted as evidence in a Canadian court if the following test is met: (Ref. 4)

1. Photographs must be relevant, that is, material to an issue at trial,
2. Also, accurate in truly representing the facts,
3. Fair and absent of any intention to mislead,
4. Verifiable on oath by a person capable to do so,
5. And if their probative value exceeds their prejudicial effect.

Put another, less comprehensive way, photographs for the court must be: (Ref. 1)

• True and accurate representation of the subject
• Free of distortion
• In proper perspective

Forensic photography as high technology

Getting a true, accurate, distortion-free perspective of the scene is where photographers like David Webber and their knowledge, skill and objectivity come in.  It’s high technology when you realize how many decisions must be made for every click of the shutter: (Refs 1, 5, 6)

1. Angle to shoot from,
2. Closeness to the subject – distant, medium distant, close up, detail,
3. Lighting – natural or artificial,
4. Film speed,
5. Lens – normal, wide, telescopic,
6. Aperture,
7. Shutter speed.

Then another series of decisions must be made when presenting the photographs objectively to the courts.

That’s forensic photography in a nutshell.

References

1. Tupper, Allison D., Use of Photographs at Trial, Chap. 15 in The Expert: A Practitioner’s Guide, Vol. 1, Matthews, Kenneth M., Pink, Joel E., Tupper, Allison D. and Wells, Alvin E., Carswell Publishing 1995
2. Goldstein, BA, LL.B, Elliot, Visual Evidence, A Practitioner’s Manual, Chap. 2, Carswell, 1991 as referenced in Matthews, Kenneth M. et al
3. Scott, J. D., Motion Picture and Videotape Evidence (November 8, 1974), Ontario Crown Attorneys Bulletin and Benson and Hedges (Can) Inc. v. Ross (1986), 58 NFLD. and P.E.I.R. 38 (P.E.I.S.C.) as referenced in Matthews, Kenneth M. et al
4. R. v. Creemer (1967), (1968) C.C.C. 14 (N.S.C.A.).
5. Wikipedia, May  8, 2016
6. Kook, Frank, photographer, Halifax, May 10, 2016

It’s better still when you watch the forensic engineer do some of his work.  We learn by seeing and doing – something like 80% to 85% of what we know is got visually.  At the very least, you will better understand your expert’s explanation of the cause of the accident or failure.

I was reminded of this recently when a client indicated that he got a lot sitting and watching me work.  I think he was quite taken by what he saw and I was impressed that he wanted to go to the scene with me.  He resolved his case based in part on what he experienced that day and the pictures he took.  I wasn’t required to give even a verbal report let alone a written report.

I was also reminded of the benefit of a site visit when I met and spoke with a forensic photographer recently – photographs, the next best thing to being there, and also good for refreshing your memory of a site visit – and when I read a short manual on forensic photography. (Ref. I)

Counsel, we don’t see you at the scene very often.  I can think of only four times in recent years.  Engineers swear by the worth of a visual assessment of a site. (Refs 2 to 6)  You are also certain to get a lot from going to the scene.

What does Counsel see when s/he goes on site?  Aside from picking up a valuable concrete impression of the scene of the accident or failure?

1. Slip and Fall Accident  Counsel and the injured party sat and watched me use non-textbook methods to investigate the cause of a slip and fall accident.  I tested the skid resistance of the floor using pork belly – a pig’s belly skin, to simulate the injured party’s bare feet.  This was recommended by medical doctors and veterinarians.

There was also a question about the source of water on a floor that was supposed to be dry.  I thought earlier about a shower in a dressing room but it was some distance away.  Still, maybe.  So I put my bathing suit on that I had with me, took a shower and walked to the area of the fall – dripping water along the way and on the “dry” area.

My client got an eye-full during his site visit.

2. Inadequate Underpinning  A young lawyer watched me excavate and expose the underpinning of a building using a backhoe and manual labour – me doing the manual work, during three days of investigative site work.  She also watched me examine the underpinning closely, and measure and photograph it.  Real dirty hands and muddy boot work.

I tried to get her down into the muddy excavation to see up close one of the worst deficiencies of the inadequate underpinning but that was too much for her.  Still she saw it from the edge of the excavation and reported back to her manager.  I’m certain she will remember that site experience and be guided by it if she practices civil litigation.

Her manager was to be commended sending her to the site.  It would have been much better if he had got out there – the one arguing the case, but at least someone did.

3. Foundation Failure  The owner’s lawyer held meetings in an industrial building that was supported on foundations that were still settling and damaging the building 10 years after construction.  He saw the building and the cracks in the walls up close.  He got visual impressions that helped him understand the report I wrote on the extent and cause of problem.

Unfortunately he was not there when I strengthened the foundation soils by grouting – a ground improvement technique not often seen in Atlantic Canada.

4.  Flooding  Counsel came to the site and saw the flooded land and the unusual source of some of the flood water.  I later took low level, oblique aerial photographs with a camera mounted on a drone – the first time I used this technique, and gave them to the lawyer to refresh his memory of what he saw when he was on site.  He didn’t say but I know it benefited him.  Hard not to.

***

I’m certain the lawyers in these cases understood my explanation of the technical issues much better after being on site, and also argued their cases more effectively.

It’s not a substitute for Counsel visiting the scene of an accident or failure but low level aerial photographs are making the expert’s job of informing the justice system much easier.  They’re that good.

They could also entice Counsel to go to the scene more often, see for himself and get a little mud on his boots if not dirt on his hands.  The young lawyer above – standing at the edge of the excavation, got the former but not the latter.  Nevertheless, she benefited just being there.

References

1. Matthews, Kenneth M., Pink, Joel E., Tupper, Allison D., and Wells, Alvin E., The Expert, a Practitioner’s Guide, Chapter 15 (by Tupper, Allison D) Use of Forensic Photographs at Trial and Chapter 15A Use of Photographs and Photographic Interpretation, an example – R. v. McGillivray Carswell Publishing 1995
2. “Technical” visual site assessments: Valuable, low cost, forensic engineering method.  Posted September 4, 2012
3. An expert’s “dirty hands and muddy boots”.  Posted December 20, 2013
4. The messiness of some forensic engineering and insurance investigations is illustrated by messy snow banks.   Posted April 14, 2015
5. More about messy, lumpy Mother Nature and how we deal with her effect on our forensic engineering and insurance investigations.  Posted April 23, 2015
6. The justice system and messy construction sites – Seeing is believing.  Posted December 17, 2015

A plaintiff’s lawyer doesn’t have a reliable legal claim – and money well spent on a medical expert, until the technical issues in a personal injury case are identified and investigated, and the cause of the accident established.  Only then can the responsible parties be reliably identified by the lawyer.

I know this because I have been retained as an expert to investigate the cause of accidents like slip and fall, motor vehicle, toxic fume emission and ladder falls.  There are different elements in cases like these.  Legal and medical elements are two.  The technical element is another – an important one that comes first in a personal injury case if it’s to start off on the right foot.

There are also several different involved parties depending on the technical cause of the accident – at least four in a slip and fall accident. (Refs 1, 2)  And a similar number in a ladder accident.

I was reminded of this when I read about the plaintiff legal practice conference entitled “The Doctor Is In: Medical Elements of Injury Cases”.  It’s planned for this June in St. John’s by the Atlantic Provinces Trial Lawyers Association (APTLA).

The two day conference looks extremely good for practicing lawyers with at least a dozen featured topics and national and international speakers from the medical and legal professions. The topics are medical or closely related as would be expected.  The topics on the law of expert evidence and preparing to discover an expert are also timely, particularly to those of us retained as experts.

An important two-part topic is on causation:

1. A pathologist’s view of medical causation in bodily injury
2. Legal causation, the law and variance from medical causation

This topic really needs to be treated in three parts for an even more complete and comprehensive conference:

1. A pathologist’s view of medical causation in bodily injury
2. Legal causation, the law and variance from medical causation
3. A forensic engineer’s view of technical causation in bodily injury and how it varies from legal causation

How can a lawyer confidently and reliably process a plaintiff’s claim for damages arising from bodily injury when he or she doesn’t know the technical cause of the accident and from that the party(s) responsible?  The emphasis is on confidently and reliably because lawyers are doing it now and managing often enough.  But that’s not good enough.

Establishing causation involves a two-stage inquiry: (Ref. 3)

1. The first stage involves establishing ‘factual’ causation.  That is, determining exactly what happened and who might have been involved in the incident.  This is the forensic engineering investigation.
2. The second stage involves establishing ‘legal’ causation.  This is when a lawyer reviews the factual causation – after it’s been established, and determines if the law is involved in the incident.

Determining factual causation in cases like the following is not lawyer-work.  It’s not even in the engineering text books in some cases and for certain not in the medical and legal text books.  A forensic engineer often has to “figure it out” as he goes along.

And often enough there is more than one party involved in what happened.  These parties are not known until the engineering investigation is complete.  I’ve seen the wrong party named in cases that were filed months, sometimes years before I was retained to investigate an incident.

Some examples of personal injury cases:

• I used a piece of pork belly – a pig’s belly skin, to investigate one slip and fall accident,
• also showered and walked across an accident site dripping water from my bathing suit to learn where water on a floor came from,
• investigated soap detergent on a stair landing at a retail outlet,
• carried out full scale field tests in a fatal motor vehicle accident,
• planned full scale tests using a Hollywood-style stunt man in a fatal step ladder accident,
• researched how a building “breaths” in one toxic fumes emission case and
• how fuel oil weathers in the ground in another, and,
• used binoculars to establish the cause of a man’s head injury from falling ice.
• a colleague investigated a trip and fall accident where the injured party was half-running backwards

Cases like these don’t get resolved until the technical issues are identified and investigated.  One of the above cases went on for 11 years then settled in 4 months after I completed my engineering investigation and established cause.  Many months to a few years is normal.  For sure, some of the delay is due to short comings and backlog in the justice system but not all.

I’ve seen similar situations in cases involving structural deficiencies and engineering failures and collapse in the built and natural environments as distinct from personal injury accidents.

Until the technical issues are identified and investigated thoroughly, technical causation established and the involved parties identified, the doctor’s view of medical causation might suffer for lack of some technical data.

And the practicing plaintiff lawyer won’t know who to sue, confidently and reliably – he could well be out on a limb.  To borrow and modify a comment in the description of the conference topics, “Don’t let (missing data on technical) causation sink your case”.

A three-part topic on causation is needed at the conference in St. John’s in June – medical, legal and technical – if the APTLA membership and their plaintiffs are to be even better served.

References

1. Sebald, Jens, Phd, System Oriented Concept for Testing and Assessment of the Slip Resistance of Safety, Protective and Occupational Footwear, Pro Business Gmbh, Berlin, 2009
2. Di Pilla Steven, Slip, Trip, and Fall Prevention, a Practical Handbook, 2nd ed., CRC Press, New York, 2010
3. Wikipedia, April 12, 2016