31 March 2021
On 26 March 2021, the Victorian Court of Appeal handed down its highly anticipated judgment in the construction consultants’ appeal of the 2019 Lacrosse decision.[1]
At first instance, the Tribunal rejected the building surveyor’s attempt to rely on the defence of peer professional opinion and so the building surveyor appealed to the Court of Appeal on the grounds that the Tribunal erred in its conclusion that the ‘peer professional opinion’ was “unreasonable” for the purposes of Section 59(2) of the Wrongs Act 1958 (Vic) (the Act).[2]
The Court of Appeal was not convinced.
The defence of ‘peer professional opinion’
In some (already limited) circumstances a peer professional opinion constitutes a defence to a claim of negligence on the part of an individual practising a profession.
That is, under Section 59(1) of the Act, a professional is not negligent in providing a professional service if:
It is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.
Of course, the peer professional opinion defence fails if a court determines that the opinion is unreasonable.[3]
At first instance, the building surveyor submitted that “widely accepted” is not the same as universally accepted and the requirement under the Act, for the professional to act in a manner that was widely but not universally accepted means that there could be differing (and acceptable) peer professional opinions.
Here, the relevant opinion was that the building surveyor perceived there to be widespread approval of aluminium composite panels (ACPs) for use in type A and B construction, which led to the building surveyor issuing the relevant building permit.
Despite the lack of evidence from the published statement of professional bodies or published professional journals discussing and endorsing the practice, the Tribunal was willing to accept the relevant practice was widely accepted under the Act.
However, the Tribunal was critical of the building surveyor and described its approach to the pathway for compliance under the Building Code of Australia (BCA) as being "infected by confirmation bias".
The Tribunal held that the relevant practice did not withstand logical analysis and so the relevant practice was unreasonable (and by necessary implication, its acceptance was unreasonable).
A key to this conclusion was that the Tribunal considered that the building surveyor was in a good position to question the logic of the alternative pathway proposed under the BCA and could generally be expected to take positive steps to clarify any uncertainty.[4]
The Tribunal found that the practice was:
Both irrational and unreasonable. There is no evidence of any of the experts, individually or collectively subjecting the [r]elevant [p]ractice to robust scrutiny… it does not withstand logical analysis.
The Court of Appeal dismissed this ground of the building surveyor’s appeal providing a small clarification which confirmed that “unreasonable” under Section 59(2) of the Act is directed to the question of whether the acceptance of the practice was unreasonable (rather than whether the practice itself was unreasonable).
However, this differentiation was of little consequence as the Court of Appeal held that if the acceptance of the practice (or the opinion) was unreasonable, it follows that the practice or the opinion was unreasonable and cannot be used as a defence to negligence.
Concluding remarks
While many in the industry had their doubts about the likely success of the ‘peer professional opinion’ defence in this case, its failure is noteworthy.
In this case, the building surveyor submitted that:
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It did not know that ACPs were highly combustible and it cannot be said that an opinion formed in ignorance of that fact was unreasonable.
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Reasonableness should be assessed in the context of ACPs having been used in Australia on high rise buildings for 40 years without incident.
However, the Lacrosse decisions show that a professional opinion, no matter how widely and consistently held in Australia (or even throughout the world and across a number of professions) is no defence where later events lead a court to conclude that the opinion of those professionals was unreasonable.
That is, the statutory peer professional opinion defence is not truly assisted by an opinion being “widely held” if contrary information was available to the professional, had they challenged and scrutinised the widely held opinion.[5]
While most professionals would accept the need to challenge and actively question the way in which they practise, problems arise when individuals cannot rely on the views of their profession, even where an opinion may be held (and perhaps even taught) over a number of decades.
The relevant building permit in this case being issued on 2 June 2011, it remains to be seen whether other building surveyors will seek to advance this defence in circumstances where permits were issued many years earlier.
What is clear, however, is that building surveyors who have issued building permits post-June 2011 will not succeed in a defence under Section 59 of the Act and, pre-June 2011 building permits would need to overcome the Tribunal’s reference to international evidence of ACPs being a fire hazard “long before 2010” (whenever that may be).
For further information, please contact:
Emily Schneider, Partner, Kennedys
Emily.Schneider@kennedyslaw.com
[1] Owners Corporation No. 1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286.
[2] There were 11 grounds to the appeal brought by the consultants.
[3] As provided for under s.59(2) of the Act.
[4] In the Tribunal’s opinion, consulting a fire engineer would have been a reasonable step for a building surveyor to take to confirm or test their reliance on the compliance pathway for ACPs.
[5] The Tribunal noted that evidence internationally of fire hazards associated with ACPs was developing long before 2010 and concerns over their combustibility were being openly discussed in Australia by then, if not earlier, such that a “casual enquiry” to fire engineers at around this time is likely to have revealed concerns.
