Unqualified Expert Witnesses in Building Claims

I have to call this out…

There are many building and property professionals and trades who are masquerading as expert witnesses…

Some have absolutely no experience in Court or Tribunal or limited experience at all to opine on such critical matters.

Let me give you an example, I’ve recently been assisting a homeowner who had already obtained a handful of reports from leak detection personnel, plumbers, mould remediation specialists etc and seeking to establish a cause and damage from a water flow from a neighbouring property.

Their sole job in being engaged was to report on these things.

This is inevitably potential evidence for a Water Act case.

However, the second I asked them to give a report that complies with the Tribunal Practice Note. guess what they did…

They clam up. They don’t do expert work in tribunal like that. But they took the client’s money seeking to establish a cause and damage but for what reason?

As all the lawyers know, a summons to appear at VCAT like a subpoena in court could be issued.

That isn’t the only problem, there are many building personnel that are holding themselves out as experts but they’ve limited if any experience going to court or Tribunal.

Many contact me seeking new work and my first question is - how many times have you appeared in the tribunal or court? They give me some vague answer or I ask for a reference from another solicitor and I usually never hear from them again.

Another issue is insurers using their ‘buddies’ or ‘preferred builders’ who are not independent parties to give evidence. This is like asking the fox to design the hen house!

Here’s the deal, this is:

1. Highly specialised and multidisciplinary work;

2. It is extremely complicated and important work. It can lead to successful or denied insurance claims or claims against other professionals and so it is important that it is fact based and reliable.

3. Legal and judicial processes need to rely on it and so it must be reliable.

There really needs to be a registration or license process for someone who calls themselves a building expert witness to have a code of conduct, rules, PI insurance, independence.

The Building and Plumbing Commission could begin by having experts registered and qualified in addition to their normal discipline or licensed to ensure that they have a code of conduct, insurance and understand the requirement of their role at Tribunal, courts and the AFCA.

When it comes to property damage, things can be complicated and there needs to be reliability on the information produced.

And just because someone is a professional in building, engineering or another discipline doesn’t mean they understand their role in written and oral reporting on causes and damage. There is more to knowing about independence, sound reasoning for an opinion, assumptions and other necessary aspects of expert evidence and reporting.

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Tagged as:

• building disputes
• building law
• insurance law
• litigation
• professional liability
• legal practice
• regulatory compliance