Expert reports in comp claims: tips to avoid evidentiary traps P2
9th Nov 2016
Read part one of Benjamin's series here.
Choose the right expertise
If you are looking for evidence of the cause of the failure of a retaining wall, or of a structural failure, then a structural engineer may be the best expert.
If you are looking for evidence on appropriate work practices or safety equipment in an area of employment or industry, then an ergonomics engineer may be the best expert.
If you are looking for evidence of the cause of failure of plant equipment, a mechanical engineer may be the best expert.
If you are looking for evidence on the nature and extent of a head injury, or otherwise inexplicable neurological or cognitive disturbances, a neurosurgeon, psychiatrist or neuropsychologist may be the best expert. As a side note, do not forget that the ambulance and admitting hospital notes of the Glasgow Coma Scale are important when briefing these experts if the injury is said to arise from sudden impact.
If you are in doubt about which expert to brief, contact the plaintiff’s General Practitioner, or if you have one, a friendly GP or specialist who could guide you.
Ask the right questions
What is the evidence you want the expert to be able to comment on? Is it about Australian Standards, good building or another type of work practice?
Think about what the court wants to know from an expert; the information which only an expert can give. This is where the need to focus on the elements of the claim is required.
In a liability case, is foreseeability an issue? If so, can the expert comment on any known literature (or what the putative tortfeasor should have known) at the time of the incident which would have a bearing on that issue. Is causation an issue? Can the expert comment on the mechanism of the incident and the likelihood of it causing the incident, or the injuries? What were the risks involved in the incident and the degree of the risks eventuating? Importantly, what measures could the putative defendant have taken to avoid or reduce those risks? Was there contribution from any other factors, and if so, to what extent?
Experts on quantum often need to assess the full nature and extent of the injuries. This requires consideration of the impact on each element of the claimant’s life which may sound in damages. Consider the various heads of damage. They should feature largely in any consideration on instructions sought from time to time. The opinions sought should be focused on the anticipated heads of damage. For instance, how does the injury affect the plaintiff’s ability to carry out their employment, noting that the employment requires particular tasks? Identifying with some precision the instructions of the type and nature of the problems in performing particular aspects of the employment is often overlooked, but can be useful to a specialist, especially where there is no occupational therapist’s opinion on the matter.
Do not ask for opinions outside the area of expertise of the particular expert. If the expert cannot comment on a particular issue because it is outside their area of expertise, tell them to say so. A candid concession is much better than trying to meet an objection at trial. Besides, the opinion obtained outside the area of expertise has little or no probative value. Do not think it can be slipped past the other side or the court. It is better to think whether the answer to the question is likely to be met with an objection on relevance, value, unsupported speculation or some other reason in advance, so as to obtain the best expert report you can.
Avoid asking for opinions on the ultimate question. For instance, don’t ask an ergonomic engineer to given an opinion on the negligence of the employer’s system of work. Any such opinion is bound to fall on an objection.
Should you clarify any opinion you do not understand, or any question left unanswered?
Experts are human and often very busy. They sometimes unintentionally overlook questions they are asked. They sometimes misunderstand the question (which is almost always because of how it is asked). Sometimes the answers are not clear, or sometimes they have been answered in an oblique fashion. The latter should be treated with care. There may be a reason the expert has not answered the question directly. A simple phone call or follow up letter may clarify the issue.
Finally, do not leave it until just before the compulsory conference, mediation or trial to clarify these questions. An expert’s opinion often forms a central plank on which arguments are based. A well planned case requires time to prepare the best arguments. Cases prepared on the run without sufficient time or effort given to enabling a properly reasoned and conclusive expert opinion risks that evidence not being viewed in its best light, and the shadows created can often lead to problems settling the case or problems with admissibility at trial.
Benjamin Whitten is a barrister who practises in commercial, equity and insurance litigation. He has a particular interest in claims involving construction & engineering issues and failures.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).