It is not an unreasonable question but is the subject of extensive debate as to whether an expert witness should be brought in earlier or left until the end?

Other questions asked are whether legal costs are reduced by utilising an expert witness early on, should you wait to see if the other side brings in outside help?

On numerous occasions ExITS has been requested to investigate and report on a machine failure. This request nearly always coming from the Defendants or Plaintiffs solicitor.

Ex International Technical Services (ExITS) have rarely presented a report purely on the instructions of the Plaintiff or Defendant, believing that the instructions should come from the solicitor.

At this point it has to be recognised that the solicitor, unknowingly, may not be actually looking for an "opinion", rather he / she initially needs somebody with the knowledge of "where to look" for the relevant data, and "what to look for". The raw data in itself may be adequate for the solicitor to satisfactorily close the matter. In the event of this data not being adequate, the interpretation of that data, or an "opinion" may be sought afterwards.

In the following, compressed, case description, the Defendant and Plaintiff had already been through the lower court and pre-trial hearings, the matter then being referred to the Supreme Court. It was at this point, after the earlier pre-trial hearings and prior to the Supreme Court appearance, that the author was requested to provide input to the case.

The Plaintiff was a drilling contractor, with extensive experience in horizontal and directional drilling, through hard and soft sub soil interfaces.

The Defendant was a well-established contractor with substantial experience in industrial control systems and instrumentation, their applications and installation, specifically to the type of environment that the drilling platform was to be utilised in, non-hazardous but extremely rugged and arduous.

The Defendant was contracted by the Plaintiff to supply and install a control system to semi automate a mobile drilling platform. The main drill assembly, hydraulic units, trailer assemblies, drivers cabs and generator / pumping system were free issued to the Defendant. The Defendant was to supply and install controls to the platform and interface the various units into one programmable logic controller (PLC), these controls would then provide platform operators with the means of monitoring and controlling the platform operation. The PLC was a brand name known within the process industries as being suitable for this type of application.

The matter was brought to litigation on the basis of non-performance of the drilling platform, after the Plaintiff had taken delivery, and after the drilling platform had failed in its intended application on a site. The drilling augurs had seized, sheared off, and had to be recovered and the entire operation started again. It appeared that the augurs had reached a particularly difficult sub soil to penetrate, which in turn required a higher hydraulic pressure to turn the augur; the hydraulic pressure being converted to a torque measurement made available to the operator via local indicators. The subsequent recovery of the damaged augur required an extended period of time to rectify by the Plaintiff, and in turn affected the overall contractual timetable the Plaintiff had to adhere to, and, involved, large consequential losses.

It was, after equipment inspections, established that no calibration or set up had taken place, of the entire system, as a single entity. Different items of equipment or components had been checked and verified as individual items. No calibration checking or procedure was in place to check the system as a single entity. It was also evident that typical project related procedures had not been utilised, eg. drawings were not reviewed, no specifications issued, no risk analysis.

The author was contacted by the Defendants solicitor some two years after the event, and approximately nine months prior to the Supreme Court hearing proposed date

The author was requested to carry out a detailed survey of the drilling platform, review the design and construction, comment on the functional logic of the PLC, audit the operability of the platform and submit a report on the findings.

As in all matters, ExITS advised the Defendants solicitor that the outcome of that report might not contain what they wanted to hear or see.

It became apparent very early in the investigation that the written contractual arrangements between the Defendant and Plaintiff were almost non-existent. The contract had been entered into very much "on a hand shake" and verbal instructions from the Plaintiff. No design, performance or functional specification was available; no detailed purchase order was in place. A number of third party interface devices had been utilised between various "free issue" parts of the platform hydraulic units and the PLC. These third party devices had been purchased from other equipment manufacturers, by the Defendant, for use in the drilling platform control circuits.

The final completion date for the platform was an issue. The Defendant acknowledged that the drilling platform was not 100 percent complete at the time the Plaintiff required it.

It was documented that a particularly unpleasant situation arose when the Plaintiff insisted on taking possession of the platform, without the approval of the Defendant. The solicitors were aware of this and it was for legal argument to establish the contractual obligations of these circumstances; contractual issues not falling within the scope of the expert witness.

No factory acceptance test (FAT) or site acceptance test (SAT) had been put in place, requested by either party or documented; no formal procedure had been established for handing over the unit. There was an informal understanding that the Defendant would demonstrate the operation of the platform to the Plaintiff, at some point in time, at which time the Plaintiff would have signed off and accepted the platform.

The author carried out a detailed inspection of the drilling platform, using typical forensic engineering practices and root cause analysis. Two years after the event, and, after several modifications had been carried out on the platform by other contractors, it was very difficult to pin point any specific single point failure. The overall functionality of the platform remained the same. No mechanical modifications had been made and the hydraulic packs were as originally supplied.

During interviews with the Defendant and third party equipment suppliers, emphasis was placed on the suitability of a specific, hydraulic pressure to current converter. The author carried out test and inspected this particular unit; whilst the robustness of the unit, eg. it's enclosure rating, and the components may have been questioned, its prime function as a converter was suitable.

A draft report was issued to the Defendants solicitor and Barrister for comment; at the same time emphasising that the material content could not be changed, what was open to comment was the layout and the request to explain in further detail what specific findings meant. This is normal practice between expert witness and legal representation.

A copy of the final report was duly submitted to the Plaintiffs Barrister and solicitor. After review, all parties met (with the exception of the expert witness) and the matter discussed. The outcome being that a mutually acceptable settlement was made before going to the Supreme Court.

Of particular interest in this case, and the main reason for placing this article, is that the major findings of the expert witnesses report, would not normally be considered as part of an expert witnesses brief.

Only after investigation would the impact of these findings become apparent - added to which a law firm would not normally be expected to be familiar with industrial engineering and "hand over" contractual practices.

The implications of not having written commercial agreements were pursued by the solicitors and fell completely outside of the scope of ExITS brief.

No acceptance test procedure was in place to ensure that the platform performed as required - particularly under load.

And a significant finding, the drilling platform utilised a technology and man machine interface that the Plaintiffs operators were not familiar with, no training had taken place and no exposure to the technology had been provided (typically at the time of acceptance) to the operators, subsequently leading to a possible mis-operation.

ExITS has carried out a number of these expert witness engineering investigations, or forensic engineering - over the coming weeks specific articles will be published, to highlight the issues raised and identified in particular cases, and the number of cases where the outcome is not due to a specific failure of an item, but rather to items of a non technical nature.