Expert Independence

Every expert should read the decision in New Aim Pty Ltd v Leung [2022]?FCA 722. Following the cross-examination of the plaintiff’s expert the Federal Court rejected the entirety of the expert’s evidence. The expert was subject to brutal cross examination surrounding the following topics:

·????????How had she managed to produce a 16-page expert report within one day of receiving instructions.

·????????The expert when pressed admitted she “had a couple of conversations” with the plaintiffs’ solicitors in the months prior to instructions and moreover the expert had previously sent a draft of her report to the plaintiffs’ solicitors.

·????????Under cross examination concerning the authorship of the report the expert report author was required to explain how her expert report had similar paragraphs to another witness’s statement.

·????????Eventually the expert conceded at trial that she had received emails from the plaintiff and the plaintiffs’ solicitors suggesting changes to her expert report and the plaintiffs’ solicitors had finalised the report.

This decision is timely reminder of the following:

·????????expert evidence presented to the court should be, and should be seen to be, the independent product of the expert.

·????????solicitors should be taken to avoid communications which may undermine, or appear to undermine, the independence of the expert.

https://www.ags.gov.au/publications/express-law/el314

https://www.hearsay.org.au/new-aim-and-difficulties-with-the-admissibility-of-expert-evidence/