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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.
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