The Phenomenon of the Rogue Expert
By Jarrod Gutsa, construction and planning lawyer
Conjoint Professor Lovegrove’s recent article “Why Australia should Regulate Expert Witnesses” opines that in some building cases, expert witnesses are being engaged as “hired guns” to advocate a client’s point of view, rather than to provide a clinical and independent assessment of a claim. The author agrees with Lovegrove’s contention, however, asserts that this is of course a generalisation as many experts provide clear, unbiased and genuinely independent assessments on the area they have been briefed to provide their opinion. However, the “rogue” experts, for lack of a better term provide, advice or and opinion that is not a truly independent and accurate assessment in regard to the material upon which they are providing their said opinion.
To set some context to the above assertions; expert witnesses are engaged routinely in building and construction cases to provide evidence on such matters as:
The value of the works undertaken (usually provided by a quantity surveyor)
- The value of the works undertaken (usually provided by a quantity surveyor)
- Whether works are defective (usually provided by building consultants)
- Whether works are structurally sound (provided by structural or civil engineers)
- The types of soil conditions on site (provided by geotechnical engineers)
Conjoint Professor Lovegrove contends that building experts should be regulated in a similar fashion to lawyers, so as to be bound to provide an independent assessment and not to exaggerate claims.
The author notes that in practice when cases go to Tribunals or Courts many experts are already known to lawyers and judges alike as building and construction law is a relatively small field and expert building witnesses are in a smaller field again, a niche market if you will. So one may ask, if the “rouge” witnesses are already known to the lawyers and the judges, what is the major issue, as their evidence will most likely be taken with a grain of salt.
judges, what is the major issue, as their evidence will most likely be taken with a grain of salt.
The issue, however, arises prior to the legal proceedings being issued. In many cases home owners or principals of building projects may engage an expert prior to engaging a lawyer. This scenario has the potential to result in a catastrophic consequence for the unsuspecting owner.
To provide a case scenario, a recent “expert” report that the author has read, made allegations as such:
“This dwelling is at a catastrophic risk of foundation damage ….the Builder is negligent”;
“the Builder is negligent” and “the builder should be reported to the Building Practitioners Board for gross negligence…”
“In my view, in refusing to follow the Building Code of Australia requirements…..the builder has repudiated the contract and the contact should be ended.”
“This report does not contain legal or engineering advice…”
The author notes that the above report was 14 pages in length and provided merely one page of analysis concerning the alleged defect that consisted of a “yes or no” answer to a pro forma question. The report was merely made up of photographs, disclaimers and a pro forma document.
Notwithstanding all the issues with the report, the author found it quite remarkable that the expert advised the contract had been repudiated and should be terminated, whilst purported to disclaim providing any legal advice.
In this particular anecdotal story the owner was convinced that the slab was in fact defective. The owner, on the basis of this “expert” report, decided to issue a complaint against the builder to his industry membership body and was contemplating terminating the contract.
The Builder was placed in a precarious position, knowing that the slab was not defective, however, in light of these allegations, the builder thought it prudent to engage a structural engineer to provide a report on the slab.
The slab was found not to be defective, and the relationship between the parties had not yet dissolved to the point that it could not be reconciled and the project continued. However, if the owner had chosen to act on this advice in the so called expert report the owner in all likelihood would have repudiated the contract (terminated it illegally) and would be liable to pay the builder its loss of profit in completing the project and damages for the repudiation.
The above highlights how crucial it is to retain experts of good repute.
Parties in litigation, may want to engage an expert who strenuously agrees with their position. However this is probably the worst case scenario for any litigant. A party to a litigation needs to be advised candidly and independently by their experts and lawyers as to what their real prospects of success are in a case and their real claim or lack there of. As in litigation it all comes out in the wash, and it is better to receive up front candid advice rather than to wait to have a decision handed down by the Court or Tribunal that is at complete odds with what the “expert” had advised you.
When one finds themselves facing a building dispute, it is best practice to first engage a construction lawyer, who can then advise on the most appropriate course and help the disputant find and engage an expert.
Please click here to read Conjoint Professor Lovegrove’s above mentioned article.
The Lovegrove Smith & Cotton E-Library is a free online resource of articles, which puts a wealth of information at your finger tips. The articles in the E- Library have been written by lawyers and a number of them have been published in the Australian, The Age and the Herald Sun. Some of the articles date back to the 1990’s. To access click here.
© Lovegrove Smith & Cotton 2014