Review of Opposing
Expert Reports
An independent, critical review of the other side's WHS or safety expert report. Assumptions, method, standards and reasoning are tested against the evidence, so you know where the report is strong and where it can be challenged.
Why Review the Other Side's Expert Report
An expert report can read convincingly and still rest on a wrong assumption, a misread standard or a step in reasoning that is never explained. Finding those problems early shapes how a matter is run, settled or tried.
Karim Ali reviews WHS and safety expert reports for solicitors and barristers acting for either side. The review identifies what the report assumes, what evidence it relies on, whether the method suits the question and whether the conclusions follow from the facts.
Where admissibility may be in issue, the review notes whether the report identifies the facts and assumptions it relies on and exposes its reasoning, the matters discussed in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 and Dasreef Pty Ltd v Hawchar [2011] HCA 21. Admissibility itself is a question for counsel and the court.
The review is independent. If the opposing report is sound on a point, the review says so. That candour is what makes it useful when preparing for a joint conference or cross-examination.
Questions the Review Answers
- Is the expert qualified to give each opinion expressed?
- Are the facts and assumptions stated, and do they match the evidence?
- Has the expert applied the right legislation, codes of practice and Australian Standards, in the versions in force at the time?
- Is the method suited to the question, and was it applied correctly?
- Is each opinion based on specialised knowledge, or on common sense or law?
- Does each conclusion follow from the reasoning?
- Does the report comply with the applicable expert code of conduct?
- Has the report dealt with evidence that points the other way?
The Review Process
A review can be a short confidential advice for the legal team, or it can be developed into a formal reply report if the court timetable allows.
-
Scope
Confirm the questions, the report to be reviewed, the documents available and whether the output is a confidential advice or a report for service.
-
Evidence Check
Compare the report's stated facts and assumptions with the brief, including statements, photographs, records and site evidence.
-
Method and Standards
Check the method used, the standards and codes of practice cited, and whether the versions applied were in force at the relevant time.
-
Reasoning
Trace each opinion back to its basis, and identify gaps, untested assumptions and conclusions outside the expert's field.
-
Findings
A clear written summary of strengths and weaknesses, with suggested questions for the joint conference or cross-examination where useful.
-
Reply Report or Conference
If instructed, a formal reply report under the code of conduct and participation in a joint expert conference.
Issues Often Found in Opposing Reports
These are the problems that most often weaken a WHS or safety expert report.
Judging the defendant's conduct by what became known after the incident, rather than what was known or reasonably knowable beforehand. See foreseeability in WHS litigation.
Citing a standard that does not apply to the setting, or a version published after the incident.
Opinions that depend on facts not in evidence, or on one witness's account without saying so.
Conclusions framed as negligence or breach of duty that go beyond what the expert's specialised knowledge supports.
Listing better precautions without explaining whether they would probably have prevented the incident. See causation analysis.
Opinions on medicine, engineering design or other specialist areas given without the relevant qualifications or experience.
For Solicitors and Counsel
A review is useful at several points in a matter: when deciding whether to brief your own expert, before a joint conference, before mediation and before cross-examination.
Karim works for plaintiff and defendant representatives. If he has already been instructed by the other party in the same matter he cannot act, so conflicts are checked before any documents are sent.
Often Combined With
A review often leads to related work: a full report of Karim's own, a joint conference or a focused opinion on causation.
-
Will the review be disclosed?
Whether a review is protected is a legal question for your lawyers. Karim can prepare either a confidential advice to the legal team or a report intended for service, and the letter of instruction should say which.
-
Can you review reports outside WHS?
Karim reviews reports on workplace health and safety, safety systems, risk management and public liability hazards. He will tell you if a report, or part of it, falls outside his expertise.
-
How quickly can a review be done?
A focused review of a single report can often be turned around quickly. Karim confirms the timeframe and fee once he has seen the documents.
-
Do you also prepare a reply report?
Yes, if instructed and if the timetable allows. A reply report is prepared under the applicable expert code of conduct and states Karim's own opinions with their basis.
-
Can you attend the joint expert conference?
Yes. Karim regularly takes part in joint expert conferences and can use the review findings to prepare for one.
Have the Other Side's Expert Report Reviewed
Send Karim the report and your timetable to discuss scope, timing and fees.