15 Dec The casting of shadows…..why you might need a Shadow Expert on a plumbing disaster
IMPORTANT CLAIMS HANDLING UPDATE
Any blog post in the Metropolis Solutions Blog Archive that includes any direct or indirect reference to insurance claims handling of any nature whatsoever, including any reference to existing and/or potential claims, was posted prior to 01.07.21, is for general information only and may also no longer be applicable due to recent changes in Federal Financial Services laws concerning claims handling. Please note that Metropolis does not hold an Australian Financial Services (AFS) Licence for claims handling and therefore qualified expert assistance on any insurance related matter, including Victorian Plumbers Warranty, should now be sought from a suitable lawyer or other expert holding an AFS claims handling licence. Metropolis Solutions can still consult on insurance claims handling matters, but only in the instance where we are directly engaged to do so by your authorised legal representative.
“The Casting of Shadows” – Russell Kirkwood, forensic plumbing expert / shadow expert
The role of the Shadow Expert is one that I have been cast in for many years – initially without even realising it. It wasn’t until one day when an insurance lawyer that I’d been working closely with on a large complex matter referred to me as being his “Shadow Expert” that I first stood back and considered just what this role could mean and achieve.
Working at the coal face of the loss adjusting industry from both the insurance perspective and more recently also from the claimant’s perspective, I have come across almost every conceivable issue when it comes to plumbing problems – whether the situation has been in a humble house, a sprawling mansion, a multi-storey tower building or an industrial / commercial situation. Whether the problem has been installation or product related. Whether the problem has been there for everybody to see (roofing) or whether it has been buried deep underneath or within the structure of a building. The only thing I’ve come to expect is the unexpected when it comes to what can go wrong with plumbing products, the black art of plumbing and plumbers themselves! The number of fires that happen in buildings is dwarfed by the number of floods in buildings – most of which can be traced back to a plumber’s ute one way or another!
After 20 years of working as a licenced plumber followed by 10 years working as the specialist assessor of choice across the board for all of the insurers in the field of plumbing warranty claims I had by default become a Plumbing Expert and Shadow Plumbing Expert who was relied upon by a large number of lawyers acting for the various insurers involved in the Victorian Plumber’s Warranty Scheme.
As a result of liaising with and working intimately with all manner of Experts, I had myself become an Expert of a different type – the Shadow Expert or sometimes colloquially referred to as a ‘dirty expert’.
Experts by their very nature can become “silos” in the industry – dealing just with the details, theory and with other experts. This level of expertise can compromise a broader perspective of the “real world” and how things are actually done versus how things should be done in text book conditions.
The Shadow Expert occupies a liberating space of being able to express opinions in the way that a “clean” Expert cannot do. This enables the insurers, lawyers and their clients to develop an excellent understanding of the big picture and also to be advised as to whether the ‘clean’ Experts are actually on track. In my role as a Shadow Expert I enhance the relevance and clarity of the Expert Reports by appropriately focussing the questions being put to the ‘clean’ Experts from a practical and pragmatic perspective.
For example, not everybody can imagine what a belowground piping system actually looks like if it is being presented in an expert report as a series of datum measurements on a plan drawing. I subsequently developed a means by which Experts could present their factual findings in an elevation drawing which suddenly could make sense to everybody as to what the underlying cause of the symptoms of the problematic drainage system was. The facts hadn’t changed, but suddenly the facts became effective and highly useful to everyone.
Shadow Experts can also take on the role of carrying out the on-the-ground investigation works and in so doing can then pin-point where the ‘clean’ Experts can be deployed with the most effectiveness – thereby narrowing the issues that are genuinely in dispute. A Shadow Expert with the right communication skills and experience is extremely well placed to advise as to which specific Experts should be retained on the matter at hand. From my own experience I am confident in knowing who is the best of the best when it comes to being the Expert of choice for a particular situation.
Lawyers have used my skills, knowledge and practical experience in determining causation and identifying and deploying the relevant Experts that would also be required in a given case. This has included forensic structural and civil engineers, hydraulic engineers, mechanical services engineers, polymer materials experts, forensic material testing experts, fire engineers to name a few. The effective deployment of an excellent Shadow Expert will narrow the field when it comes to keeping a lid on costs for all Experts and ensures that the use of the expensive highly academic Experts is kept to the minimum of where they are actually required.
This is good for everyone involved. It also actively works to support the substantial obligations all parties have in a litigation situation to actively narrow the area of dispute prior to any trial and if possible to resolve issues before any dispute gets to Court. These obligations exist in various areas but of particular note are those imposed by laws such as the Civil Procedure Act 2010.
During my time in the field of specialist plumbing assessing I have seen so-called Experts who have to be seen in action on the site to be believed. For example I’ve seen structural engineers roll a golf ball around a floor to determine whether a house floor is out of level. Sure, the golf ball certainly did roll and it was no doubt a cost effective “tool” but no measurements were recorded and the subsequent report was all based on opinion rather than hard facts. In contrast, I’ve worked closely with forensic structural engineers of the highest calibre who set about meticulously taking measurements using a gas level and then recording the results onto detailed sketches of the building – this should be done as a matter of course for a situation where structural movement is in question. Results can then demonstrate not only the level of movement but also the underlying cause (i.e. heave or subsidence or a combination of both and to what degree and then what this means to the claim situation in question). All this happens on site and is not able to be monitored by the lawyers who are blind-sided by what goes on but then have to somehow digest and then rely on what comes back to them.
A Shadow Expert can also be that “other set of eyes” – someone who has the understanding to review conflicting expert opinions. In my role as a Shadow Expert I enjoy thinking laterally and being creative when it comes to posing the right questions, diffusing differences or conflicts in expert opinions – long before the opportunity for expensive ‘hot tubbing’ of Experts needs ever to take place, yet alone something like a trial.
As one prominent Expert said to me once – he was very worried the first time he was cross-examined by SC, however, he eventually completely relaxed when he realised that this SC had no real understanding or knowledge of plumbing and that’s what he was there to discuss. I loved this advice to me of long ago and have kept it close as it has emboldened me to realise that my skills and knowledge are highly important when it comes to plumbing claims. If this SC had been briefed by a Shadow Expert such as myself, then perhaps my esteemed colleague would not have been quite so comfortable himself! Indeed this also touches on the very points discussed at the recent AILA seminar in Melbourne whereby lawyers and barristers noted that they often have absolutely no knowledge of the matters at hand and often struggle to both brief experts and to cross examine them effectively, therefore the use of “Shadow Experts” can be extremely effective.
Russell Kirkwood is available for engagement as a forensic plumbing expert or shadow expert. Contact Metropolis Solutions for further information.