Professional negligenceArchitects & engineers
Architect & Engineer Negligence Claims
A design professional must take reasonable care with plans, calculations, reports and certificates. If their lack of care caused a defect or a loss, you may be able to recover it. The time limit can start before you notice a defect, so act quickly.
- No-obligation first consultation
- We set out our costs in writing at the start.
When several parties are involved
Why everyone should be identified early.
Where the sharing rule applies, the law expects you to claim against everyone you have reasonable grounds to believe may be responsible. (Civil Liability Act 2003 (Qld) s 32)
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Several parties: each pays its share
Where several parties caused a financial loss, each may only have to pay the share a court thinks fair. If one of them can’t pay, you may carry that share yourself. (Civil Liability Act 2003 (Qld) s 31)
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Unless you’re a consumer
That sharing rule doesn’t apply to an individual’s claim about services for personal, domestic or household use, or about a professional’s advice for their own use rather than a business. (Civil Liability Act 2003 (Qld) ss 28, 29) Some claims under Commonwealth laws, such as some misleading conduct claims, may not have this exception.
What has to be shown
Losing money isn’t enough on its own.
A negligence claim needs all four of these. Other claims, like misleading conduct, have their own tests.
A duty to you
Usually owed by the professional you engaged, in contract and in negligence.
Care below the standard
Less care than a reasonable professional in their position would have taken. (Civil Liability Act 2003 (Qld) s 9) In some cases, following a practice widely accepted by respected peers can be a defence, and the professional must prove it. (s 22) That defence doesn’t apply to claims about giving, or failing to give, a warning, advice or information about a risk of harm, and harm includes financial loss. (s 22(5))
It caused your loss
You must show what proper advice or work would have led to, and that you’re worse off because of the breach. (Civil Liability Act 2003 (Qld) ss 11, 12)
A loss you can measure
The difference between where you are and where you’d otherwise be.
Where a claim can go
Which routes each profession has.
Some routes are free. Most can pay only limited amounts, or only for certain losses.
A professional who also holds an Australian financial services licence, like some accountants, may be an AFCA member for the financial advice they give.
Time limits
The clock can start before you know.
Finding out late doesn’t usually give you more time for financial loss.
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6 years
Court action
Generally within 6 years of when the cause of action arose. (Limitation of Actions Act 1974 (Qld) s 10)
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From the loss
When the clock starts
For negligence, when you first actually suffer a loss. For contract, when the contract was breached, which can be earlier.
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No extension
Not knowing isn’t enough
Queensland’s extension for facts learned late applies to injury claims, not to financial loss. (Limitation of Actions Act 1974 (Qld) s 31)
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Hidden defects
When the clock starts
For negligence, the 6 years may start when a hidden defect first became discoverable with reasonable care, not when it was designed or built. (Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233) It’s about when the claim starts, not an extension.
Fraud, or a claim hidden by fraud, can delay the start of the clock until you discover it, or could reasonably have discovered it. (Limitation of Actions Act 1974 (Qld) s 38)
How it goes wrong
How design work goes wrong.
A defect isn’t enough on its own. The question is whether the designer took reasonable care, and whether proper work would have avoided the defect or the loss.
Structural design errors
Footings, slabs, beams or retaining walls designed for the wrong loads or soil.
Water getting in
Waterproofing, drainage or roof details that let water in and cause damage.
Careless certificates
Certificates or inspection reports that signed off work that didn’t comply.
Site not properly assessed
Soil, slope, flooding or drainage conditions not properly investigated.
Costs that blew out
A design that couldn’t be built within the agreed budget, or needed costly redesign.
Who may be responsible
Who answers for a design or certificate.
More than one party may be responsible. Each should be identified early.
Your architect or engineer
The design, calculations, inspections and certificates they were engaged to provide.
Ask for: The engagement, drawings, reports and certificates
Their firm
The firm is generally responsible for the work of its architects, engineers and staff.
Ask for: The firm’s name, from its drawings and invoices
Others involved
The builder, a building certifier or another consultant may also share responsibility.
Ask for: The building contract, approvals and inspection records
Who pays
More than one party may be responsible.
Every party who contributed
Where several parties caused a financial loss or damage to property, each may only have to pay its own share. (Civil Liability Act 2003 (Qld) s 31)
Unless you’re a consumer
That sharing rule doesn’t apply to an individual’s claim about services for personal, domestic or household use, or about a professional’s advice for their own use rather than a business. (Civil Liability Act 2003 (Qld) ss 28, 29) Some claims under Commonwealth laws, such as some misleading conduct claims, may not have this exception.
Their insurer
Professionals usually carry indemnity insurance, which may pay a successful claim.
Any liability cap
Look for “Liability limited by a scheme approved under Professional Standards Legislation” on their letters. A cap only matters if your loss is above it.
Straight away
Four things to do now.
- Now 1
Keep every document
The engagement, drawings, reports, certificates and emails.
- Now 2
Record the defect
Photograph it, and note when you first saw it. Get it assessed before repairs if you can, but don’t let it get worse. Make urgent or safety repairs straight away, and keep the receipts.
- Now 3
Get an independent report
An independent assessment helps show the cause and the cost of fixing it.
- Now 4
Don’t sign a release yet
Don’t accept an offer or sign a release until you’ve had advice about it.
What you can claim
What you can claim.
- The money you lostThe difference between your position and where proper advice or work would have left you.
- Costs to put it rightReasonable costs of fixing the problem, like rectification work or new advice.
- Tax, interest and penaltiesWhere they flow from the error, such as interest or penalties caused by a tax agent’s mistake.
- Wasted legal costsLegal costs wasted because of the professional’s error.
- Lost opportunitiesThe value of a real chance you lost, such as a better deal or a claim, if it can be proved.
Damages aim to put you where you’d have been without the error. They’re not a penalty, and distress is generally not compensated.
How a claim runs
From the first call to court, if it’s needed.
No-obligation first consultation
We look at what happened, who may be responsible, and when your time limit runs out.
Documents and review
We gather the file and, where needed, brief an independent expert from the same profession.
Letter of claim
A detailed claim to the professional and their insurer, setting out the breach and the loss.
Negotiation or AFCA
Claims can be negotiated or mediated. Financial advice and broking complaints can go to AFCA instead.
Court, if needed
If it doesn’t settle, proceedings are started before the time limit ends. Talks can continue.
Costs
What it costs you.
We don’t take these claims on a no-win, no-fee* basis. Before we start, a costs agreement sets out our fees, an estimate of your total legal costs, and the outlays you’re likely to pay, such as report and court fees. We tell you if that estimate changes significantly. If a court case is lost or withdrawn, or you don’t do better than an offer the other side made, you may have to pay the other side’s legal costs.
No-obligation first consultation
You decide whether to go ahead once you know your options and the likely costs.
Everything in writing
Fees and outlays are set out in a costs agreement before we start.
An estimate first
An estimate, or a range, of your total legal costs before we start.
Questions
Questions people ask.
Yes, if both may have contributed. Where several parties caused a loss, each may only have to pay its own share, unless you’re a consumer. So everyone who may be responsible should be identified early. (Civil Liability Act 2003 (Qld) ss 28, 31, 32)
Not exactly. For negligence about a hidden defect, it may run from when the defect became discoverable with reasonable care, which can be before you noticed it. (Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233) A contract claim runs from the breach, which is usually earlier.
It depends. Whether a designer owed a duty to a later owner or a body corporate depends on the building and the facts, and it can be hard to show for commercial and some strata buildings. (Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36)
Usually, yes. A claim generally needs an independent opinion from the same profession on whether the work met the standard, and on what caused the defect. Don’t let the time limit pass while you wait for one.
Possibly. A claim may still be possible under the firm’s professional indemnity insurance, or against the person who did the work. Get advice early.
Another kind of professional?
Defect or loss from a design or certificate?
Your first consultation covers who may be responsible and the time limit that applies. There’s no obligation to go ahead.
Our fees and outlays are set out in a costs agreement before we start. If a court case is lost or withdrawn, or you don’t do better than an offer the other side made, you may have to pay the other side’s legal costs. This page is general information, not legal advice about your situation.