Construction professionals and the peer professional opinion defences
By Maxine Tills
Peer professional opinion defence - no 'get out of jail free' card for construction professionals
Since the recommendations made by the Review of the Law of Negligence Final Report (Ipp Report) in 2002, each Australian state has enacted legislation that provides for a defence of peer professional opinion. In Western Australia, the defence applies only to health professionals and, despite a wider application in the other states, the majority of cases dealing with the defence are medical negligence cases. The defence has been argued in a number of cases regarding claims against engineers, notably in New South Wales, most with little success.
The relevant provision in New South Wales is Section 5O of the Civil Liability Act 2002 (New South Wales) (CLA). The effect of the section is as discussed in Dobler v Havlerson: 1
If the conduct complained of accorded with professional practice regarded as widely accepted by peer professional practice as competent, then the professional escapes liability, subject to any irrationality of the practice.
The case confirmed the section provides a defence to claims of professional negligence and that (with the exception of WA) the professional has the onus of proving the existence of a professional practice widely accepted by peer professional opinion as competent professional practice.
The defence applies only to breach of a duty to exercise reasonable care whether under a contract or in negligence. It applies to damage whether it be property damage, economic loss or personal injury. The defence does not apply to a claim for breach of an express term of a contract which imposes an obligation on a construction professional other than to exercise reasonable care or under consumer legislation for misleading and deceptive conduct.
Given that a large number of claims against construction professionals involve not only allegations of breach of duty of care but breach of contract and misleading and deceptive conduct arising from design drawings or the certification of the design, the defence's application is necessarily limited in defending claims.
The defendant should plead sufficient material facts to establish the defence. Reference to the section is desirable.2 The material facts pleaded should include:
● the specific manner in which the defendant acted being a practice at the time; ● the fact of its wide acceptance by peer professionals as competent practice; and ● that the defendant acted in accordance with the practice.3
The defendant does not need to plead the names or number of professionals who accept the practice as competent professional practice.
Expert evidence is required to support the manner in which the defendant acted and to