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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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