Penny & Anor v Digital Structures Ltd

A trial judge may resolve competing expert explanations by assessing the whole evidential picture, including the absence of structural distress. An appellate court will not disturb that assessment where it was reasonably open to the judge, even if the judgment inaccurately records a concession. An expert’s new explanation raised in cross-examination does not necessarily create procedural unfairness. Relevant considerations include whether the opposing party had an opportunity to address it, whether an adjournment was available, and whether any application to recall the expert was made. Where the structure was adequately supported at the time of inspection, a negligence claim based on failure to identify inadequate support cannot succeed.

Mr and Mrs Penny appealed from the judgment of His Honour Judge Walton in the County Court at Newcastle-upon-Tyne, handed down on 20 June 2008. They claimed that Digital Structures Ltd, through its structural engineer, negligently failed to identify that the roof of their converted barn was inadequately supported after tie beams had been severed.

The trial judge found that the roof was stable and safe when inspected, relying principally on an explanation involving triangular structures in the roof trusses. The Pennys challenged the procedural fairness of that evidence, the finding on structural adequacy, and the conclusion on negligence. They also sought to adduce a further expert report.

1. Appeal dismissed. The Court of Appeal upheld the trial judge’s dismissal of the negligence claim.
2. The evidence about triangular structures was introduced by Professor Knapton during cross-examination. It arose in response to points put by the appellants’ expert, Mr Oliphant. The appellants had an opportunity during the midday adjournment to consider the evidence and continued cross-examination in the afternoon. They challenged the strength of the relevant connections but did not seek to exclude the evidence or apply to recall Mr Oliphant. There was therefore no procedural irregularity in the judge’s admission or use of the evidence. The application to adduce a further report also failed. There was no sufficient basis for fresh evidence where no application to recall the expert had been made and refused ([18]–[19]).
3. The judge had incorrectly recorded that Mr Oliphant had made a concession about the sufficiency of nailed connections. That error did not invalidate the conclusion. The evidence entitled the judge to infer that the vertical members were probably nailed to the roof beams and that a sufficiently rigid connection could have been created, potentially with a substantial number of nails. The judge was entitled to choose Professor Knapton’s explanation as more probable, taking account of the absence of bulging, strain or other structural distress ([21]–[24]).
4. The roof’s adequacy at the time of Mr Ramsey’s inspection was the necessary starting point. Once the finding that the roof was safe and not in imminent danger of collapse was upheld, the issue whether a competent surveyor should have detected inadequate support did not arise ([7], [25]).

1. Court of Appeal (Civil Division) — in [2009] EWCA Civ 144, dismissed the appeal and upheld the dismissal of the negligence claim.
2. County Court at Newcastle-upon-Tyne — His Honour Judge Walton dismissed the claim in a judgment handed down on 20 June 2008.