No surprise the audience was predominately environmental consultants all very interested to understand when consultants themselves have been taken to court. It was interesting to learn that liability is not limited to the employer, but also the report authors as well as the technical reviewer/project director.
One of the clear lessons learnt across all case studies presented was that the majority of consultants were ‘lucky’ that there were not prosecuted. It was only through other areas of the argument that the case fell down, not necessary that the consultants had not done something wrong.
What was the "light bulb" or most radical/innovative point?
The fact that even though the Consultants did not have any contractual agreements with the third party, the Judges noted that the Consultants could be liable to third parties if the Consultants had a reasonable understanding and expectation that they would be relied upon (e.g. a vendor undertaking due diligence assessment for sale, then the consultants could reasonably expect that a purchaser would be reading and relying on their report).
Understanding the purpose of the report was also an important point when it came to the appropriate scope, as a clear understanding of what the objective of the work was would help to ensure that the reports are not misleading (especially the executive summary) with findings that could be misinterpreted by the layperson.
The fact that the assumptions provided in quotes/tenders does not hold any weight, unless the consequences of changed circumstances are expressly set out.
How can things be done better as a result of this discussion?
It is important for all parties to clearly understand the purpose and scope of the works.
Understand what documents form part of a contract with your client and those that have been provided for information only.
Ensure that all key conclusions and findings are presented in the report (especially within the executive summary). And foresee that for the majority of work undertaken, only the executive summary and conclusion will be read, and that the majority of people reading these sections will be a ‘layperson’ client.
Didn't get to attend the event, but would love to review the presentations - go to the ALGA online library* type in search words "consultants | court"