Why litigants should carefully choose expert witnesses

Expert evidence has been identified as one of the principal sources of expense, complexity, and delay in civil proceedings. In this article we look at the problem from the judges’ perspective and outline the dire consequences that can happen to one of the parties when an ’expert’ is found to be less than objective and not an expert.

The moral of the story is to ensure your expert is just that, and objective too.

A building case highlights the consequences for litigants

This is an extract from a VCAT decision Dwell v Nava Homes Pty Ltd where the Tribunal made very clear findings about the role of experts.

The brief facts

Mrs Dwell (owner) entered a contract with Nava Homes Pty Ltd (builder) for the construction of a new home in Williamstown.

The construction of the home included the supply and laying of approximately 100 square metres of internal ceramic tiling. The owner contended the laying of the tiling was defective and claimed $16,469.50 for its removal and replacement.

The tiling was laid as a stack bond pattern using approximately 2.5 mm to 3.00 mm width grout joints straight and true in both directions.

The owner called Mr David Graham, the director of Ceramic Tile Systems, as her expert witness and the builder called Mr Darren Love, the director of Darbecca Pty Ltd Building Consultants and Quality Inspectors, as its expert.

The issues

There were two issues to be determined:

  • Was the installation of the tiling defective or non-compliant with the relevant Australian Standard and/or the 2007 Building Commission Guide to Standards and Tolerances?
  • If so, what is the appropriate method and reasonable cost of rectification?

Was the installation of the tiles defective or non-compliant?

Mr Graham inspected the tiling on 19 July 2014 and provided a report to the owner dated 28 July 2014.

At the commencement of the hearing, Mr Lada produced a report by Mr Love, which was undated but was said to comprise: “First Response 30/10/2014 – Second Response after Inspection 03/02/2015”.

Although the report claims to comply with the Practice Note, clearly it does not comply with paragraphs 8 (An expert has a paramount duty to the Tribunal and not to the party retaining the expert), 9 (An expert witness has an overriding duty to assist the Tribunal on matters relevant to the expert’s expertise), 10 (An expert is not an advocate for a party to a proceeding), 11(What must be included in the report of an expert witness), 16 (The format of an expert witness report), and 24 (When must an expert witness report be filed and served).

In his report and oral evidence to the Tribunal, Mr Love clearly subverted his duty to assist the Tribunal in favour of being simply an advocate for Nova Homes Pty Ltd. The report, which was dated 28 October 2014 contained photographs that did not have any accompanying explanatory notes, was not filed with the Tribunal until the day of the hearing or served on the owner at all. Addendum A to the report was headed Rectification Cost Estimate, the value of which was shown as $0.00.

Not only was Mr Love’s response to Mr Graham’s report initially prepared before he himself had inspected the tiling, his response to paragraphs 28-41 was simply an attack on Mr Graham’s credibility. For example –

“The CTS report writer has made assumptions that are not within his area of expertise. I have read through Mr Graham’s resume and found no formal qualifications that he has any conference to make these statements other than personal opinion. (sic) He is not noted as an engineer in either structural or thermal and his opinions are not fact. Mr Graham has taken a position of foretelling some future event that has not at this point occurred.

Mr Graham’s alarmist approach to suggest critical failure may well cause the home owners to seek a costly legal assistance as they have taken Mr Graham’s word for the near pending disaster that he would suggest is about to happen.

I caution all parties to seek qualified professional opinions that are based on solid engineering facts, rather than gut feel and pending gloom.” [sic]

The expert evidence findings

The outcome of this proceeding is determined by the evidence of the respective experts called by each party.

The Tribunal preferred the evidence of Mr Graham to that of Mr Love for the following reasons:

  • Mr Graham had 48 years’ experience in the tiling industry, 30 of which were in the employ of a major tiling company and subsequently as a private consultant to the tiling industry;
  • Although he did not have any formal academic qualifications, he was accredited under AS/ISO 9001 (Quality Management Systems) achieved in 1987 and upgraded in 1994;
  • He held several senior positions in the tile and stone, and construction industries and was found to be qualified to offer an opinion on the quality of the tiling works;
  • Before compiling his report, Mr Graham inspected the tiling at the subject property;
  • His report complied with Practice Note PNVCAT 2: Expert Evidence; and
  • His report and evidence demonstrated a detailed knowledge of the causes of defective tiling works.

On the other hand, Mr Love:

  • Had academic qualifications in building surveying only;
  • Claimed to be qualified to teach Australian Standard 3958.1 – Tile Installation, but his report did not identify the institution from where he had obtained this qualification;
  • Had no qualifications as an engineer, although it is noted that the Tribunal criticised Mr Graham for a similar lack of engineering qualifications;
  • Had practical experience as a carpenter, an owner-builder and a site manager on residential and commercial projects;
  • Did not have specific experience in the practical aspects of tiling.
  • Responded to Mr Graham’s report before he inspected the tiling; and
  • In his report in reply to Mr Graham’s report, failed to adequately respond to Mr Graham’s opinion as to the causes of the defective tiling works.

In light of the above, the Tribunal did not have regard for Mr Love’s report and evidence.

Summary

The effective and fair use of expert evidence is one of the most significant issues which the courts now face. This case serves as a clear warning to litigants and illustrates the desirability of using experts who are truly expert, and capable of exercising objectivity. Sensible lawyers will always use experts regarded by the courts as being reasonable and objective.

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