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The Professional Engineer's Duty of care
Article · September 2008
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Journal of the Institution of Engineers Mauritius
The Professional Engineer’s Duty of care
D K Hurreeram and J Soobarah
dk.hurreeram@uom.ac.mu
soobarah.jag@intnet.mu
‘Avant propos’
Membership of the Institution places an obligation upon the engineer to conduct himself/herself
in accordance with the Institution’s Code of Ethics, which includes its Fundamental Tenets.
Whilst the phrase ‘duty of care” is not specifically contained in the IEM Code, Professional
Engineers will certainly see in that Code a reminder that they owe “a duty of care” to their
employers, clients, the society, and of course to themselves. Those readers who have accessed
the website of the Council of Registered Professional Engineers (CRPE)
<www.crpemauritius.com> and have perused the “Code of Ethics” under the DOWNLOAD
Section, would certainly have noted that at the end of the document there is an additional
attribute termed Supplementary Behavioural Code: Duty of care, which reads “Engineers
shall exercise duty of care in the discharge of their professional obligations while refusing to
indulge in or condone unfair competition and practices”. CRPE has re-arranged, with minor
editorial refinement, the Code of Ethics of IEM to illustrate alignment and common objectives
with the Engineering Council (UK) Guidelines on Code of Ethics. The IEM Code is known to
have been adapted from those of various professional engineering institutions of international
standing.
1.
Introductory Note
Professional Indemnity, Professional Liability, Insurance, etc. are words which have since long
found their way into the engineer’s profession. The engineer, like any other person in trade or
business, offers his/her services (i.e. his/her learning, knowledge, skills, experience and ingenuity
as well as the resources he/she can muster and/or have available at his/her command) to potential
customers. The latter may be the Government or any organisation or individual. The beneficiary
of the services being the customer and invariably the community, - he or she, as the case may be,
receives the consideration placed on the service offered, mostly in cash, and sometimes, partly in
kind.
Society, through its legislators, steps in to ensure that those who are engaged in certain
occupational activities of a nature that put them at risk of injury and even death, and others (i.e.
the public) who could suffer any form of prejudice such as a loss, damage, or injury, or even
disability or death, (attributed directly or indirectly to the activities concerned), can obtain prompt
relief, albeit limited, in the form of compensation or other consideration from an Insurer after the
occurrence. Such relief is not expected to affect the rights and obligations of any of the parties
concerned towards any or all of the remaining parties who could separately ascertain and agree on
the extent of loss, damage or liability damage they have suffered, and claim them in the
appropriate forum for such issues.
2.
The Engineer can’t go wrong. He needs no protection against liability!
WRONG!
The engineer is very meticulous when it comes to ensuring that the interests of his/her clients are
safeguarded against defects, faults, and errors of omission and commission that could end up in
operational losses for those clients, or their becoming liable for losses and damages that third
parties. In the course of their practice they are required to identify any risk to the safety, welfare
and health of their clients that their solutions or any part thereof may represent for their clients
and other parties served by their clients, including society. They are required to evaluate the
probability of occurrence of the unwanted scenario, and, if deemed necessary, review their
solutions so as bring the risk level to the minimum considered reasonable and acceptable by Law
and Society, in conformity with best practices for the nature of the operations concerned. In their
final equation risks to life must remain remote or non existent with operational safeguards in
place. They are familiar with Conditions of Contract relating to Engineering Works. They are
certainly well acquainted with all those clauses that have been inserted to enable the timely and
smooth execution of the works and administration of the contract, and perhaps more so with those
clauses that give them power to exercise authority in matters of unacceptable workmanship,
execution delays, certification of payments, withholding payments, amendments to scope of
works or to specifications, approval of variations, claims, rates, issuance of notices, etc.
However there are times when doubts arise as to whether the engineer has adequately safeguarded
himself/herself against possible liabilities that his/her client could lay at his/her doorstep on
account of some business loss or damage which the client suffers and for which he blames the
Engineer. The Client could hold the Engineer responsible for delay in execution, cost escalation,
poor workmanship, non-compliance with the requirements of his Brief, structural collapse of his
building or part thereof, etc. The following extract from a circular letter issued by one particular
insurer, which shall not be named, (and which, in any case, is similar to what obtains in
marketing brochures of major Insurance companies whose portfolios include insurance services
of the nature exemplified in the extract) throws light on what the Insurer believes could go wrong
with the services provided by professionals:
“If you are in a line of work that involves dealing with the public, you can be sued for
professional negligence or for failure to provide the quality of service promised. For
instance, a doctor with a private practice can be taken to court for erring or malpractice
during an operation.
Liability Insurance provides protection against errors and omissions of the insured that
result in a loss tom others (in insurance parlance, the “third party”). It reimburses the
insured for all damages payable, as decided by a court of law, as well as legal costs
incurred in fighting the case.
Professional Liability Cover is a must... This cover is of use to doctors, architects,
engineers, lawyers, chartered accountants, consultants and other professionals.”
The objectives of the authors of this paper is to put emphasis on the duty of care that engineers
need to exercise in the discharge of their professional practice. We will recognise, however, that
sometimes things can and do go wrong, - for which many reasons can be advanced but not
necessarily admitted. When they do, and that fingers are pointed towards the engineer, the latter
will thank his/her stars that he/she has a valid insurance policy against potential liabilities. The
policy will not “save” him/her from employers, peers, the disciplinary board of his/her
professional engineering institution, or from a Court of Justice in relation to any error of omission
or commission, professional negligence and/or professional incompetence, which in the eyes of
the Law constitutes an offence.
3.
Some Legal Cases
It is proposed to bring to our readers’ attention some issues that came up in some past cases in the
UK and elsewhere where the professional’s duty of care or lack thereof was the central issue.
We warn our readers that some of the cases may still be subject of an appeal by one party or the
other, such that the conclusions given may not be the last we have heard of it. We should perhaps
add that any reader interested in Jurisprudence should look elsewhere.
3(A) The Professional’s Duty to Warn Clients of Potential Hazards.
John B Molloy LLB (Hons), BSc (Hons), FHKIS, FRICS, MCIArb, FInstCES, RPS (QS) writing
in the HKIS Newsletter 9(10) of November 2000 on the subject “Quantity Surveyors as Project
Managers” highlights the case of a food factory (Pride Valley Foods in North East England) that
was destroyed by fire in December 1995. That company specialised in baking pitta and nan
breads. They had contracted out the expansion of their factory to Hall & Partners, a firm of
quantity surveyors and estate agents, whose responsibilities included the provision of the full
range of services from inception to design, construction, commissioning and hand-over. An
appendix to the letter of appointment contained the details, which included preparation of a
schedule of employer's requirements and specifications, development of these into a design brief,
preparation of outline sketches and consideration of materials to be selected, all of which would
form the Employer's Requirements against which contractors would submit competitive, design
and build, tenders.
The Clients (Pride valley) were keen to keep costs down, while meeting statutory obligations in
respect of fire, safety, hygiene, etc, and instructed Hall & Partners accordingly. When their
factory was destroyed by fire Pride Valley took their Project Managers to Court, alleging
negligence by the latter. During Court proceedings, Expert evidence agreed that the fire had
developed at the bottom of a flue serving the pitta bread line due to a build up of cooking deposits
in the flue, and that from there it spread to the expanded polystyrene wall panels which rapidly
spread the fire through the entire building.
Pride Valley claimed that the fire was caused by Hall & Partner's negligence in failing to
discharge their contractual duty of care as Project Managers, and in particular their failure to warn
them against the use of expanded polystyrene panels. It was their view that if they had received
such advice then the fire would have been prevented or its spreading limited. Pride Valley had
called in Architect as expert witness to say what the latter would have done as project manager in
similar circumstances. Hall & Partners denied negligence and maintained that they had given
such advice. They maintained that in their verbal discussions with the Clients they had warned
that the expanded polystyrene panels carried with them a fire risk. They called in a Quantity
Surveyor to give expert witness as to what the Quantity Surveyor would have done (as project
manager) in similar circumstances.
In the absence of an established professional procedure on Project Management the Judge
considered that the overriding consideration had to be, not what another project manager would
have done in the circumstances, but what the Project Manager had expressly agreed to do in the
terms of his consultancy agreement. He concluded that whilst the consultancy agreement did not
require Hall & Partners to undertake detailed design (because the main contract was design and
build), they were nonetheless required to undertake a design brief and draft appropriate
employer’s requirements. These duties included specifying the materials to be used. This implied
a duty of care to advise upon the risks of fire and the dangers which existed with such materials.
In the absence of written evidence as to the advice given by the Project Manager the Judge
considered that as a professional firm they failed to expressly provide such warnings in writing,
particularly as there was a large amount of correspondence on other matters. The Project Manager
had a contractual duty of care to Pride Valley to have warned them of the dangers of using
expanded polystyrene panels and thus were in breach of this duty for failing to do so.
However the Judge also considered evidence that Pride Valley had continually made it clear that
they wanted the cheapest building legally possible. Would the Clients have heeded that advice if
tendered ? The Judge considered the Client’s attitude on another issue where a proposal was put
to Pride Valley for the construction of a firewall between the production area and offices. The
Client has rejected that advice on grounds that this was not a requirement of the relevant
regulations. The Judge therefore concluded that Pride Valley would not have taken their advice
even if it had been given, and rejected Pride Valley's claim.
3(B) Compliance with Regulations, yet still Liable
In this second example we refer to Sahib Foods Limited and Co-operative Insurance Society Ltd
(the Claimants in the case) vs Paskin Kyriades Sands (the defendants, being a firm of Architects
which was retained for a refurbishment assignment in 1995) and which was pleaded before the
England and Wales High Court (Technology and Construction Court). Judgement was delivered
in
March
2003.
Our
information
is
taken
from
website:
[http://www.bailii.org/ew/cases/EWHC/TCC/2003/142.html].
The owners of the food factory, Sahib Foods Ltd (the Claimants) held that the firm of Architects
were in part responsible and liable for a fire that destroyed most of their factory (in January
1998). Co-Operative Insurance Society Ltd joined in because they had contracted to buy the
concern from Sahib Foods Ltd. The Defendants (the firm of Architects) on the other hand denied
liability and, in turn, alleged contributory negligence on the part of the Claimants. They also
denied any duty towards Sahib Foods since they were not retained by Sahib Foods, and had no
contract with them, but by a party who happened to be a Shareholder of Sahib Foods.
During the proceedings expert witnesses agreed that if the enclosure (known as veg prep cook
enclosure) had been constructed so as to contain a fire for one hour, then the fire would not have
spread outside the enclosure. (Fire-fighters would have reached the scene). This implied that the
enclosure should have been designed and constructed with (i) walls and ceilings panels of noncombustible nature (such as mineral wool), (ii) fire resisting doors, or automatic shutters of the
appropriate specification, and (iii) automatic fire shutters in the ventilation ducts where they
crossed to other areas of the factory. Expert Witnesses also agreed that had the veg prep area had
been protected with non-combustible panels then despite the concurrence of a number of
negligent acts and omissions on the part of the claimants, the factory would not have burnt down.
During the trial, which was restricted to liability, the defendants came up with the following
arguments, though not necessary in the order set out hereinafter or in these words:
(i)
They had no contract with the Claimants; there was no written contract; and there was no
letter of retainer, and had no duty to do anything that was not required of them under their
contract.
(iii) What was known to the architect (in respect of risks of fire) was known to the client, who
were made aware of the risks
(v) They had carried out a Risk Assessment, and during that exercise the Client stated that a
bratt pan (installed in veg prep enclosure) will not be used for deep fat frying; under these
circumstances they said a reasonably competent architect would have concluded that it
would not be necessary to enclose the room containing the bratt pan in fire resisting
construction.
(vi) They had complied with building regulations.
(vii) The Clients were responsible for the fire
On the basis of evidence presented, including the Architect’s own witnesses, the Judge
considered that the Architects had accepted Sahib as the client and were retained by them: they
provided drawings to Sahib; they submitted the necessary statutory applications for permissions
in the name of Sahib; they sent fee notes for services to Sahib, and were paid by Sahib. As to the
defendants’ argument about having no duty to do anything that they were not required to do under
their contract, the Judge considered that it did not stand since there was, in his view, no contract
with Sahib or the Shareholder.
As to the Architect’s argument that they had it from the Clients that the bratt pan (whose oil
caught fire) will not be used for deep frying the Judge observed that “if something is forbidden, it
follows that it can be done and that some people will do it.”. The Judge considered that it could
be that the Architects would not have known what circumstances were required to cause the fire
to ignite the EPS panels, but they knew that if the fire spread to the EPS panels then there was
likelihood of it spreading rapidly through the factory. In view of the gravity of the potential
consequences, it was the Judge’s view that the architects should have found out and eliminated
the possibility of those circumstances before deciding against the modest cost of using flameproof
panels. The Judge found the defendants were negligent and in breach of their duty towards Sahib.
What about the Court’s view regarding the standard of the duty of care that the defendants (the
architects) owed to their clients? The Judge referred to citations and the statement of the law
made by Webster J. in Wimpey v. Poole [1984] (the Bolam test) and to Whitehouse v. Jordan
[1981]: the guidance from these were that in a situation which involves the use of some special
skill, the test should be the standard of the ordinary skilled man exercising that skill or professing
to have that special skill. Essentially, a professional man who has knowledge, but acts or fails to
act in way which, having that knowledge he ought reasonably to foresee that damage would arise,
then, if the other aspects of duty are present, he would be liable in negligence.
The Judge found the defendants in breach of duty of care. The defendants had specified use of
EPS panels which, in previous widely publicised and disastrous fires, had failed to adequately
contain fires. There was evidence that that knowledge was within the profession, but the Judge
looked at the actual knowledge of the defendants. Expert architects called in by the defendants
agreed that in 1994 some architects would have been aware of the combustible nature of the core
of steel faced EPS panels; it was their view, however, that an ordinarily competent architect
might not have known of the performance of such panels in a serious fire. The Court observed
that it was important to emphasise that the knowledge was not simply the knowledge that EPS
will burn, but that (i) the steel faced EPS panels will delaminate in a big fire, (ii) the EPS core
will then rapidly degrade, and (iii) the melted cores will transmit fire one to another very rapidly.
That was what had happened in many recent fires. Further, it was also known that there was
available a reasonably priced fire-resistant alternative which specialist sub-contractors were
currently recommending for all cooking areas.
There was evidence to show that the defendants’ attention was drawn to the use of polystyrene
core panels in areas where cooking or frying will take place, and that a suggestion was even made
on an alternative (non-combustible panels) for such locations, including information about
occurrences of previous fires where the non-combustible panels had retarded the progress of fires
by about 2 hours. Defendants were made aware that “all polystyrene and polyethurenes panels
were combustible”. It was told in court that such knowledge had been around for 10 to 15 years.
The architects had carried on with the EPS specification for cooking areas even after receiving
the information about the risk.
We believe that Engineers (and of course architects and others) should also do well to bear in
mind the view held by the Judge, in reference to the architects’ argument that “there was nothing
known to the architect that was not known to the client”. We wish to highlight the ethics therein
and not the legalistic aspect:
“A competent architect does not present a design that he knows to be deficient in an important
respect and then discuss with the client whether the deficiency should be removed. It would also
be unacceptable that an architect presents such a design and say that he/she did not need to tell
the client about the deficiency because the client already knew that such a feature was required.
Take a simple example. An architect designs a house as a residence for a client who happens to
be a surveyor and forgets to require a damp-proof course under a parapet wall. If after
construction the client complains, it is no answer for the architect to say, "Well you knew about
the need for the damp proof course as well as I did". The architect is employed to use his own
skill and judgment. “
The Judge held that the Client has no duty to examine the architect’s designs and tell the
architect where he has gone wrong, even if the Client happens to have a particular skill. The
defendants knew the risk, and there was no evidence that they had passed the knowledge to the
Client and that the Client agreed to proceed regardless. No evidence was adduced to show that the
defendants wrote to the Clients proposing amendments to design in view of the risks. The Court
considered that even that should not have been necessary “The plans should have been so drawn
up in the first place that amendment was not required.” The Judge had retained the Claimants
point that had the Architects made a case for the extra expenditure in view of the perceived risk in
relation to location of the fire, the Clients would have authorised the expenditure..
The Court paid tribute to the defendants for their design which provided the required escape
routes and which contributed to the absence of loss of life or personal injury in this disastrous
fire. However, that was not the point of this litigation: it was about property and money. If the
defendants had done their duty, the veg prep cook room would largely have been destroyed but
the rest of the factory would have survived.
The Judge had also found the Client had contributory negligence by the inappropriate use of the
room in which the fire started. This element permitted the reduction of the architects’ liability, but
did not absolve them.
3(C)
The Bolam Test
Reference has been made to the “Bolam test” in the previous example. We wish to throw some
light on that “test”. We have drawn from a Lecture by Mr K Shanmugam Senior Counsel,
Partner of Allen and Gledhill and Member of Parliament delivered on 4 Nov 2001 at the Tan Tock
Seng Hospital’s Theatrette [ 008 : 2002 Vol 43(1) Singapore Med Journal
This criteria gets its name from the Bolam v Friern Hospital Management Committee (1957) 1
WLR 582. It is applied to determine whether a doctor has discharged his or her standard of care
in the management of the patient. It is evident that it applies equally to all professionals. It is the
standard (of care) that the ordinary skilled man exercises and which skill he professes to have. It
is not implied that, for a doctor, he has to be the best. Courts are reluctant to deal with situations
where each party produces expert witness as to what the expert would have done in similar
circumstances, for example hospitals calling in others doctors of similar standing and exercising
a particular skill to show what they would have done for a patient in similar situations, and
hopefully to win over the Judge and thus ward-off claims. Courts are more inclined to impose
their own opinion on the matter, and adhere to the principles set out in Bolam, which test
establishes whether there has been negligence or not: Courts will ascertain
(i) Whether the doctor owed a duty of care to his patient. This is established upon acceptance of
the patient by the doctor.
(ii) Whether there has been a breach of that duty of care. This is established if patient proves that
that the doctor’s action was lesser that the standard expected of him. The elements of the
Bolam test are as follows: the doctor should exercise a standard of skill that would be
exercised by an ordinary and competent doctor who exercises in the concerned field and
professes to have that skill. (It is not required that he be the best in that field). Further, the
doctor who action under the circumstances is considered to be proper at that time by a
responsible body of medical opinion should not held guilty of negligence on the basis that
another competent professional body of opinion would adopt a different technique.
(iii) Whether the breach of duty caused or contributed to the injury.
We advise our members to read the full Lecture of Mr Shanmugam to appreciate how the Courts
in different jurisdictions determine whether or not there is negligence and whether there has been
a breach of duty of care. One conclusion that seems to surface is that a Court of Law may
disregard expert opinion and impose its own views if the expert opinion fails to stand to logical
analysis. We are told that the Bolam test was put in its proper perspective by Lord Browne
Wilkinson: “The Test does not allow a doctor or hospital to avoid liability for negligent
treatment merely because there is evidence from a number of medical experts to the effect that
the treatment accorded to a patient accords with what other doctors might have done. The
Court had to be satisfied that such opinion has a logical basis.”
The full lecture by Mr Shanmugam entitled “Testing the Bolam test: Consequences of Recent
Developments” is published at < www.sma.org.sg/smj/4301/4301l1.pdf >
4.
Is it Different in the US?
Our lay reading of some material drawn California Personal Injury Defense Law, accessed
through <http://www.weblocator.com > and doing a search with keywords “Professional
negligence” suggests that the consideration of “professional negligence” is more or less similar to
that of Courts in the UK. Professional negligence is a tort issue rather than a criminal act.
However a professional may be charged with having committed a criminal act if the act
(negligence or other professional misconduct) committed by him is considered an offence under
Law. Convicted in a Court of Law may imply fine and/or imprisonment. Besides this conviction
of the guilty party, any other party which has suffered injury or loss and who can prove that the
injury or loss resulted from the professional’s action (or inaction) can initiate action through the
Courts for compensation to be awarded to him. We are given to understand that the burden of
proof in a tort case is lower than the proof required in criminal law cases. Still, in a tort action, it
must be shown that there is a “preponderance of the evidence” favouring a guilty verdict. A
proof of guilt beyond reasonable doubt (as in a criminal case) is not a necessity. Readers will
appreciate that a party who gets acquitted of criminal charges can still be found liable in a civil
lawsuit.
The US Laws distinguish between Negligence, intentional misconduct, and strict liability; - each
attribute having its own degree of fault that a plaintiff must prove if he is to obtain compensation.
As in the UK Courts, successfully proving negligence implies proving that the person being sued
committed the act acted with lesser duty of care than a reasonable competent person would have
done in such situation; that is, it was below a reasonable expectation in the circumstances. In
contrast with negligence, “intentional misconduct”, which allows the Plaintiff to recover punitive
damages, is a deliberate action resulting in an injury to another person or damage another person's
property. In this case the Plaintiff does not have to compare the defendant's actions with those of
a reasonable person, but is required to show that the defendant intended his or her actions which
resulted in the injury or damage/loss. The issue of Strict Liability arises when the fault relates to
very dangerous activities, such as the demolition of a building. Here a person who gets hurt can
sue for damages. He/she will not have to prove negligence or intentional misconduct.
Professional Negligence will be implied when the professional performs his or her duties
improperly, either out of ignorance or carelessness in the performance of their services to their
employers or clients. Since the Conditions of Contract relating to any works sets out in fairly
detailed manner the duties of the engineer (or for the architect, for that matter) then whether or
not there has been professional negligence would depend on the interpretation of the contractual
conditions under which services are provided.
Engineers may become liable for the engineering design and construction of a building if the
structure is proved to be unsafe or unsound any time after the design and construction. This may
happen during a review of the design and not necessarily on collapse or failure of the
construction. Likewise an engineer or architect who surveys a structure on account of a
prospective buyer and certifies it as structurally safe and sound would be guilty of professional
negligence if it was subsequently found that the building needed structural repairs or
reinforcement. Engineers and architects invariably include in their conditions of contracts clauses
on Dispute Resolution which provide alternative mechanisms for seeking and obtaining
compensation thus avoiding being dragged in Court where the rules of the game are quite
different, as would be the likely consequences for them if found negligent.
We recall here that the standard of care against which an engineer's or architect's actions are
generally judged is the standard to which another ordinary person acting in place of the defendant
and exercising reasonable skill and professing to have that skill would have performed.
5.
Some more from the USA
Among the many other cases available on the internet we found the paper by Joshua B Kardon on
the subject The Structural Engineer's Standard of Care , presented at the OEC International
Conference on Ethics in Engineering and Computer Science, March 1999 very instructive, to
which we now refer.
The author is a practicing structural engineer with over 26 years of experience, and owns the
firm, Joshua B. Kardon + Company Structural Engineers, Berkeley, California. He has been a
guest lecturer in undergraduate and graduate courses at UC Berkeley, and at Stanford University,
on the subject of engineering failures, professional negligence, engineering judgment, and the
standard of care. His paper describes some engineering failures with which the author become
familiar in the course of his practice as a consultant and expert in construction defects lawsuits,
and other engineering failures, including the Hyatt Regency Kansas City walkway collapse and
the Tacoma Narrows Bridge. It is not intended to go into any of these in any great details. Since
this paper is concerned with Duty of Care that engineers owe to their Clients, we will draw on the
minimum from its introductory paragraph to reinforce the concept of Standard of Care which has
run through this article.
J B Kardon brings out the following:
(i) From Paxton v. County of Alameda (1953), a definition of “Standard of Care” - “that
level or quality of service ordinarily provided by other normally competent practitioners
of good standing in that field, contemporaneously providing similar services in the same
locality and under the same circumstances.”
(ii) From City of Mounds View v. Walijarvi (Minn. 1978): An engineer's service need not be
perfect. Since the engineer, when providing professional services, is using judgment
gained from experience and learning, and is usually providing those services in
situations where a certain amount of unknown or uncontrollable factors are common,
some level of error in those services is allowed.
(iii) From Gagne v. Bertran (1934): When you hire an engineer you "purchase service, not
insurance," so you are not justified in expecting perfection or infallibility, only
"reasonable care and competence".
It will be appreciated therefore that any injury or damage caused by an engineer’s mistake is not
sufficient establish professional liability on the part of the engineer. As in the UK Courts, for
professional liability to exist, the Plaintiff must prove the services were provided in a
professionally negligent manner, that is below the standard of care of the profession. “When one
hires an engineer, one accepts the risk, and the liability, of that professional making a mistake
similar to mistakes other normally competent engineers make, using reasonable diligence and
their best judgment” writes Mr J B Kardon.. He adds “The standard of care is not what an
engineer should have done in a particular instance, it is not what others say an engineer would do,
or what others say they themselves would have done, it is just what competent engineers actually
did in similar circumstances.” Readers will appreciate that within the limits of our understanding
of the way in which the law operates in the UK and US they seem to agree as to when the
engineer is professionally negligent.
We are not aware of the position of Mauritian Courts on such an issue, and have no reason to
believe it would rule differently. It should be recognised however that the Courts will still hear
expert testimony as to the experts’ view of the standard of care expected under the circumstances
and the defendant’s actual performance. J.B Kardon makes reference to and quotes a Bench
Approved Jury Instruction (BAJI, 1986) which reads:
"In performing professional services for a client, a (structural engineer) has the duty to have
that degree of learning and skill ordinarily possessed by reputable (structural engineers),
practicing in the same or similar locality and under similar circumstances.
It is the structural engineer's further duty to use the care and skill ordinarily used in like
cases by reputable members of the (structural engineering) profession practicing in the same
or similar locality under similar circumstances, and to use reasonable diligence and (the
structural engineer's) best judgment in the exercise of professional skill and in the
application of learning, in an effort to accomplish the purpose for which (the structural
engineer) was employed.
A failure to fulfill any such duty is negligence"
The Collapse of the Hyatt Regency Walkway (Kansas City)
Of the numerous cases of failure to which reference has been made by J.B. Kardon we pick up
the collapse of walkway at Hyatt Regency Hotel in Kansas City in July 1981, and which resulted
in the death of 114 persons and more than 200 injured. The Ceiling rods supporting the 2nd Floor
and 4th Floor walkways had collapsed on to the First floor Atrium below. (The Third Floor
walkway, which was offset, was not affected).
Investigations of the failures attributed negligence to a structural engineer who reviewed and
approved a change (made by a contractor for constructibility reasons) in the detail of a connection
of the walkway beam to the suspender. We are reminded of the following lessons that the
investigations brought up:
(1) A good design implies attention to the constructibility of detail;
(2) Changes made in the field must be communicated to the designer;
(3) Shop drawing and change order review is important, and shouldn't be performed without
the participation of an experienced practitioner;
(4) The smallest detail can cause a major problem; and
(5) In practice, the consequences of an error can have a bearing on the evaluation of
negligence.
Conclusion
The cases and discussions presented in the paper was an attempt to put forward the necessity for
exercising Duty of Care as an integral part of the engineering profession. The examples quoted
clearly illustrate the level of responsibility expected of engineers when it comes to issues
associated to design, health and safety, construction, an/or supervision of work. Working within
the governing fundamentals of the Code of Ethics largely contributes towards engineers
delivering, in line with expectations of society at large.
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