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An expert witness in a professional negligence case is a qualified practitioner retained to give an independent opinion on whether the defendant's conduct met the standard expected of a competent professional in their field. Unlike ordinary witnesses, expert witnesses are permitted to give opinion evidence — but their duty runs to the court, not to the party who engaged them.
Courts are not in a position to decide, from their own knowledge, what a reasonable surgeon, solicitor, financial adviser, or structural engineer would have done in a given situation. That gap is filled by expert evidence.
To succeed in a professional negligence claim, a claimant must prove that the professional’s conduct fell below the standard of a competent peer. Establishing that standard — and demonstrating where the defendant fell short of it — is almost always the work of an expert.
This is why the High Court’s decision in Rogers v Whitaker (1992) 175 CLR 479 matters. The Court rejected the old Bolam test, which effectively allowed a profession to set its own standard by showing other practitioners would have done the same thing. In Australia, what the profession accepts as standard practice is relevant — but it is not automatically the legal standard. Courts make that determination, informed by expert evidence.
Without a credible expert report, most professional negligence claims will not survive past the pleadings stage.
Under section 79 of the Evidence Act 1995 (Cth), a person may give opinion evidence if they have specialised knowledge based on their training, study, or experience, and the opinion is wholly or substantially based on that knowledge.
In practice, courts expect an expert to be a current or recently retired practitioner in the same field — and ideally the same sub-discipline — as the defendant professional. By claim type, expert witnesses typically come from these backgrounds:
An expert witness retained by a claimant does not work for the claimant. They owe their primary duty to the court. In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, the NSW Court of Appeal was clear: the court must be able to follow the expert’s reasoning process, not simply accept their conclusion. An opinion that reads as advocacy — that cherry-picks favourable facts and ignores contrary evidence — will be given little weight, or none at all.
Expert reports in New South Wales are governed by Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW), which sets out the Expert Witness Code of Conduct. Equivalent codes apply in Victoria, Queensland, Western Australia, and South Australia. Every expert is required to acknowledge that code and confirm their understanding that their duty is to the court.
One development worth knowing about is concurrent expert evidence — often called “hot tubbing.” Rather than each expert giving evidence separately, the court hears both experts together, allowing them to be questioned simultaneously and respond directly to each other. It is increasingly used in the Supreme Courts and Federal Court.
Key case: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
The court must be able to understand the expert’s reasoning process, not merely accept their conclusion. A report that leaps from facts to opinion without traceable reasoning is vulnerable to challenge — and may be given little or no weight at trial.
A report that fails to meet court requirements can be excluded from evidence or given negligible weight — which can be fatal to a claim. A proper expert report will include:
The Makita principles go further than form. The court needs to understand not just what the expert concluded, but how they got there. A report that jumps from the facts to a conclusion without explanation gives a well-prepared opponent a clear target.
A well-reasoned report from a credible expert in the right sub-discipline often prompts settlement well before trial. The quality of the expert report is frequently the single most important factor in how a claim progresses.
Expert evidence does not appear at the end of the litigation process. In most professional negligence matters, it starts early.
Pre-litigation
Before proceedings are commenced, many firms obtain a preliminary expert opinion — sometimes called a merit brief — to assess whether the claim has a reasonable prospect of success. This is the stage at which viability is honestly tested.
After pleadings close
Once parties have filed their pleadings, the court sets a timetable for exchange of expert reports. Each side prepares and serves its own report. The content of those reports shapes the issues for trial.
Expert conclaves
Courts frequently direct the experts from each side to meet — without lawyers present — to identify what they agree on and what they don’t. The result is a joint report that narrows the issues the court actually needs to resolve.
At trial
Experts give evidence in chief by their written report, followed by cross-examination — or via the hot tub process. Obtaining a credible expert is often one of the longest lead times in preparing a claim.
It is normal for each party to engage an expert, and normal for those experts to reach different conclusions. The judge’s task is to weigh them.
A judge is not required to choose one opinion over another wholesale. They can accept parts of each expert’s evidence and prefer one expert’s reasoning on a particular issue while accepting a different view on another. The factors that typically influence how much weight an expert’s evidence receives include:
An expert who dismisses contrary evidence without explanation — or who shifts their position under pressure — will generally be less persuasive than one who acknowledges complexity and maintains a reasoned position. Courts notice.
Expert evidence in professional negligence matters is a significant disbursement. Medical specialists in active practice frequently charge several thousand dollars for a formal report, and more again for attendance at conclave or trial.
On a no-win, no-fee retainer, the law firm will typically advance or manage disbursements including expert fees as part of the funding arrangement. However, the specific terms vary between firms. Claimants should ask directly how expert costs are handled before signing any retainer.
If the claim succeeds, disbursements — including expert fees — are ordinarily recoverable from the defendant as part of the costs order. The Expert Witness Institute of Australia (EWIA) maintains professional standards for practitioners who give expert evidence. Engaging experts who observe those standards tends to produce more reliable reports and fewer challenges at trial.
If you are thinking about a professional negligence claim and want to understand what expert evidence would look like in your circumstances, our team can walk you through what is typically required for your claim type.
In most cases, yes. Courts cannot assess professional standards from their own knowledge — expert evidence is the mechanism by which the standard of care is established and any departure from it is demonstrated. An independent expert opinion is almost always required to advance a claim beyond the preliminary stages.
The party who engages the expert initially bears the cost. On a no-win, no-fee arrangement, the law firm often advances these disbursements, though the specific terms vary. If the claim succeeds, expert costs are typically recoverable from the defendant as part of a costs order.
Disagreement between experts is common and expected. The court weighs each expert’s evidence based on their qualifications, reasoning quality, and how well they engage with contrary views. Judges are not bound to accept one expert’s entire opinion — they can accept different parts of each expert’s evidence on different issues.
Yes. Opposing counsel can cross-examine an expert on their qualifications, the basis for their opinion, documents they did or did not consider, and inconsistencies in their reasoning. An expert who cannot withstand that scrutiny — or who appears to advocate for a party rather than assist the court — will have their evidence discounted.
Hot tubbing is the informal term for concurrent expert evidence, where opposing experts give evidence together rather than separately. The experts can be questioned simultaneously and respond directly to each other. It tends to sharpen the real points of disagreement more efficiently than sequential evidence.
It depends on the field and the expert’s availability. In some areas — particularly medical specialties — reputable experts can have wait times of several months. Building in adequate lead time is one of the key planning considerations in preparing a professional negligence matter for litigation.
Our goal is to help people in the best way possible. this is a basic principle in every case and cause for success. contact us today for a free consultation.
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