Court in the act01 July 2014

Attending court, whether as defendant, plaintive or expert witness, can be a chastening experience. Brian Tinham talks to INITA's
Jim Haire about a recent training event

Any engineer who has been called to give evidence in a court of law – as defendant, plaintive or expert witness – will understand why this country's judicial system is referred to as adversarial. It's rarely a pleasant experience. Frankly, there is little more likely to rattle you than being on the receiving end of cross examinations by barristers armed with well-articulated challenges to your professional competence. And, given that someone you know will have been through such an ordeal, even if you haven't, you may be worried about it happening to you.

You should be. On the one hand, concerns about what might happen if you get something wrong are among the drivers for making absolutely sure that you, your team and your company get it right – and reputations and lives are not put in jeopardy. That's a good thing. On the other, if the worst does happen and there's a dispute or, heaven forfend, an accident and you find yourself heading for court, make no mistake: even if you think you're squeaky clean, you're probably in for a bruising.

That's not so good. It's also risky, and not only in terms of penalties (financial or otherwise), but also your professional and business standing, either or both of which might be discredited. Why? Because it's the job of barristers for the prosecution and the defence to seek out potential weaknesses in your qualifications and experience, not only your version of events, assumptions, interpretations, etc. Their success hinges on your failure – actual or implied – to be able to answer questions fully, precisely and satisfactorily. That's how the UK's justice system works.

Being prepared is the key, and the other is getting on top of an entirely understandable anxiety about what might happen. And while there is clearly nothing quite like first-hand experience to help with the latter, there are court reports that might help you to sharpen your edge.

There are also occasional expert witness training courses that shed invaluable light on what to expect and how to handle it. One such – run recently by Lynden Alexander, proprietor of Professional Solutions Learning and Development, with INITA (the Independent National Inspection and Testing Association) – throws light not only on the courtroom drama, but what goes before, and hence how to minimise the risk of actions escalating to prosecution.

INITA secretary Jim Haire, who runs James Haire Engineering Inspection, states that the organisation staged the event to help its members understand exactly that. "I attended a version of this training 20 years ago, while working as a principal engineer surveyor for Plant Safety [the engineering subsidiary of General Accident, now Bureau Veritas]," he says. "I have never forgotten that experience, or the perspective it gave me on the responsibilities I shoulder every time I sign a report as being a true representation of the condition of an item of plant or machinery I have examined and tested."

Thorough examination
As for the day itself, following morning sessions on expert witness training, including cross examination in the witness box, and a workshop covering the dos and don'ts of interviews under caution, the afternoon moved on to the main event. That centred on a fictitious case involving an engineer surveyor, working for TGIF (Thoroughly Good Inspections of Fitters), visiting SCWEAC (Southampton College of Western European Arts and Crafts) to carry out a mandatory thorough examination of its theatre premises – including, importantly, the winch and pulley systems used for raising and lowering stage scenery.

The surveyor concerned had been delayed in getting to site and, on arrival, had to placate a disgruntled SCWEAC representative. Having commenced his inspection of fire safety, however, he was surprised to find his contact had left the premises. The surveyor carried on, first inspecting wall-mounted pulleys, but then found he could not access elevated walkways to inspect the overhead pulleys, because the ladders were locked off.

In the absence of the SCWEAC man, he had a choice: to terminate the inspection or carry on. He chose the latter, deciding that a visual inspection from the stage, 5m below, would suffice for three reasons. The lighting was good; he had inspected and tested the first wall-mounted pulley and found it in good working order; and the entire system had been installed by FIQL (Fix it Quick Ltd) only a few months earlier and was virtually unused.

After signing off the installation with a recommendation that an at-height inspection be carried out at the next thorough examination, he informed his line manager of the difficulties on site. He also tried calling the SCWEAC representative about the winch rope pulley design, which he noted was not to theatre industry best practice standards (although, because he didn't get up close, he didn't notice that aluminium pulleys had been used, with dry fibre bushes fitted to mild steel pulley axle pins – meaning susceptibility to seizure in a roof space subject to heat and humidity. However, his calls were not returned.

All would have been well, but three months later (and six months post installation) the winch and pulley system failed during a rehearsal, causing scenery to crash on to the stage, injuring two cast members and two technical crew. Hence the court case, in which SCWEAC accused FIQL of breach of contract on the grounds of failure to provide machinery that was fit for purpose or met health and safety requirements. It also sued TGIF, alleging failure to perform an adequate inspection and breaching the duty of care it owed in issuing an inspection certificate.


Awkward. As Haire says, the surveyor's actions could certainly be construed as negligent, since he didn't perform a close thorough inspection. And indeed, in the mock court, the prosecution's independent expert witness accused him of "blatant incompetence", adding that he ought also to have mentioned his observations around the sub-theatre standard installation in his report. On the other hand, he had his reasons as outlined, and he was well qualified and experienced. He made a judgment call that engineers are not infrequently called upon to make.

In the end, the case hinged on the strengths and weaknesses of answers given under cross examination and other salient features of the case brought to the court's attention. Defence for TGIF asserted that the process of seizure and deterioration of the winch pins could not have started until after the visit by his client. It was only then, he revealed, that rehearsals started in earnest for a production needing a large cast of hot dancers, and involving significant lighting and heavy usage of the winch system. The defence barrister also argued that TGIF could not have known that SCWEAC had pushed FIQL for cheap (sub-standard) kit because it expected only light use of its installation.

However, as this staged court appearance demonstrated, saving the surveyor's bacon on the day was all about him and his team understanding the court protocol and procedures. They were properly briefed to rebuff detailed challenges.

As Haire puts it: "If an HSE inspector is investigating an accident involving plant and equipment that a surveyor has inspected and tested, he may well want to explore the possibility that the engineer has questions to answer, in terms of his competence and due diligence."

So this is what the barrister will test in cross examination of a defendant and expert witnesses. That can be traumatic, because your professional competence may well be scrutinised long before you have the opportunity to offer evidence – and you have to be able to survive that.

"I developed the opinion 20 years ago that all engineers who have the kind of responsibilities we have as engineer surveyors should be subjected to this kind of training," says Haire. "They need not only to understand the implications of their actions, but also to be prepared for the pressure they will be under if they get to court and find their credibility and competence being tested."

Yes, indeed.

Brian Tinham

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