Guidelines for Members reviewing the work of other engineers for the purposes of litigation

Preamble

Engineers* are frequently asked to review the work of other engineers for the purposes of litigation in cases of suspected shortcomings in the design and construction of a geotechnical project. Clause 1 of the Code of Ethics (Ref. 1) implies that engineers should make their services available to the community to examine the work of another engineer. Hence the concept of “closing ranks” to protect the interests of fellow engineers is unethical.

In cases of litigation, the Code of Ethics has been interpreted (Ref. 2) so that an engineer may give an opinion on the technical cause of the problem and to offer a view on whether the design and/or construction were consistent with the state of the art of the profession at the time. The work of the engineer must be strictly factual, and opinions must be given in an objective manner.

The National Committee of the Australian Geomechanics Society has been made aware of instances** where it may be argued that the engineer, in carrying out the role of expert witness, has not followed this interpretation of the Code of Ethics. In cases of litigation against engineers, this can only mean that the Geomechanics Profession as a whole will suffer. It can also lead to increasing litigation and result in further problems in obtaining professional indemnity cover for our activities.

As a result, at its meeting on 27th September 1987, the National Committee of the Australian Geomechanics Society has endorsed the following for its members.

Role of the expert witness

When asked to be an expert witness, the engineer should confine his/her evidence to the following:

  • the presentation of facts;
  • giving an opinion on the technical cause of the problem;
  • describing in detail the methodology that enabled the cause of the problem to be determined;
  • recommending or specifying remedial measures if so requested;
  • giving an opinion as to whether a departure from the state of the art of the profession at the time of design and construction actually led to the problem;
  • giving an opinion as to whether an appropriately qualified person might have acted similarly at the time, in the matter relevant to the cause of the problem.

Engineers as expert witnesses in litigation cases should resist going beyond this role. The following Guidelines have been formulated to minimise the future occurrence of the problems experienced in some recent litigation cases. These Guidelines are to be read with the Code of Ethics (Ref. 1).

Guidelines

Guideline 1:

Before accepting a commission as an expert witness in a case against another engineer, the member should insist on the right to discuss the matter with the other engineer involved.

Previous Guidelines (e.g. Ref. 3 note 10) have recommended that no contact be made between opposing experts, with the only contact being written notification to the subject engineer that the engineer’s work is being examined (Ref. 4 page 15). The legal profession has supported this lack of contact because it preserves “legal professional privilege”.

However, recent recommendations (e.g. Ref. 5 page 61, Ref. 6, Section 15.05, Note 2a) have argued that consultation between the engineers involved increases the chance of a realistic settlement without a Court hearing. Even if the case proceeds to Court, this consultation will very likely substantially reduce the length of the hearing (Ref. 7).


Guideline 2:

An engineer acting as an expert witness must always remain objective and impartial.

As outlined in Reference 3, Note 10, the prime objective of an expert witness is to assist the Court in arriving at a just decision. In the giving of evidence the engineer may be required to give opinions on matters whether or not they are favourable to the engineer’s client (Ref. 9).

It is very easy for an engineer to become involved in the Court case and to support a satisfactory outcome for his/her client. However, the engineer should guard against becoming an advocate for the client, and should remain dispassionate as to the outcome of the Court case.

Guideline 3:

The engineer should avoid being judgemental, and should not offer an opinion as to negligence.

It is the role of the Court to provide the judgement on these issues.

The National Committee of the Australian Geomechanics Society is aware of recent instances where at least five engineers have provided an opinion as to negligence, and at least three other engineers who have given similar jUdgemental type statements. Comments have been similar to “…the backfill has settled because of negligent supervision of the earthworks at the time of construction”.

As outlined in Ref. 8 and Ref. 5 page 62, negligence is a legal concept, not an engineering term and a finding as to negligence is a matter for the Court and the Court only. The engineer should thus try to avoid giving either praise or blame.

Guideline 4:

An engineer should refrain from using law reports as truths.

The National Committee of the Australian Geomechanics Society is aware of several instances where engineers have quoted a Court judgement, or Act of Parliament to emphasise a particular point. For example, comments have been similar to “…based on the Smith vs. Jones case, it could be argued that the engineer should have carried out an inspection of the earthworks”.

Court judgements are based on the evidence presented in the particular case and although they set legal precedence, legal interpretation is an evolutionary process. Engineers should avoid the interpretation of legal matters, unless they have specific competence (Le. legal training and experience in law).

Guideline 5:

The engineer should only give an opinion on the departure from acceptable practice when it is relevant to the cause of the particular problem.

There have been at least two instances where engineers have given opinions on matters in other engineer’s reports or designs, that were not relevant to the particular cause of the problem. These resulted in engineers defending unnecessary claims.

Different engineers may adopt different approaches to solve a geotechnical problem. For example, the number of boreholes to carry out the site investigation will differ from engineer to engineer. When commenting on this, another engineer must recognise that many different approaches are acceptable and only give an opinion when the specific approach adopted was relevant to the actual problem forming the subject of the litigation.

This is particularly important in afield such as geomechanics, because it deals with earth materials which are inherently variable and extremely complex, so that much of our work is still based on “engineering judgement”. The expert witness should avoid the intrusion of personal preferences but limit his/ her evidence to the technical cause of the actual failure.


* The use of the word “engineer” is to include engineering geologists.

** The National Committee is aware of at least nine cases.

References

  1. The Institution of Engineers, Australia. “Code of Ethics”, 1st August, 1981.
  2. Association of Consulting Engineers Australia, Practice Note D8, April 1985.
  3. Association of Consulting Engineers Australia, Practice Note DI0, July 1986.
  4. Fargher,P.J. “Background and Approaches”, Chapter 1 in “Footings and Foundations for Small Buildings in Arid Climates”, IEAust, SA Division & Adult Educatiofl Department, University of Adelaide, Adelaide, June 1979.
  5. Institution of Professional Engineers, New Zealand, “Engineering Risk”, Wright & Carman Ltd, 95p, 1984.
  6. Consulting Engineers Advancement Society of Australia Ltd, “Risk Management for Australian Consulting Engineers”, 1986.
  7. Herriott. R.M. “The Liability Crisis”, Guest Editorial, Australian Geomechanics, p.3, No 13, June 1987.
    8.Association of Consulting Engineers Australia, Practice Note D6, 30th August, 1982.
    9.Antill,J.M. “The Role of the Expert Witness”, TheJournal ofInstitution of Engineers, Australia., pp 33 – 34 July/August, 1976.

Editors’ Note: This article is republished in accordance with the direction of the National Committee of the AGS to remind members of their duties and responsibilities. Together with the Codes of Ethics of IEAust and AusIMM, it will be republished every two years.