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Expert Witness Demand Rises as Winter Storm Flood Victims Seek Legal Redress

Environment

Looking back on earlier in 2016 we can reflect on a winter characterised by named storms e.g. Storm Desmond, wreaking havoc to home and business owners alike.

 

This is a scenario set to be repeated. Rapid urbanisation combined with a warmer wetter climate means that over 3 million people in the UK alone will be at higher risk of flooding by 2050. The Environment Agency estimates that one in six homes in England is at risk from flooding. Of these, 2.4m are at risk from flooding from rivers or the sea alone, 3m are at risk from surface water alone and 1m are at risk from both. With flooding comes damage to homes and property.

Insurers Seek Redress as Costs Escalate: Winter 2015/16 > £5bn

The most recent period of flooding is expected to have cost as much as £5bn overall. The estimated total pay-out from the insurance industry just as a result of Storms Desmond, Eva and Frank in December 2015 and January 2016 is likely to reach £1.3 billion. The Association of British Insurers have reported that the average pay-out per household is likely to be £50k (compared to £31k for the 2013/14 storms) with the number of individual claims reaching nearly 15,000.

If flooding claims were straight forward there is no doubt that the number of claims would already be much higher. The complexity of flooding claims has previously been a barrier to claims but with the increased incidence of flooding and the ever rising costs involved, the insurance industry is now much more likely to take a closer look at the options for recovery. Historically it had been thought that flooding damage was entirely due to natural causes bringing little prospect of cost recovery. However with the costs continuing to rise, more insurers are considering the possibility that in some cases there is something which could have been done to determine a different outcome from a flood event i.e. there is liability in some cases.

Expert Advice required to bring clarity to Complex Flooding Cases

The complexity of flooding cases means that it can be difficult to determine the cause of flood damage because the evidence is often hard to access or has been
destroyed in the initial clean-up phase. However, it is crucial to the legal process to gather the appropriate facts for subsequent examination and almost certainly
this will mean it will be necessary to engage the services of an expert engineer. The rising number of claims has inevitably therefore meant a rise in demand for Expert Witness testimony.

Richard Allitt of Consulting Engineers Richard Allitt Associates has seen this growing demand for Expert Witness services; he has been engaged to advise on a
number of cases from all the recent major flooding incidents e.g. in Carlisle and York. He outlines later on the requirements for a good Expert Witness and his views on the recent rise in claims.

So who is at fault?

Surface water, groundwater and overflowing sewers are increasingly common causes of flooding.

Types of flooding include:

• Surface water flooding - occurs when heavy rainfall overwhelms the drainage capacity of an area.

• Sewer flooding - occurs when sewers are overwhelmed by heavy rainfall or when they become blocked.

• Groundwater flooding - occurs when underground water levels rise above surface level. This is most likely to occur in low lying areas underlain by permeable rocks.

• River flooding - occurs when a watercourse cannot cope with the water draining into it from the surrounding land.

• Coastal flooding - results from a combination of high tides, low lying land and, sometimes, stormy conditions.

• Flooding as a result of localised private drainage failure - for example failure in the operation of soakaways.

Where a flood is caused or contributed to by someone’s act or omission, the possibility of liability arises and claims can be made in relation to flood damage and in order to recover at least some of the resultant losses. Gradually the courts have come to recognise that in some cases it is often for example, the neighbouring land use rather than nature that is the cause of the flooding. The effect of this has been to put increasing duties on parties to take action to avoid
flooding in certain circumstances.

Flood damage continues to be considered a “natural nuisance”, but that does not mean that measures could not have been taken to deliver a different outcome. As the law stands:

• Landowners owe a ‘measured duty’ in negligence and nuisance to take reasonable steps to prevent natural occurrences on their land from causing damage to neighbouring properties

• Landowners have a right to protect their property against a common enemy (such as flooding)

In determining what is meant by ‘measured duty’, the court will consider what is fair, just and reasonable as between two neighbouring landowners. It must have
regard to all the circumstances, including:

The extent of the foreseeable risk;

The availability of preventive measures;

The costs of such measures; and

The resources of both parties e.g. where the defendant is a public body with substantial resources, the court must take into account the competing demands on those resources and the public purposes for which they are held. It may not be fair, just or reasonable to require a public authority to expend those resources on infrastructure works in order to protect a few individuals against a modest risk of property damage.

Much of the recent legal precedence for flooding arises from a case called Leakey v. National Trust which was in fact not a flooding case at all but one to do with land slip. However, in this case and subsequent others that were deemed to be involving a ‘natural process’ it was concluded that there is a duty to do what is reasonable in the circumstances to prevent or minimise the known risk of damage or injury to one’s neighbours or to their property.

Landmark floods ruling that could cost councils millions

The most recent case shaping the law in this area (Robert Lindley Limited v East Riding of Yorkshire Council) concerns a farming family from Burton Fleming near Driffield in Yorkshire. In December 2012 the Local Authority decided to divert flood waters from a nearby village by pumping it downstream, where the river then flooded farmland, including that belonging to Robert Lindley Limited causing considerable damage to their carrot crop. Not surprisingly the claimant felt they should be fairly compensated for this loss.

The case brings to the fore the importance of detailed examination of the precise basis upon which any person/body is seen to be liable for flood damage. In this case, there was a statutory provision entitling the claimant to compensation.

Judge warns of far reaching consequences

This claim was said by His Honour Judge Behrens to be a test case and he acknowledged that his ruling would have far reaching consequences. The decision to award compensation has been hailed as a landmark decision by the farming community and it is thought that it could lead to considerable financial penalties falling on local authorities who will face further claims by many other farmers who have also suffered crop losses during episodes of flooding.

Local authorities may be sued by owners of both residential and commercial property that is adjacent to areas of the highways that are prone to flooding. If they are found to have been negligent, they could be liable for damages. They may be judged that they should have assessed the risks and taken steps to mitigate them and to monitor the area when the risk is greatest. There is no doubt with such a ruling and the likely financial impact of such a ruling that the role of the Expert Witness in such cases will continue to grow in importance.

Assessing whether there is any liability is partly about recovering money for insurers, but it also has the benefit of highlighting the flood causes to any third parties offering the opportunity to take action to prevent the same thing happening again.

Role of the Expert Witness

An expert witness is expected to have the appropriate experience and qualifications to allow them to give their opinion on matters which are the subject of litigation within their specialist area. When they are giving evidence to the court, although they may have been engaged by the claimant for example, their
evidence be it a written report or verbal, should be independent of both parties and they have a duty to the court. Their role is to help the court to understand the specialist matters involved.

Tort law is the most common basis for a flood damage claim which will most likely be in negligence or nuisance. Where man’s activity (or inactivity) causes or contributes to the damage, there is a real possibility of establishing liability in tort, contract or statute. Principles of duty breach, causation and loss need to be addressed; causation will be a key issue and with the exception of the most straightforward cases,expert evidence will be needed.

Sophisticated Modelling can bring lucidity to technically complex flooding cases

Unquestionably, flooding cases are often technically complex because there may be many causes – heavy rainfall, blocked drains, inadequate sewers, changes
made by claimant on their own land. The skill of an expert witness is required to disentangle the causative factors and work out what is relevant from a legal
point of view. The causes are very often multiple for which potentially a number of defendants may be liable.

The fact that expert evidence (usually through the use of hydraulic flood models) is required and the fact that one claim on its own may be of a relatively low
value is not always a barrier to proceeding, since claims can be combined and insurers can join forces by co-ordinating the provision of legal and expert evidence. Neither is expert evidence always overly complicated. However, experts are able to construct sophisticated hydraulic modelling of a flood area to identify the cause and mechanism of the flooding.

Seek Expert advice early on

Solicitors are not qualified to give advice on flood risk or interpret technical flood reports so it is helpful to engage the services of a flood expert at an early stage to ensure the best documentation is captured in terms of evidence such as photographs, witness reports and news articles. In the current digital age, social media is also a valuable source of evidence; early engagement of a flood expert will enable the right information to be captured to assist the progress of a case in the long term. The recovery claim may not always come to court immediately it can in some cases get underway possibly years later. Early engagement of an expert witness can also be crucial in determining much more quickly whether there is even likely to be a case to proceed.

Expert Witnesses are important to the legal process as their opinions carry great weight in the final outcome. Necessarily then, an Expert Witness is an objective,
independent subject-matter expert and will be a recognized authority in their relatively narrow area of expertise. It is not sufficient that the selected expert is an experienced water engineer or scientist, but it is also essential that the chosen Expert Witness is also knowledgeable in matters of court protocol and procedures and have the skills necessary to carry out what maybe complex arbitration work. This additional legal related experience is fundamental and can make the difference between success and failure of a claim.

Profile of an Expert Witness

To understand more about what it is like to be an expert witness and what skills are required, we interview Richard Allitt of Richard Allitt Associates who has over 40 years’ experience in the drainage & wastewater industry. He tells us both about his company’s experience and his work as an expert witness.

Profile of Richard Allitt BSc, FICE, CEng, CEnv - Experienced Flooding & Drainage Expert

“Can you tell us a bit about your professional background”

I am Managing Director of Richard Allitt Associates Ltd a leading specialist provider of hydraulic modelling, surface water management and flood risk consultancy for the urban drainage industry. I am a Civil Engineer by profession and have spent my career in the drainage and wastewater industry working for a number of Local Authorities as well as for Engineering Consultants in the wastewater industry.

This was prior to setting up my own consultancy in 1996. The company celebrates its 20th anniversary in 2016; a milestone which the company is very proud to have achieved in an industry that is continually evolving.

The majority of the firm’s work is hydraulic modelling of sewerage systems and the preparation of Drainage Area Plans, Sewerage Management Plans and Surface Water Management Plans for clients such as Local Authorities and Water Companies.

“How has the company been able to stay at the forefront of the industry?”

The company’s success stems from our philosophy of seeking out the latest technological advances to ensure that it develops an approach that is continually leading edge. Our aim is to resolve flooding problems in the urban environment using the latest analytical techniques. Our most recent tool is one which can provide Local Authorities and Water Companies with real time street by street urban flood alerts.

“What makes you qualified to be an Expert Witness?”

I am a Fellow of the Institution of Civil Engineers which is the highest grade of membership. It is for civil engineers and technicians who've made a big contribution to the profession and recognises your high level of knowledge, ability and experience. I also enjoy chartered status as a Chartered Engineer and
Chartered Environmentalist. According to the Engineering Council, Chartered Engineers are characterised by their ability to develop appropriate solutions to engineering problems, using new or existing technologies, through innovation, creativity and change. This is a peer reviewed process. A Chartered Environmentalist must show a commitment to environmental best practice and a high degree of expertise in their field. Both these endorsements demonstrate that the depth of my knowledge and experience is recognised by my peers in the industry.

I have been responsible for the development of many leading edge modelling techniques for urban drainage modelling and take an active role in the writing of the CIWEM UDG (the industry’s leading body) User Notes and other guidance. I am also an Approved Auditor for the Water Industry Commissioner for Scotland and in this capacity am responsible for technical audits of sewerage models built for various catchments in Scotland. I have also led a series of research projects for UKWIR (United Kingdom Water Industry Research) furthering industry knowledge on topics such as Integrated Urban Drainage Modelling and Urban Creep (the loss of permeable surfaces e.g. the paving over of driveways) which contributes to flooding and other problems.

“How does the flooding industry recognise your expertise?”

I have spent over 40 years in the industry and I have been asked to make technical presentations and share my knowledge at industry conferences for the last 15 years or more e.g. at the European Water & Flood Modelling Conference. In addition to conferences I frequently present at a wide range of other events such as Flood Risk Managers meetings and have also been asked to present at CPD Training sessions held by legal practises to talk about how to prove a flooding case (or defence as case may be) with hydraulic computer modelling.

“What experience do you have testifying in legal cases?”

I have worked with numerous legal practises acting for the claimant or defendant or in some cases jointly, in nearly 100 cases over a period of many, many years. Numerous legal practises have returned time and again to work with me on flooding cases valuing the knowledge and expertise I can bring. Increasingly, I am called in before a case is even taken to court, as there is now recognition that taking expert advice at an early stage can make the process more
efficient and helps determine whether there is a case to be made.

“Have you provided testimony for both claimant and defendant?”

Whilst testimony will always be impartial and a representation of the technical facts I have over the years been engaged by both claimants and defendants. This
means I have been engaged by legal practises, Local Authorities & Government Agencies, Water Companies & commercial premises as well as private householders. I have also provided testimony in matters of adjudication.

Sometimes the opposing sides will each have their own experts and have on occasions provided contrary evidence so it is important to be robust in your
knowledge and it is therefore pleasing to hear endorsements such as that where my evidence has been deemed more valid. In one such matter the Adjudicator said

“In the main I prefer the evidence provided by Mr Allitt as this has addressed the broader causes of the flooding more persuasively…” He went on then to  adjudicate based on my evidence.”

“How many years have you been supplying expert witness services?”

My services have been in demand for well over 15 years and many legal practises return frequently to ask for advice with new cases. The number of flooding claims continues to grow.

“Are there any notable cases you have been involved with?”

I have been involved in many cases over the years but a couple stand out as those that have been viewed as test cases have altered the way in which the law has subsequently been applied.

• Bybrook Barn –v- Kent County Council

An example of where the Leakey principle was applied where a highway authority was held liable because it was responsible for an inadequate culvert which caused a risk of flooding to neighbouring land.

• Cordin & Others –v- Newport City Council

This was a case where strict liability applied to an escape from a reservoir where flows should have been discharged carefully through a sluice gate. In the latter case the judge remarked :

“I found him to be an impressive witness. His reports and evidence were careful, detailed and to my mind displayed impressive technical command and  understanding of the issues. Overall his evidence was compelling.”

“What tools do you rely on to inform your testimony?”

Within Richard Allitt Associates our software modelling program of choice is InfoWorks ICM which offers exceptional results through its general versatility and functionality. It provides us with the ability to test a wide variety of 'what if flooding scenarios’. This facility is key to legal cases where we can show what would have happened if different actions had been applied to essentially the same storm or flooding data. Hydraulic modelling for legal cases needs a very highly skilled modeller who can test alternative hypotheses and can provide clear plans and visualisations. As a skilled modeller I am not only experienced at identifying the causes and mechanisms of the flooding but can also advise on solutions which can prevent repeat occurrences.

As well as carrying out sophisticated modelling work, as an expert witness I will gather essential data and evidence required to inform the model. It is important to know what data is required and how best to obtain it. If required I visit the site in question, observe and photograph conditions and infrastructure to enable visual comparisons between the conditions observable at the time of the incident.

My company employs the use of its UAVs or ‘drones’ which can carry out aerial surveys. These aerial surveys are extremely useful in being able to identify things such as ‘urban creep’ where hard landscaping has prevented water soaking away leading to flooding, or identifying ditches and embankments which are not observable from ground level.

“Do you think you always need an expert in flooding cases?”

In straightforward cases where the cause is clearly observable it may not always be necessary to employ a hydraulic modeller. However where more data is
required and cause is not clear then the modeller should be highly skilled and experienced in order to understand all the possible scenarios. The software helps the modeller to address a wide variety of ‘what if’ questions and can be used to test a variety of alternative hypotheses. There is no doubt that employing a skilled flooding expert will result in clear plans and visualisations which will enable everyone without specific knowledge of the industry to understand unambiguously what has occurred. The expert witness will in this case not just be a (albeit well informed) subjective opinion but be able to provide objective data to illustrate that opinion. In flooding related matters the right expert witness can bring facts and clarity to facilitate the process of law.

“Have you ever turned down Expert Witness work?”

I would only ever take on work as an Expert Witness if I felt I was the right expert for the case in question. I would always advise an informal discussion prior to
accepting any appointment. There are occasions where I have advised that I don’t think there will be a case to answer but it is up to the client whether they still wish to pursue matters further.

“Have you seen a rise in demand for Expert Witness services?”

This would appear to be the case but there are a number of factors at play here. Incidents of flooding are occurring with increasing regularity but this has been
accompanied by a realisation that there can on occasions be a case to be made for compensation. The complexity of flooding situations is such that it can be hard to disentangle the facts without employing an expert and this has meant that we are being called in earlier in the process as well, which ultimately means the quality of the evidence is much better too.