Caution for experts

by Chan Kheng Hoe, Head of Construction Law, Chong + Kheng Hoe

It is now commonplace for experts to be employed to determine either quantum or delay in construction disputes. O. 40A r. 2 Rules of Court 2012 (“ROC 2012”) stipulates that the duty of the expert is to assist the Court on matters within his/her expertise, and that in doing so, the expert’s duty to the Court overrides any obligation he/she may owe to the person who commissioned his expert views.

Experts would do well to bear in mind such over-riding duty to the Court, as any adverse finding by the Court may well impact on the integrity of the expert even for future cases. One such example that comes to mind is the case of Era Kemuncak Jaya (M) Sdn Bhd v Tenaga Switchgear Sdn Bhd where the learned judge, on the facts, concluded that the expert witness was not independent, impartial or reliable.

The result of the learned judge’s observation was that the learned judge disregarded the expert’s views. As any disputing party would know, an expert opinion oftentimes come at a high cost, and it would be a tremendous waste at the end of the day if the expert opinion were simply disregarded.

To avoid such an outcome, any expert ought to bear in mind the requirements of O. 40A r. 3 ROC 2012, which is a helpful guide as to what an expert needs to fulfill for his/her views to be considered. The said rule states as follows:

An expert’s report shall-

1. give details of the expert’s qualifications;
2. give details of any literature or other material which the expert witness has relied on in making the report;
3. contain a statement setting out the issues which he has been asked to consider and the basis upon which the evidence was given;
4. if applicable, state the name and qualifications of the person who carried out any test or experiment which the expert has used for the report and whether or not such test or experiment has been carried out under the expert’s supervision;
5. where there is a range of opinion on the matters dealt with in the report-
   1. summarise the range of opinion; and
   2. give reasons for his opinion;
6. contain a summary of the conclusions reached;
7. contain a statement of belief of correctness of the expert’s opinion; and
8. contain a statement that the expert understands that in giving his report, his overriding duty is to the Court and that he complies with that duty.

It must be borne in mind that although O. 40A r. 3 ROC 2012 refers to an expert’s qualifications, that does not necessarily have to be academic in nature. The Court in fact recognizes that expertise may well stem from practical knowledge and experience and not necessarily have to be derived from any professional qualification. Hence:

1. In Said Ajami v Comptroller of Customs [1954] 1 WLR 1404, a bank manager was held to be an expert to determine whether bank notes were legal tender
2. In Chin Ah Yee v PP (1937) MLJ 14, a customs officer experienced in testing liquor was qualified as an expert on liquor;
3. In R v Silverlock [1894] 2 QB 766, a witness of was accepted as an expert to prove handwriting;
4. In PP v Lee Pak (1937) MLJ 264, a person with sound knowledge of automobiles was deemed competent to testify that the brakes of the car were in dangerous condition; and
5. In James Longley and Co Ltd v South-West Regional Health Authority 25 BLR 56, a claims consultant who was not professionally qualified was accepted as an expert to give evidence on delays to a construction project and its financial consequences.

As to the requirement to confirm the literature relied upon, it is best that the expert confirms to have read all the bundles of documents filed for purposes of trial in order that the expert may confidently say that he has considered not only the documents of his principal but also that of the opposing party.

With the Federal Court’s pronouncement in Cubic Electronics Sdn Bhd (in liquidation) v Mars Telecommunications Sdn Bhd [2019] 6 MLJ 15, liquidated damages clauses are now enforced on its terms, subject to the contractor being able to prove the unreasonableness of such clauses. Therefore, scrutinizing the causes and effects of delay events become even more critical, either in defending or defeating the liquidated damages clause. Whilst the contractor pre-Cubic Electronics could put the employer to a strict proof of its loss, the contractor post-Cubic Electronics now bears the burden to demonstrate that the strict enforcement of the liquidated damages clause would be unreasonable. The fact that delays were not primarily caused by the contractor would be one viable approach towards defeating the strict application of the liquidated damages clause.

The simplest approach towards demonstrating that delays were (or alternatively were not) caused by any one party would be by appointing an expert to review the progress of the works and how the critical path was impacted by various delay events. Undoubtedly such work is tedious in nature, hence the substantial costs involved.

Having expended substantial costs to procure the opinion of an expert, parties would do well to ensure that their experts at the very least comply with the requirements of O. 40A r. 3 ROC 2012 in order that the substantial costs expended would not go to waste.