The Role of Experts in Construction Litigation - White Constructions Pty Ltd v PBS Holdings Pty Ltd

Kaleigh Du Vernet, Associate

Players familiar with the nature of construction disputes are cognizant of the important role an expert plays in the determination of many common construction claims. It is crucial to remember that the primary duty of the expert witness is to the Court and not to the client. Rule 4.1 of the Rules of Civil Procedure provides as follows:

4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.

The specific knowledge and skilled analysis of fact provided by an expert is to assist the court in the determination of issues that require a particular skill and expertise to properly evaluate, where there may be a range of reasonable conclusions to reach. Usually, at the end of the case and the presentation of all evidence, a decision-maker will render a final decision and will adopt all or part of an expert’s evaluations into their reasoning.

However, recently, the Supreme Court of New South Wales published its decision in White Constructions Pty Ltd v PBS Holdings Pty Ltd [2019] NSWSC 1166, where the court rejected both parties’ delay expert analyses entirely and brought in a court-appointed expert to evaluate delay.

The parties’ experts in this case adopted methods derived from the United Kingdom Society of Construction Law Delay and Disruption Protocol,^[1]which contains six established methods of delay analysis used to assist expert witnesses in formulating methodologies for determining delay in any particular case.

Both experts used a different methodology of the six prescribed in the Protocol. Both disagreed on the appropriate delay analysis method to be adopted, and how the other had applied their methodology. The plaintiff’s expert used the “as planned versus as-built window analysis”, and the defendant’s expert used a “collapsed as-built analysis”, each derived from the Protocol. The Court in this case acknowledged that both experts were “adept in their art” and had “reached profoundly differing conclusions”.

When comparing delay analysis reports in construction cases, this is often the case. It is common for parties in dispute over delays, liability and damages to have vastly different views as to who or what is to blame. Expert opinion exists to assist the court in reconciling these differences through an independent analysis of the facts, an applied method to evaluate the facts, and conclusions drawn as to what the delay is and what it is attributable to.

In this case, this did not happen. The reports were complex and were described as “impenetrable”, so that the Judge would require significant assistance to critically evaluate them. The Court held that it was not inevitable that either one of the methods provided by the party experts was the appropriate one for use in this case.  Therefore, the Court dismissed both parties’ expert evidence, and appointed its own expert to analyze the delay under rule 31.54(1) of the New South Wales Uniform Civil Procedure Rules, which provides that “in any proceedings, the court may obtain the assistance of any person specially qualified to advise on any matter arising in the proceedings and may act on the adviser's opinion”.

The Court also held that the six methods in the Protocol are not absolute. The mere fact that the experts chose to apply methodologies from the protocol in their analysis did not give them standing, and methods which are otherwise logical or rational that are outside of the Protocol are not prevented from being given standing.

The Protocol is a guideline that can be used by experts in selecting a methodology for delay analysis, but ultimately it is for the expert to adopt a method appropriate to each case. As stated in the Protocol itself, it “aims to be consistent with good practice” however, “to make its recommendations more achievable by project participants, the protocol does not strive to be consistent with best practice”.

Not all cases fall within the scope of these methodologies, and experts should be prepared to adapt to each case and apply a “common law, common sense” approach by paying close attention to the actual facts, rather than opinions about what the evidence establishes. Users of the Protocol should apply its recommendations with common sense, and adapt the Protocol to each case, so as to not detract from the benefits of applying best practices.

It is not unheard of for the court to appoint an expert in construction cases where there are complex issues dependent on expert evidence, or where the court may feel as though it does not have the appropriate knowledge to comment on a specific issue without the assistance of an expert, as was recently done by the Superior Court of Ontario in Willem Vander Meer Holdings Inc. v. Thomas Terry Richardson, 2019 ONSC 4025. Both the Rules of Civil Procedure (r. 52.03(1)) and the Regulations under the Construction Act (O. Reg. 302/18, s. 14) expressly allow the court to obtain such assistance.

However, it is unusual for the court to reject expert evidence put forward by both parties and appoint its own expert for the same purpose.

Although it is commonplace for experts to draw different conclusions based on the evidence and to apply different methods in reaching those conclusions, this case goes to show that it may be beneficial for experts to cooperate with each other where possible. This could include coming to an agreement on the use of similar methodologies in conducting an analysis. Of course experts will reach their conclusions independently and by their own means, however it may be potentially useful to the court to apply similar methodologies to reach independent conclusions.

Ultimately, an expert’s role is to be an aid to the court in the determination of a case. In White Constructions, the court-appointed expert concluded that the complexity of the party experts’ reports introduced was a distraction to the merits of the case and ultimately did not assist the court in determining the issues at all, causing a misuse of time and cost. Courts will be able to conduct a more practical analysis of the expert evidence when making a final determination if the experts are guided by common sense and present their findings in a clear and accessible manner.