Nobody is safe from being sued

Projects involve many players.

The greater the complexity of the project, the greater the number of stakeholders involved. The responsibilities are shared between various disciplines: architects, designers, engineers, builders, contractors, certifiers, owners – each with specific roles. Architects and designers develop design intent and specify materials. Engineers assess design systems, prepared calculations, drawings and reports. Builders implement the design and manage construction. Certifiers check compliance, while owners or end users handle post-construction maintenance. Other stakeholders can include the project manager, contract administrator, authorities having jurisdiction, insurers and more.

Despite the layers of checks, policies and procedures, projects are still delivered with failures and defects, leading to costly legal disputes. Understanding each role is essential to clarifying liability when problems arise.

Projects involve extensive meetings, document exchanges, and discussions. While a small project may be completed quickly, a large project can take years from concept to completion, leaving significant room for change. Project team members may move on, scopes change, delivery methods shift, and unexpected variations can arise. Failures often occur when products are substituted without proper assessment, design changes are not reflected in performance specifications, documentation is incomplete or missing, or communication is inadequate. These gaps create hidden risks and complicate responsibility.

The liability for failures is often unclear and without holistic oversight. No one is willing to take full ownership. Consultants may attempt to shift liability by referring to limitations in their scopes or selectively referring to communication or meeting notes. Therefore, when defects emerge years later, courts struggle to identify who was responsible, particularly if fell outside formal scopes but still influenced outcomes.

In Australia, we deal with proportional liability. This means if a principal contractor is sued and found liable for defective construction, they may issue cross-claims against consulting professionals to recover losses.

For an example, read this overview of the Lacrosse Owners Corporation vs LU Simon Builders case.

To assist courts in making decision, experts are engaged to assess whether professionals met their duties during design and construction, considering the laws and standards in force then. They review documents, communications, and testing to provide an independent opinion on liability and compliance.

Experts must remain unbiased and impartial. Their opinions must be supported by evidence and facts. Where documentation is missing or limited, it can be difficult and often impossible to find evidence to support an opinion. This affects the defensive strategy in court and can be easily challenged during cross examinations.

When it comes to litigation, anyone can be sued for breach of contract, not meeting statutory requirements or producing defective work with lack of professional competence. It is therefore extremely important to understand the limitations of the contract. The test for competence is whether the work performed at the time was in line with what was expected from a competent professional. Experts also look at the suitability of the design and product selection as well as the quality of workmanship and execution.

Australian legislation evolves over time, so it is important that when the liability of a consultant is assessed, it is against the standards and laws in place at the time of project completion or approval.

Experts must consider the codes and legislation applicable during design and construction. Duty of Care is also a critical factor. It is not uncommon for claims and expert evidence to reference legislation current at the time of the proceeding, rather than at the time of construction. Clear documentation should specify which versions of Australian Standards and reference materials were used, to avoid future misinterpretation.

Our advice is to implement strong professional practices in record-keeping and communication. Maintain accurate and comprehensive records of processes, methodologies, communication and documentation. Ensure files are stored in a secure, centralised location with clear and consistent naming conventions, and organise information methodically. Where possible, establish protocols for document control, version management and record retention.

Disengage from email chains or project communications once your involvement in a matter has formally concluded to avoid confusion or misplaced accountability. Seek expert advice when issues extend beyond your area of expertise, and collaborate with appropriately qualified professionals where necessary. Stay up to date with legislative requirements, codes of conduct, and the limitations of insurance and contracts.

Acting professionally and competently not only strengthens your position in the event of litigation but may also prevent disputes and save significant costs in the future.

Nobody is safe from being sued, so when you work on a project, aways ask yourself: “Will I be able to defend my work in court?”