Expert Evidence in Property Damage Claims
I act for people with damage to their home or commercial property.
Nearly every Applicant / Plaintiff client I’ve ever met, arrives with an expectation of a cause of action.
Maybe it’s negligence, breach of contract, a statutory claim like s16 Water Act, s8 DBCA warranty claim or something else.
You see, each legal claim has its own elements that need to be satisfied to differing levels of proof and defences to bear in mind.
When it comes to property damage, the most critical first thing is knowing technically what exactly has happened.
Not what you think, not even what I think, but what a highly reputable and reliable expert thinks. For one reason, their opinion becomes evidence.
Building consultant, forensic plumber, geotechnical engineer, structural engineer, QS or other expert depending on the issue at hand.
Then - the claim comes to life.
A lawyer might draft what looks like a straightforward expert instruction letter but what they are asking the expert to do is:
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answer certain questions that need proving;
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not ask questions that aren’t needed.
The most important thing I do as a property damage lawyer is investigate. I don’t pre-empt which claim, I know what might be, but I first get expert opinion to tell me:
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what the problem is, defect or proximate cause;
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where it is;
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who caused it;
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how to fix it; and
I work out who’s responsible and how to claim if claiming is worth it at all- ie RECOVERY.
If there are gaps in the evidence vis a vis the cause of action, the law is not your friend, it’s sometimes unkind, it doesn’t fill gaps where you lack the necessary facts.
Remember, if you can’t afford to properly investigate technical issues with qualified experts you probably don’t have a claim worth pursuing.
Quality experts can even charge small fees to inspect a property and give a verbal opinion and that may be a start. But quality written evidence and oral evidence under cross is key.
After all, weak expert evidence falls apart like a cheap suit. Nobody likes a cheap suit!
If it’s worth claiming it, it’s worth getting proper evidence.
When it comes to issues with property and buildings, the most critical first thing is properly understanding what’s happened.
Advocate reports or biased reports that tell you what you want to hear, just take you down a path you don’t want to go and it can cost a lot more in a costs order!
My tip for any insurance claims handlers, strata managers, in-house legal, commercial litigators dabbling…any expert is not the right expert. Even the right expert without the right instructions can go very WRONG.
When the quantum is worth the claim, investigate, investigate, INVESTIGATE. Better to be safe than sorry .
This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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