Causation is king: NSW Supreme Court delivers hammer blow to programming analysis for delay claims By Sean Kelly and David Elston The mere presence or otherwise of a delay analysis method in the Society of Construction Law (UK) Delay and Disruption Protocol (2nd Edition) should not determine its appropriateness for any given case. Delay and disruption claims are commonplace in construction and infrastructure disputes. They are, however, generally difficult (and time-intensive) to prove given the highly technical and factually complex scenarios they often involve. Parties often rely upon evidence of expert programmers who provide a delay analysis of the project to prove the overall delay effects of a qualifying cause of delay. The analysis is commonly undertaken on the basis of one of the methods set out in the Society of Construction Law (UK) Delay and Disruption Protocol (2nd Edition). However, the recent judgment by Justice Hammerschlag in the New South Wales Supreme Court decision of White Constructions Pty Ltd v PBS Holdings Pty Ltd [2019] NSWSC 1166 is a reminder that the opinion of an expert programmer alone (whether based on one of the methods in the Protocol or otherwise) is no substitute for direct evidence of the actual cause and impact of the claimed delay. The key question for the court in determining such a claim is to ask whether, upon a close examination of the actual evidence, the claimant has proved, on the balance of probabilities, that the claimed delay event caused project delay and, if so, by how much. Project background White Constructions was the developer of a 100 lot subdivision on the south coast of New South Wales. White engaged SWC (a water servicing co-ordinator) and IWS (a sewer designer) to design a sewerage solution that complied with NSW regulations. The initial design was not approved by Sydney Water. Approval was a precondition for the registration by the Land Titles Office of the subdivision. A subsequently updated design was later accepted. Completion of the project was delayed by approximately 7.5 months and White sued SWC and IWS alleging that they failed to prepare a satisfactory sewer design within a reasonable time and that failure caused delay to the whole project. White claimed approximately $1.93 million as damages in the form of alleged increased construction costs, paid out to the contractor as a result of the alleged delays and design changes. The claim was for common law delay damages for breach of contract. It required White to prove that the project would have been completed by 15 July 2016 but for the sewerage design issues. Therefore, the causation element was at the forefront of the dispute, and the parties' respective delay experts were expected to play a crucial role. Delay experts and programming methods Both parties relied upon evidence from expert civil engineer programmers in relation to the extent and cause of delay to completion of the project. Justice Hammerschlag recognised that the expert reports were complex and that "to the unschooled, they are impenetrable".