The role of a professional engineer assisting counsel prepare a Statement of Defence

The Defendant’s counsel prepares a Statement of Defense that replies to each allegation made by the Plaintiff.  The Defendant may file counter-claims and also claims against third parties with the court.  The Statement of Defense sets out the facts and the legal grounds that the Defense is relying on in their reply to the Plaintiff and in their allegations against the Plaintiff and third parties.

The Statement of Defense is the third step in the Pleadings:

  • Notice of Claim
  • Statement of Claim
  • Statement of Defense
  • Affidavit

A professional engineer retained by the Defense might focus on the following in his or her forensic engineering investigations:

  • Review the technical evidence supporting the Plaintiff’s claims
  • Carry out engineering investigations to confirm or refute the Plaintiff’s investigations
  • Carry out engineering investigations of perceived wrongs and damages that could give rise to counter-claims and cross claims
  • Assess the technical strengths and weaknesses of all parties

Once the last of the Statements of Defense have been filed, including any amendments, – one for each party, the pleadings are said to be closed.

The parties involved in the dispute may now exchange informal letters to try and come to an agreement and settle their differences before proceeding with a number of other steps.  In a sense, the clock starts ticking at this point in the countdown to going to trial.

The role of a professional engineer retained by the Defense at this stage would be similar to that of a professional engineer retained by the Plaintiff:

  1. Visit and visually examine the site
  2. Review the technical facts given in support of the Plaintiff’s claim and the technical evidence supporting these facts
  3. Review available documentation and evidence of lay witnesses, and experts and specialists
  4. Identify and explain the technical issues in the allegations in the Statement of Claim
  5. Carry out engineering investigations to confirm or refute the thoroughness and reliability of the Plaintiff’s investigations and the evidence and facts arising from these investigations
  6. Assess the technical strengths and weaknesses of the Plaintiff’s case and for each party identified by the Plaintiff
  7. Identify the technical facts relevant to the Defense’s position and the evidence supporting these facts
  8. Assess if enough technical data is available for the Defense to respond to the Statement of Claim
  9. Assess the technical strengths and weaknesses of the Defense’s position
  10. Carry out engineering investigations for the Defense of perceived wrongs and damages that might give rise to counter claims and cross claims
  11. Evaluate preliminary design and costs of repair of the damaged structure
  12. Identify parties that could be involved in the engineering failure or accident that have not been named in the Statement of Claim, the Defense, or any counter claims and cross claims
  13. Review the Statement of Defense and counter claims, and response to Statement of Claim, for correct understanding and representation of the technical issues and facts 
  14. Prepare a report, on instruction of counsel, describing the forensic engineering investigations, the analysis of the data collected, the findings, the conclusions, and the opinions formed relevant to the Statement of Claim’s allegations, the Defense’s response, and counter claims and cross claims

References

  1. Steps in the civil litigation process.  Published August 28, 2012
  2. The role of a professional engineer in counsel’s decision to take a case.  Published June 26, 2012
  3. The role of a professional engineer assisting counsel prepare a Notice of Claim.  Published July 26, 2012
  4. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed., 2004, Thompson Carswell
  5. ASCE Guidelines for Forensic Engineering Practice, 2003, American Society of Civil Engineers

Professional ethics and the tyranny of the bottom line

I was taken by two articles in the Fall Newsletter of APENS, The Engineer, that could be summarized by the following comments: ”…engineers found guilty of misconduct...” and “…skills engineering schools should teach“.

(This does have something to do with forensic engineering as noted below)

The article about skills caught my attention first.  It was entitled, The Top 5 Skills Engineering Schools Should Teach, and was written by Natalie Cornelius, P.Eng. I agree with some of what Natalie writes but not all.  She identifies the following skills:

  1. Written communicatoin
  2. Attention to detail
  3. Networking, and/or how to call someone you barely know and get information
  4. Skillful negotiation
  5. Flexibility and adaptability

I agree with the first, believe the second is being addressed well enough in university now, and believe the remaining three are not fundamental enough for a university program in engineering.

I believe a skill that Natalie might have included was Verbal Communication.  There’s also another skill that, in some form or another, might be taught that I mention below.

The reason for my views on the article are beyond the scope of this posting.  But, I do think Natilie’s views on engineering curriculum could have been more helpful if her article had also reflected the results of interviews with senior engineers in engineering disciplines, fields of practice, and life experiences other than her own.

The article about engineers found guilty caught my attention second.  It was entitled, Engineers who declared Lake Algo Centre Mall structurally sound, found guilty of misconduct in 2010.  This is the Elliot Lake Mall that collapsed and that I blogged about a few weeks ago (Cause of roof collapse at Elliot Lake, published July 10, 2012).  The article in the APENS newsletter was originally published in The Globe and Mail on Saturday, July 14, 2012.

It was encouraging to see APENS carry this item about professional engineers who appear to have slipped up

It’s interesting that the engineer’s misconduct had something to do with engineering design and inspection.  These were areas that I thought in my blogging were deserving of hypothesizing, particularly construction inspection.

I can’t help but think of the pressure some practicing engineers are under to do the right thing in their work.  Few if any knowingly do the wrong thing but we are human and occasionally let our guard down and inadvertently do the wrong thing.

Those of us who are in private consulting practice learn early on to be careful of some clients – I could identify but won’t – who leverage the smallest amounts of capital to dizzy levels, and the professional engineers who are under pressure to produce inexpensive designs and are swept along in this leveraging.

I’ve thought for some time – months if not two or three years, about the subtle pressure professional engineers are under who work for commercial firms and fiscally responsible bureaucracies where the bottom line rules.  Most professional engineers work for organizations like these.  To some extent, engineering professionalism is threatened by the tyranny of the bottom line.

This conflict between the bottom line and professionalism has troubled me enough that I’ve thought to suggest to Chris MacDonald that he blog about ethics in the professions.  Chris - I count him as an acquaintance, took his course on critical thinking one time, and had some contact with him since – is a professor at Ryerson in Toronto, formerly with Saint Mary’s University, who blogs about business ethics.  Chris is extremely well recognized world wide in his field.  I think professional ethics is a fertile field for a chap like him with his insight and knowlege.

In any event, to wrap this up, and get back to the two articles I saw in the APENS newsletter, I think a course worthy of an engineering curriculum would be one on professional ethics and the pressures on these ethics in a capitalist society.  A raising of an awareness of these pressures on the part of the young engineer .

In Natalie Cornelius’ article, as I would revise it, I would add a course on Professional Ethics after the course on Verbal Communication that I suggested adding earlier, and this would be the last item in the list of skills.

Some of the young engineers will practice forensic engineering after they get a few decades of experience under their belts.  I can tell you that ethics plays a particularly important role in forensic engineering.  There is not a little pressure on a professional engineer to advocate for the client.  There is also the normal pressure of a human being identifying with the underdog after the cause of a failure is known.  These pressures threaten the professional engineer’s need to be objective as required by the courts.  A course in ethics would raise the young engineer’s awareness of these pressures and help him/her resist them.

References

  1. Cause of the roof collapse at Elliot Lake.  Published July 10, 2012

 

 

 

 

 

 

The role of a professional engineer assisting counsel prepare a Statement of Claim

Preparing and filing a Statement of Claim with the court - typically along with the Notice of Claim, is the second of four steps collectively known as the Pleadings in the civil litigation process.

A professional engineer or other expert can be particularly valuable at this stage.  Our forensic engineering investigations provide the evidence that establishes the technical facts and identifies the technical issues on which a claim for damages in the built environment is based.

We can also evaluate the technical content of the Statement of Defence and the technical strengths and weaknesses of the defence’s response to the plaintiff’s claims.

The following assumes the early involvement of a professional engineer to ensure a Statement of Claim is technically well founded.  Early involvement avoids the engineer or expert having to play catch up, and counsel finding himself out on a limb with a Statement of Claim that is not as technically complete and as well founded as it might have been.

The role of a professional engineer during previous steps in the civil litigation process was described in earlier postings - see the following references.  Our role in subsequent steps in the process through to trial will be described in future postings.

  • Notice of Claim
  • Statement of Claim
  • Statement of Defense
  • Affidavit of Documents

The Statement of Claim is more particular than the Notice of Claim.  It is a document that further describes the parties and defines their relationship(s) with each other.  The Statement of Claim is a listing of the facts.  In construction and engineering claims, the parties oftentimes have a formal contract.  In general negligence claims, the parties are often in proximity such that one owes the other a legal duty – to do or not do something.

Counsel for the plaintiff prepares a Statement of Claim that sets out the disputed issues and the claims the wronged party, the plaintiff, is making against the defendant.  The claims would include, for example, the relief sought – what the plaintiff wants the court to award.  This can be very general, such as claiming damages, costs, and interest.  It does not usually state exact dollar figures.

The Statement of Claim is served on the defendant by the plaintiff, typically through a process server who is engaged to personally hand-deliver the document to the defendant.  The person delivering the document swears an affidavit that this was done.

A professional engineer can assist counsel in the following ways during preparation of a Statement of Claim: :

  1. Review narrative from the complainant for technical evidence
  2. Review available evidence of lay witnesses, and other experts and specialists
  3. Complete the engineering investigation of the cause of the failure or accident, the technical issues and questions identified by counsel, and any follow-up investigations found to be necessary.  (Some preliminary engineering investigations during earlier steps in the civil litigation process would have alerted counsel as to the direction the engineering investigation seemed to be leading with respect to counsel’s interests)
  4. Analyse the data gathered during the investigations and establish the cause of the failure or the accident 
  5. Document the reasoning leading to the identification of the cause
  6. Define the technical issues between the parties as established during the investigations 
  7. Identify the technical facts relevant to the cause of the failure or accident
  8. Identify the evidence supporting the facts
  9. Review the Statement of Claim and confirm the correct understanding of the technical facts and issues in the claim the plaintiff is making against the defendant
  10. Identify parties that could be involved in the engineering failure or accident that have not been named in the Statement of Claim
  11. Prepare preliminary design of repair of the damaged structure 
  12. Prepare preliminary estimate of the cost of repair
  13. Prepare a report on the instruction of counsel describing the investigations, the data gathered, the analysis and reasoning, the findings, the conclusions, and the opinion formed
  14. Review the Statement of Defense, counter claims, and cross claims – and counsel’s response to these statements, and ensure correct understanding of technical facts and issues 
  15. Assess the technical strengths and weaknesses of the case for the defense, the counter claims and cross claims

References

  1. Steps in the civil litigation process.  Published August 28, 2012
  2. The role of a professional engineer in counsel’s decision to take a case.  Published June 26, 2012
  3. The role of a professional engineer assisting counsel prepare a Notice of Claim.  Published July 26, 2012
  4. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed., 2004, Thompson Carswell
  5. ASCE Guidelines for Forensic Engineering Practice, 2003, American Society of Civil Engineers

Forensic investigation of mysterious sinkholes

They seem mysterious and frightening – Sinkhole!, suddenly appearing in the ground and “swallowing” things at the surface.  Like quicksand and all of a sudden there but, in another sense, not like quicksand which you maybe can see ahead of time and walk around.  Swallowing things like entire cars as shown in the picture on page A4 of the Globe and Mail yesterday.

The picture was of the rear of a vehicle just showing above the paved surface of the Highway 174 off-ramp at Jeanne D’Arc Boulevard in Ottawa.

The hole was deep enough that almost the entire length of the vehicle was in it, wide enough to take the width of the vehicle, and the width of the lane long.  A fair size hole to suddenly appear in the highway.

The traffic lane appears to be one of at least four lanes, two of which are at a lower level.  The lower lanes appear in the upper, right corner of the picture.  The lower lanes glisten with water.

We don’t expect this to happen in our highways, and particularly in the natural environment if the source of the problem lies there.  Seemingly natural events like this destroy our fundamental assumptions about the safety of the world (Ref. Janoff-Bulman).

But events like this are not so mysterious and their occurrence can be fairly easily predicted, but, unfortunately, not so easily the timing and location of their occurrence.

A forensic engineer investigating the cause of this sinkhole might consider four elements to the problem even before leaving his office (I’m pretending I’m the engineer and just got the call and haven’t even seen the site, but know about structures in general):

  • Conditions in the terrain where the highway off-ramp is located
  • Foundation soil, bedrock and groundwater conditions in the highway subgrade,
  • Roadbed design and construction, and,
  • Road and infra structure maintenance

As soon as a professional engineer gets to the site and does a visual assessment (see posting, September 4, 2012) he might well refine this listing but I don’t think a lot.  The visual assessment would draw the engineer’s attention to any unusual conditions in the terrain beyond the highway.  Conditions like evidence of heavy rain and its effects, flooding, nearby construction works that have impacted the road, etc.  The engineer is likely to have checked the recent weather reports for the area.

Seeing nothing unusual the engineer is certain to hyposthesize initially that the problem lies with the infra structure buried in the roadbed, service pipe work of some sort.  Like storm drains and water supply distribution pipes.

He might form this hypothesis based on evidence such as the following:

  • Finding no unusual conditions in the terrain where the highway is located.
  • The reasonable assumption that the highway roadbed has been properly designed and constructed.  We expect this of our highway departments.
  • The rectangular shape of the hole in the road opening to the lower lanes on the right.
  • The finite depth of the hole: 5 feet, 10 feet, 15 feet?  Depths that approximate those at which service pipes are placed.
  • What he sees in the hole on looking in.

The forensic engineer might reason that the location of the hole and its shape are typical of those that might form when a water main bursts.  The escaping water seeks the easiest path down and out to the right eroding the roadbed as it flows.

Of course he would look in the hole once at the site.  If he sees a burst pipe discharging water then he’s reasonable in assuming he’s solved the problem of what caused the hole to form.

If he doesn’t see a burst pipe then he will start to think of other possibilities while waiting for documents on the existence and location of buried infra structure in the roadbed.  It’s possible there is a burst pipe but it’s buried deeper and not visible in the bottom of the hole.

One possibility is the types of natural soils and rocks forming the subgrade or foundation of the roadbed.  If he has geotechnical engineering experience he would want to know if the area of the road is underlain by Karst terrain. This is a type of terrain formed on rock like limestone that dissolves in the presence of water forming different types of solution cavities – like sinkholes, for example.  Or ‘roofed over’ sinkholes that are just about to break through like the banana holes in the Bahamas.  There is Karst terrain in the Windsor area of Nova Scotia.

Karst terrain has a certain appearance at the surface and the forensic engineer would look for this while waiting for a copy of the geotechnical report for this section of the highway.

So, the forensic engieer would form different hypotheses during his investigation of the sinkhole – the hypotheses above and possibly others, investigate each in turn with site work and information from documents until he arrives at the cause of the sinkhole.  The sinkhole wouldn’t be a mystery to him.  It would be a problem with a solution that he would be confident he could find.

For certain, professional engineers with the Department of Highways in this area are working on the problem now.  They would follow procedures like I’ve outlined above – consciously or unconsciously forming and revising hypotheses and checking them out.

The hole formed in the road and the vehicle drove into it on Tuesday.  Based on my experience of these things, I’m certain they have already solved the problem.  It can be that quick in forensic engineering.

References

  1. Janoff-Bulman, R., Shattered Assumptions: Towards a New Psychology of Trauma, The Free Press 1992
  2. Jorden, Eric E., “Technical” visual assessments: Valuable, low cost forensic method, posted September 4, 2012

 

“Technical” visual site assessments: Valuable, low cost, forensic engineering method

I posted an item recently about an accident that injured four people when they were struck by flying pieces of metal from a ride in Yarmouth, Nova Scotia.  I thought, based on what I read in the paper, that it was an accident that might be adequately investigated on site by means of a simple visual assessment of exposed surfaces.

(See, “Flying objects, injured people, and forensic engineering investigation”, published August 3, 2012)

A visual assessment doesn’t sound very technical but it is always carried out at the start of even the most complex investigations, and sometimes it is all that is necessary for the simpler ones.  It can be thought of as “calibrating” the forensic engineer to the site (Ref. Sowers).  If little else is necessary by way of investigation then it can be quite a low cost investigation.  If more is necessary then it helps ensure a thorough, reliable, cost effective forensic engineering investigation.

A visual assessment is an essential part of the main steps in the failure investigation process:

  • Acquisition of data
  • Analysis of data
  • Formulation of opinion

A visual assessment or examination involves simply looking – by whatever means, at what you can see in the exposed surfaces at the scene of a failure or an accident.  This as opposed to taking things apart and looking below the surface – an intrusive examination.

Forensic engineers sometimes go right up to an object and look at it with a hand held lens – I examined the fibres in a crack in concrete one time that told me when the crack was formed.  Other times we simply walk the site and look at the failed structure or an accident scene from a few feet off.  We take some measurements and a few photographs, and make sketches and notes.

We can also look at an object with binoculars (see below), and also with the telescopic lens on a camera – and study the exposed surfaces later as recorded by the camera.

A visual assessment, in a sense, can also mean examining the images of surfaces in photographs including photographs in documents provided by counsel (see below).  But, you can’t beat being “at the scene” and getting a feel for the situation with a site visit and a good look, a good poke around.

In the earlier article, I explained why I thought the visual assessment approach was possible and valuable in Yarmouth and gave an example from my own pracitice.  Of course, as soon as I published my article I thought of other good examples of visual assessments I’ve carried out.  Some of these are described below:

1. Flying Metal- In Yarmouth I noted that the exposed surfaces of different units on the ride (chairs?) would lend themselves nicely to a visual assessment of what caused the metal to come loose.  Having a number of chairs the same on the ride, presumably some with the metal still intact, would allow a valuable before-after assessment.

2. Falling Ice- I investigated the cause of ice falling and injuring a person solely on the basis of visual assessments.This involved an examination from the ground surface of the exposed exterior surfaces of the lower level of the structure and the upper levels from a distance using binoculars. I looked at some photographs that recorded the position of the ice on the ground after the accident.  I was also able to carry out a before-after assessment in this case somewhat similar to what might be possible in Yarmouth.  It helped to look at how ice formed on other structures during the winter.  Application of   some basic principles on how ice forms and melts coupled with observations from the visual assessment identified the cause.

3. Retaining Wall Failure- A quite high gabion retaining wall failed on the shore of Bedford Basin, Nova Scotia (a gabion is a wire basket filled with rock).  A part of the wall just fell over onto the shore during the backfilling stage. Another part remained upright where it was connected to an anchor of sorts that prevented the wall falling over.

A site visit and visual assessment, comparison of the collapsed and upright sections of wall – the before-after comparison that forensic engineers like so much, and application of a well known rule-of-thumb in retaining wall design quickly identified the cause of the wall failure.

4. Tank Collapse - I was asked to establish why a fuel oil tank collapsed into a trench by examining photographs only and reading the documents – a visual assessment by remote.  I was instructed not to visit the site not even to drive along the road adjacent the site.

I examined the site as portrayed in the photographs, studied sketches prepared by other professional engineers – during a visual assessment, checked rainfall records, applied some very basic scientific soil mechanics principles and established the cause.

Explaining the scientific principles and the mechanism of failure was a bit of a challenge but I was pleased with the result and the clients said they understood.

5. Soil-Steel Bridge Failure - I investigated the reason a large corrugated steel culvert suddenly collapsed injuring a car driver.  The culvert carried a highway over a stream.  A culvert more than 10 feet in diameter in north America – in this case spanning or bridging about 22 feet, is defined as a bridge.

I was retained two years after the accident and after the collapsed bridge had been removed and a new bridge constructed.  Several different engineering investigations were carried out including detailed examination of photographs taken at the scene on the day of the failure – a visual assessment by remote.

The examination established the cause quite quickly but couldn’t completely discount a hypothesis of failure put forward by the defence.  Until a detailed topograhic survey provided additional evidence that, coupled with data from the photographs, clearly showed why the hypothisis was not valid.

This was a costly forensic investigation because of the different modes of possible failure that had to be investigated and discounted and the fact the debris had been removed by the time I got there.  At the end of the day it was the visual examination of the exposed surfaces in the photographs taken at the scene and the results of a simple topographic survey that established the cause.

6. Fatal Step Ladder Accident

A simple visual examination of the scene of a fatal step ladder accident established that a re-enactment of the accident using stunt men was the best way to determine if a flaw in the ladder was the cause of the accident.  The first forensic method was inexpensive, the follow-up forensic method not so much by a long shot.  Fortunately, the case was resolved without proceeding to the costly and risky re-enactment.

7. Flooding Problems - I see quite a few engineering failures involving poor drainage and the flooding of land and the basements of structures.  Investigation relys on different methods, most notably establishing how the structure has been designed and constructed and the site topography – the lay of the land.   All investigation starts with a visual examination of the scene.

One of the most valuable investigations is an examination of the structure and the land before, during and after heavy rain – a visual assessment of before and after runoff and flooding conditions at the site.

In one instance, an initial visual examination that occurred during heavy rain suggested that flooding was not in fact occurring as thought by the client, contrary to the findings of very expensive investigations by others.  And in addition, another slightly different visual examination that could have been carried out years earlier would have established one way or the other if flooding was occurring – very unlikely, and saved the client many 1,000s of dollars.

 ***

Visual examinations don’t sound very technical but this simple method reduces forensic engineering investigative costs even when more complex investigations are seen to be necessary subsequently.  And simple visual examinations of exposed surfaces sometimes demonstrate that the complex investigations aren’t necessary – and weren’t necessary in some cases.

References

  1. Sowers, George F., Introductory Soil Mechanics and Foundations: Geotechnical Engineering, 4th ed., MacMillan Publishing 1979