Association Briefing July 2019

Association Briefing July 2019 Image
Consider yourself an expert?

One of the key tenets of the recently updated Code of Professional Conduct remains that people need to understand the limits of their competence. Knowing when you are getting out of your depth and then knowing how to deal with that situation is one of the key differences between professional and non-professional people. Whilst this may sound simple, in practice it is one of the most important judgements that building engineers have to make on a regular basis.
People who often have little or no knowledge of construction and building practice place great trust in us as construction professionals to advise them in a competent manner. Whilst CABE membership provides an important indication of your ability, the only person who can determine whether you have the right skills, knowledge and understanding is you.

This puts Building Engineers in a position of tremendous responsibility. Regardless of other considerations, if you are unfortunate enough to end up in front of a judge (or for that matter a CABE disciplinary panel) it is almost certain that you will be viewed as the expert with all of the responsibilities and liabilities that brings, including a general duty of care.

Competence has also become an important aspect of wider construction sector reform as a result of the recommendations in the Hackitt Review of Building Regulations and Fire Safety. The most recent Government consultation sets out proposals to improve and test competence of people working on multi-occupancy high rise buildings, and we should expect that competency testing will become the norm over coming years, and for a much wider range of building activities.
So how do you assess your own limits? Competence is generally understood to mean having the skills, knowledge and experience to effectively undertake a given task, activity or role. As a first step, when looking at taking on or accepting a commission for work, you should consider whether you have experience of similar types and scale of project, have adequate training and skills and understand fully the nature of the work involved.

If not – then you need to think clearly about whether you need to undertake additional training or learning, bring in others with appropriate expertise or simply turn down the commission.

Turning down work is often hard to do, but a wise man once said to me that with some clients it is preferable to write them a cheque for ten thousand pounds and walk away, because in the long term you will be better off. Whilst a little melodramatic, the same applies to competency – nobody benefits from a project that goes wrong, and ultimately people’s health and safety, as well as your reputation, may be at risk if you take on work beyond your capability.

Thinking of becoming an expert witness

For those who hold themselves out as expert witnesses, the need to ensure suitable competency is even more important. As part of CABE’s review of its disciplinary procedures, I have recently undertaken training as an expert witness (something we hope to provide to members in the future). The expert witness role is a particularly specialised one, and whilst there are extensive guidelines as to what an expert witness report should include, there is no official designation as to who can call themselves an expert witness.

So it is up to you if you want to hold yourself out as an expert, and then up to the solicitors acting for the parties to court proceedings to decide if they want to instruct you to provide expert testimony. Whilst as much as 90% of civil proceedings do not end up in court, if you are holding yourself out as an expert you need to be absolutely sure you have the right competence to do so, because there are painful consequences if you are found wanting.

An expert witnesses should expect to be subject to verbal cross examination in court, and should understand very clearly that other parties in litigation will seek to discredit the expert witness’ testimony where it doesn’t support their case. This will include questioning an expert witness’ training, qualifications and experience. The recent collapsed Carbon Credit Fraud trial resulted in one of the expert witnesses being roundly criticised by the judge for their inability to substantiate their expertise, damaging their reputation and more importantly calling into question the outcomes from 20 previous cases in which the expert had given testimony.

And things can get potentially worse for those who can’t substantiate their expert status – for nearly 400 years an expert witness was immune to being sued over the evidence they gave in court. Since 2011, however, that protection has been stripped away, leaving a defaulting expert witness open to be sued for negligence.

Honesty is always the best policy

Regardless of their role, it is inevitable that Building Engineers will regularly find themselves in situations where the limits of competence are tested. This might be before or during involvement in a project or in providing expert advice or assessment. Regardless of circumstances, it is always best to be open, honest and transparent about when those limits have been reached, difficult through that conversation may be. As Winston Churchill said, ‘It is a fine thing to be honest, but it also very important to be right’. No one will thank you for trying do something beyond your capability that goes wrong and being up front about what you can and can’t do will ultimately protect you as much as your clients.

- Richard Harral, CABE Technical Director

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