Building surveyors and the courts
By Alex Wood
By Danielle Warfe
29 May 2019
Two recent judgements involving building surveyors serve as a confronting reminder of the legal obligations of building surveyors.
In the Victorian Civil and Administrative Tribunal, Judge Woodward found the rapid spread of fire and resulting damage to the Lacrosse building (in Docklands, Melbourne) in 2014 was caused by the cladding being combustible and therefore not compliant with the National Construction Code. He found the builder was statutorily liable, but due to contractual agreements with the consultants, this liability was proportionately recoverable from the building surveyor (33%), the fire engineer (39%), and the architect (29%), with each failing to exercise reasonable care in their contractual obligations and common law duties. (Mills Oakley provides an excellent breakdown and interpretation of this engrossing case.)
In the Supreme Court of the Australian Capital Territory, Judge Mossop found the building surveyor was statutorily and contractually liable for signing off on construction work on a dwelling, where the work incorporated defects and departures from the approved plans. This caused the owner to incur the greater cost of remedying the defects after construction, rather than at the time they occurred.
Other cases have also found building surveyors liable for failing to exercise their duties with reasonable care, including the awful case of Cameron Toomey, who sustained permanent and debilitating injuries after toppling over a non-compliant balustrade, and that of the Nautilus building (in Auckland, New Zealand) where the building began leaking almost as soon as construction was completed and was not fit for purpose.
A common thread runs through these judgements: they were all situations where the building surveyor had a contributory liability because they did not sufficiently interrogate the design documentation and construction process, resulting in various breaches of statutory law, contractual law, and common law. The human face of this is people who have been permanently injured or had to fork out tens of thousands of dollars (or more) to rectify the building work. As Judge Woodward implies, such oversights are often minor and of no consequence and mistakes genuinely occur, but if something goes wrong, it is the legal obligations written in both the legislation and the contracts that will be scrutinised to determine liability.
It seems to us that a collegiate and collaborative approach to building work among all building professionals and practitioners, from well-detailed design through to well-executed construction, helps ensure details and errors are not missed. Working as a team to a common goal promotes clear communication and transparency, reduces the potential for disputes and oversights, and often has the added benefit of improving the speed and efficiency of the project as well.
The courts have made clear the legal obligation of a building surveyor is to protect the public, and have demonstrated they will interpret the exercise of this duty in explicit and exact accordance with the building legislation. Diligence in interrogating design and construction documentation, nimbleness and adaptability in interpretation, and personal engagement with all project participants safeguards ourselves, the project team, the owner and, most of all, the public.