Re-constructing Evidence in Construction Legal Cases

Legal cases involving construction situations are becoming more and more complex. The construction world is changing and not being lauded for its regulation and quality control. Legal cases arise with confusing evidence and varied accounts, based on varying factual information.
So how do we know what actually happened? Did we observe it and then remember it? Did we take a photograph or make a recording? Even with these tools the interpretation of what happened is left to our own personal take and interpretation.
So how do we deal with a legal case involving a construction trade where there is an allegation that one or more parties have caused damage or impacted someone. The tradie or contractor may be good at what they do but bad at recording it. When the proverbial hits the fan, the lawyers are left with a bamboozled tradie or contractor defendant with no records and literally just a memory of what happened.
The plaintiff will have their own version of events too, based on their memory or a photo they may have taken before they thought it might be relevant in a legal case. If they record events while it is happening that is better, but how much do they understand about the technicalities of what they are viewing?
In legal cases involving construction trade activities that have impacted others, there is often a need to re-construct events out of the back story of the events. Memories fade, photos have different meanings, battle lines diminish objectivity.
If only we could wind back time and like a video , replay it.
This article addresses this problem. A series of research methods are used that combine and are designed to re-construct events in these situations and restore a body of evidence that is potentially enlightening to the case and the court.
The primary research tool is called the Case Study. The case study is an analysis of a specific field of activity, usually bounded by time and space (or location). Events are played out (like on a sporting field) in a logical order based on certain rules and activity sequences.
When we recount these events ( through memory) within this playing field they will either fit into the picture or not, like a jig saw puzzle. An activity might not fit into the logic of the other activities or might not fit into the location or time of day. If constructed properly, case studies have a high level of ‘self-validation’ if created based on these principles and combined with other methods.
So when your lawyer is looking dumfounded at your lack of evidence because you are a great tradie but a bad administrator and recorder of events, there is hope yet.

Dr Jonathan Drane
Expert Witness Complex Construction and Legal Cases

The slim margins in farming

Something that is often overlooked in farming businesses is ‘the margin’. Like any commodity, farm produce, be it beef, lamb, wool or grain, is produced and sold in the interest of achieving a ‘margin’. There are two sides to the ‘margin’ equation: the cost of producing the product, and the price received for it. The difference between the two is the ‘margin’ and unfortunately, it is very slim in agriculture.

It is in fact so slim that some farmers don’t quantify whether their margin is a negative or positive figure. The accountant doesn’t understand the production side of the business and is restricted to cashflows and profit and loss statements (no consideration to on-farm production inventories) and the banks will keep lending money while ever there is enough equity in the system to recover principal and outstanding interest should they need to withdraw from the arrangement.

Those involved in the cattle industries class action against the Australian government will need to consider this issue, and many more, in its efforts to seek compensation for the temporary loss of the live-export market.

For instance, one may wish to claim for loss of income from unsold cattle. But those cattle did not disappear, they probably stayed on-farm, growing the inventory size and value of that farm in that year. Was the farm running at optimal stocking rates? If so, did the forced retention of cattle cause overstocking, environmental degradation and loss of productivity in future years? Or maybe an increase in supplementary feeding costs?

A successful media campaign and re-active political decisions brought the live export market to a halt overnight. But did other markets open up? Cattle sales into the live export market stopped, but no doubt they increased into other markets. What were these markets paying? How much did it cost to bring the cattle to these markets? What was the impact of the influx of these particular types of cattle on these markets? Ultimately we need to consider all these factors and their impact on the profitability of the affected farms, not just the loss of income from one particular market. The marginal decrease in profits resulting from banning live export will be what determines the cost of the governments decision.

Finding answers will require experts that have a unique understanding of the principals of production, marketing and economics in farm businesses. Failure to address these questions with benchmark farm financial and production data and rigorous methodology will result in a major misinterpretation of the true cost of the Australian Government’s decision to temporarily ban the live export of cattle to south-east Asia.

Dr David Brown

David Brown was born and raised on a progressive sheep station in the far North West NSW. From an early age he has been working in the family business, and since 2010 David has been incorporating his practical experience into his profession role as a farm business consultant. A PhD graduate, David has skills in sheep and cattle production systems, whole farm performance analysis, investment appraisal and general farm economics. David loves working with farmers to improve their businesses, and digging into empirical data to find the answers to agricultures toughest questions.

Please do not hesitate to contact Morgana Harris at Nationwide Experts if you have any questions or comments. I trust this information is of interest.