Expert Witness Case Study – Expertise, Errors and the Expert

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Holdsworth & Ellison v RSPCA [2015] VCC 653 

Background

The case involved a dispute concerning the slaughter of cattle which occurred in the early 1990s on Victorian land. The dispute considered whether the RSPCA acted negligently in mistakenly putting down certain cattle owned by the plaintiff. The plaintiff’s contention was that, as a result of the slaughter of the cattle, they were left with insufficient breeding cattle and were forced to sell calves to satisfy their financial obligations. Various expert witnesses were utilised in relation to quantifying the loss suffered by the plaintiffs. The court took issue with the use of these expert witnesses for a number of reasons including the nature of their expertise, errors in their reports, and their perceived levels of independence. In this blog post, we will delve into selected issues that arose in the case.

Evidence of Mr Joe Dicks

Individuals involved in the preparation of the report

The Court drew attention to one particular expert, Mr Joe Dicks, a financial expert witness for the defence. The Court noted that significant input into the report was provided by a colleague of Mr Dicks, Mr Leigh, who had experience in relation to large beef cattle businesses as well as regional and rural markets. Dicks did not claim such expertise in his CV. Mr Leigh cosigned an initial report but not cosign supplementary reports which were subsequently produced. The court drew attention to the following issues with this style of report production:

– Despite the fact that Mr Leigh had significant involvement in the preparation of the report, he did not provide evidence;

– Where other expert witness reports utilised in the trial had been co-authored, both authors had been available to give evidence and be cross-examined; and

– The report did not clarify which person carried out which work in relation to the report and whether any of this work was delegated to junior members of staff.

Also noted in the trial were other issues with the evidence provided by Mr Dicks, namely that:

– Mr Dicks conceded that he was not an expert in relation to stud cattle and instead approached the issue on the basis of commercial cattle;

– His staff were responsible for developing the financial models which were used to estimate loss;

– Opinions provided in the expert witness report were based on data which was insufficient to draw such conclusions;

– Mr Dick did not have sufficient information on key issues such as the quality, condition, and age of the herd, the propensity of the cattle to breed within their first year and the impact that the drought had had on the cattle.

Errors in the report

Bowman J noted that the errors in the report prepared by Mr Dicks posed another issue which “shook his confidence” in the expert evidence provided. These errors included:

– Mathematical errors resulting in his loss estimate changing from $194, 340 to $216, 207 between the first report and a supplementary report;

– Providing a loss calculation in the first and supplementary report which failed to take into consideration 96 additional calves. This resulted in a second supplementary report where the loss estimate increased to $397, 240; and

– Arithmetical errors which further increased the estimated loss to $436,966 and required the production of a third supplementary report.

Bowman J held that “the conceding of errors of this magnitude, and the major error not being appreciated until cross-examination, does not create a particularly favourable impression”. He held that the added complexity which occurred as a result of his errors was such that the entire body of evidence should be rejected.

Conclusion

The above analysis concerning the expert testimony of Mr Joe Dicks highlights key lessons for legal counsel dealing with expert witnesses. Firstly, if the expert intends to co-author the report with another expert, that second person should be available to testify at trial. Secondly, legal counsel should ensure that the expert themselves has the required expertise and the expertise does not belong to someone else within the expert’s firm, thus requiring delegation of expert witness report production. Furthermore, legal counsel should emphasise to their expert witness the importance of precision and accuracy when preparing reports, as errors and the need for supplementary reports to rectify these are not well received by the court.

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