Consultants:

According to the Collins English Dictionary, a “consultant” can be “a specialist who gives expert advice or information.” [1] This is a very broad description of the term “consultant” and can encapsulate an expert in any number of professional fields. A consultant is therefore an adviser, an authority or a specialist who can impart his knowledge and skill to a person who will depend on that knowledge and skill for a particular purpose.

The services of a consultant will be sought by an individual if specific advice is needed on a particular matter. This places the consultant in a special position of trust: his skills and knowledge will be relied upon by the person who is looking to the consultant to help or assist in dealing with a complex or specialist matter. Consultants will therefore be expected to have a very high level of expertise and will also be expected to discharge consonant levels of care when providing their advice.

It is not inconceivable that a consultant whose services lead to loss or damage may be accused of incompetence. It is important to remember that such accusations can themselves constitute an act of defamation (for more on this, see our section on “Defamation” on this website) and it is important not to make allegations of this nature casually. In any event, a consultant who has not discharged his duties to a level that a professional may expect, can be liable for an action in professional negligence. This may have significant implications in relation to insurance payouts and whether or not an insurance company will cover the consultant’s own loss as a result of any claim made against him.

Professional negligence cases can be convoluted, fact-heavy, and involve the complex application of legal principles considered along with the available evidence. A claim in negligence is generally grounded when a duty of care is established and only where that duty of care has been breached. Because professional negligence cases are industry specific (appropriate or controversial conduct in one industry may not be measured against the same criteria in another industry) it will be important to first ascertain the acceptable professional standards in the industry that the consultant is working in. Then the facts will need to be analysed under the relevant legal principles to ascertain whether a duty of care has been breached (it is not unusual for experts to be required to adduce specialist evidence for a court to consider when making any decision whether or not the accused consultant was negligent in his duties).

One way to glean the professional standard in an industry is to consult with that industry’s representative body for its professionals. Unfortunately, no such body exists for consultants as such, and therefore there does not appear to be a Code of Conduct or a Code of Ethics specifically catering for consultants on their own. This does not however mean that there is no such professional standard. For example, Consult Australia is one organisation which caters to consultants working in the built environment sector, “engineers, architects, project managers, planners, environmental scientists and quantity surveyors, among others.” [2]

Consult Australia hosts various further education seminars aimed to enhance the professionalism of consultants in Australia, including but not limited to Professional Service Excellence, Project Management and Safety in Design. [3] Professional standards may be inferred from the content of these training materials, and this may well need to be considered in any claim of negligence against a consultant working in these areas.

In situations where there is no governing legislative or quasi-legislative instrument to refer to, other things must be considered to discover the threshold of professional/unprofessional conduct. These can include:

• The contract under which the consultant did the work which is deemed to have been performing negligently;
• Any representations that may have been made before the contract was entered into, and any things said or asserted while the contract was on foot which indicate what the parties intention and objectives were;
• Any code of ethics of professional standards in a related industry that the work is being performed in; and
• The general law relating to contract and professional negligence.

These matters can assist in determining what the professional duty of care was between parties. Whether somebody is the consultant being sued, or whether an aggrieved party is the one claiming damage or loss as a result of the consultant’s allegedly sub-standard work or advice, these will undoubtedly be matters that will have to be taken under consideration by a professional negligence solicitor.

If you require legal advice and assistance with a consultants negligence dispute, you may wish to contact our firm by telephone on (02) 9233 4048 or email us at info@navado.com.au and make an appointment to see one of our solicitors.

[1] Entry for “consultant” in Collins English Dictionary (William Collins Sons & Co. Ltd, 1979; 2001 ed.) p 323.

[2] “Welcome” Consult Australia website (undated) <www.consultaustralia.com.au> (accessed, 18 November 2013).

[3] “Consult Australia Education Programs” ibid.

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