Raising the Bar: Insights on Why Sub-Standard Expert Reports Fail in Court – Lessons from a Recent Insurance Repudiation Case

On 16 October 2024, the Pretoria High Court delivered a judgment in an insurance case where the insurer had repudiated the policyholder’s claim on three grounds:

• The policyholder drove at an excessive speed, showing reckless behaviour;
• The policyholder allegedly misrepresented facts in his claim by stating he was avoiding a dog when he lost control of the vehicle, which the insurer argued constituted fraud; and
• The policyholder failed to comply with the policy’s “precautionary clause,” requiring him to take reasonable steps to prevent loss or damage.

Although both the policyholder and an eyewitness testified in court, the case hinged primarily on expert evidence from both parties. The court ultimately ruled in favour of the policyholder, heavily criticising the insurer’s expert report for its deficiencies. The judgment concluded an almost eight-year dispute.

This article highlights key takeaways for insurers, insurance legal experts, and accident reconstructionists, derived from the judgment:

• Experts must not disregard the versions of the insured or eyewitnesses, especially where no objective evidence contradicts these accounts. This is particularly critical when inspections occur after a significant time lapse.
• Experts’ assumptions should be grounded in factual and physical evidence provided by the insured and any eyewitnesses.
• Eyewitness testimony should not be dismissed by experts without objective evidence to disprove it.
• Experts must gather all relevant information, including locating eyewitnesses and verifying details with police officers when possible.
  Where SAPS reports are vague and evidence has degraded over time, experts’ conclusions should link closely with eyewitness accounts if these remain unrebutted by objective evidence.
• Experts should make concessions when they lack sufficient evidence to substantiate assumptions.
• Ideally, insurers’ expert reports should be completed during the investigation stage of the claim. In this case, the insurer’s report was only prepared for the hearing, a practice that the court criticised.

The judgment also shows that oversights in expert reports can reflect poorly on the expert and may even undermine the credibility of their evidence. In preparing for a hearing, legal representatives should thoroughly review expert reports to ensure the evidence is of high quality and helpful to the court in reaching a fair decision. While these takeaways are particularly relevant to accident reconstructionists, they are also broadly applicable to other experts assisting in legal proceedings.

Mtho Maphumulo

Senior Associate | Litigation Attorney

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