Duffy v Brendan McGee and Another

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Noonan,Mr. Justice Maurice Collins
• Judgment Date: 07 November 2022
• Neutral Citation: [2022] IECA 254
• Year: 2022
• Docket Number: Record Number: 2021/63 Record Number: 2021/64 High Court Record Number: 2017/649P

Between

Patrick Duffy

Plaintiff/Respondent

and

Brendan McGee T/A McGee Insulation Services and GMS Insulations Limited

Defendants/Appellant

Between

Anita Duffy

Plaintiff/Respondent

and

Brendan McGee T/A McGee Insulation Services and GMS Insulations Limited

Defendants/Appellant

[2022] IECA 254

Noonan J.

Collins J.

Binchy J.

Record Number: 2021/63

High Court Record Number: 2017/7648P

Record Number: 2021/64

High Court Record Number: 2017/649P

THE COURT OF APPEAL

Personal injuries – Negligence – Quantum – Appellant appealing against assessments of damages – Whether the trial judge was wrong to dismiss evidence

Facts: The plaintiffs/respondents, Mr and Mrs Duffy, claimed to have suffered severe personal injuries as a result of exposure to toxic chemicals present in their home during and after the installation of spray foam insulation. Having made findings on liability and causation, the High Court assessed general and special damages in respect of both respondents. The first defendant/appellant, Mr McGee, appealed to the Court of Appeal. Some of the grounds of appeal focussed on the judge’s findings in relation to the absence of adequate ventilation. The appellant claimed that the evidence established that Mr McGee had provided ventilation in excess of 40 ACH and the judge was wrong to conclude otherwise. It was also said that the judge misunderstood the reports of Mr Woods and in particular the control level of ventilation utilised for the purposes of those reports. It was also claimed that the judge misunderstood the circumstances of a report which he thought related to Mr McGee’s property. The judge, it was said, was wrong to conclude that the presence of a smell was indicative of the presence of chemicals and this was unsupported by the evidence. His acceptance of Mr Gallagher’s evidence was criticised on the ground that Mr Gallagher’s evidence was based on an assumed need to be out of the property for 24 hours after the conclusion of spraying, rather than the 2 hours established by the evidence. Central to the appeal is the appellant’s ground that the judge was wrong to dismiss Dr Thompson’s evidence “although his evidence regarding toxicology was uncontroverted by any of the plaintiff’s witnesses and the plaintiff had not called any expert evidence to counter his evidence.” Mr McGee further contended that the judge was wrong to conclude that the respondents had been exposed to both components A and B of Icynene which was unsupported by the evidence. The appellant submitted that it was not physically possible, for Mr Duffy at any rate, to have been exposed to isocyanate because he was not present in the house during installation or for a period of 2 hours after completion, contrary to Prof. Burke’s evidence. The appellant contended that the damages assessed, both general and special, were excessive and both respondents failed to mitigate their losses. There was finally an appeal against the trial judge’s order that as a condition of a stay pending appeal, the sum of €300,000 be paid to each respondent; however, that sum was, in fact, paid without any application on behalf of Mr McGee to the Court for a stay on that part of the trial judge’s order pending appeal.

Held by Noonan J that the trial judge was correct to exclude Dr Thompson’s evidence in its entirety; there was such an abject failure to comply with the most basic obligation of an expert, namely, to be objective and impartial, as to render all of Dr Thompson’s evidence inadmissible. Noonan J held that the judge correctly concluded that Mr McGee was negligent and that his negligence caused the respondents’ injuries. Noonan J was satisfied that Mr McGee had failed to demonstrate any error by the trial judge in the assessment of damages, either general or special.

Noonan J held that the appeals should be dismissed, and the order of the High Court affirmed. His provisional view was that the respondents were entitled to their costs of the appeals.

Appeals dismissed.

JUDGMENT of Mr. Justice Maurice Collins delivered on 7 November 2022

1 I have read the judgment of Noonan J and I agree with it and accordingly agree that the appeal of the First Defendant (“ Mr McGee”) should be dismissed.

2 I wish to add some observations of my own on the issues arising from the extraordinary evidence that was given at trial by Dr Thompson on behalf of Mr McGee.

Expert Evidence in Civil Proceedings

3 As far back as 1959 the Supreme Court declared that this “ is the age of experts qualified to give opinions in every field of human knowledge – whether science, medical or other, in accountancy, finance, handwriting and technical matters in every aspect of manufacturing process and so on” ( AG (Ruddy) v Kenny (1960) 94 ILTR 185, per Lavery J at 189). While he did not wish to “ minimise the value of such evidence”, Lavery J cautioned that “a sense of proportion should not be lost”. 1

4 Despite that note of caution, in the period since the decision in AG (Ruddy) v Kenny the domain of expert evidence has continued its inexorable expansion. Such evidence is, of course, often indispensable to the just resolution of civil proceedings (and criminal proceedings also). But experience demonstrates that it is far from being an unalloyed blessing. Expert testimony can add significantly to the duration and cost of litigation which, as well as being undesirable in itself, can also give rise to concerns regarding equality of arms and access to the courts. Multiple experts may be called to give evidence in relation to the same or adjacent areas of expertise. Expert evidence is often led unnecessarily, addressing issues that are matters of common knowledge or, at least, are within the knowledge or expertise of the trial court. 2

5 Concern about excessive (and expensive) recourse to expert evidence prompted changes to the Rules of the Superior Courts to give courts significantly greater control over the calling of expert evidence in civil proceedings. Order 39, Rule 58(1) RSC 3 provides that “ expert evidence shall be restricted to that which is reasonably required to enable the Court to determine the proceedings”. Rule 58(2) gives courts extensive power to give directions (including on its own motion) in relation to the giving of expert evidence, including directions “determining the fields of expertise in which, or the proposed experts by whom, evidence may be given at trial”. Rule 58(3) is also significant, providing as it does that a party may offer evidence from one expert only in a particular field of expertise on a particular issue unless the court “ is satisfied that the evidence of an additional expert is unavoidable in order to do justice between the parties.”

6 In O' Brien v Clerk of Dáil Eireann [2016] IEHC 597, [2016] 3 IR 384, Kelly P said the following of Rule 58:

“[36] This rule gives a measure of badly needed statutory control to the court in respect of expert evidence. The various decisions in recent years where judges both at trial and at appellate level have commented adversely on the number, extent and costs of experts demonstrates this need. Under this rule the court is entitled to restrict such evidence to that which is reasonably required to enable the court to determine the proceedings. No longer are parties free to call expert witnesses willy nilly. The court can determine what is needed and restrict expert testimony accordingly.”

7 Excessive recourse to expert evidence, and the negative consequences for the length and expense of trials, is far from the only issue of concern in this context. Assessing the reliability of expert evidence can present significant challenges. Particularly in the area of complex expert evidence based on novel scientific theories or methodologies, the risk that the court may inadvertently admit and rely on unreliable evidence is a real one.

8 Different jurisdictions have taken differing approaches to the issue of reliability. In some jurisdictions reliability is assessed as a threshold admissibility issue. That appears to be the position in the United States (at least at federal level) and in Canada: see McGrath at 6–34 – 6–36. The US Supreme Court's decision in Daubert v Merrell Dow Pharmaceuticals (1993) 509 US 579 has been influential in this context. 4

9 In England and Wales, there has been significant recent reform, deriving from recommendations made by the Law Commission in its Report in Expert Evidence in Criminal Proceedings in England and Wales (Law Com No 325) (2011) intended to make the process of assessing the reliability of evidence for the purpose of determining its admissibility much more rigorous. The Law Commission's recommendations have been implemented by practice direction (now CPD V Evidence 19A). These changes are discussed in detail in Hodgkinson & James, Expert Evidence: Law and Practice (5th ed; 2020), at para 3–010 and following. While the Practice Direction applies only to criminal proceedings, there have been parallel developments in the approach to expert evidence on the civil side: R (on the application of BAT Ltd) v Secretary of State for Health [2016] EWHC 1169 (Admin), at paras 280–291 (upheld on appeal, [2016] EWCA Civ 1182)

10 One of the factors which the Practice Direction directs courts to take into account in assessing reliability is the extent to which any material upon which the expert's opinion is based has been reviewed by others with relevant expertise (for instance, in peer-reviewed publications), and the views of those others on such material. The importance of peer review was also emphasised in R (on the application of BAT Ltd) v Secretary of State for Health.

11 Here, the “Irish courts have not propounded a test of admissibility which require expert evidence to achieve a specified threshold of reliability before it can be admitted” McGrath at para 6–41. Even so, there are instances in which...