Protecting the House Buyer – Legal Aspects Introduction It is a privilege to have been invited to speak at the 10 th Annual Conference of IOWA. The topics I have been asked to address include: • Expressing an expert opinion • Protecting the house buyer • The liability of the expert Expressing an Expert Opinion What is an expert? On the 18 th January 2017 the Law Reform Commission published its report on the Consolidation and Reform of Aspects of the Law of Evidence (LRC 117-2016). 1 The report made several recommendations including the recommendation that the recommendations in the report be incorporated into an Evidence Bill which should also include a consolidation of existing Evidence Acts. A draft Evidence Bill was appended to the report. The Draft Evidence (Consolidation and Reform) Bill defined the “expert” as “a person who appears to the court to possess the appropriate qualifications, skills or experience about the matter to which the person’s evidence relates (whether the evidence is of fact or of opinion), and who may be called upon by the court to give independent and unbiased testimony on a matter outside the knowledge and experience of the court, and the terms “expert evidence” and “expertise” shall be interpreted accordingly”. Without prejudice to the above, “a person may be regarded by a court as being qualified to give evidence as an expert in civil or criminal proceedings by virtue of his or her knowledge or experience in the matter to which the person’s evidence relates”. “When assessing whether a witness is to be considered an expert, a court shall take account of the length of time the person has spent studying or practising in the particular area and, in the case of a retired person or any person no longer studying or practising in that area, the length of time he or she has spent away from the particular area”. 1 http://www.lawreform.ie/_fileupload/Evidence%20Report%20Completed%20Revised%2018%20Jan.pdf 1
I bring your attention back to the title of this presentation and the fact that the sub-title is “legal aspects”. I have not been introduced as a barrister or a solicitor because I am not one. I have however spent a considerable amount of time giving expert evidence in court cases and arbitrations within areas of my expertise as an engineer. I have learned a lot from experience and therefore consider myself entitled to make this presentation as an expert. I will leave you to be the judge. Decide whether you want to accept what I have to say and why. In civil and criminal proceedings, an expert witness has “an overriding duty to the court to provide truthful, independent and impartial evidence, irrespective of any duty owed to the instructing party”. There is a duty to state the facts and assumptions (and, where relevant, any underlying scientific methodology) on which his or her evidence is based and to fully inform himself or herself of any and all surrounding facts, including those which could detract from his or her evidence and, where relevant, his or her expressed opinion. There is a duty on the expert to confine his or her evidence (whether of fact or opinion) to matter that is within the scope of his or her expertise, to state clearly when a matter falls outside the scope of his or her expertise and to distinguish clearly between matters of fact and matters of opinion when giving his or her expert evidence, whether given orally or in the form of a written report. There is a duty to his or her instructing party to act with due care, skill and diligence, including a duty to take reasonable care in the drafting any written report. A court may determine that the evidence of any witness who fails to comply with any of the duties of an expert witness is inadmissible. The Draft Bill goes on to address the civil liability of the expert witness as follows: “To the extent (if any) that the common law immunity of an expert witness from civil liability in respect of the testimony he or she gives in court has survived, it is hereby abolished” and “an expert witness shall not be personally liable for breach of any duty in contract or breach in any duty in tort, except where it is established that the expert acted with gross negligence in giving his or her evidence in court in civil or criminal proceedings or in preparing a report, including a report prepared in contemplation of civil or criminal proceedings”. The Draft Bill goes on to say that “a solicitor who instructs any person to appear as an expert witness in civil or criminal proceedings shall be under a duty to inform both that person and the solicitor’s client of the consequences, including the possible consequences in civil liability, of the failure of the person to obtain indemnity insurance”. In summary each of us attending today’s conference has expertise, whether that expertise has been acquired by training or experience. We need to apply that expertise carefully. 2
Expert Opinions In providing an expert opinion “what really matters in most cases are the reasons given for the opinion. As a practical matter a well-constructed expert’s report containing opinion evidence sets out the opinion and the reasons for it. If the reasons stand up the opinion does, if not, not”. 2 The skills of the expert witness in court can and should be applied in our normal day’s work in providing expert advice to our clients. When you provide an opinion to a client and give expert advice, have good, well thought out and well researched reasons for the opinion that informs the basis for the advice you give. Use good references whether they be recognised Standards, Technical Guidance Documents, Codes of Practice, etc. A slideshow for a presentation entitled “The Engineer as an Expert Witness” gives further detail in the link below for viewing. This is based on a presentation which was shortlisted by Engineers Ireland for an Excellence Award in the Best Presentation Category in 2016. https://www.dropbox.com/s/no21ktcelpf826d/IOWA%202018%20The%20Engineer%20as% 20an%20expert%20witness.pptx?dl=0 Protecting the House Buyer The National Planning Framework 3 has a National Policy Objective (No. 32) to target the delivery of 550,000 additional households to 2040. There will be an increased need for engineers and related professionals to provide an excellent service to house buyers as they embark on what for many will be the biggest investment of their lives. To create awareness and support the sustainable development of Limerick, Clare and North Tipperary the Thomond Region held a public event during Engineers Week 2018. The aim of the event was to share knowledge. Those that attended included first time buyers and those trading up or trading down. Architects, surveyors and solicitors were also in attendance. The presentation can be replicated in all regions throughout the country. The presentation served to ensure that house buyers would know what to look out for, ask the right questions, take good advice, avoid costly pitfalls and enjoy insofar as possible the process of acquiring their new home. They were invited to take time to visualise and attend an imaginary inspection of their future home. Safety 2 Jacob LJ in Routestone .v. Minories Finance (1997) BCC 180 3 http://npf.ie/wp-content/uploads/Project-Ireland-2040-NPF.pdf 3
A safe place to live is a basic human need. Many questions must be asked. Is glass in windows and doors safe having regard to location? Are there smoke, heat and carbon monoxide detection and alarm systems? Are they in working order? Are there windows in bedrooms that will facilitate escape or rescue in the event of fire? Are balustrades on landings and handrails on the stairs the right height? Can children get caught between spindles or other gaps? Is there adequate headroom over the stairs? Is the gradient of the stairs too steep? Is there dampness in the house? Is there adequate ventilation? Is there mould on walls or ceilings? If there is a septic tank is it securely covered? Are there any rusty covers on manholes or other service chambers? Are there lights in the garden? Are the cables serving these suitable and safely protected? Are there overhead cables? Are they insulated or uninsulated? Are cables concealed in trees or other plants? Are boundary walls properly constructed and in good structural condition? Are precast caps on walls secure? Are steps, ramps and paved areas safe? Is there a risk of lights, antennae, guttering or other things falling from a height? Did you know that home owners have responsibility for safety when having construction work carried out on their home? The owner of a domestic waste water treatment system shall (inter alia) be responsible for its maintenance and renewal and shall ensure that its parts and components are fit for purpose, operational where appropriate and kept in good order and repair so as to prevent a risk to human health or the environment. 4 Has protection from Radon gas been considered? In Ireland up to 250 cases of lung cancer are linked to Radon each year. So many questions and so many more? Be safety aware! The Site 4 S.I. No. 223/2012 - Water Services Acts 2007 and 2012 (Domestic Waste Water Treatment Systems) Regulations 2012. http://www.irishstatutebook.ie/eli/2012/si/223/made/en/print 4
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