Expert Evidence – Critical and Underrated or overrated

08/11/2018

At Watson & Watson we have engaged Experts in hundreds of cases over the years.

Generally an Expert is required when one needs to draw a conclusion or an opinion from a factual situation; this seems simple but in practice is difficult.  The appropriate Expert is one with the detailed experience and appropriate training in his/her field of expertise.

In practice the selection of the Expert is critical to the outcome of the proceedings whether by way of negotiation or Court or other Tribunal determination.

Experts engaged often by us include Building Consultants, Engineers and Valuers.  An Expert needs to understand what is the appropriate level of skill required from for example, a builder, engineer, valuer or solicitor; and the basis of a Court or Tribunal determining what is the required skill from the Expert.

For example valuers need to know what is the legal basis for determining a case for example the appropriate valuation for compensation for encroachments, easements, assessment of the various elements involved in the assessment of those matters, exclusive right in strata titled properties, leases, compulsory acquisitions.  Each of the valuations have a legal basis of valuation and elements to be considered.  The Valuer needs to know the fundamental basis.  The Valuer needs to be able to articulate the basis of the calculation of the ultimate value assessed for whatever is being assessed.  Similar issues arise in relation to evidence from all Experts.

Experts must apply their knowledge and skill to the factual circumstances that arise in a matter.  This requires the appropriate issues being articulated in the letter of instructions, the ascertainment (and proof) of the facts and the matter and circumstances relied upon and the conclusion of the opinion including the articulation of how one gets to that conclusion.  If you read an Expert’s report and it does not set out these matters then it is unlikely that Expert’s opinion will be accepted if the Expert on behalf of the other party clearly sets out step by step the basis of coming to a different conclusion.

A Expert cannot in a vacuum give an opinion.  In those circumstances it is critical that each of the elements upon which an Expert’s opinion is based must be considered by the Lawyers and must be proven to the satisfaction of the Tribunal in the proceedings.  We have found that in many cases Expert’s opinion has not been accepted in essence due to the failure of the proof of the underlying elements giving rise to the opinion.

In most cases the outcome on a particular issue will depend upon the evidence and opinion by competing Expert evidence.  There are many examples of this.

We are aware of the capacities of a hundred Experts in different areas and we take steps to properly instruct appropriate Experts for each of the cases for which we are instructed.  We consider the matters and the appropriate Experts for each particular case.

Experts instructed in similar issues, often have a genuine dispute or disagreement as to what they believe is an appropriate outcome for a particular factual matter.

An important issue in selection of the Experts is to select an Expert whose evidence is accepted by the particular Tribunal or Court in which the case is to be determined.  We are experienced in this selection process and proper engagement of the Experts.

In one case an Expert briefed by a Plaintiff in relation to a case involving pesticides prepared a report in relation to one particular matter.  We ascertained from enquiries that the “Expert” had given contrary evidence in a case outside New South Wales.  We acted for the Defendant and after raising this issue with the Solicitor for the Plaintiff the matter was settled for a relatively modest sum.

In another recent case before we were instructed there had been many Engineers and other Consultants engaged to attempt to ascertain the cause of severe cracking to a newly built home.  We acted for the Owner.  The Builder and Engineer engaged Solicitors and Consultants.

There was a stage at which Engineers engaged had in effect informally agreed that the only solution was to demolish the existing house and start the project again.  The assessed cost of undertaking this was in excess of $1,500,000.  The original cost of the land was $245,000.

We could have engaged on behalf of the Owner an Engineer who took a similar view.  However it was always unlikely that the Builder, Architect and Engineer who was involved in the original construction would make a significant contribution to a $1,500,000 problem.

We approached the matter on the basis of trying to find out the cause of the cracking and how it could be solved.  We engaged an Engineer whom we have engaged on numerous occasions who came up with a solution which did not require the demolition of the house.  If we had progressed on the basis that we had engaged an Engineer who said that the original house had to be demolished, removed from site and the project had to be recommenced we anticipate that eventually one of the Defendants would come up with an  Expert who would find a solution such as the Engineer that we engaged.  This shows that it is inappropriate and unwise to only engage an Expert who comes up with a solution that is an expensive solution for the client. 

It is easy for an Expert or Engineer to recommend complete demolition and start again rather than come up with a solution for rectification of an existing unsatisfactory structure.  The benefit of having an Expert that can come up with a solution that is cost effective is that the matter can often be resolved without the expensive cost of litigation.

The Expert for your case needs to be truly knowledgeable and wise.  We can assist in selecting such Experts.  The Experts need to be able to obtain the proper support from an experienced Solicitor in relation to the many obligations of the Expert and Consultants and of the matters required to be proved so as to succeed in a case.

One should never forget that where there are two Experts (for example) with opposing views the Court will have to decide and prefer the evidence of one rather than the evidence of the other.  This will result in an unfortunate and unacceptable outcome for the Owner or Builder or other party to any litigation.

If you find yourself in such circumstances please contact Watson & Watson.  Our Solicitors are highly experienced in particular in relation to building and construction matters and the engagement of the appropriate Experts over many years.  Please contact Richard Watson Accredited Specialist Building and Construction or his Personal Assistant Shereen Da Gloria to discuss your concerns and the significance and impact of Expert evidence in your matter.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.