BuildLaw Issue 27 March 2017 | Page 13







the design approach and of PSM's obligations was to require continual reassessment of the adequacy of the design in the conditions actually encountered.

PSM relied on the peer professional opinion defence. TJH argued that the expert evidence relied on by PSM did not provide any evidence of widely accepted peer professional opinion. The Court said in relation to section 5O:

In my view, the question raised by section 5O cannot be considered in a vacuum. It can only be considered, and the widely accepted peer professional opinion can only be assessed, by reference to the specific obligations that the professional undertakes pursuant to the contract of retainer.

It is easy to see how section 5O operates where the professional undertakes no more than the usual and proper obligation to exercise due care and skill in the performance of duties of design, inspection, supervision, or whatever else is a subject of the particular retainer. In the present case, the obligations that PSM undertook were very carefully designed to reflect the particular demands of this complex project. It may be that peer professional opinion could be relevant in the context with which I am concerned. It is not necessary to decide that point…7

Conclusion

The peer professional opinion defence is routinely pleaded. However, while there may be some cases where a construction professional may be able to rely successfully on the peer professional opinion defence as the two cases briefly discussed demonstrate, in complex construction projects in which the obligations of a construction professional under its retainer are invariably specific and go beyond the usual obligation to exercise due care and skill in performing the duties under the retainer, the defence is unlikely to succeed.



End Notes

[1] [2007] NSWCA 335 at 59-62 per Giles, JA.
[2] Sydney Southwest Area Health Services v MD (2009) 260 ALR 702.
[3] Douglas QC, R. 'CLA Professional Liability exemption – beware the calculus!' (2014) 11(9) Civil Liability 114 page 115.
[4] Vella v Permanent Mortages Pty Ltd [2008] NSWSC 505.
[5] [2014] NSWSC 1959.
[6] [2016] NSW 173.
[7] [2016] NSW 173.

About the Author

Maxine Tills advises professional indemnity and directors and officers liability insurers as both coverage and defence counsel, and acts for a range of insureds including construction professionals and financial institutions.

To learn more about Maxime, visit Clyde & Co's website.