Expert witnesses ‘put on notice’

A High Court judge has put all expert witnesses on notice that they could face liability in the future after he awarded $178,000 in costs against two homeowners and their earthquake claim advocate.

The homeowners, Afghan refugees Sayad and Mastoreh Sadat, lost their case against the Earthquake Commission (EQC) and Tower Insurance last year.

The couple had sought a rebuild of their Christchurch home, claiming damage in the 2010 earthquake, but a 2008 assessment revealed the property already had cracked cladding and foundations then, caused by subsidence. They were uninsured in the 2011 quake after Tower cancelled their policy.

In the High Court last week, Justice Gerald Nation awarded EQC $178,000 in costs against the Sadats and the company that represented them, Claims Resolution Service Ltd (CSRL). A cost agreement has been reached with Tower.

Under an agreement with CRSL, owned by Bryan Staples of Earthquake Services Ltd, the Sadats need to pay only the first $10,000 of the costs and the company is liable for the rest. The Sadats had rejected a $25,000 settlement from EQC, in addition to the $43,000 already paid.

Staples was overseas this week and said he did not wish to comment.

Justice Nation said he considered, but decided against, awarding costs against the two engineers who gave evidence in the case. He said the witnesses, geotechnical engineer Owen Thompson and structural engineer Dr Zheng Ping Wu, both failed to meet their obligations as experts giving evidence in court.

Expert witnesses who give evidence in court are required to be objective and impartial.

In a move that EQC claimed was ‘‘an egregious timetable breach and a highly distracting attempt to ambush the defendants and their experts’’, the plaintiffs served documents with new evidence just before the lawsuit hearing date, delaying the case.

Justice Nation said there was no satisfactory explanation for Thompson ‘‘so belatedly’’ requiring further tests just before the trial’’.

The judge said Wu acted ‘‘as an advocate for the Sadats and adopted a position that did not adequately reflect the obligation he had to provide impartial and independent opinion evidence’’.

The judge said the high threshold to award costs against both experts had been met, but he did not want to deter expert witnesses who might fear the personal cost of a lost trial. This was particularly important with Christchurch earthquake cases where EQC and insurers had better access to expert evidence from major engineering firms, he said.

However, his judgment ‘‘should put expert witnesses, and counsel, on notice of the particular risks’’ they might face if they ‘‘effectively dump substantial new evidence’’ close to a trial.