Expert Evidence in Strata Litigation

Expert Evidence in Strata Litigation

Expert witnesses play an important role in strata and defect litigation. 

We often engage expert witnesses during the course of matters that we are involved in.  For example:

• matters involving common property building defects rely on building consultants,

• engineers, architects, waterproofing experts, etc;

• matters involving noise rely on acoustic engineers;

• matters involving mould rely on mould experts;

• matters involving facade issues rely on architects. 

This article endeavours to assist you understand the role of an expert witness in strata and defect litigation, when one may be required and what is required to be included in an expert report.

What is an Expert?

The Oxford Dictionary defines as expert as:

“A person who is very knowledgeable about or skilful in a particular area”.

Section 79 of the Evidence Act 1995 (NSW) refers to an expert as:

“A person who has specialised knowledge based on the person’s training, study or experience”.

Why use an Expert?

A witness who appears in court to give evidence is only permitted to give evidence about things that they have seen, heard, smelt, tasted or touched.  There are of course some exceptions to that general rule.

One of those exceptions is in the case of an expert witness.  It is only an expert who will be allowed to give evidence of facts and take it a step further by drawing a conclusion or giving an opinion about a certain set of facts.  This is why it is so important to consider the need for and use of an expert in strata and defect litigation from the outset.

In the context of an NCAT strata application against an owners corporation alleging a breach of section 62 of the Strata Schemes Management Act 1996 , it is acceptable for anybody to give evidence about water leaking into their living room or bedroom (as long as they have seen it with their own eyes, touched it, smelt it, etc).  But, in order to prove a case of breach of section 62, it will sometimes be necessary to take the evidence beyond a layperson’s evidence and utilise an expert.

The expert will be able to perform tests, undertake inspections and give evidence about the facts that he/she has determined through his/her own independent investigations or assumptions and his/her opinion about what those facts mean e.g. what is the cause of the water leak, cause of the dampness, cause of the noise, and whether it is caused by a failure to maintain or repair (or both) the common property, breach of the BCA or Australian Standard, breach of a noise by-law, etc.

Expert Reports 

The admissibility of the expert evidence is paramount.  It sometimes means the difference between winning or losing a case.  It would be embarrassing to get all the way to a final hearing and have your expert’s report excluded or a large portion of it rejected because it is inadmissible.  This is where a strata lawyer can assist you by briefing the right expert from the start, manage the expert and ultimately until the expert report is finalised and relied upon.

In NSW, the expert’s report should be set out in a particular format which conforms to the decision of Makita (Australia) Pty Limited v Sprowles 2001 52 NSWR 705.  

In Makita’s case, Heydon JA (as he then was) provided a checklist for the admissibility and proper receipt of expert evidence in legal proceedings. Heydon JA summaries the position as follows:

• It must be agreed or demonstrates that there is a field of ‘specialised knowledge’.

• There must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert.

• The opinion proffered must be ‘wholly or substantially based on the witness expert knowledge’.

• So far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way.

• It must be established that the facts on which the opinion is based form a proper foundation for it.

• The opinion of an expert requires demonstration or examination of the scientific or other intellectual bases of the conclusion reached; that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or expertise’, and on which the opinion is ‘wholly or substantially based’ , applies to the facts assumed or observed so as to produce the opinion pronounced.

More recently, the majority of the High Court of Australia in Dasreef Pty Ltd v Hawchar [2011] HCA 21 noted that in order for an expert’s opinion to be admissible it is necessary for the party tendering the evidence to:

• Demonstrate that the expert has specialised knowledge based on his/her training, study or experience that permits him/her to make  the opinion.

• Demonstrate that the opinion expressed by the expert is “wholly or  substantially” based on that specialised knowledge. 

Conclusion

In Australia, the position is that when an expert expresses an opinion not founded on any specialised knowledge, specific training, study or experience, the opinion expressed will not be admissible for use in court and tribunal proceedings.  Therefore, in order to ensure that courts and tribunals accept the expert evidence, it is essential that an expert’s report: 

• Clearly states the specialised skill and knowledge they have relating to each and every opinion they seek to give.

• Contains detailed reasoning to reveal that their opinion is “wholly or substantially” based on that specialised knowledge.

In addition to the above, expert witnesses must comply with the relevant court and tribunal’s expert witness code of conduct. 

As you can see, understanding the role of an expert, when one may be required and what is required to be included in an expert report plays an important part in strata and defect litigation.

If you think you need to brief an expert for your matter or require assistance briefing a relevant expert, please contact Michael Pobi on (02) 8710 3430. 

 

Please note that the information contained in this article is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely on it.