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Coopers Payen Limited and Another v Southampton Container Terminal Limited, Court of Appeal, 11 July 2003

22 July 2003
The issues

Single joint expert – Evidence

The facts

Defendant was sued for damages arising out of a port – side accident was occurred on 7 August 2002 when a 600 tonne press sold by the Second Claimant to the First Claimant was being moved on the Quay at Southampton. If toppled off the container on which it was being moved. The container was pulled by a tug which had to make a U-turn. A single joint expert was instructed who concluded that the tug must have been moving at least 9.8 kmp which was too fast. An eyewitness estimated that the tug was moving at a slow walking pace of about 4 kmp. The Judge preferred the eye witness’s evidence, and therefore rejected the argument that the tug had been driving too fast preferring another reason for the container toppling and dismissed the claim. The Claimant appealed.

The decision

1. The crucial issue was whether the Judge was right to accept the evidence of the eyewitness and reject the evidence of the single joint expert on speed and angle of the tug during the U-turn.

2. Generally where a single joint expert was instructed that expert’s report was evidence on all issues covered in the report.

3. It should be rare for the Court to disregard the evidence of a joint expert. However everything would depend on the circumstances of the particular case. Here the evidence of the joint expert was that the accident occurred because the tug had been driven too fast. There was no evidence that the alternative finding that the Judge preferred.

4. The Judge had been wrong to isolate the evidence of the eyewitness and disregard that of the expert. The Judge had failed to evaluate the evidence as a whole. Appeal allowed.

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