It has recently been reported that the Lacrosse Tower decision will be appealed to Victoria’s Supreme Court of Appeal.
The first instance decision, which we discuss in detail here, was noteworthy in that the building surveyor, fire engineer and architect were apportioned liability for the advice provided to the contractor in respect of combustible cladding. This was despite the fact that there was no direct contractual relationship between the consultants and the owners of Lacrosse Tower.
The building surveyor, fire engineer and architect have now sought to overturn the decision of the Victorian Civil & Administrative Tribunal arguing that the contractor should also be held accountable as a ‘concurrent wrongdoer’.
At first instance, it was found that the builder, although liable to the owners of Lacrosse Tower in contract, did take reasonable skill and care in installing the non-compliant cladding. It was noted that the contractor did not have the requisite knowledge of the dangers of aluminium composite cladding panels, nor was it reasonably expected that a contractor should have such knowledge. Instead, this was held to be the responsibility of the professional consultants, who failed to exercise skill and care in the selection, approval and installation of the cladding.
It is expected that the appeal will be heard next year.
Although the Judge at first instance stressed that his decision was fact-specific and has no binding effect in England and Wales, this appeal will be noteworthy to professional consultants and their professional indemnity insurers in Australia and more widely.