So you want an expert witness? Do they need a degree?

Monday , 6, August 2018 Leave a comment


So you want an expert witness

The Question of what qualifications must an expert witness have arose in Doyle v Hornsby Shire Council [2018] NSWLEC 45 ‘Doyle[1] where it was held that the qualification for a person to give expert evidence does not necessarily require that they have a university-based qualification.

What an expert witness must demonstrate to the Court is their specialised training, knowledge or experience that they have obtained to be considered as being qualified to speak authoritatively about the subject matter in question with the necessary degree of specialised knowledge or skill expected of an expert witness.

In the Doyle case a council witness had significant relevant experience and formal academic qualifications in engineering surveying but not in engineering he was still considered qualified to give expert evidence on the technical aspects of the proposed driveway design. His Honour commented (at [72]) that:

Indeed, to hold that the absence of a university-based qualification would disentitle Mr Clare from being accepted as an expert for the purposes of assessing Mr Doyle’s application would be intellectual arrogance of the highest order. It would also be bad at law!

Therefore the absence of a degree is not a limiting factor for a person to be an expert witness so long as they can demonstrate the relevant experience and knowledge that would see a person considered as an expert in their field.

What is required is that you procedurally meet certain requirements as the duty of an expert witness is not to the party that hired them but to the Court, the overriding duty of an expert is to assist the Court on matters relevant to the experts expertise, an expert is not an advocate for a party to a proceeding and if the Court suspected bias or advocacy then the expert testimony is likely to be given little weight.

For example, in Cubillo v Commonwealth of Australia (unreported, Federal Court, Foster J, 14 December 1995)[2] at pp98-119, Foster J said of an expert witness: He tended to be abrasive, partisan and dogmatic. He not infrequently appeared to assume the role of an advocate rather than of an impartial expert … Dr K’s Theorising was shallow, unsubstantial and unacceptable’

What must be included in the report of an expert witness are :

  • (a) the full name and address of the expert witness;
  • (b) the expert’s qualifications, experience and area of expertise;
  • (c) a statement setting out the expert’s expertise to make the report;
  • (d) reference to any private or business relationship between the expert witness and the party for whom the report is prepared;
  • (e) all instructions that define the scope of the report (original and supplementary and whether in writing or oral);
  • (f) the facts, matters and all assumptions upon which the report proceeds;
  • (g) reference to those documents and other materials the expert has been instructed to consider or take into account in preparing his or her report and the literature or other material used in making the report;
  • (h) the identity and qualifications of the person who carried out any tests or experiments upon which the expert relied in making the report;
  • (i) a statement:
    summarising the opinion of the expert;
    • identifying any provisional opinions that are not fully researched for any reason (including the reasons why such opinions have not been or cannot be fully researched);
    • setting out any questions falling outside the expert’s expertise; and
    • indicating whether the report is incomplete or inaccurate in any respect.
  • (j) A signed declaration by the expert that:

“I have made all the inquiries that I believe are desirable and appropriate and that no matters of significance which I regard as relevant have to my knowledge been withheld from the Tribunal.”

 

[1] Doyle v Hornsby Shire Council [2018] NSWLEC 45.

[2] Cubillo v Commonwealth of Australia (unreported, Federal Court, Foster J, 14 December 1995).



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