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
Contractual records, site and file notes can be used to counter
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
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:
site notes of what is or isn't being designed or
file notes of any onsite conversations
Engineer's file notes and report help him to avoid
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
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
Failing to insist on a written contract and take a file note of
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
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
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
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
Avoid working on the basis of an unwritten oral contract or
Keep clear file notes of all telephone conversations, material
onsite conversations and site inspections.
Solicitors should think carefully before disclosing sensitive information to experts in a letter of instruction.
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