EWJ Dec 2023 - Journal - Page 85
expert's report, which is part of the problem with the
way the Institute regulates itself. The IOA prevaricated so much that I ended up having to report them
to the Engineering Council, their licensing body.
Eventually, after nearly six months I received a very
brief response which was basically a blanket rebuttal
of every criticism levelled against the expert, with a
raft of extenuations, some bizarre, some comical but
some with very serious ramifications.
Item (6)
"The panel agreed that there were errors in the report but, in
the context of the report's well - considered suggested mitigation measures, the seemingly low priority given to the written
report in the instruction and the considerable time pressure
under which the expert was operating, these errors did not
amount to a breach of the Code of Conduct."
Analysis/opinion - this was a BS4142 report (compiled
to be presented as evidence in Court) containing numerous errors. The IOA's contention that this can be
overlooked because some aspects of the report had, in
their opinion, some merit is laughable. What is the
threshold of the number of errors that can be overlooked based on the above rationale from the IOA?
No further comment needed - comical.
Below is the IOA' response (in italics) to the item
numbers referenced above:Item (1)
"The guidance on measurement height in BS4142 relates to
measurements at receptors to determine the Specific
Sound Level or Background Sound Level. BS4142 does not
provide guidance on measurement positions used to estimate
source levels. The panel do not therefore consider this to be a
breach of the Code of Conduct."
Items (4), (5)
"The panel considered that, had the expert's principal
instruction been to carry out a BS4142 assessment, these aspects of the report would not be adequate. However, given the
scope and timing of the member's instruction and, in the
context of his verbal evidence to the Court, the panel did not
consider the expert to have breached the Code of Conduct."
Analysis/opinion - BS4142 states that the measurement of the ambient, residual and background sound
levels be taken at a height of 1.2m - 1.5m. Regardless
of your interpretation of the Standard the expert
deemed it relevant to specifically quote the height of
the hand-held sound level meter as 1.2m whereas it
actually measured 1.0m. If you accept the IOA's viewpoint why the need for the misrepresentation?
Analysis/opinion - we are now in the realms of pure
fantasy. The expert has produced a BS4142 report
where the time allocated to the measurement of the
specific and background sound levels was not just inadequate but grossly so. The IOA is absolving its member from criticism on the grounds that the instructing
party (NCC) was not specific in how the expert should
perform the assessment - it is not the duty of an instructing party to tell an expert how to do his/her job!
Let's be clear what the IOA is saying here - if an expert
member produces an unreliable and inadequate report appertaining to a particular British Standard that
he/she deemed applicable to the assessment, then as
long as the instructing party was not specific in requesting that particular Standard the member will
not be in breach of their Code of Conduct. The IOA
talk about the context of the expert's verbal evidence
to the Court - they are perfectly aware that the expert's verbal evidence to the Court was based on, and
in defence of, his BS4142 report. The eagleeyed reader will note that the IOA invokes BS4142
and its interpretation thereof as mitigation for the
misrepresentation of the hand-held sound level meter
height (Item (1)). Yet when referencing the grossly inadequate time allocated to the measurement of the
specific sound source and background sound levels
the IOA absolves its member of a breach of its Code of
Conduct by invoking the fact that NCC's principal instruction to him was not specific via a vis a BS4142 assessment! The measurement of the specific sound
source and the background sound level are the
bedrock of any BS4142 assessment. How can any selfrespecting professional Institute dream up a line of
reasoning akin to this and expect to be taken seriously? It might be comical but it has potentially serious
repercussions for decisions (e.g. planning) based on
flawed acoustic reports which then prove to be beyond
challenge because of the IOA's reluctance to countenance any criticism of the noise assessments of its
expert members.
Items (2), (3), (7)
"These issues were in fact matters of technical opinion. It is
not the purpose of the IOA Code of Conduct procedure to provide an independent technical critique of evidence." Also
regarding (7), "legal matters are not within the scope of the
IOA and the Member's knowledge of case law is not covered
by the Code of Conduct."
Analysis/opinion - "technical opinion" does not excuse
using simulations when the only reason they were employed here was the inadequate time allocated to the
measurement period (see (4)). "Technical opinion"
does not excuse attributing an unjustified and unfathomable 'just perceptible' impulse penalty when the
nearest receptor describes the impulse noise as loud,
audible within the house, let alone the garden, and
describing it as vibrating through the floor in their
property - i.e. highly perceptible. This is not just my
opinion - the expert even disagrees with himself! At
clause 1.3.14 in his report he acknowledges the
startling effect of the noise, at 6.2.4 he states that "it
is the impulsivity and intermittency that makes it a
particularly annoying sound" and at 6.2.1 he states
that "the operational noise from the use of the recycling facility is audible and clearly noticeable for the
nearest residents in their gardens, and potentially
inside when their windows are open." I take it that
the IOA panel didn't notice that the expert contrived
to contradict his own technical opinion! Blatant
inaccuracies, where no doubt exists, cannot be excused or overlooked by the IOA under the pretext of
"technical opinion".
EXPERT WITNESS JOURNAL
83
DECEMBER 2023