International Construction Law Review
EXPERT WITNESSES AND LAWYERS: MANAGING THE RELATIONSHIP
JIM DELANY, SC
Aickin Chambers, Melbourne, Victoria, Australia
Introduction
Typically a building practitioner with specialised expertise, whether in construction, engineering, architecture, quantity surveying or other recognised discipline, will be engaged to assist a party to a dispute either:
- (a) at the fact finding/diagnosis stage; or
- (b) when there is an actual or anticipated dispute, as the existence or cause of the problem.
Whilst the circumstances of the engagement may be different in both instances, if the matter remains unresolved, the person engaged will ultimately be called to give evidence, whether in a court, the Victorian Civil and Administrative Tribunal (VCAT)*
or in arbitral proceedings. The purpose of this paper is to explore how the relationship might best be managed, irrespective of whether the engagement is at the “fact finding/diagnosis” stage or whether it occurs later when litigation is either anticipated or actually on foot. That is, with a view to ensuring that:
- (a) when giving evidence the expert evidence of the witness is in admissible form and in accordance with expert witness codes of conduct/guidelines;
- (b) the independence of the expert is not compromised;
- (c) the interests of the party retaining the expert are not prejudiced by the disclosure of legally privileged communications; and
- (d) the expert is able to discharge his or her overriding duty to the court or the VCAT whilst at the same time advancing the interests of the client by whom the expert is both retained and paid.
Opinion evidence
The opinion evidence of an expert is an exception to the general rule that a person can only give evidence as to matters of fact. In lay terms, as to what the witness saw, heard, said or did or otherwise perceived about a matter or an event.1
A lay witness is not entitled to give evidence of opinion, as to what it is that caused a wall to collapse or a roof to leak. The lay witness can give evidence
* In Victoria “domestic” building disputes are heard by the VCAT.
1 See this codified in s.78(1) of the Evidence Act 1995 (Cth).
[2005
The International Construction Law Review
388