By Stuart Robertson, partner, and Andrea Lim, solicitor, at Dentons Kensington Swan
In all construction defect cases (whether it be vertical or horizontal), expert witnesses are often pivotal in the outcome of the case. If you regularly provide, or are called on to give, expert advice/evidence in any dispute forum, the recent High Court judgment in Cridge should be considered.
From 1987–2005, James Hardie manufactured a cement-fibre exterior cladding called Harditex. In a class action proceeding, 144 owners of leaky homes clad in Harditex sued James Hardie, alleging, amongst other matters, that Harditex was not fit for purpose. James Hardie denied all allegations.
The trial was over 16 weeks long, contained around 10,000 pages of written evidence and over 6,000 pages of notes of oral evidence. The High Court released its judgment on 12 August 2021. The homeowners failed on all their claims.
The Judge was critical of the homeowners’ expert evidence and found that some of their experts were not reliable, strayed outside their area of expertise, failed to retain sample of the test materials and were advocates. This significantly reduced the weight that could be given to their evidence. In comparison, the Judge viewed the James Hardie’s expert witnesses to be ‘of clear standing in their field’. As a result, the Judge preferred the experts who were more experienced and considered leaders on the subject matter – James Hardie’s experts.
If called upon to be an expert witness here are some things to consider:
- An expert witness is independent of their instructing party, with their primary duty to the court. As such they must remain objective at all times.
- Experts should be firm with counsel as to what they would and would not put into their brief or affidavit.
- Ensure that you have the knowledge and experience relevant to the subject matter of the dispute.
- Read and understand the Code of Conduct for Expert Witnesses in Schedule 4 of the High Court Rules.
Disclaimer: This article is not a substitute for specific professional advice on any matter. No warranty or guarantee whatsoever is given as to the accuracy of any information contained in the article, nor is any liability accepted for any actions taken based on this information.
Dentons Kensington Swan has New Zealand’s largest team of construction lawyers and we have worked on many of New Zealand’s largest construction projects. We are experts in both front end and back end construction matters.
The information and opinions within this column are not necessarily the views or opinions of Xpress Engineer NZ, NZ Engineering News or the parent company, Hayley Media.