Section 1 – The Expert’s Report
Section 2 – The Expert’s Inspection
Section 3 – The Expert in the Witness Box

The Report
The Format
Index and Codes of Conduct
Area of Special Expertise
Documents used in preparation of this report
Report reference or identification
The main body of the report.
Photographs
The Opinion

This presentation is the first segment of the
Expert Witness Programme which contains several areas important to the Expert Witness.
This article will refer to the Building Consultants
Reports and in particular those reports to be used in litigation matters.
A Building Consultant is a Professional and as such the Report must reflect that professionalism. Too often the report lacks professionalism expected of a Professional
Building Consultant.
Too often a report expresses opinions of the
Author that have little basis of fact or opinion based on assumptions not properly identified.
Since the landmark case of Makita and
Sproules; an Expert can no longer expect to succeed with expressing an opinion without supporting facts to back up that opinion.

At this point, we should identify why a
Consultant can be considered an Expert. The
generally accepted definition is an Expert is a person, who by their specialised training, education or experience in a particular subject matter is considered an Expert in that matter.
Having the required training, education and experience will be of little assistance to your client if during cross examination in court your credibility becomes questionable.
In litigation the role of the Expert is to assist the
Court in making a decision, you are not an advocate for the person who engaged you and to attempt to favour your Client will lead to your impartiality and credibility being questioned and most likely your report being discounted or dismissed.
THE REPORT
There is no standard format for an Experts Report; I have seen Experts Reports that are in form of a letter and others

that consist of photographs with comments under the photographs; these types of report are not what I would consider professional reports.
The first question to be answered is- what is this report expected to do?
The report should clearly express the Experts Opinion on the issues that he or she has been requested to investigate.
The Report needs to state clearly what the issues are that opinion has been requested to address and who has made that request.
Sometimes the request comes in the form of a brief from a
Solicitor or it may be directly from a Client. The Solicitor’s
Brief is normally self-explanatory. Sometimes the Clients
Instructions may need to be interpreted to make them clearly understood and the Expert is then required to answer those Instructions.
It needs to be recognised by the Expert that the people for whom the report is written, either the client or other person, may not be technically knowledgeable or familiar with building terminology or construction methods .Accordingly the report must present the facts and opinions in a way that can be clearly understood by those not familiar with building industry. Do not attempt to distort the facts and opinions to suit the Client and keep in mind that this is your report and needs to be presented honestly with your expert independent opinions.

There will be times when the Solicitor or Barrister may request changes to your draft report. These changes should not change the facts found or opinions expressed. However, they can request alterations to the format, the expressions or grammar and the Expert can choose to accept them.
An Expert can consider his or her report has addressed all of the issues and is of high quality if, after having the Report tendered in evidence -in -chief, the opposing Barrister states, when asked if he wishes to cross examine, “No questions your Honour”
THE FORMAT
As previously mentioned there is no standard format and the layout becomes a matter of personal preference.
Different disputes sometimes require different approaches to the way the report is prepared. The comments made in this paper will be somewhat influenced by the Authors

preferences and should not be taken to be the only way to approach the format of a report.
The important issues that should be identified in the opening pages of the report are;
*The subject property address and description;
*The Clients’ name and instructing Solicitors’ name.
*The date or dates on which the property was inspected.
*The weather condition at time of the inspection(s).
*The Authors reference number of the Report.
*The name of the Expert who inspected and wrote the
Report.
* A brief description of the purpose of the Report.
*If the matter is already listed in NCAT or before the Court, the case number should be identified.
To protect the intellectual rights of the Author, a statement restricting the use of the Report is recommended.
A suggested front page format is attached.

PROPERTY:
CONTACT:
CLIENT:
Somewhere
Bill Thomson tel—
Mr J Trouble
C/- Difficult Solicitors & Partners
Some Address
SYDNEY 2000
DATE OF INSPECTION &
WEATHER
3 rd December 2014-fine
16 th December 2014- raining
PURPOSE OF INSPECTION: To inspect and identify building defects on the above property and respond to Solicitors Brief.
OUR REFERENCE: 7099-1412
PREPARED BY: Joseph Bloggs
This document and its contents are intended for the addressee only and contain opinions held by the author based on material available at the time and expressed for the purposes of consideration by the addressee and not for general publication without written consent.

INDEX AND EXPERTS CODE OF CONDUCT
A suggested second page can include the index which will indicate where items can be found within the report.
At this stage there should be a statement that the report has been prepared in accordance with the Expert Witness Code of Conduct for the particular jurisdiction that the matter is to be heard in.
The Codes of Conduct vary slightly for different jurisdictions and I sometimes wonder if the Code of Conduct identified in the Uniform Civil Procedures Act 2005 in schedule 7 would not satisfy all jurisdictions.
Failure to state that you have abided by the conditions of the
Code could see your evidence dismissed.
Examples of several Codes of Conduct statements.
N S W CIVIL & ADMINISTRATIVE TRIBUNAL (NCAT)
I have read the NCAT Procedural Direction 3 of 7 th February
2014 and have prepared this Report recognising the requirements as stated in that Direction. As such it is primarily my duty to assist the Tribunal and not act as an advocate for any party in this manner.
My qualifications as an Expert are attached at the end of this
Report.
Signed_________ Date____________

COURTS
I have read Schedule 7, Expert Witness Code of Conduct of the
Uniform Civil Procedures Rules 2005 and agree to be bound by it. As such it is primarily my duty to assist the Court and not act as an advocate for any party in this matter.
My qualifications as an Expert are attached at the end of this report.
Signed_________ Date____________
Areas of special expertise related to this report.
Although your CV is to be attached to the report it is sometime necessary to indicate why you consider yourself an
Expert in the issue at hand as it may not be fully explained in your CV.
A statement such as; my special qualifications related to this
matter are; (List those qualifications, not clearly identified in your CV)
DOCUMENTS USED IN THE PREPARATION OF THIS REPORT

In this section the documents and material used to prepare your report should be listed.
This would include any brief received from the Instructing
Solicitor, any copies of other reports referenced, various
Standards or Codes used and referenced in the report and basically, any other documents that have been used to provide the information upon which your opinion is based.
Often extracts from these documents may be attached as appendices to the Report.
When using extracts from a document remember to attach the entire chapter or specific section which leads up to the extract so the reader obtains a complete picture.
REPORT REFERENCE OR IDENTIFICATION

The your report reference is important as during the preparation of your report, you may have submitted several drafts to your Client or the Instructing Solicitor. It is important that these drafts can be separately identified so that any one time, all those involved are working on the same document and it is the latest draft.
The date of an inspection is normally not the date the report was prepared. A report may have several dates included in the report which cause some confusion if that is the only identification being used.
It can be embarrassing to find in the Court that there are different copies of your report in existence and being used.
THE MAIN BODY OF THE REPORT
To provide a general understanding of the purpose of the report and how you have approached the preparation of the report, can be explained in the first section of the body of the

report, a section I identify as, PRELIMINARIES and provide it a reference number of 1.0
Within this section a brief background of the matter can be explained and a description of the property such as;
I have been instructed by xyz to respond to a report by abc; or/and, The property is a single story dwelling and was constructed in 2005 by abc and has subsequently developed a
number of defects; or anything that provides assistance to the Court in obtaining an overview of the property and the dispute.
It is within this section that an Expert may wish to identify the methods in which the various issues can be explained. If responding to a previous report, if responding to a previous report, an Expert may explain how they reference that report. My preference is to use my own number sequence for each issue but reference in brackets the number used in a previous report with a short identification heading.
There are various ways to approach this early section of the report and in practice you will see different Consultants with different formats.
There is always something to be learnt from other
Consultants.
The next section can be referred to as Inspection
Observations and I would show this as;
2.0 INSPECTION OBSERVATIONS.

It is within this section that your inspection observations and testing can be identified and reference numbered.
A sub number is used for each item such as;
2.1 Flashing
Each comment made about what you saw and found about the item can be then identified as;
2.1.1 The flashing referred to is located above etc etc.
2.1.2 I opened up an area around the flashing to access the etc etc.
It is important within this area to clearly identify your actions in carrying out your investigations and describe in detail what you saw or what and how you measured something or how you carried out any tests.
If you are carrying out any tests, then describe the location/situation prior to the test and then describe the results of the test. For water testing you may wish to include a photograph prior to testing and then a photograph during after the testing. Include the time that it took for the action to take effect.
Be precise on how you describe an issue. Do not leave it open to speculation on someone else’s mind. Be specific about where the problem exists and how you identified an issue. Any unclear or inconclusive areas in your report will provide fodder for an opposing Counsel to cross examine you and they relish that opportunity.

PHOTOGRAPHS
If you are using photographs to identify defects or results, provide clear identification to indicate where the photograph was taken and the point at issue.
The positioning of the photographs in the report is a matter of personal choice. You may wish to provide a photograph schedule as an attachment to the report or you can include individual photographs in the inspection section of the report against each issue.
My preference is to provide a schedule, which allows the inclusion of a larger photograph and more room to identify the photograph. The photograph identification can then be referenced in the appropriate section in your comments or opinion.
It is now prudent to identify who took the photograph and state if any enhancements may have been made to the image.
Agreement
If responding to a primary report, there may well be issues where you agree with the opinion offered in that report. If so do not hide the fact but indicate that you are in agreement.
This will prevent unnecessary costs being incurred due to arguing in court and your possible retraction in the witness box. This in turn will affects your credibility and may lead to discounting of your report.

THE OPINION
The location in which your opinions are placed in a report can vary. You might prefer to place them directly following the

inspection facts or under a separate section; say; 3.0
Opinions.
Opinions need to be based on the facts you have found and need to explain how those facts have influenced your opinion.
If you have had to rely on any assumptions, then those assumptions must be clearly identified to allow verification if required.
Sometimes historical information has some influence on your opinion. This should be identified and it should be explained how the historical information, support the facts found.
Your opinion will often be based on contravention of some
Standard, regulation or rule. In this case the regulation must be clearly identified and an extract supplied so that it can be verified.
In providing an opinion on an issue which clearly is non compliant with a regulation but has not, as yet, produced an adverse effect, you need to describe what the possible detrimental effect is likely to be based on your experience.
It is also advisable to show, where possible, the cause and effect of a defective issue.
Do not be afraid to produce a sketch that indicates what you are trying to establish as this does make it easier for others to understand.

Further reading;

Makita(Australia) Pty Ltd v Sprowles (2001) NSW CA 305

Admissibility of Expert Evidence Under Uniform
Evidence Act- Justice Peter McClellan.

Development Bank of Australia v Cassegrain (2002) NSW
SC 1314

LOGO?????
AUSTRALIAN SOCIETY OF BUILDING CONSULTANTS NSW inc.
THE EXPERT WITNESS SERIES-2015
SECTION 1-THE EXPERTS REPORT
SECTION 2-THE EXPERTS INSPECTION
SECTION 3-THE EXPERT IN THE WITNESS BOX