Expert Insights from Automotive Mechanic David Marston

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I am a Master Mechanic with over 40 years of practical experience in repairing and modifying motorcycles, light, heavy, and racing vehicles and boats. I have designed and built training workshops, wrote numerous operational policy and procedures, and supervised teams who work along specific guidelines and standards. I have also taught in various Registered Training Organisations and conducted Nationally Accredited training courses on a variety of automotive skills, training, and business subjects. Since 2005 I have been an approved assessor and repairer for several major insurers such as NRMA, Shannons, and CommInsure for personal injury, accident damage and mechanical repair to motorcycles and vehicles, caravans, trailers, marine craft, and commercial vehicles. Since 2005 I have undertaken this work on hundreds of vehicles and watercraft. I have assisted in Court and Tribunal proceedings as an advisor and Expert Witness in automotive failure, crash matters and repair quality disputes relating to the automotive and boating industry, to legal, insurance, repairers, industry, and government bodies. I have worked in this capacity across Australia and Overseas and at all Court levels (Federal Court and Supreme Court in class actions; District and Local Courts along with multiple civil and administrative tribunals). I am the National Chairman of the Australian Automotive Repairers Association (an industry Sector Body working with Government and Industry) and am a Governing Councillor of the Motor Traders Association of NSW (MTA), which represents over 4000 MTA members and their automotive businesses. I am also a National Assessor and Auditor for Gas Energy Australia assessing in Level 2 LPG installations and certification. In 2007 I designed and implemented an LPG Installation, Service and Repair course for the MTA to National Competency Standards. My most recent experience involves designing and implementing alternative fuel Hydrogen Technology, about which I have advised Federal and Overseas Governments and Investors including investors from Bangladesh, Ghana, and remote areas of Australia for generators, trucks and buses, vehicles and ships. In November 2019 I travelled to Inner Mongolia where I had been invited by the United Nations to assess implementation of this technology to reduce emissions and provide training plans for mine sites.

My Experience as an Expert Witness

LPG Accidents and Asking for the Right Expert

As a lawyer, once you decide you need an expert, you need to think laterally when assessing the area of expertise you believe is needed. This will ensure you get an appropriate expert who can not only give you the specific knowledge you need, but also assist you in considering other areas which may be helpful and relevant to your matter. A lawyer recently asked me about a house fire, clearly an area out of my expertise! However, as we discussed her matter further, I discovered in the fire brigade report that a venting LPG cylinder was involved, and it raised the question whether this may have contributed to the severity of the incident. I was able to advise on LPG cylinder construction, and the patterns and effects of escaping LPG when fire impinges on an LPG cylinder, specifically what happens to flame fronts when a cylinder leaks, along with the rules and regulations and correct storage methods for cylinders. This new understanding gave the lawyer the ability to consider other areas of their brief and greatly assist their client. As a lawyer you are the expert in the law. Your expert knows their field, don’t be afraid to ask them for thoughts or suggestions.

Class Actions and Manufacturer Assumptions

I have recently been involved in two large class actions. One matter involved diesel vehicles with intentionally modified computers by the manufacturer to bypass emission laws. I was given evidence and assumptions to rely on. Whilst some of the same technical assumptions had been used in similar international class actions, based on my practical experience I nevertheless questioned some of these assumptions on theoretical components. I understand this enabled the Australian legal team to put forward additional claims. In the second class action matter I was asked to observe experts employed by a vehicle manufacturer assessing a motor vehicle, which represented an exceptionally large series of models claimed to be defective. During those visits I kept detailed notes and images of the experts’ testing methodology, recording numerous areas of their testing which I was concerned with in addition to serious faults with the vehicles which were not reported or recorded by the experts in the first place. In this matter the tested vehicle had many issues, some of which were exhibited when the vehicle was hot, driven in hilly areas, or was in stop start traffic – I recorded these issues during my own road test. In contrast, the manufacturer’s experts drove many tens of kilometres and detected no faults. Although I had not been required to produce a report, my notes were obtained by both parties, and I was questioned on their content and my findings during cross-examination. My notes and answers brought to light my concerns about the testing methodology and the many faults I had found. Due to my experience of road testing hundreds of varying car makes over many thousands of kilometres, my evidence that the testing methodology was flawed and the faults I found, substantiated from my notes, was accepted. I understand this carried great weight for the outcome of the case.

Mechanical Failures and Practical Understanding

I have found over time that large organisations like vehicle manufacturers try to force their view, suggesting that the findings of their in-house technical staff are correct and final. They will often reply to questions or a report with jargon-based answers. One matter I was called to opine on concerned a luxury V8 high end sports vehicle. The owner claimed that the vehicle had major defects and had constant issues from the date of purchase. The vehicle had been returned to the selling dealer for repair on very many occasions and each time, either no invoice or a very technical invoice would be issued. My brief was to “decode” these technical invoices and manufacturer’s statements, and assess the vehicle’s operation. Part of this assessment included a diagnostic scan tool being connected to the vehicle’s electronic on-board computers which was able to read and diagnose various vehicle faults or Diagnostic Trouble Codes (DTC). These codes are based on universal downloadable codes that are interpreted by the scan-tool. My Report listed these found trouble codes, their meanings, and the indicated faults. Several of the codes I found were challenged by the manufacturer’s technical department with comments like “this is a generic code and means a test hasn’t been completed and therefore is not relevant”. These comments were made as strong definitive statements. I was able to counter their argument by listing occasions when a particular code would be generated but corresponded to an actual fault in the vehicle or an actual fault in another unrelated area of the vehicle. I demonstrated the inaccuracy of the manufacturer’s comments in a Supplementary Report, along with substantiating evidence. My specific knowledge of procedures and times required to perform those procedures, along with how issues affect real-life operation, became an important part of the success of this claim. Without this kind of expert knowledge, the manufacturer’s comments would have been accepted as effectively counteracting a large section of the plaintiff’s claim.

Takeaways and Tips

The matters above highlight how lawyers can get the best from an expert before the Letter of Instruction. Whilst lawyers understand their matter and in the majority of cases know what information they need from an expert, it is worth their time to give a potential expert an overview of the matter before committing totally to questions in a brief. During preliminary discussions, the expert has the opportunity to clarify issues and explore possible ranges of enquiries which may not have been previously considered. This enables an expert to take an advisory role and discuss lawyers’ specific requirements, bringing to light any other areas they think it is relevant. As an analytical thinker in conference, I advise when asked on options for courses of action. As an example, in conferences before the Letter of Instruction, on occasion I have suggested to the lawyer other areas of enquiry which may further their understanding of the brief. Done before the Letter of Instruction, this helps formulate a pathway for evidence gathering. Once a Letter of Instruction is issued advising the expert to proceed with research and give an opinion, asking specific questions to form the report, the expert becomes limited by the instructions and the report can fail. From experience I know that the lawyer or barrister using the expert’s experience before formal instructions, will achieve greater value from their expert report, further strengthening their case. Ensure you have the right type of expert for your particular matter. Whilst a theoretical expert may be appropriate in one area, I found from my practical knowledge a “real life view” has been more appropriate in many matters.

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