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Cautionary Note 36 – There’s no need for INSUFFICIENT EVIDENCE
August 1, 1998
Based on data collected from inspection of over 35,000 buildings we issue the following advice.
Solicitors are increasingly called to obtain expert reports in the many areas of negligence.
As building consultants, we find that some clients are disadvantaged because vital evidence has been destroyed, disturbed or not properly recorded.
Sometimes, matters can be reconstructed from the statements and remaining evidence. However, success and payouts are maximised when all possible evidence is used to illustrate and clarify your client’s case.
The protocol for successful collection of evidence is usually straightforward and the main steps are summarised in the following table.
ADVICE ACTION Personal injury Building dispute Professional negligence 1 Do not disturb any evidence eg do not clean up accident site, reposition loose drain grates, move scaffolding eg do not lower soil level eg do not clean signs of dampness, termite mudding 2 Do not permit removal of any work/evidence eg loose railings, slippery tiles, temporary barricades eg do not allow owner to interfere or knock down any work eg termite damaged timber, termite nest in building 3 Do not permit others to alter, repair or treat any problems eg do not replace rotted decking, uneven planking eg avoid determining the contract or engaging another contractor without advice eg do not permit chemical treatment of termite activity 4 Keep names and contact numbers of witnesses or
parties
5 Keep record of relevant facts and documents NB Do not listen to “bush lawyers” or neighbourhood experts
eg shoes, clothes worn, time, weather conditions eg quotations, variation authorities, minutes of site meetings eg receipts 6 Keep detailed record of all conversations with defendant /plaintiff/witnesses
Comments regarding past accidents Specific comments regarding what was agreed Admissions concerning negligence 7 Inspect the site as soon as possible Request the client or an eye witness to verify the exact location Identify a consolidated list of the incomplete and defective work Request client to identify any changes from when the negligence is alleged to have occurred 8 Prepare detailed field notes including dimensioned sketches Diagrams of the site, stairs, railings, ramps etc Items of dispute such as discrepancies from plans, areas of brickwork, out of level or plumb work Locations of actual negligence, details of actual damage 9 Take detailed photographic record Overall photos, recreation of accident Photos of all defects or incomplete work Photos of all items of negligence 10 Undertake any further investigation to complete collection of evidence Seek specific advice regarding any specialised equipment, complete necessary calculations Open up the work to identify extent of the problems Open up the work to identify extent of the problems 
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