In brief - Contracts and other documentary records often provide the strongest defence
Should an engineer's work ever be called into question in litigation, documentary evidence becomes crucial. Without it, the case will turn into a battle of "he said, she said", which causes significant problems for the client and lawyers alike.
Contractual records, site and file notes can be used to counter allegations
It is very important to document site meetings, contractual discussions, site inspections and telephone calls with builders and clients, because few people will remember the details of a job to the extent needed should litigation arise after completion of the project.
Factual evidence must most often be given via a witness statement or affidavit and then tested in court through cross-examination. The evidence that is accepted often comes down to whoever the judge considers to be more credible.
Documentary records often provide the engineer with a strong defence. This may lead to early resolution of disputes which will help the engineer to avoid significant legal costs and interruption to his or her business. An engineer can often use these documents to counter allegations:
- contractual records
- site notes of what is or isn't being designed or inspected
- file notes of any onsite conversations
Engineer's file notes and report help him to avoid litigation
The following case example shows the advantage of taking detailed notes. An engineer was retained by a builder and the engineer provided the builder with structural drawings in respect of concrete footings and shoring for retaining walls for the site.
At a site inspection, the builder informed the engineer that he did not want to use the bored shoring details because it was too expensive. Instead, he adopted a sheet piling method. The engineer took a file note of the conversation.
Following the inspection, the engineer issued a report which pointed to the sheet piles as the cause of the subsidence of the owner's land alongside the retaining wall. The engineer was able to rely on his file notes and report to avoid being joined to the litigation.
Failing to insist on a written contract and take a file note of onsite conversations
The next case example shows the perils of commencing work in the absence of a written contract. There was no written contract between the builder and engineer, as they had previously worked together on other projects and were "on friendly terms". The builder advised that he would design and construct temporary shoring along a boundary, which was subject to a deep basement excavation.
Despite the engineer's onsite verbal advice to the contrary, the builder chose to deploy an inappropriate revised method of shoring, which caused the boundary to collapse.
The builder then sued the engineer on the basis that he failed to provide adequate shoring advice. It is likely that the engineer would have been able to avoid being sued had he insisted on a written contract which expressly excluded temporary shoring and made a file note of his onsite conversations with the builder.
Failing to make a file note of an onsite conversation
The next example reiterates the importance of taking file notes of onsite conversations. The engineer was engaged to provide structural engineering designs for a residential building. However, during excavation, the adjoining property owners' buildings were damaged by vibration.
The owners sued the builder to recover their rectification costs. The builder subsequently alleged that the engineer provided onsite advice that vibration monitoring during demolition was not required.
Indeed the engineer and builder had conversations onsite, however, those conversations were not as alleged by the builder. Again, the engineer may have been able to avoid litigation if detailed file notes had been made of conversations which occurred onsite.
Three practical tips for good record keeping
Engineers and other professionals should limit their risk of exposure by giving qualified warranties under contract and clearly defining the terms and scope of engagement. In particular:
- If engaged on a limited retainer, list the elements of the structure which you are not responsible for designing or inspecting.
- Avoid working on the basis of an unwritten oral contract or variation.
- Keep clear file notes of all telephone conversations, material onsite conversations and site inspections.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.