The consequences of fire can impact on a project or within the wider built environment at any time. In fact, the longest part of the life cycle of a building (design, construction, in-use and demolition/reconstruction) is the in-use phase.
Fire-safety issues on completed projects can lead to significant claims against contractors, engineers and architects, and are a common occurrence. The most severe fire-safety issues can also lead to prosecutions, injury or loss of life.
It is during these situations that an expert in fire engineering and regulatory fire-safety compliance can be called as an expert witness to assist with identifying the root cause of an issue. It is recommended that where an expert opinion is necessary, it is important to appoint experts with a thorough understanding of the testing, inspection and certification of products, materials and fire systems, as well as knowledge of the legislation required to demonstrate building compliance.
In countries where common law prevails, such as the United Kingdom, Australia and the United States, an expert witness is a person whose opinion, by virtue of education, training, certification, skills or experience, the legal system acknowledges as an expert in their chosen field. The court may consider the witness’ specialized (scientific, technical or other) opinion about evidence or about facts before the court as an ‘expert opinion.’ Expert witnesses may also deliver ‘expert evidence’ within their specialist field. Typically, the legal system may contest the testimony of one expert witness against that of other experts.
History of expert witnesses
The role of the forensic expert dates back many centuries. In fact, the Roman Empire recognized midwives, handwriting experts and land surveyors as legal experts. With the codified use of expert witnesses and the use of their testimony and scientific evidence, their involvement has developed significantly in the Western court system over the last 250 years. Lord Mansfield first introduced the act of allowing an expert witness to testify in court and provide opinionated evidence on the facts of other witnesses in the case of Folkes v Chadd in 1782. In this particular case, the court was hearing litigation regarding the silting of Wells Harbour in Norfolk and allowed leading civil engineer, John Smeaton, to provide scientific rationale behind the proposed legislation. The decision by the English Court to allow an expert to provide contextual background and detail on a case is often cited as the root of modern rules on expert testimony.
Role of expert witnesses
In the built environment, the role of the expert witness within the court system is to serve as an objective party in a lawsuit; they must not advocate for either party. In litigation cases, the expert witnesses are present to explain complicated scientific issues and not to influence the jury or judge. The main responsibility is to evaluate potential problems, defects, deficiencies, or errors, only when they have full knowledge of a process or system. They are called to testify under the assumption that they have adequately prepared for a competent evaluation of the process.
Typically, experts within the built environment provide opinions on severity of injury, cause of a fire, failure in plant/machinery or other safety systems. In most cases, the expert’s personal relation to the defendant is considered, and usually adjudged irrelevant.
Depending on the type of hearing, the tribunal or the judge can in some systems call upon experts to technically evaluate a certain fact or action, to provide the court with a complete background on the subject. The person’s expertise has the legal value of acquisition of data, and the results are compared to those by the experts of the parties.
Qualifications of expert witnesses
An expert witness at the time of trial is qualified by the court and must be re-qualified each time that person comes to trial. The qualification is given by each trial judge and takes place regardless of prior appearances. The court deems expert witnesses to be qualified to speak on a topic and provide background to anyone on a lay jury. In the United Kingdom, an expert witness is qualified to give evidence where the court itself cannot form an opinion and special study, skill or experience is required. In the United States, knowledge, skill, experience or education qualifies an expert witness.
Duties of expert witnesses
In high-profile cases, each party may retain many experts on multiple topics. Although it is still relatively rare, the court itself may also retain its own independent expert. In all cases, fees paid to an expert may not be contingent on the outcome of the case.
Expert evidence is often the most important component in civil and criminal cases today. In civil cases, the work of accident analysis, forensic engineers and forensic accountants is usually important; the latter to assess damages and costs in long and complex cases.
In England and Wales, under the Civil Procedure Rules (CPR), an expert witness is required to be independent and address his or her expert report to the court. Both sides may jointly instruct a witness if the parties agree to this, especially in cases where the liability is relatively small.
Under the CPR, expert witnesses may be instructed to produce a joint statement detailing points of agreement and disagreement to assist the court or tribunal. The meeting is held quite independently of instructing lawyers, and often assists in resolution of a case; especially if the experts review and modify their opinions. When this happens, it can substantially save trial costs when the parties to a dispute agree to a settlement. In most systems, the trial (or the procedure) can be suspended in order to allow the experts to study the case and produce their results. More frequently, expert meetings occur before trial. Experts charge a professional fee, which is paid by the party commissioning the report (both parties for joint instructions), although the report is addressed to the court. The fee must not be contingent on the outcome of the case.
In Scottish Law, Davie v Magistrates of Edinburgh (1953) provides authority that where a witness has particular knowledge or skills in an area being examined by the court, and has been called to court in order to elaborate on that area for the benefit of the court, that witness may give evidence of his/her opinion on that area.
Expert witnesses in fire matters
Some businesses, like Warringtonfire, specialize in providing a comprehensive range of independent fire testing, assessment, engineering, certification and expert-witness services.
Typically, fire defects on site that result in tribunal will usually involve at least one of the following:
- All fire-safety compliance issues – regulatory, contract, property protection
- Passive fire protection detailing or installation
- Cladding-system design or installation
- Fire-safety strategies
- Structural fire engineering design or installation
- Fire-alarm design/installation
- Sprinkler design/Installation
- Cause and effects design and commissioning
To prevent such incidents, engaging a qualified and competent fire engineer helps to ensure statutory compliance and provides guidance to meet international best practice throughout the lifecycle of a building. Ensuring the correct implementation of a fire strategy minimizes the potential for a fire and its devastating consequences. However, in the event of an incident, whether a fire or an issue relating to the building design, the fire engineer can provide expert advice to deliver a satisfactory solution to an issue or support the legal process as required.
For more information, go to www.warringtonfire.com
About the Author
Branch President, GCC Branch – The Institution of Fire Engineers.
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