by Simon Duffy, BA (Hons), Dip Arch, R.I.B.A, Member of the Expert Witness Institute, Cowan Architects
The construction world is full of highly trained professionals working together in an interconnecting web of complicated activity. Little surprise, therefore, that if at some stage of the construction process something goes awry, it can be a challenging task to unpick all these interactions and agree on who is responsible for the consequences of a defect. And with the vast sums of monies involved, there’s always going to be someone to blame; more so if the problem leads to a loss of life.
Should a dispute arise as a consequence, and an expert needed to give advice, finding one that understands the changing contractual design relationships throughout the construction process between the developer client, architect, design and build contractor and end user, is imperative. The only person who sees this process holistically is the architect and getting the wrong advice from the wrong expert will prove extremely costly.
What Hat to Wear Today
Experts play an important part in the dispute resolution process but they can take the role either of determining the solution to the dispute itself (through expert determination) or of providing expert opinion evidence to assist a tribunal in reaching a decision. Here, I might be taken on by either side to argue their case or appointed by the Court to inform on areas of specialism.
However, there are three procedures which lead to final and binding decisions by a third party: expert determination, court litigation and arbitration. As I’ve said, in the first procedure, it is the expert who actually decides the outcome of the dispute. In the latter two procedures, a third party (whether that is a judge or an arbitration tribunal) will decide the outcome based upon the evidence before it, including consideration of any expert opinion evidence provided by expert witnesses. To this end, it is important to appoint the right expert.
Selecting an Expert
When selecting and appointing an expert for either role, the parties should carefully consider what issues require expertise and ensure that any expert appointed has the requisite expertise and knowledge. Unfortunately, this is often no easy task as few are well placed to “get under the skin” of the intricate and complex process of creating a building. The Construction Lawyer might consider a building surveyor or a civil engineer, when they’d actually be better served using an architect who is in a unique position to provide such insight. Firstly they have first-hand experience of an often subtle and convoluted design process which sees the ‘off-loading’ of design responsibilities that change throughout a building’s life, from concept through to detailed design through to construction. They are also fluent in the multitude of building regulations, legislation
and contract law. After all, it takes one to know one.
Since the evidence of an expert is likely to be carefully considered and relied upon by the court or tribunal, the importance of the decision as to who to appoint is
crucial. In selecting an individual, expertise in the particular area is clearly a prerequisite. In addition, a party should consider factors such as whether the expert has previously given evidence, whether the expert has the capacity to meet the procedural timetable, and whether an academic is suitable or a practising expert with greater knowledge of the commercial aspects might be better. Ultimately, the real question is whether a judge is likely to be persuaded that the expert’s opinions are right.
Danger Areas and the Consequences
Concerns about experts tend to centre on two particular areas:
• Firstly, where an expert fails to act independently, or offers an unbalanced, subjective view.
• Secondly, when an expert does not have the particular expertise in the field in which he or she is offering his opinion.
I came across a situation like this recently and it provided a really good example of why the need to find the right expert in any circumstances cannot be over-emphasised. The appointment of an inappropriate expert can turn the whole process against you; not only are you going to get the wrong advice but you may also turn the Court against your position.
You may also unwittingly:
• Cause yourself unnecessary expense
• Get completely the wrong advice that does nothing to help you with your case
• Employ someone who is inexperienced or unfamiliar with CPR 35 rules.
• Damage your own reputation as well as that of your ‘expert’
On the other side, the right expert can add value to your case by bringing to the table a number of key skills such as:
• Opening up new avenues of thought that may change the direction of a case;
• Provide the correct advice to counter the other Expert.
• Provide a strong consistent argument which is supported by experience and legislation and does not stray from the expert’s area of expertise.
A Case in Point
I recently worked for the Defendant team in the case of a care home that the H&S Executive was prosecuting for the death of a resident who fell from a first floor window. During a site visit, I was able to establish that the windows at the care home had been designed so that they:
• failed to comply with the Building Regulations;
• the restrictors were not suitable and those that were fitted were installed incorrectly.
Establishing just these two facts gave the case a completely different outlook despite the fact that the HSE expert had initially considered that the window restrictors were ‘suitable’.
We could now argue that it could not have been completely the Client’s negligence and it was apparent that other parties could be culpable. An in-depth analysis of the process was undertaken and I identified that there was no robust procedure of risk analysis, particularly given the vulnerable nature of the residents. It also became clear that a ‘designer’s risk assessment’ would have highlighted the shortcomings in the window design. As a result of this oversight, the need for restrictors was left out of the NBS Specification at tender stage despite being included in the Architect’s design statement. When the problem surfaced much later in the process at the point when the windows were being fitted, the wrong restrictors were ordered in haste and not fitted according to the manufacturer’s instructions. It seems that the only party that didn’t have any part to play at this point was the manufacturer of the windows.
The case resulted in two completely divergent opinions.
The HSE case was built purely around legislation from the CDM Regulations at the time of the accident stating that the client had not fulfilled their obligations under these regulations and were therefore negligent. This appeared to me to be a very narrow strategy on which to build a case. As an architect, I have an holistic perspective of the whole building process and can understand the pragmatic impact of the defect. To this end, I examined several specialist areas - the CDM Regulations and care home legislation to consider the extent to which the care home provider was required to assess the risks to the residents and of course, the design and commissioning issues of the windows.
The Wrong Expert
It was at this stage that I assessed the H&S Executive Expert’s relevance in the case and found that although he was a highly qualified professional, as a Chartered Civil Engineer, it was not in the right discipline for this circumstance; he would have been better placed advising on projects like roads, bridges and embankments. As a result he therefore:
1. had no experience of building design or the Building Regulations - the very essence of how buildings are put together;
2. had no experience of the legislation required to design residential care homes;
3. did not understand the role of an Architect and incorrectly identified who needs to produce a Design Risk Assessment;
4. assumed that the client was knowledgeable about building design and specifications
5. incorrectly made comments on how a Design and Build Contract works;
6. decided inexplicably to dismiss the Building Regulations – legislation which is used to design buildings to a minimum standard;
7. failed to identify that the architect is employed by a client because they are not experts in designing buildings and therefore were relying on people with experience to get it right;
8. failed to identify that the contractor did not undertake their duties under a Design & Build Contract;
In the case of Molnycke AB v Proctor & Gamble Ltd the Court of Appeal held that a properly qualified expert was said to be “one who was working in the relevant field at the relevant time”. In this example, the relevant field would be ‘architecture’ and not ‘civil engineering’. In another case, Rockwater Ltd v Technip France SA, the Courts suggested that an expert could be determined on the basis of whether ‘the expert reasoning and ability were sufficient to teach the Court,’ and that in reaching this decision it was important to consider the ‘expert’s qualifications’ ‘as opposed to their degree of inventiveness’.
And on that note I would urge any solicitor working on a negligence claim to make sure you appoint the right expert. I rest my case.
SIMON DUFFY’S TIPS ON CHOOSING YOUR EXPERT
1. Check the CV – is your Expert in the right job to start with
2. Make sure the expert has relevant knowledge and experience
3. Make sure the expert can analyse the evidence
4. Make sure that when you quote legislation, it’s correct
5. Make sure your expert understand the appropriate legislative guidance such as Civil Procedure Rules
6. Make sure your expert keeps it professional and doesn’t get personal.
7. Ensure your Expert understands the differences between the technical reason behind the building defect and the contractual responsibilities for the design of that defect.
Simon Duffy has been an architect in private practice for nearly 20 years, designing residential and commercial buildings including award winners in the health sector. He is an Expert Witness in design defects as well as in the accommodation needs of seriously disabled people. He is also currently involved in the design, construction & adaptation of buildings for people with disabilities ranging from amputees to severe Cerebral Palsy.