How to Instruct a WHS Expert Witness in Australia

When to Instruct a WHS Expert Witness

A WHS expert witness is required in any proceeding where the court or tribunal needs assistance understanding whether a duty holder met their WHS obligations. In workers' compensation common law claims, this arises in most matters involving serious physical or psychological injury. In public liability claims, expert evidence is often required where the incident occurred in a workplace or work-related context. In regulatory prosecutions, the expert assists the court in assessing what was reasonably practicable and whether the defendant met that standard.

The earlier a WHS expert is engaged, the more value they can add. A preliminary discussion before documents are obtained can help assess whether the circumstances suggest a viable WHS liability case and identify which documents will be most important to obtain. This preliminary assessment is provided at no charge by Karim Ali before formal instructions are confirmed.

The Engagement Process Step by Step

• 01
  Initial Contact and Matter Assessment

  Email or call Karim with a brief description of the incident, the jurisdiction, and the broad questions you need addressed. He will assess whether the matter falls within his expertise and conduct a preliminary conflict check. This takes 24-48 hours and is at no charge.

• 02
  Conflict Check and Clearance

  Before any material about the matter is disclosed, Karim checks for conflicts with prior instructions in the same matter. Where no conflict exists, he confirms clearance and the engagement can proceed. Provide the names of all parties to the proceedings so the conflict check is complete from the outset.

• 03
  Letter of Instruction and Documents

  Prepare a letter of instruction that sets out the background facts, the questions to be addressed and the documents provided. The letter defines the scope of the expert opinion. Well-drafted letters of instruction produce more focused, useful reports. See below for what to include.

• 04
  Fee Estimate and Engagement Confirmation

  A fee estimate for the agreed scope is provided before instructions are confirmed. Once accepted, a letter of engagement is issued. Additional scope changes, supplementary reports, site inspections and conference attendance are quoted separately as they arise.

• 05
  Report Preparation and Delivery

  The expert report is prepared within the agreed timeframe. Where additional documents are needed or questions arise during review, the instructing solicitor is advised promptly. The delivered report complies with the expert evidence code applicable to the relevant court or tribunal.

• 06
  After Delivery: Supplementary Work and Oral Evidence

  Following delivery of the primary report, Karim is available for supplementary instructions addressing new documents, joint expert conference preparation and attendance, pre-trial specialist conferences with counsel, and oral evidence at hearing. Each of these is quoted separately when instructions are given.

Letter of Instruction: What to Include

A well-drafted letter of instruction is the most important document in the engagement. It defines the scope of the expert opinion, identifies the questions to be addressed, lists the documents provided and states any assumptions the expert is asked to make.

• Background facts: a brief narrative of the incident and the circumstances
• The specific questions to be addressed in the expert report
• A list of all documents provided for review
• Any factual assumptions the expert is asked to make
• The court or tribunal in which the matter is proceeding
• The relevant deadline for delivery of the report
• The identities of all parties including any opposing expert already retained

Documents to Provide for Review

The quality and completeness of the documents provided directly affects the quality of the expert analysis. The following documents are most commonly relevant in WHS expert witness matters. Not all will be available in every matter; provide what you have and identify what is to be obtained.

• Incident report and any investigation report prepared by the employer or regulator
• Witness statements from those involved in or who observed the incident
• Risk assessments applicable to the work being performed
• Safe Work Method Statements, job hazard analyses or work instructions
• Training records for the injured worker and relevant supervisors
• Maintenance, inspection and service records for any plant or equipment involved
• Photographs, CCTV footage or site plans of the incident location
• Relevant policies, procedures and safety management system documents
• Records of prior incidents or near misses involving the same hazard

For fee and engagement information see fees and engagement. To instruct Karim in your matter, contact him directly at Karim@safetydeeds.com or on 0414 922 810.