Geology Reference
In-Depth Information
When disputes reach the stage of either arbitration or civil court, where
one party sues another, it is usual for the parties to employ experts to
advise them on the validity or otherwise of their case and, if they agree
with their client
s position, to make a report stating the reasons why.
Because many ground condition claims are fundamentally linked to a
poor appreciation of geology, engineering geologists often become
involved in disputes as experts. Initially, the expert will be advising
his client on the strength of the claim, outside any legal proceedings. If
the expert disagrees with his client
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s position, he must tell him as soon
as he recognises that situation. It will then be up to the client and his
legal advisors to decide how to proceed.
If the expert thinks his client
is case is valid and he writes a report that
may be used in evidence, it is important that he recognises that his
overriding duty is to the court rather than to the party that is paying for
his services. The expert needs to understand that in complex, technical
cases his evidence can often be pivotal. Questions put to an expert and
his replies to them are treated as part of his evidence. Experts are
required to make some statement of truth, that he believes that the
facts stated in his report are true and that the opinions are correct and
his own. He will also need to make an oath in court. The court will
often request that the experts employed by the two sides hold meetings
and prepare joint statements, identifying where matters are agreed and
where matters are in disagreement. In principle, this sounds straight-
forward but sometimes instructing lawyers will prevent or limit the
agreement of experts, partly because, whilst experts may agree broadly
or compromise over some technical issue (as they would if they were
working together on an engineering project), there may be subtleties in
the legal considerations and case law that might hold sway. That said,
technical experts must beware being led by lawyers in preparing their
reports and must not attempt to argue points that they are not happy
with or that fall outside their knowledge and expertise. In court,
barristers, judges and arbitrators will question experts very thoroughly
and a tenuous and weakly held position will usually be exposed for
what it is.
Geotechnical experts need to recognise that they are not legal
experts. The author was involved in a case where the contractor had
accepted all ground risks. The situation appeared clear-cut and hope-
less for the contractor to a layman, but a barrister educated me that the
owner and his design engineers had made
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which
would affect things legally. Quite often a party is clearly at fault in
some way but there may be some question over their legal responsi-
bility. To resist a charge of negligence the engineer need not have done
everything right
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representations
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just to the same quality as his peers on average.
I have heard an expert say in court,
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I have seen worse
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, as an excuse for
