An inspection certificate can look like a routine project document. An engineer attends site, checks the work and signs a certificate confirming that something has been completed or complies with the design.
But there is a problem with treating certification as simply “routine,” particularly as other people often make decisions based on what you sign.
A client may approve payment. A builder may move to the next stage. A developer, financier or certifier may rely on the certificate.
If it later turns out to be wrong, the questions quickly become: What did the engineer inspect? What were they actually asked to certify? What information did they rely on? And did the certificate say more than the engineer intended?
We see this issue regularly when working with engineering consultancies. The engineering itself may be sound. The problem is often that the wording of the certificate goes further than the work actually performed.
Read on to learn what engineers should think about before signing, including site inspection legal obligations for engineers.
A certificate is more than an administrative document
An engineer inspection certificate is a professional representation. If you state that work complies, has been completed in accordance with the design or satisfies particular requirements, others may rely on that statement.
Before signing, ask:
- What exactly am I certifying?
- Have I inspected enough to support that conclusion?
- What documents or information am I relying on?
- Is anything still outstanding?
- Is this within my expertise and scope?
- Does the wording say more than I can confidently support?
If the answers are unclear, the certificate probably needs more work.
Site inspections should support what you eventually certify
A site inspection is not simply about spotting defects.
It is also about gathering the information needed to support your professional opinion. If construction differs from the drawings or specifications, record it and raise it promptly. If further information or an RFI is needed, deal with it before certification.
The same applies to defects. Make sure that you record:
- what the defect is
- where it is
- whether it affects compliance or performance
- what needs to be rectified
- whether another inspection is required.
Photographs are useful, but add context. A photograph sitting in a project folder may mean very little two years later if nobody can work out what it shows or why it mattered.
Your duty does not end when you leave the site
In Australia, an engineer’s duty of care generally requires them to exercise reasonable skill, care and diligence when providing professional services.
In the context of site inspections and certification, this means carrying out inspections carefully, identifying and communicating material issues, staying within the agreed scope of work and only certifying matters that the engineer has a proper basis to support.
If an engineer fails to meet that standard and another party suffers loss as a result, the engineer or engineering firm may face potential liability.
Problems can arise where an engineer:
- identifies an important issue but does not communicate it
- performs a limited inspection but gives a broad certification
- certifies defective or incomplete work without sufficient evidence.
Depending on the circumstances, this can potentially lead to claims in contract, negligence or for misleading or deceptive conduct.
The practical point is simple. Your certificate should accurately reflect what you know and what you have actually done.
If there is a serious problem, say so
Seeing a problem and recording it privately may not be enough. Engineers have a legal obligation to warn clients or contractors of foreseeable risks that could lead to harm. If you identify a material risk, think about who needs to know and how quickly they need to know it.
For example, if structural work should be rectified before construction continues, a vague comment buried in a report several days later may not be enough.
The more serious the issue, the more important clear and timely communication becomes.
“Can you just sign it today?”
Most engineers will recognise this situation. The project is late. Payment is due. Contractors are waiting. The client wants the certificate now. Then comes the request: “Can you just sign it?”
That is exactly when engineers need to be careful. Engineers must act independently and impartially when issuing inspection certificates. Commercial urgency does not change your professional opinion.
If you need further drawings, testing, photographs, calculations or rectification evidence to form your opinnion, say so. A delayed certificate is usually easier to manage than an inaccurate one.
The Mistrina case: who else might rely on your certificate?
The decision in Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWCA 223 is a useful reminder of the risks.
The case involved an engineering certificate connected with a structurally defective development. Importantly, the developer did not have a direct contract with the engineering consultant, yet the certificate still became central to the claim.
The lesson for engineering firms is equally as important. Your potential exposure may not stop with the client who engaged you. Certificates are forwarded to builders, developers, certifiers, financiers and other project participants.
Before signing, consider who else may receive this certificate, and what are they likely to understand it to mean?
What if you could not inspect the work?
This happens frequently. An engineer attends site after reinforcement has been covered, concrete has been poured or structural elements are concealed.
Do not allow your certificate to imply you personally inspected something you did not see. Consider what other evidence is available, such as photographs, testing, inspection records or supporting documentation.
And sometimes the correct response is simply that you do not have enough information to certify that work yet. That may be inconvenient for the project team, but it may also be the right professional answer.
Avoiding scope creep
Engineers are often asked questions on site that extend beyond their actual scope.
“What do you think about the waterproofing?”
“Can we use this product instead?”
“Is this architectural detail okay?”
It is natural to want to help. But an informal comment can quickly be taken as professional advice. If something sits outside your expertise or scope, identify the issue and refer it to the appropriately qualified consultant rather than giving a definitive opinion.
What I see engineering firms get wrong
Before starting Prosper Law, I worked as in-house counsel for a large engineering firm. I now work with engineering consultancies across Australia.
One issue I see repeatedly is the use of old standard-form certificates. Someone drafted the template years ago. It keeps being reused. Engineers assume the wording is standard.
Then a dispute happens and everyone starts analysing exactly what those words promised. That is why engineering firms should periodically review their certification templates and processes.
A certificate should communicate the engineer’s actual professional opinion. It should not accidentally promise more simply because nobody has reviewed the wording for years.
If your inspection or compliance certificate templates have not been reviewed recently, Prosper Law can review them and identify where the wording may expose your firm to unnecessary risk.
Speak with Prosper Law’s Director, Farrah Motley, an experienced engineering lawyer, about your certification processes, or talk to our consultancy agreement lawyers about ensuring your certificate obligations align with your consultancy agreements.
Frequently Asked Questions
What is an engineer's duty of care during a site inspection?
It depends on the engineer’s engagement, scope and the circumstances of the inspection. Generally, engineers are expected to exercise reasonable skill, care and diligence in performing professional services. Failure to meet this standard can result in liability for damages if the client suffers a loss due to negligence.
For example, an engineer who negligently certifies defective work may be held liable for the resulting financial losses incurred by the client.
Can an engineer be liable for an incorrect certificate?
Potentially. Depending on the circumstances, claims may arise in contract, negligence or for misleading or deceptive conduct.
What if a client pressures an engineer to sign?
Commercial pressure or urgency does not change an engineer’s professional obligations. If more information, rectification or inspection is required, explain that clearly and record it.
Can an engineer be liable for a defect they did not find?
Potentially, but the existence of a defect does not automatically mean the engineer is liable. The scope of the inspection, what could reasonably have been identified and what the certificate represented will all be important.
Speak with Prosper Law’s engineering lawyer before the certificate becomes the issue everyone is arguing about.
About the Author
Farrah Motley
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