Why Insurers Are So Poor at Instructing Expert Witnesses
Insurers are ‘no good’ at instructing expert witnesses…
I’m just saying…
Well, what I’m saying is insurers for their own reasons are terrible at instructing expert witnesses in domestic building and property damage matters.
Please somebody debate me on this…try prove me wrong
And before someone says have a look at my practice, I’m not talking about the lawyers that instruct expert witnesses for Court and Tribunal work.
I’m talking about the thousands of reports that are instructed and produced every day by and for domestic building insurers.
In the domestic building and property damage arena in which I regularly operate we will often see plumbing, engineering, building consultant and mould expert reports of varying quality being relied on as ‘expert opinion’ but it is not that.
Why is it so bad?
I think the key reason is that most of these reports find their way to the AFCA.
As practitioners we all know there are higher standards at Court and Tribunal but if the AFCA is going to handle the size of disputes it now receives it needs to get better and more stringent on the rigours of reliable expert evidence.
You see, my bread and butter is expert reports, all day long? Nearly. I’m reading them, comparing them, considering them and analysing them.
When I’m instructing an expert, the instruction letter, the documents given, the questions raised, the process of inspection and the various other issues that come together to produce an opinion are absolutely critical.
When it comes to insurers. There’s no declaration of objectivity or independence and that is a big problem.
The expert just seems to be ‘chummy’ with the insurer and they tend to give the report the insurer wants.
I’m not saying every insurer in every situation but in my experience they tend to produce ‘advocate’ reports. And I’m not talking about the reports being produced for advocates, I’m talking about the expert thinking they’re an advocate!
These are not expert opinions in the true sense. However they influence legal decisions that can be worth many hundreds of thousands of dollars.
We need this to change. All Victorians and all Australians need better than this. These reports are defining whether people get paid out on insurance. This can change lives for homeowners
So what can change?
For a start, an insurer should provide a proper written instruction document whether it’s a letter or email or whatever it is. To at a minimum record what documents are provided and any assumptions and the specific questions to address AND keep all instructions recorded.
The experts qualifications are critical as well.
Most importantly the opinion of an expert witness must be objective and there should be a declaration signed to confirm this.
Australian Financial Complaints Authority let’s see some leadership here!
This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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