• Reducing Consultant Liability: CYA – Part 1

  • Environmental, and other, consultants are often accused by clients of trying to ‘cover our backsides’ (or similar wording). I often respond that by employing this ‘CYA’ philosophy, consultants can also cover our client’s behinds. Isn’t that what most clients are seeking – an impartial expert to look after their interests, and to help manage their potential liabilities? With this in mind, here are a few suggestions to reduce liability for environmental consultants.

    The consultant should be suitably qualified to perform the project work. This generally means some combination of education, licensing and/or certification, and practical experience. Environmental Site Assessors are often licensed as a Professional Geoscientist or Engineer; or with designations such as Chemists, Agrologists, Foresters, Geophysicists, Technicians/Technologists and others. Assessor training and certification by organizations such as AESAC are also valuable to demonstrate practical expertise. All practitioners should keep current with new techniques, procedures and changing regulations. Certain jurisdictions and professional associations may also have unique licensing and professional practice requirements for specific types of projects.

    While some associations may permit consulting work without insurance, providing the client is notified of such, this is generally not a good idea. In these litigious times and given the potential implications of errors, it is important to maintain adequate insurance. One must consider both the amount and type of coverage. Is $1M of Professional Liability Insurance (PLI) enough, do you need $2M, $5M, or more? You may also need Commercial and General Insurance (CGI), Pollution Liability, or special coverage for Asbestos work, or for Joint Ventures and partnerships. The consultant should work with their insurance broker to select appropriate coverage and limits, and also to discuss other ways to reduce their liability exposure.

    Scope of Work:
    A proper and adequate scope of work is vital to the success of any project. The consultant must consider the unique characteristics of the Site/Project, the client’s stated (and sometimes un-stated or undetermined) goals, the needs of other stakeholders, regulatory requirements, time constraints, budget limitations, and the health and safety of staff and the public. In addition to preparing and completing the ‘right’ scope of work to satisfy multiple stakeholder and project demands, the scope should be defensible and reproducible in the event of regulatory submission, peer review, or potential litigation. The consultant may need to alter the initial agreed scope of work; if so provide justifiable rationale, obtain client approval and fully document in the report, and in the contract agreement. It is important to ‘do what you say you will’ – nothing more and nothing less. Supplying too much information (e.g. providing extraneous or out-of-scope recommendations) can expose you to liability just as easily as saying or doing too little (i.e. failing to meet regulatory or client requirements).

    Next month I will discuss other practical methods to reduce liability in field work and reporting.

    Bill Leedham, P. Geo., CESA

    Bill is the Head Instructor and Course Developer for the Associated Environmental Site Assessors of Canada (www.aesac.ca); and the founder and President of Down 2 Earth Environmental Services Inc. You can contact Bill at info@down2earthenvironmental.ca