Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 18
Construction Delay Analysis after
Santos v Fluor: Method, Credibility
and the Future of Expert Evidence
by Jamie Caul昀椀eld, Associate Director (Delay Expert Witness Services) at Tudor Rose.
factual circumstances and, indeed, was supported
by a prodigiously detailed analysis of background
facts and documents. It was unshaken in crossexamination”.
Introduction
The judgement in Santos Limited v Fluor Australia
Pty Ltd [2025] QSC 184 from the Queensland
Supreme Court has provided one of the clearest
modern judicial statements on construction delay
expert analysis. It is particularly signi昀椀cant for
delay analysts and experts, as it highlights that
methodology and reasoning are scrutinised as
closely as conclusions.
Judge Freeburn commented on the near critical path
analysis undertaken by the defendant’s expert. The
judge concluded the evidence did not demonstrate
these near critical delays ever became critical. He
asserted that the, “process of identifying the critical
path, that is what is controlling the progress, is
fundamental to the agreed process”.
For companies that specialise in delay analysis, this
case sends a strong message:
Decision makers are far more interested in clear
reasoning and real evidence than in complicated
models or impressive-looking software outputs.
Why Near Critical Paths Are Not
Your Friend
The defendant expert’s evidence relied on a ‘but-for’
scenario, which relies on the following proposition:
Two Experts, Two Very Di昀昀erent Stories
In this case, the claimant was Santos Limited and the
defendant was Fluor Australia.
‘If this delay had not happened, something else
would have caused delay anyway.’
Both sides hired delay experts who agreed on
an initial methodology; as-planned vs as-built
windows analysis. However, their conclusions were
contrasting due to one expert’s decision to apply
‘but-for’ scenarios to their analysis.
The problem is that construction projects do not
behave like that. When one delay is removed, the
whole sequence of work can change. A di昀昀erent
activity may become critical, or work might be done
in a di昀昀erent order. Delay experts must rely on the
facts only and not hypothesise about what could
have happened.
The claimant’s expert carried out an as-planned
vs as-built windows analysis. They looked at what
was originally planned and compared it with what
actually happened on site, breaking the project into
time periods and showing how critical path delays
built up over time.
The Court accepted that you cannot safely assume
the project would have been late anyway without
showing what would actually have happened. Delay
analysis has to re昀氀ect how projects behave in real
life, not how they might behave in theory.
The defendant’s expert tried to argue that if certain
delays had not happened, the project would still
have 昀椀nished late anyway, because other tasks were
nearly critical.
Why looking at what actually happened is important
The claimant’s expert focused on actual progress.
They identi昀椀ed:
The referees preferred the former approach, as did
the Court. The referees found the evidence of the
claimant’s expert to be “consistent with the objective
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What the planned intent of the parties was.
•
What actually happened contemporaneously.
AUGUST 2026
