preloader

Expert Blog

Need for Construction Experts on the Rise


As the population of Australian capital cities continues to grow, an increasing number of people are living in apartments. Although the government has spent decades promoting population density, there are arguably insufficient building regulations to prevent poor workmanship taking place.  Buyers are owed few legal obligations by developers upon an apartment being sold, and there is significant pressure on developers for apartment buildings to be built at low cost and in a short time period. Indeed, a 2015 Engineers Australia report found that up to 85% of apartment buildings completed in NSW are defective. [1] These defects can lead to disastrous results.

For instance, residents of the infamous Opal Tower in Olympic Park had to be evacuated just before Christmas last year due to cracks appearing in the building’s concrete panels. Residents are still not allowed to return due to safety concerns and are currently weighing up their legal options. Individuals who own investment properties in the building will doubtless also be investigating their options for recouping lost property value. Worryingly, the Opal Tower may prove to be only the tip of the iceberg. As more major structural defects are discovered in more apartment buildings, there is likely to soon be an increased demand for construction expert witnesses to assist the court.

Construction Experts

Construction expert witnesses often work in professions such as civil engineering. Generally, a construction expert, after being briefed by their instructing solicitor, will inspect the building that contains the alleged defects. The expert will then produce a report based on this inspection, with the aid of any other supporting information, such as photographs or other expert’s reports.

Although experts generally should not be asked questions that go to the ‘ultimate issue’ in a dispute, construction experts are often able to provide pertinent answers to ultimate issue questions, due to the technical nature of the subject matter. For instance, construction expert witnesses are often asked to give their opinion on liability for damage caused and recommend potential remedies.

Proportionate Liability

There are a range of factors that can lead to building defects. For instance, defects can be caused by flawed materials, poor building design, negligent workmanship, faulty parts used, or a combination of these factors. It can therefore be a long process for a court to determine which parties should be held responsible for a defect, and to what extent. It is common for multiple parties to be found to share liability for building defects.

In these cases, parties will only being held liable for the ‘proportion’ of the harm that they are found to have caused. [2] Often the difference in being deemed responsible for 5% or 10% of damages can be a considerable amount of money. Clients are therefore often willing to engage in long court cases to achieve the most favourable result. The cost of engaging expert witness opinion to assist in the court’s apportioning of liability is often a small price to pay when compared to the hundreds of thousands, or even millions of dollars that could potentially be lost if the court reaches an unfavourable decision.

Getting the Most From Your Construction Expert 

It is generally advisable to engage the services of an expert witness with extensive practical experience and knowledge, particularly regarding relevant building codes and compliance and industry best practice. It is important to engage an expert who is currently practising in their field of expertise. A retired construction expert may have extensive experience but lack the latest industry knowledge and therefore prove not as useful for a case.

When necessary, solicitors engage the services of an expert consultant or ‘dirty expert’ to provide technical assistance. An expert consultant is not required to follow the Expert Witness Code of Conduct and can assist in identifying the main issues that the solicitors will need the expert witness to comment on. An expert consultant is therefore very useful in ensuring that the solicitors are in possession of all relevant technical information to prepare the best case for their client.

Conclusion

With the Opal Tower likely to be the first of many new buildings in Sydney to be found to be suffering from major defects, construction experts are likely to find their services in high demand. Lawyers should keep in mind the advice above to ensure that they engage the construction expert most beneficial to their case.

References

[1] ‘NSW Engineers Issue Fire Warning for Apartments’: https://www.abc.net.au/news/2015-06-20/nsw-engineers-issue-fire-warning-for-apartments/6561092

[2] Civil Liability Act 2002 – Sect 35 Proportionate Liability for apportionable claims: http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cla2002161/s35.html