|
ENGINEERS AND PROFESSIONAL LIABILITY
(Source: Malaysian Law Journal [2001] 4MLJ )
by
JAMES PONNIAH JOSEPH
BE (Hons) Civil, CDip, AF, MBA,
LLB(Hons), CLP, MIEM. P. Eng, AGIArb, Civil Engineer, Kinta Kellas PLG
Introduction
Every young engineer goes out into the
world after completing his formal academic training with lofty intentions
of putting his newly acquired knowledge into practice. In the initial
stages of his working life, he may invariably pick up many shortcuts from
his superiors, colleagues and others involved in the trade. These
so-called shortcuts, often euphemistically referred to as rules of thumb,
presumptions or 'work-smart' practices, are supposed to get the job
completed fast, with the minimum expenditure of resources. Such practices
often lead to the quality of the completed works being compromised and, in
certain cases, loss of human lives as well. At the end of the day, the
engineer (or engineers) involved could face a string of costly
professional negligence lawsuits as recently decided case illustrates.
Building a house
In the case of Dr Abdul Hamid
Rashid v Jurusan Malaysian Consultants [1997] 3 MLJ 546, the plaintiffs
were lecturers at a leading public university in the country. They had
sought the expertise of the first defendant, a civil and structural
consulting engineering firm, to draw up plans for a double-storey house
that they wished to put up on a piece of land, Lot 3007, belonging to
them. The fourth defendant, a professional engineer registered with the
Board of Engineers, Malaysia (BEM) and proprietor of the first defendant
at the material time, signed for plans for the house. The second
defendant, the local authority with jurisdiction over the area in
question, approved the plans, with its usual specifications and
conditions.
Construction works commenced shortly
thereafter and the plaintiffs moved into their completed house sometime in
April 1985 even though the local authority had yet to issue a Certificate
of Fitness (CF). Meanwhile at about the same time or shortly thereafter,
the third defendant, a contractor, commenced construction of a bungalow on
the adjacent Lot 3008. About 40 months later, on 18 September 1988, at
about 3:00am, the plaintiffs were awoken from their slumber by an
unusually loud sound. Later, it emerged that approximately half of the
house, the portion that was facing a river, had caved in as a result of a
landslide. The plaintiffs sued the defendants for RM364,173.00 in damages
for breach of contract and negligence.
In the event, the court assessed the
first and fourth defendants' liability as 60 percent. Meanwhile, the third
defendant was found liable for the remaining 40 percent; primarily because
of the excavation works it carried out on Lot 3008 which contributed to
the landslide that damaged the plaintiffs' house. The second defendant was
however held to be not liable largely due to s 95 of the Street, Drainage
and Building Act 1974 that exempted the said local authority from being
sued for breach of statutory duty and negligence.
Several important legal issues were
raised in the case of Dr Abdul Hamid. However, this paper shall largely
confine its focus to the acts of commission and omissions of the fourth
defendant, and vicariously those of the first defendant.
Implied terms
Whenever an engineer's services are
sought, an agreement would generally be signed between the engineer and
his client. Such an agreement ought to spell out clearly details
concerning the services required. In Dr Abdul Hamid, it emerged that the
agreement entered into by the plaintiffs trusted the fourth defendant, a
qualified civil engineer, to deliver a house that would meet their
requirements, including being safe for occupation. Hence, a host of issues
were not anticipated and reduced into writing.
However, at the hearing, the court held
that there was an implied term in the agreement that the fourth defendant,
by publicly proclaiming himself as a consulting civil engineer to the
general public, was expected to take reasonable care and skill in the
performance of his craft. The court in Dr Abdul Hamid held that the
conditions set out in the case of BP Refinery (Westernport) Pty Ltd v
Shire of Hasing[1978] 52 ALJR 20 concerning implied terms were fulfilled.
In BP Refinery, the conditions to be fulfilled were enunciated in the
following terms:
In their (Lordships) view, for a term
to be implied, the following conditions must be satisfied: it must be
reasonable and equitable; it must be necessary to give business efficacy
to the contract, so that no term will be implied if the contract is
effective without it; it must be capable of clear expressions; it must
not contradict any express term of the contract.
It is submitted that the process of
implication is available whenever a binding contract has been entered into
or made. This was decided in the Privy Council case of Scancarriers v
Aotearoa International [1985] 135 New LJ 799 PC. In Dr Abdul Hamid, the
agreement was formalized before the fourth defendant took the necessary
steps to perform the engineering services sought by the plaintiffs.
The Bolam Test
It requires no elaboration that an
engineer owes a duty of care, foremost amongst others, to his clients. But
the vexing issue often is: What is the requisite standard of care expected
of the engineer in such situations? Generally, it is sufficient for the
engineer concerned, to exercise the ordinary skill of an ordinary engineer
exercising their particular art. This pronouncement has become known as
the Bolam Test in legal circles, by virtue of the fact that it was first
enunciated in the case of Bolam v Friern Hospital Management Committee [
1957\ 2 ALL ER 118 by McNair J at p 586 in the following words:
'Where you get a situation which
involves the use of some special skill or competence, then the test as
to whether there has been negligence or not is not the test of the man
on the top of a Clapham omnibus, because he has not got this special
skill. The test is the standard of the ordinary skilled man exercising
and profession to have that special skill. A man need not possess the
highest expert skill; it is well established law that it is sufficient
if he exercises the ordinary skill of an ordinary competent man
exercising that particular art.
The decision in that UK case has since
become a part of Malaysian Law following its adoption in Chin Keow v
Government of Malaysia & Anor [1967] 2 MLJ 45 and Inderjeet Singh v
Mazlan bin Jasmin & Ors [1995] 3 CLJ 395.
The ramifications of the Bolam Test are
far-reaching and can prove to be the Achilles' heel for engineers who
resort to shortcuts in their professional career, including the fourth
defendant in the case of Dr Abdul Hamid. Since the case was decided,
the fourth defendant's registration as a Professional Engineer with the
BEM was terminated for breaching its rules governing the establishment of
branch offices. However, it must be borne in mind that s 15(i) of the
Registration of Engineers Act 1967 empowers the BEM to cancel or suspend
the registration of an engineer if that engineer is found guilty of any
conduct that it deems infamous or disgraceful. The said provision, it is
submitted, confers on the BEM sufficiently wide powers to act against an
engineer who has been negligent in his or her professional conduct towards
the client or employer concerned.
Cause of failure
In court, technical reports by two
experts were tabled to explain the causes of the house failure. According
to the first report, the failure was, in broad terms, attributable to the
following:
(a) the slope on which the house was
built was steep with a gradient of about 45 degrees;
(b) engineers advising on the building
and construction of the house took little consideration in assessing the
stability of the slope;
(c) an excavation that was carried out
on a neighbouring plot of land known as Lot 3008 at the material time by
the third defendant - who was the contractor engaged in erecting a
double-storey bungalow thereon - could have caused ground movement that
presumably led to the support for the structure standing on Lot 3007 to be
weakened;
(d) heavy rainfall; and
(e) toe erosion at the riverbanks
bordering Lot 3007.
Delving a little deeper into the cause
of the failure, the first report appeared to suggest that the lateral
movement of the earth supporting the foundation triggered a chain of
events that led eventually to a large part of the house vanishing in the
early hours of 18 September 1988. This lateral movement was due to the
infiltration of water that brought about a rise in the water table and a
concomitant reduction in soil stability. It is worth mentioning here that
the third defendant, the developer of the adjacent Lot 3008, was found to
have allowed rainwater to artificially accumulate on his land as a result
of excavation activities and consequently contributed to the soil failure.
He also appeared to have interfered with the natural flow of rainwater by
constructing transverse drains ending three quarters down the slope of Lot
3008.
The second report, meanwhile, also
acknowledged that the movement of soil caused the failure. But this
report, however, appeared to suggest that the toe failure of the slope
near the river, which substantially supported the original slope, was the
primary cause of the calamity. Further, the second report questioned the
assertion in the first report that the high water table was the primary
cause of the failure.
Despite the divergences in the
professional stand adopted by the authors of the two reports, both
appeared to be in general agreement that the professional input by the
fourth defendant fell far short of accepted engineering practice.
Visual inspection
In court, the fourth defendant testified
that, 'dealing with soil is like taking out (sic) daily meal'. Based on
his own testimony, 'by doing a visual inspection, one will be able to
determine whether there is a need to undertake machine bore to obtain the
subsoil material'.
In the case of Lot 3007, no subsoil was
extracted for testing purposes. Instead, the fourth defendant merely
carried out a visual inspection of the slope and concluded that the slope,
being a cut slope (as opposed to a filled embankment), did not require
machine boring to obtain the subsoil samples. He had also observed that
the slope was well done with a safe gradient. The fourth defendant also
established that there was a river at the foot of Lot 3007. However,
he felt that the river was some distance away from where the house was to
be erected. In any event, he felt that there was drainage contribution by
the original developer and, therefore, assumed that the authorities will
channel the river.
During the purported visual examination
carried out at the proposed site before the commencement of construction,
the fourth defendant took some samples in his hand and concluded that the
soil is silty sandy soil and consequently, that it had good drainage
properties, i.e. it is capable of draining very fast. As for the house,
piling was recommended and carried out a short way from the slope to
ensure, in the words of the fourth defendant, 'that the structure of the
house would not place too much weight on the slope'.
Presumption
The action of the fourth defendant
revealed several glaring weaknesses that were admitted by him in the
course of cross-examination in court. To begin with, the engineering
properties, namely the shear strength, of the soil cannot be determined
merely by looking at it. Yet, the fourth defendant chose to rely on his
sensory perception rather than on detailed engineering tests to determine
the soil characteristics. The authors of the two reports upheld current
engineering practice by affirming that the determination of the shear
strength of the soil was one of the crucial factors in determining slope
stability. In the face of such persuasive evidence, the fourth defendant
recanted his earlier assertion and admitted, 'I cannot ascertain the soil
simply by looking at it'.
Further, after 'establishing' that the
soil at the site was silty sand, the fourth defendant went on to surmise
that such soils had good drainage properties and tended to drain very
fast. This was an erroneous proposition to begin with since the substratum
soil material had not been put through even the most elementary of
laboratory tests. At best, the fourth defendant had done a quick visual
assessment of the soil particles on the surface of the site that was not,
in all probability, fairly representative of the entire soil profile. But
to conclude that the soil - being silty sand - has good drainage
properties and that it drains very fast is, from accepted engineering
practice, a great leap of faith. In the Unified Soil Classification System
(USCS) by Wagner (1957) for instance, the percentage of the different
types of soil particles and the degree of compaction are some of the
numerous parameters that are said to effect the drainage and seepage
characteristics of a soil. The court also took cognizance of the fact that
the two consultants' reports stressed the importance of the position of
the water table in influencing slope stability; the higher the water
table, the greater the risk of a slope failure. Yet, the fourth defendant,
by his own admission, did not make any assumption concerning the position
of the water table in preparing the plans for the house.
It was also noted that the fourth
defendant made no provision for the river that was flowing nearby. In
particular, he has assumed that the 'general development would have taken
the river into consideration; and that the government will channel it
since the owner pays drainage contribution The court rebuked the fourth
defendant for adopting such a cavalier attitude in the following words,
'presumptions have no place in this trade particularly when structures to
be erected thereon must be able to withstand and accommodate natural and
existing forces.' The court felt that the fourth defendant should have at
least brought the matter to the attention of the owner, together with the
expected cost implications, rather than making uncalled for and
unsupported assumptions.
Finally, without carrying out a proper
slope stability analysis, the fourth defendant had assumed that the cut
slope with an angle of 45 degrees was safe enough for construction work to
proceed, considering that there was only minimal provisions for piling.
This is akin to standing on thin ice as current findings suggest that the
critical slope angle in the fine-grained soils is 45 degrees, and even
that only holds true in the case of an infinite slope failure mechanism.
There was incontrovertible evidence
presented in the case of Dr Abdul Hamid to suggest that an
engineer, the fourth defendant, had relied largely on presumptions. In so
doing, he had failed to determine the soil conditions to a high degree of
certainty before designing and constructing the house sought by the
plaintiffs. But the upshot of the entire episode was that the engineer
concerned was found severally liable with another for professional
negligence. In the case of Steven Phoa Cheng Loon v Highland
Properties Sdn Bhd & Ors [2000] 4 CLJ 508, better known as
the Highland Towers Case, the learned judge had the following
to say:
Surely the primary consideration for
the construction of any building, or structure for that matter, besides
the aesthetic aspect, is the safety of the building. To achieve this,
the condition of the land on which the building is to be built as well
as those in the vicinity must be considered and evaluated, particularly
if it has potential to adversely affect the building that is being
planned.
Although the learned judge's remarks
were intended at architects, it could apply equally well to engineers.
Therefore, an engineer must carry out his work with reasonable skill and
care, taking into account the possible impact of the surrounding area on
the building or structure, and vice versa.
The Code of Professional Conduct
contained in Pt 4 of the Registration of Engineers Regulations 1990 places
a similar onus on Registered Engineers by requiring them to discharge
their duties to their employers and clients with complete fidelity, as
well as with full regard for general public interest. In short, the the
Code requires every engineer to uphold the dignity, high standing and
reputation of the engineering profession at all times.
Thus, whatever approach an engineer
adopts in his professional career must be founded on sound engineering
principles. Needless to say, he ought to deal adequately with
environmental concerns as well.
Continuing professional
development
The Bolam Test alluded to earlier could
well work against a well-meaning engineer who fails to keep abreast with
changes in his profession. Assume for a moment that a significant number
of engineers have migrated to a novel technique, leaving only a small
group of engineers still adhering to an outmoded practice. It is
conceivable that a professional liability suit subsequently filed against
one or more of the engineers who are in the minority could well be
sustained, despite the merits or otherwise of the case, since he will no
longer be representative of the group of persons ordinarily exercising
that profession. This is precisely because, as the law currently stands,
the Bolam Test presumes that a professional will exercise the skill of an
ordinary competent person exercising that profession or skill.
The rapid pace of changes taking place
in all fields of engineering, driven by information and communication
technology, further underscores the need for engineers to keep abreast
with such changes. Peter Drucker, the best-selling author and management
guru, was quoted in the IEEE Spectrum, a publication of the American
Institution of Electrical and Electronics Engineers, recently as saying, '
engineers tell me that they need a thorough refresher course in their
specialities at least every other year. And a 're-immersion' - their word
- in the basics at least every four years.' Engineers must therefore
constantly update themselves on new developments in their respective
fields of expertise through continuing professional development programmes.
Conclusion
In discussing the case of Dr Abdul
Hamid, the writer had sought to underscore the perils likely to confront
engineers who resort to shortcuts, presumptions and 'work-smart' practices
in their professional career. To begin with, human lives could be at risk.
Besides, the likelihood of being subjected to costly professional
negligence suits looms particularly large for those who resort to such
practices. Furthermore, such engineers could find their licenses to
practise withdrawn by the regulatory body, namely the BEM. In order to
avoid such unpleasant outcomes, engineers ought to adhere strictly to the
Code of Professional Conduct as enshrined in the Registration of Engineers
Regulations 1990 and seek to constantly update themselves on new
developments in their area of expertise through continuing professional
development programmes. Even if engineers heed this call, there is no
absolute guarantee against untoward outcomes. However, the risks involved
can certainly be minimized.
|
