#45 The Disclaimer

Disclaimers in our reports. Useless fluff or necessary ass covering? 

Who better to discuss this than Sarah Mansfield (LinkedIn) who is returning to Below the Surface and almost immediately raises the bar for all future lawyer and engineer jokes. Sarah, Gunnar and Hammond tackle P&O cruise insults, ALGA glory, puppies, and why a useful “How to Read This Report” section may be better than hiding AI created legal fog at the back.

Other subjects: Report reliance, executive summaries, confused clients, angry clients, and why “nobody other than the Client can rely on this report” is not quite the magic spell consultants hope it is (spoiler: don't bother with that statement).

Sarah's first appearance on BTS

HWLE Lawyers

H2coco poppers pulled from Woolies shelves due to plastic straws - Inside Waste

Coal companies to reap billions more in taxpayer diesel subsidies as Labor approves new mining 

The episode was recorded on 16 June 2026

Listen to Below the Surface and collect CPD points. We have confirmation that you can claim 0.5 points for every hour you spend with us under the Self Education Category

Contact: bts@4pillars.com.au

https://www.linkedin.com/company/below-the-surface-podcast

The necessary disclaimer: The views, thoughts, and opinions expressed in this Podcast are the speakers’ own. They do not necessarily represent the views, thoughts, and opinions of 4Pillars Environmental Consulting Pty Ltd or any Client, Supplier or other party related to 4Pillars or the speakers. 

(c) Gunnar Haid and James Hammond

Transcript

Transcripts are AI generated and may not accurately reflect the spoken words.

 Gunnar Haid (00:00)

Welcome to the Below the Surface podcast. I'm your host, Gunnar Haid, and I have Hammond, James Hammond here with me. How are you doing?

Hammond, James Hammond (00:08)

Good. Good. How you doing, Gunnar?

Gunnar Haid (00:11)

I'm alright, I'm alright. Slightly frustrated, but we can handle that. I'm sure we can. My frustration, you know where that comes from?

Hammond, James Hammond (00:17)

Anything you

I was gonna say, do you want a vent on here?

Gunnar Haid (00:23)

No, it's not gonna be another one of my rants, but you know what, I let I let it go. The EPA issued a compliance notice to Woolworths and H two Coco because they have illegal plastic straws on their poppers attached to it and that according to the EPA is when it when they're stuck to the popper, that is illegal in New South Wales.

So they issued a compliance notice to both companies. Congratulations.

Hammond, James Hammond (00:55)

So if you like coconut water and you want to get it on the cheap go to Woolies now. Is that the that's the message? Cause they're basically giving them away.

Gunnar Haid (01:02)

That's Exactly because Woolies has

That's right, they had two or three weeks to comply. So last time I went to Woolies guess what was on sale, right?

Hammond, James Hammond (01:12)

Yeah, yeah. I'm not a big coconut

water guy, but y any anyone out there who is, now's the time. Go stock up.

Gunnar Haid (01:20)

Yes. And whatever you do, they're gonna end up in a landfill anyway. So pff 

Hammond, James Hammond (01:24)

Yeah. That's it. Just dispose of the straws responsibly.

Gunnar Haid (01:29)

Yes,that's exactly right. Never mind the carton and plastic lined container, but we don't worry about that one. it's okay. Yes. but what's really frustrating is and I link to it in the show notes, is that our supervised federal government has just put into the budget forty seven billion dollars of diesel fuel excise refunds.

Hammond, James Hammond (01:35)

Mm. Yeah, the old cheek the cheeky plastic lining, yeah, we don't talk about that.

Gunnar Haid (01:58)

Mining industries and farmers in the next four years. So if you are a mining company or a coal company, coal mining company, for every litre of diesel that you buy, you get 52.6 cents back. Well done, government. That's the way to go. I know I know the mining industry is having such a hard time in this current climate, pun intended. And so

Hammond, James Hammond (02:00)

Gee.

Gunnar Haid (02:26)

Go ahead, forty seven billion over four years. Congratulations. Drives me nuts.

Hammond, James Hammond (02:30)

There you go.

It's a weird one, isn't it? And we talked about this earlier and I think my take on it was that this we struggle to make this entertaining when we're talking about environmental science on this podcast and if we start talking about excise and tax reform then we're really gonna lose people.

That'd be a tough listen for this to be become a tax reform podcast. I mean I I'm into it. I just think your audience might not be. But point taken, if you'll it's a weird one, isn't it? The old diesel excise.

Gunnar Haid (02:50)

Mm-hmm.

No, I don't know.

Okay. As if we hadn't any we're talking incentives here, right? So unbelievably counterproductive and so unbelievably dishonest in when you listen to all the co all the p all the politicians and what they say how committed to climate change they are and how committed to fighting climate change they are. And then you put forty-seven billion bucks over four years into the budget in clearly not only subsidizing but encouraging diesel use.

Hammond, James Hammond (03:42)

Mm.

It's a lot of solar panels, isn't it? Forty seven billion dollars worth.

Gunnar Haid (03:48)

Yes, and a lot of EV subsidies and b home battery subsidies, you know, the the home battery subsidy that had that has set new world standards basically in Australia, had to be cut down because, you know, the three billion three not thirty three billion dollars that was assigned to it got eaten up in the first X months. So they said, Whoa, we didn't expect that to happen, you know, where is all this where is all this money gonna come from? I just found a source.

Hammond, James Hammond (03:51)

Mm.Well yeah, and I learnt very quickly in government that when people say, you know, there's no money for that, it's that's not true. There is there's always money for stuff. It's just a matter of where you want to allocate it, so where the gu where the government wants to allocate it. So Yes. Mm-hmm.

Gunnar Haid (04:28)

That's right. Remember COVID? Suddenly we had a lot of money.

Hey, let's talk about something more something happier, happier story because guess what? Ladies and gentlemen boys and girls or whatever we say here these days without offending anybody for Pillars is hiring. Tell us more.

Hammond, James Hammond (04:40)

Yeah.

For the first time in a while we're hiring, which is pretty awesome. So we've been focusing on I guess things internally, getting our systems right and building our client base, and now we're ready to grow again, which is awesome. And so we're looking

Gunnar Haid (05:06)

You sound like a politician. Give me a break here. We need someone to join our team. Give me a break here.

Hammond, James Hammond (05:10)

We want somebody to join our team. So we're looking for a grad or an early career person to do environmental management work, a lot of reporting and environmental monitoring stuff, which would be awesome. And then we're looking for t two senior people. So we're looking for an impact assessment and approvals specialist and we're looking for a contaminated land and waste specialist. And so the approvals person would work with me, the contamination person would work with you, Gunnar. So if anyone wants to figure out what that will what it's like to work with us, we've got forty five episodes here in a back catalogue. Go and go and have a listen and what you hear is what you get.

Gunnar Haid (05:46)

Yeah this this episode is all about disclaimers in our industry. So I maybe I should I should say one right here. So whoever applies for the contaminated sites job will need to work with me. Don't say that I didn't warn you. Okay, that's all I'm saying here. That's maybe a good or a bad thing, but you have been warned.

Hammond, James Hammond (05:49)

Mm-hmm, Yeah.

That's one of the selling points of the job Gunnar that we put up there. They get to work with you. So yeah, it's awesome. So the best place to go for that for some more information is LinkedIn. And the jobs are listed there. So yeah, anyone who might be interested or is thinking of a change, go check it out. We'd love to have you. We're a small firm and but we're high performing and it's a good place to work. So yeah, we'd like to hear from you. Yeah, please do.

Gunnar Haid (06:08)

Not so sure about that. Well, let us know. Off you go. 

 We're talking to Sarah Mansfield. The first time we have someone a repeat. It's not a repeat, it's not a rerun, it's just she's coming on for the second time. A returning guest.

Hammond, James Hammond (06:42)

Returning return of Sarah. We mustn't have scared her too much the first time around. That she's willing to come back again.

Gunnar Haid (06:48)

No.

 Sarah doesn't strike me with someone who gets scared easily, that's for sure. We're talking disclaimers in our in environmental reports. I have a feeling this is something that will help a lot of people. Whenever you talk to Sarah, whether it's on a podcast or at one of the Alga meetings that we that she is frequenting, she is such a gem and such an absolutely lovely person to talk to. She certainly is. I don't know, we don't need to introduce her at all. We chit chat a little bit at the beginning and then we dive into a rather again, you know, legal stuff is never very riveting, but she made it sound so entertaining.

Hammond, James Hammond (07:21)

Yeah.

 Yeah, I was gonna say it sounds it sounds boring, but anyone who's seen the title and is like, nah, this one's not for me, have a have a listen, 'cause there's a lot there's a lot of useful stuff in there beyond just talking about the ins and outs of disclaimers.

Gunnar Haid (07:48)

Here she is the ever so charming and ever so wonderful Sarah Mansfield.

Hammond, James Hammond (07:57)

Greeting, Sarah look at us in our cool headsets.

Sarah Mansfield (07:58)

Hello. Yeah, very tech. We haven't got a golden mic though, so that's unfortunate. That's right. that sounds like a fantastic category for an ALGA award.

Hammond, James Hammond (08:07)

Well, one of these days we will. We'll get the recognition we deserve and the industry will bestow a golden microphone upon Gunnar and I.

Yeah me too, the podcast category. Where's that category? Outright

Sarah Mansfield (08:19)

Where is that category? Yeah.

Gunnar Haid (08:19)

Yeah, that's right. When is somebody gonna nominate us for some sort of award or some sort of prize? About damn time.

Sarah Mansfield (08:26)

Well you know sometimes it's a bit like when someone's got like a really big ring or looks so good. It's too embarrassing to mention it because it just goes without saying, That's what I think is happening for you guys. 

Hammond, James Hammond (08:35)

Yeah.

Goes without saying, Yep, I like it.

Gunnar Haid (08:40)

Yeah, that good looks thing happens to me all the time.

Sarah Mansfield (08:43)

Yeah, everyone is just a little bit worried your heads are getting a bit big because you're so notoriously respected.

Hammond, James Hammond (08:49)

Sams, sim.

you're always too kind to us, Sarah.

Gunnar Haid (08:55)

Thank you.

Sarah Mansfield (08:56)

I'm a lawyer, I'm never kind. 

Gunnar Haid (08:56)

Welcome back. You are our first guest who made it onto the pod twice.

Sarah Mansfield (09:02)

Thank you. Twice wow Awesome.

Hammond, James Hammond (09:08)

Time's flown as well. It was a couple of years ago now, I think. Or a year and year and a half.

Gunnar Haid (09:13)

I just looked it up, it was March 2025 and your children were eighteen months and three and a half, so if I calculate this correctly they are now three and almost five, almost?

Hammond, James Hammond (09:15)

There you go.

Sarah Mansfield (09:17)

Yeah.

They are five and almost three. So I have a two year old and a five year old. Yeah. So all good. This stuff like the nitty gritty of that phase of life is very interesting to James and I. But to anyone else who has gone through that phase or have never entered that phase, I think it's quite boring.

Gunnar Haid (09:31)

okay. Okay.

Hammond, James Hammond (09:41)

Mm-hmm.

Gunnar Haid (09:46)

No it's not. It's just I'm so happy I'm out of it.

Hammond, James Hammond (09:46)

Yeah.

It probably brings a lot of joy to people who are out of that phase, perhaps and and people who haven't entered that phase yet have no idea what we're talking about and no idea what's coming.

Gunnar Haid (09:54)

Yeah.

Sarah Mansfield (09:58)

No,

and it's best that you don't. It's best and you can hear it and you can sort of intellectually understand it, but until you're you know, you cannot understand it.

Gunnar Haid (10:09)

I I got out of it without PTSD, so well I think at least I don't suffer from any long term effects. That's correct. Hey. Careful there.

Sarah Mansfield (10:12)

That or you're in denial?

Other than age. Yeah, yeah, yeah. Okay.

I opened with a compliment just to sort of buffer myself for these kinds of remarks that all happen.

Gunnar Haid (10:30)

So yeah, talking about being offended, Lou and I went to a comedy night the other day. And so yeah, James, you know me, right? I'm front row. If  I go somewhere, I wanna hear, I wanna see, I'm there right. So Lou convinces me second row is better in a comedy club. So we are in in a second row. However, it turns out nobody sits in front of us, so we ended up I was right so the first comedian so there's the intro and the first comedian comes up and the first thing he says, he looks at the crowd and looks at me and he says Hello sir, you look like you have been on a couple of P&O cruises.

Sarah Mansfield (10:59)

What did you say?

Hammond, James Hammond (11:19)

Mm.

Gunnar Haid (11:22)

Nothing! Nothing yet! I'm like man

Sarah Mansfield (11:26)

You, Gunnar said nothing. I don't believe you didn't reply to that.

Gunnar Haid (11:30)

Well I laughed first, I pretended to find that funny. I did so. You have to give it to him. Louis was cracking up, that was a great start for the night. 

Sarah Mansfield (11:33)

It is a bit funny, yeah.

Hmm. So was the show good? Was it actually good? It's been a long time since I've been to a comedy show, but I did used to go to them.

Was that the highlight? 

Gunnar Haid (11:52)

Well, first of all it was it wasn't the Sydney Comedy Festival that's currently on. It was just a pub in Darlington and it was it was good fun. yeah, there's some good nuggets in it. As always, there's a couple of really really funny things, but once you get over it that when some of the people they're just bad and then you can't be embarrassed on their behalf and it's it's okay because they're up there for five minutes. Tell you what, I

Gunnar Haid (12:20)

I actually I'm almost at the point where I'm gonna go to an open mic night one day and I'll give this a go.

Sarah Mansfield (12:24)

wow.

Hammond, James Hammond (12:25)

No yeah. Yeah, all right. 

Sarah Mansfield (12:27)

You should.

Gunnar Haid (12:28)

I think I should. 

Sarah Mansfield (12:30)

I think you should.

Gunnar Haid (12:30)

I already have a joke, right, about my P&O cruises that I have never been on, but

Sarah Mansfield (12:34)

Yeah. And

all the good material that you get through these podcasts, you could just bring it together and just make sure you say a disclaimer at the beginning is my recommendation.

Gunnar Haid (12:43)

What a great segue. Hey before Too early, Sierra, too early because I'm not gonna let you go without a warm up question. I know we've been we've last time you re you staunchly refused to tell me any lawyer jokes, is that still the case?

Sarah Mansfield (12:45)

Right, what bringing it back on track. Mm-hmm.

Mm-hmm. yeah. Mm-hmm.

Mm-hmm.

No, I am prepared.

Gunnar Haid (13:02)

Brilliant, bring it on.

Hammond, James Hammond (13:03)

All right.

Sarah Mansfield (13:04)

Okay,

so this is both a lawyer and an engineer's joke. Okay, so a bunch of engineers, they sadly they die. And then so they go to heaven initially, and God says, No, no, no, not not for you. You're going to hell. And so the engineers go to hell. But whilst they're there, they build a jacuzzi, they build an escalator.

Gunnar Haid (13:08)

Ooh, careful.

Hammond, James Hammond (13:10)

Even better.

Gunnar Haid (13:19)

Well initially.

Sarah Mansfield (13:32)

They've got, you know, they've built a bridge. They have they're having a great time. They make all of this fantastic infrastructure. They do some remediation. They insert air conditioning. They've got solar panels, all of the things, right? And then so God's like, hey, what's going on down there? Like these guys have built something amazing. It's like basically a luxury resort. You know, hey, devil, send my engineers back to me. And the devil then goes, Well,

make me and he's like, Well, I'm gonna get my lawyer and the devil says, well, where do you think you're gonna find one of those?

Hammond, James Hammond (14:08)

Ha ha ha.

Sarah Mansfield (14:09)

That is my joke.

Gunnar Haid (14:10)

Very good.

Hammond, James Hammond (14:11)

Very

good, Sarah, replied.

Sarah Mansfield (14:12)

Thank you,

thank you. I have to I have to give a shout out to the wonderful team at HWLE for giving me the material on which that joke was based.

Gunnar Haid (14:21)

I think it's brilliant. It's even is complimentary to yeah to engineers which isn't easy which isn't easy.

Hammond, James Hammond (14:21)

Very good.

Sarah Mansfield (14:26)

It is which was

the idea. Yeah, it's yeah.

Hammond, James Hammond (14:29)

I like it. And you know what? Not many people do that kind of long form joke anymore, Sarah, so that was a pleasure. Well done, Sarah.

Sarah Mansfield (14:33)

Mm. 

thank you. Sorry.

Gunnar Haid (14:36)

Very good.

Very good. I was actually that is really funny. I like that. I like your description of what the engineers would be doing in hell.

Sarah Mansfield (14:43)

Well all the all the things the engineers would do. Imagine

what they'd create, it'd be amazing. The air conditioning. Yeah. You need that. You need that. Hey. Well I mean exactly. Given an engineer can find a solution to anything. It will cost you, but they will find a solution.

Gunnar Haid (14:48)

The air condition especially the air conditioning in hell is like 'cause it's supposed to be unpleasantly hot, but hey you know, we can engineer our way out of that.

Hammond, James Hammond (14:52)

Mm-hmm.

Yeah.

Gunnar Haid (15:03)

What it will cost you. I'm coming from a lawyer. That's a good one. Yeah, there's another lawyer joke.

Sarah Mansfield (15:06)

Yeah.

Yeah, they well

that's not a joke, that's the reality. Yeah.

Gunnar Haid (15:11)

So we bump into each other at an ALGA event, which you and I need to thank you officially. You are doing such a great job. Alga is doing a fantastic job with all these seminars and your continued involvement and the time you spend with them is very, very much appreciated. You're doing a great service despite being a lawyer.

Sarah Mansfield (15:35)

Well, the only reason I do it is because I get a lot out of it. It's perfect for me. It and it's part of what makes environmental law great, right? It's the, you know, the scenarios you come across in and you have this whole other wonderful set of colleagues from all walks of life who you can have discussions with. What do you think of this issue? You can pick their brains and it's such a fantastic community, which I'm a big believer in. I do it because I get a lot out of it and I enjoy it.

Hammond, James Hammond (16:00)

Well, the in the industry's lucky. Lucky to have you and lucky to have your involvement.

Gunnar Haid (16:04)

So we're talking disclaimers today because in that in that meeting, I don't know, we started chatting and I don't know how it came up, but I we suddenly honed in on this subject where we said, Hey, you know what? Disclaimers in our industry are well, they are. I read them and I always think what's that supposed to do? Like the disclaimer we have here on the on the below the surface podcast that all you're saying is only is not to be taken seriously or not as financial advice and all this, and I always think like

Sarah Mansfield (16:09)

Yeah.

Hm. They're ubiquitous, yeah.

Hmm. It's not

just financial advice. Yes. It's not any kind of it should be it's being provided for entertainment purposes and for your information. You should do nothing based on this podcast other than laugh and think about some issues.

Gunnar Haid (16:40)

That's right.

Hammond, James Hammond (16:44)

Yeah. Yeah.

Gunnar Haid (16:48)

Yeah,

and then I am of course thinking, hey, if you're dumb enough to take a random podcast and take serious either financial or whatever advice on it, and you're you had it coming. So my disclaimer would be, hey, take whatever you take here, but if you have something that happens to you, you had it coming and you deserve it. That's not a disclaimer that James or Amy would allow me to put there but

Sarah Mansfield (16:58)

Yeah.

Mm. 

Mm.

Hammond, James Hammond (17:13)

Or my loyal wife.

Sarah Mansfield (17:17)

That would be an invitation to sue almost that disclaimer. Yeah.

Gunnar Haid (17:20)

See, we're gonna get back

to that because one of my point questions that I have for you is like w why do we have them in the first place? So

Sarah Mansfield (17:26)

Okay. Yeah.

Well, should we talk about w what a disclaimer actually is?

Hammond, James Hammond (17:31)

Yeah, let's start with what it is. What is a disclaimer and what is their purpose?

Sarah Mansfield (17:35)

Okay. So what is a disclaimer? Because there's I think people use the term in in different ways. A disclaimer, the way in which we're talking about it, is a unilateral statement. So it's not an agreement. It's something that you are just you are writing, which is intended to limit your liability or damages in some way. So a disclaimer in this context, it's not a contract.

It's not an agreement between you and the client or it's not an agreement between you and anyone else reading your report. Because in order for it to be an agreement, it has to be agreed to by the other person. But that's not what a disclaimer is. A disclaimer is a unilateral statement that you put in your report somewhere. And in general terms, the purpose of a disclaimer is to try and prevent a statement which might otherwise be considered misleading.

Gunnar Haid (18:04)

Mm-hmm.

Sarah Mansfield (18:29)

From not being misleading. It's a bit like if you say a site is suitable for whatever use, but that doesn't mean the site is completely free for contamination. Or that doesn't mean that if you don't excavate some of the material from that site, that you won't find a fibre of asbestos and the material won't have to be disposed of as such. That is the proper purpose of a disclaimer, but it is not an agreement and it certainly is not a guaranteed form of protection.

Gunnar Haid (18:38)

Mm-hmm.

Hammond, James Hammond (18:58)

is it the case that there's a kind of a a tacit agreement that the reader takes on when they read that report with the disclaimer in it, or that it just doesn't really work that way? Like what's the

Sarah Mansfield (19:10)

It does it. So if you want to have an agreement, you you've got to have an actual agreement. Say, I propose this, do you agree? Except. Generally speaking, it should be in writing, but that's not necessarily the case. All a disclaimer is capable of doing is kind of, you know, saying, read this report through this particular light. So if your report says something really emphatic, like this site is suitable for all uses.

Hammond, James Hammond (19:22)

Right.

Right.

Sarah Mansfield (19:40)

There is not a piece of asbestos in this site, it's going to be difficult for a disclaimer at the end, in generic terms, in tiny writing, to prevent that statement from being misleading or incorrect.

Gunnar Haid (19:42)

Mm-hmm.

Hammond, James Hammond (19:42)

Yeah.

It seems to be about setting expectations or trying to establish expectations of the reader and like the context that they should read what you've given them in.

Sarah Mansfield (20:02)

Yeah, I think so. It forms part of the context. But sometimes people present to me, here's my disclaimer. Make this the best disclaimer in the world, or make this disclaimer protect me from all sorts airtight. What I want a watertight disclaimer that's going to protect me from every kind of claim ever. And I said no disclaimer is ever going to be capable of doing that. What a disclaimer forms part of your report.

Gunnar Haid (20:08)

Uh-huh.

Hammond, James Hammond (20:12)

Yeah. Like airtight.

Sarah Mansfield (20:30)

But whether or not your report is misleading is determined on the whole of the report. First of all, having a clear and correct report is the best thing that's going to protect your liability. But the other thing, if you want to actually try and limit your liability in a contractual sense, well, then you go to your terms and conditions. So sometimes I suggest disclaimers along the lines of if you know your report is being provided to a third party, you get

a contract in place between you and that third party in the outset, talking about the terms on which they may rely on their report. Or sometimes you can say in a disclaimer, this report was prepared for the client only. If you would like to rely on this report, you need to talk to me about whether or not this report is suitable for your purpose and enter into a contract in relation to your reliance. Even then, that's not going to

be a guarantee, but that's probably better than a generic disclaimer just that just says no one can ever rely on this full stop.

Gunnar Haid (21:33)

You snuck something in there two things I wanted to double click on. First you said there's a difference between a disclaimer and and terms what did you call them? Terms of service, terms and conditions. Because some people sneak more or less disclaimers into their tenders. and I have a feeling that has to do with the fact that then they say, well, you we ha you hired me, I told you I told you my report's gonna be nonsense, so what are you complaining about now? Right? That's I'm paraphrasing here.

Sarah Mansfield (21:42)

Terms and conditions or or a contract, yeah.

Yes.

Mm, mm. Mm.

Gunnar Haid (22:02)

So is this something people coming from the consultancy side, is this something we should be doing?

Sarah Mansfield (22:06)

Hmm.

I wouldn't, I would definitely wouldn't be putting a should like that there. I mean, first of all, I think gone are the days where consultants could put things in their terms and conditions and rely on the fact that no one's ever going to read them or look at them. Clients are much more sophisticated about that. They want to be able to rely on your reports if you don't discover something on a site which they think that you should have, they want to sue you and have compensation.

Gunnar Haid (22:21)

Mm-hmm.

Sarah Mansfield (22:34)

For that. And so those kinds of terms and conditions are going to be negotiated and you kind of need to be ready for those negotiations.

Gunnar Haid (22:42)

Well that's

the s that's the second thing you snuck in here is like some people say you this is for my client only and nobody else can rely on that report. Which almost defeats the purpose of most of our reports because our clients don't don't engage environmental consultants because they wanna know out of the goodness of their heart for the burn purposes, yeah, now I know that's I'm safe here, right? That's they don't do that. They do that because somebody else, council, regulator or whatever, made them do that. Per purchaser.

Sarah Mansfield (22:54)

Yeah, exactly.

For their own purposes. Yeah. Yeah.

Purchaser. Yeah,

yeah, absolutely.

Gunnar Haid (23:12)

Right? And having

a disclaimer saying no no nobody can rely on this report other than the client, that's already nonsense in the first place.

Sarah Mansfield (23:20)

That absolute nonsense. I'm engaging a consultant or my client's engaging a consultant in the context of say a property due diligence, right? So I am the vendor, I'm preparing a package of reports to go into a data room that's going to be looked at by purchasers. If I have a smart and proactive client, I'll be talking to that consultant at the front end and saying, hey, this is the context in which your report is being prepared. This is how it's going to be used.

The incoming purchaser is probably going to want reliance on your report. Let's talk about the terms and conditions on which you're going to give them that reliance now, but it doesn't become me begging, screaming at the eleventh hour, what because the fact you're not giving the purchaser reliance is holding up my gazillion dollar transaction. And I would say to consultants, they say, Well, why should I? And it's like, Well, you're better off having terms and conditions.

Gunnar Haid (24:07)

Mm-hmm.

Sarah Mansfield (24:15)

regulating that reliance in some way and knowing who is relying on your report than just knowing that a nebulous person will be relying on it and not being able to sort of make sure that the report makes sense when being read by them. Because this is the thing, the sophistication of the person that you're preparing the report for or who you know is relying on the report is very much relevance to

the terminology you might use, the expectation as to knowledge. And that's what makes reliance hard, right? Because you might be writing it for a very sophisticated person who's well versed in contamination, but the report is being relied on and you ought to know that the report is being relied on by your seventh grade English teacher. And the report has to be be able to be read and understood by both audiences.

Hammond, James Hammond (25:10)

You've mentioned there about clients that are very sophisticated and are going to drill into terms and conditions and really be thinking ahead about how they're going to use your material. we also deal with a lot of clients, I'm sure a lot of our listeners do, th who who are on sort of the other end of the spectrum, I guess, who are who are not sophisticated and who even to the point where a disclaimer that sets the expectations that they should have reading our report is almost pointless as well. And so so if we would move away from the disclaimer being just about arse covering and we want it to actually be

Sarah Mansfield (25:19)

Yeah.

Hmm.

Hammond, James Hammond (25:40)

useful and and for the reader, right? Yeah, I guess I think a lot about what other bits of communication do we have to be giving somebody either within a report or even supplementary material we might give somebody outside of it to help them understand what they're reading. And the perfect example is like you said before, there's a trade off between the amount of work and expense that you allocate up front to investigate a site and the residual risk that you have missed something. Right? So in theory, more spend

Sarah Mansfield (26:01)

Mm.

Yeah.

Hammond, James Hammond (26:08)

More sampling, more work up front, less risk that you miss something. And obviously we we pick a point somewhere on that spectrum and we say, Right, that's the point that I'm happy with and the client, knowingly or unknowingly, is accepting the level of residual risk that they're taking from the amount of money they're willing to spend.

Sarah Mansfield (26:10)

Yeah, yeah. Yeah.

Yeah, you have raised such a good point.

Hammond, James Hammond (26:27)

You may deal with that through a disclaimer and basically try and disclaim that away. But what are your thoughts about like yeah, other I guess other means or how a disclaimer fits into other ways of communicating with a client about those choices they're making?

Sarah Mansfield (26:31)

Mm.

Yeah.

So the first thing that I'm jumping out of my skin to say is my rule of thumb is the more vulnerable the client, the higher your duty of care. And the more important it is that you over communicate with them. So a a sophisticated client who's investigated a million sites who can actually spend all the money to get the greater level of certainty is in some respects less likely to cause you problems.

Hammond, James Hammond (26:54)

Yeah.

Sarah Mansfield (27:09)

Then the client who's more cash strapped, who can't investigate the site to the nth degree, has to accept a greater degree of risk because there's less certainty around what's there. And that needs to be explained to them in very, very clear terms. My rule of thumb is: could a well-educated 12-year-old read and understand?

what it is that you are saying. You need to make that clear. And I would actually say there's always a risk and it's a practical issue more than a legal issue sometimes, that if you have explained all that and the limitations with the report and the areas that haven't been investigated. And if you put that in a document that's separate from the report, there's a risk that that document will get lost, detached, not read. If that information is pertinent to the understanding of the report, make your report the one stop shop.

Hammond, James Hammond (27:52)

Mm. Okay.

Yeah.

Sarah Mansfield (28:00)

for all of the key information.

Hammond, James Hammond (28:01)

Okay.

I hadn't actually thought about that 'cause I have given clients supplementary information outside of reports that are sort of along the lines of not a a disclaimer as such, but it's more of a a plain English, more extensive explanation as to like how to interpret this report and how to understand the decisions you've made around this report. I've I've done that for clients before, but haven't included it in the report, so that's a really good point.

Sarah Mansfield (28:12)

Yes, yes.

Mm, mm, mm.

Gunnar Haid (28:22)

Yeah, it also happens a lot pre engagement. When you when you are in that proposal process and you have an I hate the word unsophisticated, but just someone who is not in the field, right? And the y want an extension in in Paddington and somebody makes them do a f an assessment, right? And you you know, they may be they may very much be very sophisticated people, but no idea, of course no idea about environmental reports and what the environmental report provides them with.

Sarah Mansfield (28:29)

Yeah.

Yeah. Yeah.

Gunnar Haid (28:51)

Most of them don't care in the first place, they just want something that they can submit to council though. Yeah.

Hammond, James Hammond (28:56)

Well they just they want the outcome.

Sarah Mansfield (28:58)

And see, this is the trick, right? That's what you think is all they want at the point in time of engagement. And then they get the report and they might use it for that purpose. But actually then time goes on and they use it for a slightly different purpose to what the report was intended to be used for. And if you haven't made it clear in the body of your report, the purpose for which this report is being prepared, if you don't make that clear on the document, then that document might get used for something.

that you didn't intend it to be used for, but the report itself doesn't make it clear that it's not suitable for this purpose. I once acted for an incredibly clever, incredibly wealthy, sophisticated client who did not understand that a DSI report that they'd received was different to a waste classification report. But then they excavated and of course they had all these, you know, it was asbestos, there was, you know, all sorts of you know higher order

waste classifications and those costs came completely out of the blue. Well, that person wasn't an idiot, far from it. But we forget, you know, we probably have a hundred years of collective experience on this podcast. We forget how much we know just by the fact that we've been working in this area for a really long period of time. And the person that is reading our report may have never dealt with contamination before.

Hammond, James Hammond (29:57)

Yeah.

Yeah.

Happy we've gone on the slight tangent, we'll bring it back in a sec. 

Gunnar Haid (30:23)

I was about to pull it back because we're no longer talking disclaimers here. We're talking 

Sarah Mansfield (30:27)

Well, we are, but disclaimers are such a small part of the puzzle. So the the law on this is very clear. It's like, you know, a disclaimer is part of it. Sure, they're not irrelevant, but the court will look at all the facts and circumstances. They'll look at your scope of work, what you knew about what the client was doing, the correspondence that passed between you. Also, maybe the terms of the disclaimer.

Hammond, James Hammond (30:49)

Yeah,

that's it. And so it's clearly it's not enough on its own and it should be taken in context of everything else. And I just I want to reiterate again, 'cause I think the point you made was very, very important, Sarah, which is you were saying that the less sophisticated the client, the greater your duty of care for that client and really the more care and attention you should put into how you're explaining to them and what and ensuring that they understand the situation that they're in and the decisions they're making, right? You can sometimes be inclined to almost do the opposite because as you said, the

Sarah Mansfield (30:53)

Yes.

Mm. Yeah.

Mm-hmm.

Yeah. Yeah.

Hammond, James Hammond (31:17)

But sometimes the less sophisticated clients are the ones who perhaps don't have the same capacity to pay and what have you as I'm always thinking about others in our industry and I think it's important for regulators to take note of that as well. Because I often see regulators not applying a different level of care in the way they explain things to less sophisticated people that they're dealing with in the regulated community versus you can't deal with a publicly listed company like a clean away or whoever it is.

Sarah Mansfield (31:22)

Yeah, more conservative.

Mm.

Hammond, James Hammond (31:45)

And a and small skip in operator, you cannot treat them and use the same terminology and the same methods of communicating to both. You just can't. So there's an ethical obligation to ensure that you're communicating properly.

Sarah Mansfield (31:53)

No.

It it's ethical and it's also called the law of negligence. The scope of your duty of care. You've got to take reasonable steps for that person that you're providing the service to.

Gunnar Haid (32:07)

So Yeah, well - my head's spinning. 

Hammond, James Hammond (32:07)

Bring us back or not? Rein us in.

Ha ha.

Sarah Mansfield (32:12)

Can I tell you a fun fact which I noted in the course of preparing for this podcast? So your reports they generally say that they comply with the EPA's guidelines on consultants reporting on contaminated sites, right? Okay, well that yeah.

Hammond, James Hammond (32:18)

Place.

Gunnar Haid (32:25)

No No

Hammond, James Hammond (32:28)

Don't they?

Gunnar Haid (32:30)

No, I stay away from that. I say they are in they're in deference to. I I have these discussions with j with our compliance team. s one of them sitting here, right? where they say why don't you just say it There's a a lot of people whinging about compliance but I stay away from that because I have yet to read a report that a hundred percent complies with the reporting guidelines.

Sarah Mansfield (32:32)

Yeah.

Yeah, that you're your comprehensive compliance team with incredible depth.

Hammond, James Hammond (32:38)

Mm mm. Yeah.

That's it.

Sarah Mansfield (32:49)

Mm-hmm.

Gunnar Haid (32:59)

I say that they that our report is written in deference to the reporting guidelines and the NEPM and whatever. Because if as soon as I say they are in accordance with, I'm lying.

Sarah Mansfield (33:06)

Mm.

Is that because the guidelines say your reports should not contain any disclaimers limiting responsibility for completeness or accuracy?

Gunnar Haid (33:20)

nah,

p that's not my problem. I mean there's other stuff

Sarah Mansfield (33:24)

But they I think this is this is

Hammond, James Hammond (33:24)

But

Sarah Mansfield (33:25)

notable.

The EPA's guidelines on consultants reporting contaminated sites say your sign off or approval should not be subject to disclaimers limiting responsibility or completeness or accuracy.

Hammond, James Hammond (33:37)

Mm. For completeness, completeness or accuracy. Yeah.

Gunnar Haid (33:38)

Good one.

Sarah Mansfield (33:41)

For completeness or accuracy. But then

the amusing thing about that is that those guidelines themselves contain a disclaimer. so we can go round and round and round in circles. But yeah, the compliance with the EPA guidelines is you know, those bold statements that it complies are scary is scary statements and you do need to check.

Hammond, James Hammond (33:50)

Yeah.

Yeah.

Sarah Mansfield (34:04)

that they are correct. If they are not compliant, I generally like to suggest that that be identified the manner in which that they're not compliant. But yeah, you if you if you're saying they're compliant and they're not a disclaimer will struggle

Hammond, James Hammond (34:14)

Mm.

Gunnar Haid (34:18)

Define compliance, right? am I complying with this or am I not? Or or do you know what I mean? It's like

Sarah Mansfield (34:21)

Yeah, exactly.

Hammond, James Hammond (34:31)

Like they try to be prescriptive as they can, but there is a lot of subjectivity built into any side assessment, right?

Sarah Mansfield (34:37)

That's right. And that's what we love. We don't want to be ticker box people. You are professionals, you exercise discretion, you exercise judgment, and we absolutely need you and want you to do that. And frankly, your jobs would be quite boring if that was all you were. I found that amusing and noteworthy that the EPA has its own comment of on on disclaimers.

Gunnar Haid (34:57)

That's a good one. Man, this would be the kind of stuff that I should know or I would know normally. 

Sarah Mansfield (35:04)

Hm. If you were yeah.

Hammond, James Hammond (35:06)

And this is the funny thing in s in small firms in particular and I you know you say in deference to I think the word the language I prefer is that reports prepared generally in accordance with this is the funny thing, I'm sure if you look if you took ten of our reports, they'd probably each have a slightly different version of I how we explain that.

Gunnar Haid (35:18)

Did

Sarah Mansfield (35:22)

But that's just because you've tailored them to your audience, right? But look, the exact form of words I, you know, generally in accordance with with reference to, I don't think that much is going to turn on the precise terminology in which you use. It's the it's the vibe of the whole thing. Like if you've said it's generally in accordance with this, but you've said absolutely there is no PFAS in this site.

Gunnar Haid (35:25)

Exactly, that's what it is, yeah.

Hammond, James Hammond (35:39)

Hm.

Yeah.

Sarah Mansfield (35:50)

The it's the wording of your actual conclusion. It's the bits that you know the people are actually going to read.

Hammond, James Hammond (35:56)

Is then the conclusions of your report more critical than your disclaimer?

Sarah Mansfield (36:01)

Of course. Absolutely they are. The executive summary and the conclusions. They are the things that where you say what it is you're going to say. Yeah, in in terms of things that I see wrong which have led to misleading or deceptive conduct claims of against consultants, including by third parties, most common mistake ever is wrong property or poorly defined property. I'm serious. I'm ser it but I don't mean like

Hammond, James Hammond (36:18)

Yeah.

Gunnar Haid (36:25)

Oof. Yeah, yeah, yeah.

Sarah Mansfield (36:29)

Like the boundaries are wrong or it's the address isn't quite right and people thought it included one bit of parcel, but it didn't. That is so, so common. I think in one of the first things I do when I get a consultant's report to review, I'm like, is this property that they've assessed, does it correspond with what the client is buying, selling, developing, whatever? But and I know why this happens. It's because when the client gives you instructions, you you'll be lucky to get a street address from them.

Hammond, James Hammond (36:50)

Sarah Mansfield (36:58)

But just because that's the information that you get, they just if you correct or clarify one thing at the outset, that's a good one. another common mistake is where you've got a disclaimer saying there can be no reliance by third parties when blind Freddie can tell that there's going to be reliance by a third party on this report, your conduct, the context, that disclaimer I don't think is going to help you.

Gunnar Haid (37:05)

Hammond, James Hammond (37:06)

Mm.

Gunnar Haid (37:24)

We covered that. Basically any environmental report that I have written is not for my clients' entertainment.

Hammond, James Hammond (37:24)

Mm.

Sarah Mansfield (37:32)

Yeah, but it's not because they wanted to get it, it's because someone or something is making them getting it. Yeah. Yeah. You should assume that's the case. But then you've got this problem, right? Because there's this this is another common mistake. You basically said, Guna, you're getting instructed by somebody, that the somebody is not the person who's going to be relying on your report. So do you know how they're going to develop or use the land? Do you know how sophisticated they are? Probably not.

Gunnar Haid (37:36)

Yes. So it's automatically for the reliance of someone else. Yeah.

Sarah Mansfield (38:01)

So in the absence of that information and proceeding on the basis that you're not allowed to talk to that person, then you have to go back to my well-educated twelve-year-old test because that might be well who is reading and relying on your report. You know, it's like the art of any good professional. You do sometimes have, you know, having difficult conversations with people in a way that makes them thank you for it at the end. Resisting that pressure and being the

Excellent professionals that I know you all are and not being too influenced by that.

Hammond, James Hammond (38:29)

Yeah.

There's a lot of back and forth that can happen around the particular adjectives you use to describe certain conditions, right? Like I'm sure we've all had that experience with a client where they say, I don't you know, I don't like this word, I don't you know, I I prefer this one. But yeah, like you said, you gotta think about the other third party users I suppose and or keep it to that generic benchmark of making sure it's still clear and says what it needs to say.

I like your point about executive summaries because I think that can be a really sometimes be an afterthought. Yeah, it's probably the most critical part of the whole thing. And just a little tip, if I'm reviewing s one of my team's reports, I actually tell them don't write the executive summary. I read the report and then I write the executive summary and th then they check it to make sure that I've understood it properly, right? Because I think if you're too much in the detail, again it leads you to write an executive summary that is too much in the detail.

Sarah Mansfield (39:01)

Yeah. You're rushing at the end. Yeah.

Hammond, James Hammond (39:24)

And he's and pa and potentially worded in a way that that doesn't achieve that really kind of plain English level of communication. So yeah, I've just found it useful to have it have somebody else write your executive summary after they've read your report.

Gunnar Haid (39:36)

You haven't offered that for me. 

Hammond, James Hammond (39:39)

Well, you know.

Sarah Mansfield (39:39)

Mm-hmm.

Gunnar Haid (39:41)

Busted.

Hammond, James Hammond (39:43)

Ha ha.

Sarah Mansfield (39:44)

I think that's a fabulous methodology. And then if you write the executive summary and they say, no, you've missed this major issue, then it's like, that's not make it come through. The other tip I have at is read the report or the advice backwards when you're fresher, because you know, you get toward the end of a long document and you do. You you're human, you get lazier. And so it's like, well, actually, okay.

Hammond, James Hammond (39:50)

Yeah, yeah. Then I'm like that's not coming through in the report.

Mm.

We said.

Sarah Mansfield (40:08)

Your best drafting was probably at the beginning or wherever you started, so then make yourself read it backwards and then see if it still makes sense. 

Hammond, James Hammond (40:11)

A hundred percent. Definitely.

Gunnar Haid (40:18)

No no no, there is so many things because everybody uses templates and and when I read there's one up on my screen right now, when I read a DSI report that I have to review, it's like I the eighty or ninety percent of that report I have read before. Yeah. And I'm absolutely not only blind, but you also you almost have this this inner urge to not read that yet again. Right? 

Sarah Mansfield (40:33)

Mm. Yeah, you become blind to it.

Gunnar Haid (40:45)

Yeah so review but hey we're we're moving away from the disclaimer we've learned a lot about report writing right now in you know in this discussion more than more than disclaimers which is fine. yes the executive summary and the conclusions that is in fact in the conclusions is where a good consultant makes their money. That's where the rubber meets the road. and a famous one, Sarah, that people write into their disclaimer is liability is limited to three times the invoice amount.

Hammond, James Hammond (41:18)

In a disclaimer. wow. Yeah,

 wow.

Sarah Mansfield (41:22)

Well, that's not enforceable. If if you want to impose those kinds of conditions and limits and liabilities, then a contract is required. You cannot just say, and you yeah, any person who is reading this report needs to buy me a puppy. Like it it's not in it's not enforceable. it's often, you know, one of my favourite catch lines in any kind of argument is just because you say it doesn't make it true. in order to make that

Gunnar Haid (41:23)

Not enforceable, you might as well not.

I've said

that to an the other day, that didn't go down well. He said I'm done said, Yeah, it doesn't make you right.

Sarah Mansfield (41:56)

Yeah, if that's you gotta pick your audience there, Gunnar. I think that's more of a sort of dispute resolution strategy. But you can say you can you yeah, that's another episode mediation. You can write the sky is purple in your disclaimer and that doesn't make it true, just as much as you can try and impose contractual conditions via a disclaimer and that does not make it true. If you want to limit your liability in some way.

Hammond, James Hammond (42:06)

That's another episode. Mediation.

Sarah Mansfield (42:25)

your best chance of being able to do that is in a contract where somebody agrees with you. So that's why sometimes consultants sort of get up in arms about someone requesting reliance on their report and asking for contractual reliance. Whereas I say, well, here is your chance to regulate that reliance or get your hands around that reliance in some way.

Gunnar Haid (42:28)

Mm-hmm.

Hammond, James Hammond (42:31)

Mm.

Gunnar Haid (42:47)

Okay. So no puppies.

Sarah Mansfield (42:50)

No puppies. I mean you cannot put your wish list of protections in a disclaimer. 

Hammond, James Hammond (42:56)

Mm.

Gunnar Haid (42:57)

So we've learned no puppies and no no no limiting liability in a disclaimer because it's unilateral. It's the first thing you told us. It's unilateral. You yeah, you can't just throw that in. it's different when you make that part of your tender, when you say, Hey, by the way, by agreeing to this, my liability will be three times the invoice amount and that's the end of that discussion. Is that something that is ev is that then enforceable?

Sarah Mansfield (43:01)

No.

Yes, it's not a contract. Yeah. Yeah.

Hammond, James Hammond (43:09)

Mm.

Sarah Mansfield (43:25)

That is potentially enforceable. There's a whole bunch of law that applies to whether or not a contractual provision like that is enforceable. There's unfair contracts legislation and a whole bunch of different rules that govern that relationship. But that kind of clause is at least potentially enforceable. Generally speaking, a court will not uphold a or will be inclined to sort of push to one side a contractual provision, which you know means that.

Hammond, James Hammond (43:38)

Mm.

Sarah Mansfield (43:55)

the substance of the bargain is completely illusionary. Like if they've paid good money for your report and if they can't rely on it to a reasonable extent, contractual provisions which make that the bargain uncommercial, unfair, unrealistic. But if you put reasonable and appropriate terms and conditions, which are commercially sensible, not only is that probably good business, but they're also likely to be enforced.

Hammond, James Hammond (44:11)

Mm.

Sarah Mansfield (44:23)

And also bear in mind you cannot, generally speaking, exclude liability for misleading or deceptive conduct. You're limiting your contractual liability to that person. If you're misleading, that's a completely separate course of action.

Gunnar Haid (44:35)

Course every consultant would like a generic disclaimer that they can just chuck and they at the end of every report, that doesn't fly, does it?

Sarah Mansfield (44:40)

Yes.

disclaimer is more likely to be useful to you if it is tailored to the report or in the very least the type of report. Think about at least having a different type of disclaimer for a PSI, DSI, waste classification, validation report. And if you are actually saying that re the report complies with the guidelines, well then you probably also have to have a look at whether or not the report is compliant with the bid on the guidelines about disclaimers. another fun fact though, of course.

Gunnar Haid (44:57)

Mm-hmm. Uh-huh.

Hammond, James Hammond (45:10)

Yeah.

Sarah Mansfield (45:12)

site audit statements, when you're using the prescribed form, that form is set and forget. It you can't put a disclaimer on the face of those reports. And I think it would be very difficult to draft an enforceable disclaimer for a site audit statement because a site audit statement is a statement to whoever is reading it. It's commissioned by the client or commissioned or paid for by someone, but it is being re prepared as an independent

Gunnar Haid (45:13)

yeah.

Sarah Mansfield (45:41)

often statutory certification that the report is meeting its objectives or as to site suitability. It's a disclaimer in those contexts you know has very well very limited opportunity to apply and also potentially not that work much work to do in any event.

Gunnar Haid (45:54)

Hmm.

So how long is a roughly how long is a good disclaimer? 'Cause I read them from two pages to two paragraphs. It's like

Sarah Mansfield (46:04)

No.

In many respects the disclaimer, i it it's not the thing. It's the report. It might be a pithy statement, you know, to the effect that this is a PSI, it is not prepared on in relation to intrusive investigations, it is therefore limited, you know, it is best endeavours to com comply with the guidelines, but this report has inherent limitations because it's n including because it's not based on any intrusive testing.

Gunnar Haid (46:10)

Mm. 

Mm-hmm.

Sarah Mansfield (46:35)

It actually tells them something useful about how to read and interpret the report. a one liner disclaimer saying this is for information purposes and there you go. I don't know that that does much. And frankly, I don't even know sometimes what for information purposes means.

Gunnar Haid (46:46)

Yeah.

Should maybe a disclaimer be one of the first sections where we j where we say hey not explanatory note and not call it disclaimer where we say hey listen, you're about to read a report here and we are trying our best, but man there is so little information that we we we make general statements about a site suitability and yet we have twenty borings that are this big and we are trying our best to to to characterize a site.

Sarah Mansfield (47:00)

Yeah.

Yeah. Yeah.

Gunnar Haid (47:24)

But there are not like not only legal limitations, but there are physical limitations to what we are what we are telling you here. Maybe a disclaimer should be called generic explanation or s I at the right at the beginning.

Sarah Mansfield (47:36)

Make it something someone will read. Call it something like how to read this report, how to use this report. Put it put it somewhere where you open it before the table of context is a good option. And provide a plain English explanation and how to read the report. I think a really good thing to include, particularly when you're doing DSIs, is that note about the distinction between site suitability and waste classification, that they are different things.

Gunnar Haid (47:40)

Yeah.

Hammond, James Hammond (47:41)

Hm.

Yeah.

Yeah.

Gunnar Haid (48:03)

Mm-hmm.

Hammond, James Hammond (48:04)

Yeah. That's such a good point 'cause I think people s sometimes see, you know, disclaimer and their eyes just kinda glaze over and they go, I can't I can't interpret that.

Sarah Mansfield (48:10)

Yeah.

Or this is generic information that's not useful to me. This is a consultant trying to cover their backside. I'm not reading it.

Hammond, James Hammond (48:18)

Well,

that's right. And if you frame it differently as like this is something to help you interpret this report that is, you know, fully outside of what you do day to day, then it might be seen as more useful. Most of the time people see disclaimers as I suppose their their purpose is is more in the legal sense, right? So to protect yourself from legal ramifications from something going wrong. But

Gunnar Haid (48:36)

Yeah, from people like Sarah.

Sarah Mansfield (48:38)

From people at me, from the

Gunnar Haid (48:39)

Yeah, well

Sarah Mansfield (48:39)

enemy. Correct. Yeah.

Hammond, James Hammond (48:42)

Well depends. Hopefully, Sarah will be on our side, I'm sure. So probably the bigger thing that people sometimes miss is that you know, yes, there's the legal ramifications for something, but we have to also just by having a disclaimer doesn't mean that you are free of consequences of your actions and what you write. When a client's upset about an outcome that's come from a report in their perception, the fraction that would then go on to legal

Gunnar Haid (48:45)

Yeah.

Hammond, James Hammond (49:10)

processes like where they're trying to actually legally recoup costs or whatever would be a very, very small proportion of the overall number of situations like that. The vast majority would be more like the relationship and the commercial impacts and consequences of that happening. So I think we need to like Well yeah, that's it. So it's like we don't want a disclaimer to just have a sole purpose of mitigating against in legal risk. We want it to truly be something that's in that's helpful to

Gunnar Haid (49:10)

Mm-hmm.

Sarah Mansfield (49:27)

Gotta get that.

Hammond, James Hammond (49:38)

the reader to understand what it is to avoid misunderstandings, miscommunications and disappointments when the the product doesn't do what you they expect it to do.

Sarah Mansfield (49:48)

So I think it was at an Algar event recently. For some reason, somehow I ended up going on about, you know, my purpose, what I like, why I like this area of law. And I think what I said was something on the lines of I want to make people's lives better, happier, and prevent unnecessary I know, I'm gonna bring it back relevant. Get that smirk off your face. Unnecess unnecessary s

Hammond, James Hammond (49:59)

Mm-hmm.

Gunnar Haid (50:14)

Yes, Hammond.

Exactly.

Sarah Mansfield (50:16)

Unnecessary stress, cost, delay, all of the things. And that's generally happens when people don't receive bad news. It's when they receive unexpected bad news. Whereas, and even if your report was perfect, even if it was entirely compliant with the EPA guidelines, it's not just the unpleasantness of having an upset client and maybe some commercial implications of that, the stress and time of the possibility of a claim.

Hammond, James Hammond (50:20)

Yeah.

Sarah Mansfield (50:45)

It the cost of that is huge. You you pay that cost, but it also takes you away from you doing what you actually want to do, which is all the other matters. You're not listening to this podcast, you're not turning up to ALGA events. You're in meetings with people like me. And I make them as enjoyable as possible, but you don't you you're definitely not making money out of those meetings. I can tell you that. That's not what you want to be doing. So it's preventing those issues from arising by making sure.

Hammond, James Hammond (51:06)

Yeah. Yeah.

Sarah Mansfield (51:13)

Like the client's not going to be happy with the outcome, but they're not going to be able to blame you for the outcome. And that's and in fact actually they're going to engage you to do more work for them.

Hammond, James Hammond (51:15)

Yeah.

Gunnar Haid (51:18)

Ha ha.

Hammond, James Hammond (51:23)

Yeah, well that's right. And the impacts of that are are different. Yeah, that's a that's a potentially that's a more of a lost client and lost opportunity impact than a than a legal impact.

Sarah Mansfield (51:29)

Mm.

Gunnar Haid (51:30)

That's again

Sarah Mansfield (51:31)

Mm.

Gunnar Haid (51:31)

that is that that's that's a setting of expectations when you get engaged. I But yeah, of course nobody wants to have bad news. but I so often feel like that I'm being blamed for a c a contaminated site that I had nothing to do. I I didn't put this there.

Hammond, James Hammond (51:35)

Yeah.

Sarah Mansfield (51:47)

But

Hammond, James Hammond (51:48)

I did

Sarah Mansfield (51:48)

you yeah, I didn't put the stuff there. I didn't do it. I absolutely resonate with that. But also it it's a human it's a human nature thing. When someone's about to incur hundreds of thousands, if not millions of dollars that they weren't expecting, what are you gonna do? You're gonna blame someone who's not in your immediate circle. And who's outside of the immediate circle? Pete professionals who they've engaged to help them. So if they can find a way to blame you.

Hammond, James Hammond (52:07)

Yeah.

Hmm.

Yeah.

Sarah Mansfield (52:14)

They they may well pursue it. And that's not good.

Hammond, James Hammond (52:18)

Because something I come across a lot when we're dealing with development applications and we're doing environmental impact assessments and often what we're doing there is we're coming up with mitigation to reduce the environmental impact of something. But most mitigation has a cost. You you don't you don't incur that cost until you actually then after you get approval and you go ahead and do the the development and sometimes clients are so narrowly focused on getting that approval, they lose sight of what am I signing up for in after that that.

Sarah Mansfield (52:22)

Hmm. Yeah.

Yes.

Hammond, James Hammond (52:46)

When I actually have to get in there and actually implement everything, right? I'm very, very conscious because I learned the hard way from a client agreeing to do certain things to reduce that residual risk, and then after the fact they go, hang on a second, what do you mean it's gonna cost a million dollars to do that thing? Right? And it's like, Well, we talked about it, you agreed to it, but but did they fully understand what they were signing up for? So again, I just I've really sort of honed in on that, where like whenever I talk mitigation with clients, I go, You have to understand the trade off, right?

Sarah Mansfield (52:49)

Yeah.

Yeah. Yeah.

Hammond, James Hammond (53:16)

If you agree to this, on the plus side you're more likely to get approval. On the down side, it's going to be more expensive when you do the project.

Sarah Mansfield (53:21)

Yeah. Yeah. So do a feasibility assessment until you agree with the mitigation. Or what I sell for clients in that, get a a a fee proposal from the consultant and sign them up to it.

Hammond, James Hammond (53:25)

Yeah. Yeah.

Yeah.

And that's and so we don't stick that in the disclaimer saying, you know, that we take no responsibility for the costs of implementing, you know, this project we've designed. we don't do it that way. We do it rather in the in the back and forth with the client, like you said. Yeah. Exactly.

Sarah Mansfield (53:39)

No.

Yeah. And it's done in writing in in some way. Yep.

Yeah.

Gunnar Haid (53:50)

Well,

we have Hammond, are we gonna change the R report format? We should otherwise we just

Hammond, James Hammond (53:55)

Well I don't know, we've

got a whole bunch of different ones by the sounds of it.

Sarah Mansfield (54:00)

You know, I think the having a how to use this report is probably going to be more useful to you, some generic guidance, which then you can tailor as as required.

Hammond, James Hammond (54:07)

Mm.

I agree and I'd stick some images and some infographics and what have you in there to sort of really really make it digestible as well.

Gunnar Haid (54:20)

Okay. Well now it's not a bad idea because i w this would be something we write once and and we put it in front of PSI DSI. You there's different ones but

Sarah Mansfield (54:29)

work, I appreciate that, but it's a lot less work than a claim.

Hammond, James Hammond (54:32)

Yes,

that's a very good point.

Gunnar Haid (54:33)

Yeah, you guys you lawyers, you always think about claims because that's what you come across, right? Yeah, you do.

Sarah Mansfield (54:38)

I have a negativity bias. Sure.

Hammond, James Hammond (54:40)

The way I see it as well is it's also easier to spend the time doing that than to have to h have an argument with a client and and potentially lose a good client. There it's the headache of having the argument in the first place and having that issue come up.

Sarah Mansfield (54:50)

Hmm.

But it's easier when you're dealing with lawyers. So if you have sort of your generic disclaimer, you know, and that comes to me and it's like, well, how is that reasonable? You knew someone else was going to be relying on this report. What do you mean it doesn't comply with the guidelines? All of those things. As an argument, you're going to struggle to win. But if you say this is objectively reasonable guidance as to how you should read and understand this report and what the report does not do.

Hammond, James Hammond (55:06)

Mm.

Gunnar Haid (55:15)

Uh-huh.

Sarah Mansfield (55:18)

Then I'm a bit well, that seems very factual and objectively correct. and it's not something that a lawyer I think would be wise to get their dirty little fingers on too much because that's your guidance.

Hammond, James Hammond (55:23)

Yeah.

Gunnar Haid (55:31)

Mm-hmm.

Hammond, James Hammond (55:32)

Mm. Very good.

Gunnar Haid (55:34)

Okay, Sarah, thank you for joining us again. congratulations on the on on being the the first what is it a double repeat repeat guest. Yeah, I I could send you a a little certificate of achievement if you want. F for for for for your office right next to your Harvard degree or wherever it is, right? Thank you. I hope I see you next time at the next Alga.

Sarah Mansfield (55:37)

Well, you're welcome.

Hammond, James Hammond (55:38)

Thanks, Sarah.

Return, return guest? Repeat.

Sarah Mansfield (55:43)

Rape a guest. Yeah.

That would be great. Thank you very much. I'd appreciate that.

Yes, yep, I'll put it right next to that. All right.

I will see you then. All right, thanks guys.

Gunnar Haid (56:06)

Yeah.