Case: FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33
Outcome: cited
It is also accepted that an expert witness is not an advocate for a party and has a paramount duty to the Court and not to the person retaining him: see 'Guidelines for Expert Witnesses' applicable in this Court and National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68 at 81-82 per Creswell J. A want of independence, in the case of an expert witness said to be affected by interest or bias, tends to affect the weight to be given to his or her opinion: see FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 (" FGT Custodians ") at [12] per Ormiston JA, with whom Chernov and Eames JJA agreed. 221 None of these factors by itself would deprive Mr Lambert of the independence desired of an expert witness. I do not consider that Mr Lambert's involvement with Mr Haire would necessarily have affected the evidence he gave. I note too that Mr Morrison was also involved as an expert in other proceedings though for the truck manufacturer. Involvement in other proceedings in the same or similar interest need not affect independence. It was, moreover, clear that Mr Lambert gave evidence of opinions he genuinely held. Nonetheless, it was equally clear that Mr Lambert was inclined to 'side' with the applicants. His apparent commitment to the applicants' position indicated more than intellectual attraction to their position. Precisely why Mr Lambert was so disposed is unclear. As the respondent noted, he had not seen 'eye to eye' with the Roaduser's management or with Mr Wallace from Mack. I doubt, however, that this is a sufficient explanation. It is enough to say that Mr Lambert impressed me as a witness who had, for whatever reason, become somewhat overly involved in the interests of a party to the litigation. As Ormiston JA's discussion in FGT Custodians at [12] makes clear, this circumstance may diminish the weight accorded an expert's opinion. Here, it lessened to some degree the weight I might otherwise have given Mr Lambert's opinion. In the end, however, my preference for Dr Morrison's opinion to that of Mr Lambert's was more affected by considerations other than this. I would add that there was no occasion to exercise my discretion under s 135 of the Evidence Act 1995 (Cth). 222 There were a number of other matters that also tended to diminish the weight to be attached to Mr Lambert's evidence, including that, in cross-examination, it became apparent that much of his technical opinion was not based on any actual testing of the applicants' truck. Thus, for example, Mr Lambert conceded that he had done no testing to establish the relative torsional rigidity of trailers. Instead, his opinion was based on the fact that he had "a very good eye for observing vehicle behaviour". Further, Mr Lambert stated he used his "own observation and measurements" to establish the chassis was bent. When asked whether he established first whether the ground surface was flat, he conceded "Well, I didn't check it in an absolute sense, no ... I have got a very good eye for flat surfaces". 223 Notwithstanding these reservations, I have found it necessary to consider Mr Lambert's evidence carefully.