Tom Magner provides independent technical assistance as an Expert Witness. Specialising in the forensic investigation of mechanical, electrical, and chemical incidents, Tom has carved out a niche working on holiday and travel claims in civil cases and, on occasion, fatal incidents in foreign criminal courts. He gives us an insight into his varied career; explains why he now speaks native-level Spanish; and shares his tips for going to court.

The bulk of my cases are holiday and travel claims.

If someone has an accident on holiday, they would likely sue their tour operator in the UK. The court has to determine whether there has been the exercise of reasonable skill and care defined by the relevant local standard in the country that the claimant has visited. They ask whether or not there was conformity in the country or part of the country that the accident happened in. Investigating that is where I come in.

 

I did an engineering degree and went into industry when I graduated.

When I started to get itchy feet, I saw a job advert that said “chartered engineer required for work of a forensic nature”.

 

I looked up the word ‘forensic’, which was defined as ‘related to the law’. So, I applied. I didn’t get that role, but I’d already decided it was the perfect job for me. Six months later, I landed the same role at another leading practice.

There, I started dealing with motor accidents on the ground. I was there for four years but being self-employed appealed to me. I went back into industry for a year and started to set up on my own. My contacts from my previous firm found me and my forensic work took off from there.

The holiday work started about ten years later.

I was asked whether I would go and examine a piece of play equipment in Mallorca. At that time, my Spanish wasn’t great. I went there clutching my dictionary and the hotel manager there was really helpful. I’m still in contact with that firm!

Now, my Spanish is native level.

Being an engineer who uses languages is unusual – the engineering professional institutions that I belong to don’t really recognise my language skills. But I use Spanish virtually every day.

I also work as a broadcast journalist on specialist subjects.

During Covid, I was regularly online at Government briefings across the four UK home nations (particularly in Wales) as part of my broadcast work for Carers World Live, an online channel specifically designed for people with unpaid caring responsibilities.

I’ve also advised on TV shows like Watchdog, Rogue Traders, and That’s Life. When I do that, I’m applying the same principle as I do in court: I’m only going to say what I’m comfortable saying in the way I want to say it.

I deal with a lot of Expert Witnesses in other countries.

Interestingly, a lot of the experts I encounter in travel cases abroad are lawyers. They can’t break out of the advocacy habit.

I’ve worked on many memorable cases.

One that stands out, for the scale and seriousness of it, was an incident that took place in Corfu in 2006. Tragically, two British children died of carbon monoxide poisoning at their hotel there. I was contacted by the tour operator as two of their employees were going to be charged by police in Greece.

It was a very complicated case. I undertook a site investigation and was involved in the Greek criminal process. They had a system of judges investigating. The first judge had overview to decide if there was a case to answer. Then a prosecuting judge was instructed, who I was interviewed by.

The matter went to trial before a panel of three judges. I gave evidence for the best part of a day standing on the witness box – it was literally a wooden stool. The judges’ bench was at my eye level, so I was face to face with them. Periodically there were outbursts of all the different parties’ lawyers trying to talk at once, with the judges shouting at them in rapid, aggressive Greek. The world’s press was there, too.

It may have been a different legal system, but the same principle applied with the same universal oath: the truth, the whole truth and nothing but the truth.

When the UK inquest was eventually heard, the coroner instructed me to be his expert, so I was involved in that case for a long time.

I’ve seen lots of changes for Expert Witnesses over the years — most significantly, the introduction of the Civil (CPR) and Criminal Procedure Rules (CrimPR).

Within part 35 of CPR, the declared purpose of formal questions and answers is to clarify what’s in the report. More often than not, it becomes cross-examination in writing. As experts, we get lawyers, at times, asking very personal questions and having a go at us.

I have a factual approach that I typically use when nasty questions are asked. It helps the judge see that I’m willing to answer any question and that I’m serious about my Part 35 overriding duty to the court.

Experts who are asked a question and don’t know the answer should say that.

Clarify that while you don’t know the answer, you will do your best to help. Good experts will do that – and that hasn’t changed over time.

I prefer giving evidence in person, rather than online.

Building rapport with the judge is important when you’re giving expert evidence. If you’re there in person, building that is easier. It gives you a chance to get into the judge’s thinking.

Expert witnesses need to be open minded and be prepared to show that.

Don’t be afraid to really analyse what you’re thinking. You need to look at each theory from the view of both the claimant and defendant (in civil cases); the defence and the prosecution (in criminal cases) and put it in the report.

It’s essential that you get access to all the documents you think you need, because you want to give as full an opinion as you can. I have research methods to get that information if it’s not offered to me and, in holiday and travel cases, I do local enquiries from several different sources.

Don’t be bullied by barristers!

Bullying can be subtle. Questions like, “Are you sure that’s what you mean?” or “We’d rather you take these paragraphs out”. Look at what suggestions are made and if you’re even remotely not happy, then don’t make the changes.

Stand your ground and be honest.

If counsel raises a thought you hadn’t thought of, just say so. Remember that you’re the expert. You know your subject. If it’s not a yes or no answer, say so. The barrister might not like it, but the judge will likely come to your rescue.

Work hard to agree a sensible timeframe to produce your expert report.

As an Expert Witness, you’re entitled to a copy of the court order that sets the deadlines. Some solicitors can be a bit coy about sending this. Don’t be afraid to try to make the deadlines realistic. Try to get your instructing solicitor to instruct you as early as possible, ideally pre-case management (I know that’s easier said than done!).

Solicitors have expectations of what they think they need evidence on.

But as the expert, you know that best. That’s a discussion to have early on with the instructing solicitors. Ultimately, they should be coming to you to expand their knowledge and get an honest assessment so they can do the best for their client.

I take my duty as an Expert Witness very seriously.

I tell the truth. I would never sign off on something I don’t believe to be true. I don’t agree with lawyer terms such as ‘defendant’s expert’ and ‘claimant’s expert’. My duty is to the court and I make that clear at all times.