International Construction Law Review
EXPERT EVIDENCE IN CONSTRUCTION AND ENGINEERING CASES*
TÓMAS KENNEDY-GRANT
Chartered Arbitrator
“experience
n.
About 1378, in a version of Piers Plowman
: borrowed from Old French experience,
learned, borrowing from Latin experientia,
knowledge gained by repeated trials, experience, from experientem
… to try, test … to go through … peritus
experienced, tested ….”
“expert
adj.
About 1384, very skilful, in the Wycliffe Bible; about 1385, experienced in, having experience of, in Chaucer’s Troilus and Crisyde
… — n
.
before 1420, person wise through experience in Lydgate’s Troy Book
.”
Chambers Dictionary of Etymology
1. THE ROLE OF THE EXPERT WITNESS IN CONSTRUCTION AND ENGINEERING CASES
The role of the expert witness in construction and engineering cases is the same as in any other type of case and there is, therefore, no need to dwell on it. As was recognised by the unnamed expert quoted by the first President of the Surveyors’ Institution (now the Royal Institution of Chartered Surveyors) in his inaugural address in 1868: the expert must be independent and impartial. That early statement of the expert witness’s role from a member of one of the professional institutions is recorded and commented on by one of his successors in office, Mr John A F Watson, CBE, in his Nothing but the Truth: Expert Evidence in Principle and Practice for Surveyors, Valuers and Others
1
as follows:
“The important distinction between the functions of the expert witness and the advocate was emphasized by Mr John Clutton, first president of the Surveyors’ Institution, more than a century ago. In his inaugural address he deplored a tendency observed in certain surveyors to impinge on the functions of the lawyer. I quoted his remarks 80 years later in my own presidential address to the Royal Institution of Chartered Surveyors (as the Surveyors’ Institution had since become) and I offer no apology for doing so again. ‘I
* A paper presented at a Legal Research Foundation Inc Conference on “The Role and Use of Expert Witnesses”, Hilton Hotel, Auckland, 7 November 2002. © Tómas Kennedy-Grant, Auckland, New Zealand, 2002. The author has asserted his moral rights pursuant to the Copyright Act 1994 (N.Z.). I am grateful to Messrs Tony Dean and David Hollands and to Dr Peter Goldsmith, all of whom have either appeared as an expert witness or had to consider the evidence of expert witnesses when sitting as an arbitrator, and who have assisted me greatly by providing me with material against which I could check, and with which I could supplement, my own experience and thinking. Any deficiencies rest with me, not with them.
1 2nd ed., 1975, pp. 5–6.
[2003
The International Construction Law Review
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