16 BUSINESS AND TRAINING
The expert must : |
1 . |
‘ Source ’ the facts ; |
2 . |
Establish performance requirements of the contract in |
accordance with the available construction information , |
statutory prescripts and contemporary records ; |
3 . |
Establish the origin of a matter ( s ) in dispute ; |
4 . |
Depending on the nature of the dispute , an expert may have to |
be engaged by the client / employer to : |
a . |
Inspect the works ; |
b . |
Identify ‘ defects ’; |
c . |
Determine appropriate rectification measures ; |
d . |
Quantify the cost and duration of such rectification ; |
e . |
Apportion responsibility for the cause of the dispute ; |
5 . |
Assess the matter in accordance with industry best ( accepted ) |
practice . |
In Petropulos and another v Dias , the court pointed out that where a court is faced with conflicting evidence of a very technical nature : … the resolution of the dispute “ must depend on an analysis of the cogency of the underlying reasoning which led the experts to their conflicting opinions ” ( Buthelezi v Ndaba [ 2013 ] ZASCA 72 ; 2013 ( 5 ) SA 437 ( SCA ) paragraph 14 ).
In Mathebula v RAF it was stated that " an expert is not entitled , anymore more than any other witness , to give hearsay evidence as to any fact , and all facts on which the expert witness relies must ordinarily be established during the trial , except those facts which the expert draws as a conclusion by reason of his or her expertise from other facts which have been admitted by the other party or established by admissible evidence ."
The expert ’ s report should typically comprise : |
1 . |
A cover page stating the project particulars , the parties ’ and the |
expert ’ s names , the contract used ; |
2 . |
A contents page ; |
3 . |
Curriculum vitae of the author as an ‘ expert ’; |
4 . |
The report : |
a . |
Matters in dispute ; |
b . |
The claimant ’ s position ; |
c . |
The respondent ’ s position ; |
d . |
Analysis ; |
e . |
Conclusion ( s ). |
5 . |
Annexures ( for easy reference , if applicable ). |
“ An expert does not assume the role of an advocate , nor gives evidence which goes beyond the logic which is dictated by the scientific knowledge which that expert claims to possess .”
The expert must : 1 . Clearly identify and isolate each or multiple matters ( s ) in dispute ; 2 . Extract from the ‘ construction information ’ what was specified and should have been done ; 3 . Extract from the ‘ contemporary records ’ what and when was it
( not ) done ;
4 . Make copies of and mark relevant text and illustrations for inclusion as an annexure , indexed and numbered sequentially in date order for easy retrieval – cross-referenced to other documents – with duplicate copies for each ‘ defect ’, if applicable ( useful in cross examination to quickly access ‘ data ’);
5 . Summarise and describe the ‘ defect ’, the cause , intended or other consequences , appropriate remedial action and / or compensation .
Cross-examination of the expert ( Carmen D Caruso : cross examination of expert witnesses 2017-02 ): The ‘ other party ’ may cross examine an opponent ’ s expert witness , typically to cast doubt on its value , to : 1 . Discredit the expert ’ s submission – not relying on facts , not objective , no proof , etc ; 2 . Weaken the premise on which the report and evidence is based ; 3 . Weaken the impact of information presented as insignificant and irrelevant ; 4 . Nullify a submission .
A cross examination need not follow a particular order : Criteria 1 and 4 , or 2 and 3 , may discredit the submission : 1 . The expert must check and confirm facts by reference to sources , dates , illustrations , standards , statistics ;
2 . Anecdotal information or hearsay evidence may not be ‘ fact ’ and be of no value ;
3 . Confirm that the expert has not expressed an opinion and then sought to find reasons to support it , rather than doing research that led to the conclusion ;
4 . Would any reasonable ‘ person ’ in the industry in a similar situation disagree or agree with this expert ’ s opinions ?;
5 . The expert ’ s report should disclose assumptions ( insufficient data ) made to formulate an opinion and disclose if a particular issue falls outside his expertise .
Summary In Schneider NO & Others v AA & Another 2010 ( 5 ) 203 WCC , quoted in the Nicholson judgment , Judge Davis stated at paragraph 211J-212B , " in short , an expert comes to court to give the court the benefit of his or her expertise .
• An expert is called by a particular party , presumably because the conclusions of the expert , using his or her expertise , are in favour of the line of argument of that party . But that does not absolve the expert from providing the court with as objective and unbiased an opinion , based on his or her expertise , as far as possible .
• An expert should not be a hired gun who dispenses his or her expertise for the purpose of a particular case .
• An expert does not assume the role of an advocate , nor gives evidence which goes beyond the logic which is dictated by the scientific knowledge which that expert claims to possess .” PA
www . plumbingafrica . co . za @ plumbingonline @ plumbingonline @ PlumbingAfricaOnline July 2024 Volume 30 I Number 5