EXPERT EVIDENCE

An expert can be the critical component of your personal injuries claim.

This is particularly true in circumstances where you were too injured to be interviewed until sometime after the accident, when you can't remember the accident, and most importantly, when you are being blamed for the accident.

Section Resources

1
List of supporting material for your expert
2
Checklist to instruct an expert
3
Example notice to an expert

Symbol Guide

RESOURCE

HOW TO

IMPORTANT INFORMATION

CASE STUDY

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You've been blamed for the the accident

What happens if you are being partly blamed for the accident?

Nothing quite takes the wind out of your sails like someone blaming you for something you didn’t do.

Take Shannon for example.

CASE EXAMPLE: SHANNON

Shannon was a 68 year old woman coming home on the bus after watching a matinée. Her bus stop was in a semi-rural location, generally very quiet, but with no designated pedestrian crossing.

Shannon’s car was parked on the opposite side of the road from her bus stop. She got off the bus, looked left and right, and proceeded to cross.

Just as she was almost complete in her crossing she was struck by a car that appeared to come out of nowhere.

The ambulance came. The police came. They interviewed witnesses. They interviewed the driver.

But they couldn’t interview Shannon because she had been taken to hospital with a broken hip, a broken arm and a severe gash to her forehead.

Nearly a week later the police came to Shannon in hospital and interviewed her. They were very nice to her. She said “the police were just lovely.”

Shannon got out of hospital 6 weeks later and decided to lodge a CTP claim as the bills were piling up. So one of the first things she did was to obtain a copy of the police report.

Shannon was shocked. Shannon was angry. She was really, really ticked off.

Shannon needed a way to prove that it was impossible for the driver to have not seen her. Shannon needed an expert traffic engineer to investigate.

A road traffic engineer is a person who will go to the scene and measure things like braking distance, line of clear sight, the account weather conditions at the time of the accident and then write a report.

Shannon did this.

The report clearly showed the police were wrong and that the driver was lying. When the insurer was presented with this new evidence they accepted it over the police report.

Shannon’s claim was paid.

It seems that experts are really useful in certain situations.

What is an expert?

An “expert” in our context is an “expert witness”.

So let’s start out defining them by what they are not:

An expert is not a lay witness.

Lay witnesses are only allowed to speak about facts if they are called to give evidence in a court hearing.

They are not allowed to express their opinions

The exception to that rule is:

A person who is qualified to express a certain opinion in a specific area of expertise.

That is an “expert witness”.

They are permitted to do so on matters within their field of expertise.

However it is not all ‘beer and skittles’ for the claimant who engages an expert.

The fact that a witness is known to be an expert does not mean that their evidence will be automatically accepted.

A Judge is entitled to assess the facts and the opinions given and accept or reject those opinions. This is what is called a finding.

A Judge can give weight to the opinion of an expert having regard to the qualification of that person.

And here is how you need to really work in with, and help, your expert:

You need to give them as much concrete evidence as you can.
You need to give the expert as many facts as you can.

The kind of facts that would completely satisfy Mr Thomas Gradgrind from Charles Dickens novel “Hard Times”.

In fact you need to have the same steely resolve to the gathering of facts as did Thomas Gradgrind: Here is what he said about facts:

THOMAS GRADGIND

"Now, what I want, is facts. Facts alone are wanted in life. Plant nothing else, and root out everything else. You can only form the minds of reasoning animals upon facts: nothing else will ever be of any service to them."

It is important to remember that an expert’s opinion is based upon what the expert has been told by way of the facts. If those facts are not established, then the value of the expert’s opinion is limited.

A Judge is entitled to scrutinise an expert’s evidence for qualifications, concessions and reservations.

OK, so now that you know what an expert is and what his diet should be (facts); what types of experts are normally called upon in personal injury cases?

Four types of experts

... and when to engage them.

There are four types of expert that can help you prove liability. These include:

Traffic engineer - Engage when there is doubt over braking distance, traffic lights, road conditions
Automotive engineer - Engage when there is evidence to suggest brake, steering or other mechanical failure in your vehicle, which could shift liability from you to the equipment manufacturer.
Building engineer - Engage when there is evidence to suggest that part of a building (i.e. stairs, fences, doors, floors) contributed to the accident.
Civil engineer - Engage when there is evidence to suggest that roads, street or bridges contributed to the accident.

Once you have decided that you have enough facts to engage an expert you should familiarise yourself with some “rules” that surround the hiring of experts.

Important tips - some do's and don'ts for HIRING AN EXPERT

DO'S

Use experts from all over Australia if they support your claim. They don’t have to be local.
Disclose all of your details to the expert so that the expert can identify any potential conflicts of interest.
Provide clear, concise instructions. Here is an example.
Get a timeframe for when your report will be completed. Generally it takes 4-6 weeks – if the report is extremely urgent they may charge you an “urgency fee”. Be sure to ask about that.

DONT'S

Don’t allow the expert to charge you for preparing their own CV
Don’t sign anything with the expert until you have had a discussion with them. Be aware that while a short phone call or meeting might not cost you anything, a
teleconference or lengthy discussion could cost you – make sure you ask right at the outset “will this call cost me?”
Don’t expect additional work or a supplementary report beyond what was originally quoted – always, always, always get a fee proposal.
Don’t think that expert’s time is cheap. Experts will generally take 8-12 hours of time to prepare a report and will cost $3500 to $6000. Be aware that your case will have different parameters and expert’s charges will vary depending on the discipline.

Ok, so let’s break this table down a bit further…

Start by looking at the conversations you need to be having prior to engaging the expert...

how to make YOUR INITIAL PHONE CALL TO THE EXPERT

On your initial call with the expert with need clarify these points.

A brief outline of your matter to determine whether they are able to assist;
How much will they charge for their work/report?
Will they provide a written quote upon receipt of the brief to confirm their fee estimate?
Ask that the expert supply their CV to verify that they have given evidence in court and to determine when was the last time they gave evidence.

Then, if the expert sounds like the kind of person you want on your side, you start to get together your supporting material for them

LIST OF SUPPORTING MATERIAL FOR YOUR EXPERT

Your Notice of Claim Form;
The Additional Information Form;
The Insurer’s Insured Driver Report of Accident;
The Insurer’s driver’s statement;
The Insurer’s investigative report;
The Queensland Police Service QP report;
The Queensland Police Service file;
Any statements that you have obtained;
Any statements that you have given;
Any photographs that you have of the incident, the driver or the other party, the site and/or the motor vehicles;
Any CCTV footage or dash cam evidence;
Any statutory Declaration about the circumstances of the accident supplied by you or the driver.

Instructing an expert

Now you have an expert lined up, you have a list of all your factual evidence for them to consider, now what?

Well it’s time to create a clear concise set of instructions for them

Giving an expert clear instructions

We have given you two documents to use here – a sample letter of instruction and an expert witness code of conduct form that they must sign.

This checklist just makes sure you double check your instruction process; go through it and make comments.

checklist to instruct an expert

Available online or for download.

example notice to expert

Available online or for download.

Negotiating an expert's fees

Now that you have selected your expert, got your evidence and briefed them, it’s time to talk money with them…. Follow these five steps….

1
Have the expert provide a written quote after they have received the material to confirm what fee (or fee estimate) they will be charging for your report.
2
Arrange to meet with the expert at the location of the incident to walk through the event with them.
3
Ask the expert at the incident location if there is any other information they would like in order to assist them in providing an appropriate report to answer your questions;
4
Ask whether the expert is able to give you a preliminary verbal assessment of their opinion based upon the material supplied together with the inspection;
5
Confirm how the expert is supplying the report i.e. whether it is being supplied electronically, a physical copy or on a USB. Confirm whether there will be more than one copy supplied.

That should take care of all your admin matters when hiring an expert.

Next you need to be aware of the kinds of “bias” that can make your expert report not worth the paper it is written on.

If you know what these biases are you can make sure you avoid them.

Three major obstacles to avoid when engaging an expert

The New South Wales Law Reform Commission Report June 2005 identified three types
of bias in expert witnesses.

1
Pre-conception Bias

We have certain person assumptions, beliefs and values which may influence an opinion.

An expert may have views on matters that are controversial in their profession.

Having a qualified expert on an issue does not remove ‘pre-conception bias’.

It is probably enhanced if the person is a rogue within that profession.

To overcome this issue you need to answer these questions about your expert:

Have their opinion(s) been rejected?
Do they subsequently changed their opinion as a result of new facts or other evidence supplied?
Do they are make appropriate concessions.

2
Selection Bias

This is where a litigant (you) chooses an expert on the basis that they will support their case.

It’s a bit hard to suggest you are going to pick someone who is NOT going to support you!

In most cases the expert may be careful and honest in his evidence but has been selectively chosen to ensure that their evidence supports that litigant’s position.

Sounds fair? Well you won’t be the only side in the matter to have ‘selection bias’.

Do Insurer’s do this? Does the sun rise every morning?

IMPORTANT TIP

To avoid accusations of selection bias you and the insurer can both agree to a ‘joint expert’

3
Adversarial Bias

This occurs when the expert retained deliberately tailors their evidence to support the client.

That is, they are influenced by the evidence that supports the client. But it is as silly practice. No-one wants to be giving evidence for a party that ultimately is not accepted.

But the goal of litigation and the law is to achieve a “just resolution”. A single expert sometimes does not achieve that ‘just resolution’.

Why?

There is no other expert testing the validity of the opinion given.

How do you test an expert’s evidence against another expert if there is only one expert?

Conclusion

Your claim may require you to get an expert report, which will become evidence.

An expert is more likely to give reliable, credible opinion if they are given the opportunity to observe the actual scene where the event occurred. They can then test the evidence that you have sourced in support of your claim.

An expert is likely to fail in his area of expertise if he does not identify the assumptions or what facts he or she relies upon to support the opinion.