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

(The update includes a case history illustrating the importance of a preliminary estimate of engineering invesigative costs before filing a Statement of Claim.  A bibliography lists all the items published last year in “The role of ….” series.  This item was originally published on September 11, 2012)

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.

(Tasks by a professional engineer assisting Counsel are listed below in blue text)

A preliminary estimate of forensic engineering investigative costs by the professional engineer might be particularly valuable at this time.  See the following case:

Case; Wet Basement: This case illustrates the importance of planning and estimating the cost of an engineering investigation of the cause of a failure before preparing and filing a Statement of Claim.  An important question is whether or not a claim for damages will cover the estimated investigative costs.  An argument can also be made for carrying out some preliminary engineering investigation to learn if there is likely to be a basis for a claim in the first place.  

I was retained by Counsel to investigate the cause of a wet basement found shortly after the client purchased the property.  A visual inspection of the property established the strong possibility that the cause would support a claim.  However, the certainty of an opinion based on a visual, somewhart subjective inspection would be much less than an opinion based on objective measurements and tests in the field. 

The field tests were estimated to cost several thousands of dollars excluding engineering analysis and reporting.  In additon, there’s always a possible need for follow-up investigations in cases like this.  Counsel and client decided not to carry out the field tests because of the costs.  I do not know if the claim was pursued based on my visusl assessment and preliminary opinion.   

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 and cost effective.  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 the different steps in the civil litigation process was described in a number of postings last year - see the following references and bibliography.

  • 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 (the list of tasks are shown in regular and bold text to make them easier to read) :

  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

Biliography

  1. What is forensic engineering?, published, November 20, 2012
  2. Writing forensic engineering reports, published, November 6, 2012
  3. Steps in the civil litigation process, published, August 28, 2012
  4. Steps in the forensic engineering investigative process, published October 26, 2012
  5. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
  6. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
  7. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
  8. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
  9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
  10. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
  11. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012
  12. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
  13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012
  14. The role of a professional engineer assisting counsel prepare for Trial, published, December 19, 2012
  15. Built Expressions, Vol. 1, Issue 12, December 2012, Argus Media PVT Ltd., Bangalore, E: info@builtexpressions.com, info@argusmediaindia.com

Falling roof ice injures man

(The following is one in a series of cases I have investigated that illustrate the different types of structural failures and accidents that occur resulting in civil litigation, and the forensic engineering methods I used to investigate the cause.  The series is designed to assist counsel gain an appreciation of the engineering investigative methods used by forensic engineers.

The methods are most important for purposes of this illustrative series.  As such, I do not report on the analysis of the evidence uncovered during the investigation)

The investigation is reported under the following main headings with several sub-headings:

  • The case (A description of the accident and the scene, also, the client and the legal/technical issues)
  • Forensic engineering investigation (Building construction/snow and ice formation)
  • Cause (Addresses the legal/technical issues)
  • Resolution
  • Litigation
  • Post mortem (Binoculars were an important investigative tool)

The case

A man was walking along a sidewalk in a city in eastern Canada several years ago when a piece of ice fell from a building hitting him on the head and knocking him out.  The man regained consciousness some time later in an ambulance on his way to the hospital.  A doctor diagnosed severe head trauma.  The man took time off work and was treated for his injuries.

The three storey building had a mansard roof – a roof with two slopes, covering the upper level.  The roof had several dormer windows.  The building was several decades old.  The accident occurred on the sidewalk on the south side of the building below one of the dormers.

The man retained counsel to assist him claim damages associated with his injuries.

Client

I was retained by the counsel in connection with the claim for damages and asked to investigate the accident.

Legal/Technical issues

Counsel identified the following issues relevant to a resolution of the dispute by the court:

  1. The design and construction of a building and its roof in relation to safety issues concerning the accumulation of ice and snow.
  2. Alterations that could be made to a roof or safety precautions that could be taken to prevent accidents.

Forensic engineering investigation

Following is a list of some of the methods I relied on during my investigation of the accident.  The methods and tasks are separated according to the issues identified by counsel:

Building construction/Snow and ice formation

  1. Review documents in general as provided by counsel
  2. Study photographs of the building and the scene taken at the time of the accident, particularly those marking the location of the accident and the construction of the roof
  3. Visually examine the scene and the exterior of the building.  Note the formation and location of icicles on the roof
  4. Examine with binoculars details and features of the roof construction, and the general repair and condition of the roof
  5. Visually examine the formation and build-up of ice and snow on different buildings in other locations I travelled during the forensic investigation.  Reflect on the build-up of ice and snow on the roof of my home in the past
  6. Research the formation of ice and snow build-up on roofs
  7. Study victim’s statement of accident noting, in particular, what the victim heard at the time of the accident and the extent of the victim’s injuries
  8. Study a floor plan of the building
  9. Read the pleadings

Roof alteration

  1. Research methods of altering the roof at the scene of the accident to prevent the formation of ice and snow on the roof
  2. Examine products available in building supply stores for altering the roof
  3. Research safety precautions that could be taken to prevent accidents from falling ice

Cause

Building and roof construction, including collecting runoff from the roof, were typical for the city.  As such, as an older building, the conditions were present in our climate for ice and snow to form and collect on the south side of the building.  Inspection and maintenance of the roof drainage system would be necessary to prevent ice and snow falling on people below.

The roof could be altered by various methods, and the methods maintained, to prevent ice forming and snow accumulating.  These methods are sold in building suppy stores.  One method would involve lining the roof above the eaves with metal sheeting to prevent ice and snow accumulating.

The area of the sidewalk below could be roped off and signs posted cautioning people of the danger of falling ice.

Resolution

The claim was resolved by alternate dispute resolution (ADR).

Litigation

The case did not go to trial.

Post mortem

The extent of the man’s injuries was evidence in giving some indication of the size of the piece of the ice that struck him.  I now want to know the extent of a victim’s injuries in all accidents I investigate.

Also, the sound the man heard, suggestive of ice hitting the roof of the addition, corroborated the location of the accident and the area of the roof from which the piece of ice fell.  It was easy to explain the formation of ice at this area of the roof.

Examining the roof with binoculars was the only way to assess maintenance of the roof drainage system.  Less than adequate maintenance was a factor in my analysis.  I wasn’t privy to its importance in resolving the case.

My first “forensic engineering” investigation

(The following is one in a series of cases I have investigated that illustrate the different types of structural failures and accidents that occur resulting in civil litigation, and the forensic engineering methods I used to investigate the cause)

The investigation is reported under the following main headings with several sub-headings:

  • The case (a description of the failed structure – significant cracks in a building, the “lega”/technical issues, and my “client”
  • “Forensic engineering” investigation of the failure and the methods used
  • Cause (of the failure)
  • Post mortem (an interesting side story and a lesson learned)

The case

I carried out my first “forensic engineering” investigation during my 5th year studying civil engineering at the University of New Brunswick (UNB).  This was at a time when I was an engineering student and had no understanding at all of forensic engineering, and wasn’t even qualified as a professional engineer.

Nevertheless, this was a significant and costly building failure but, fortunately, not a catastropic one.

We took our lectures in a room on the second floor of a two and a half story brick clad building with a full basement – the “engineering building” on the UNB campus.

During our 5th year the foundations of one wall of the building settled causing 1″ to 2″ wide, vertical cracks – as I remember the size, to appear in the front, left corner of a wall of the lecture room.  You could see daylight through the cracks.  This would be significant damage to an existing building

“Legal”/Technical issue

To me as a student with an interest in geotechnical and foundation engineering, the cause of the cracks was an issue of considerable interest.  I undertook to investigate and report on the cause to meet the requirements of one of my courses.

Client

My “client” in a sense was the professor who was giving the foundation engineering course.

“Forensic engineering” investigation

My ”forensic engineering” investigation involved the following:

  • Visually assess the exterior of the engineering building
  • Determine how the building was constructed
  • Research construction techniques

Visual assessment

A visual assessment of the exterior of the building found that an addition to the engineering building was being constructed immediately adjacent the existing building.  Consulting engineers for UNB had hired a contractor to build a new engineering building adjacent the old – only a few feet away.  Construction involved a deep excavation adjacent the shallow foundations of the existing building.

Building construction/Construction technique

I learned that the existing engineering building was supported on shallow spread footings founded in the natural soils.  Excavating near and well below natural foundation soils like these requires their support in some manner to prevent undermining the soils.

I saw during my visual examination that the contractor had installed a soldier pile shoring system to temporarily support the foundation soils beneath the existing building.

This type of foundation support system consists of steel piles driven vertically into the ground at regular intervals adjacent the existing building foundations.  The piles may also be installed in previously bored holes in the ground eliminating the ground vibration from pile driving.  As the excavation is taken deeper timber - lagging, is inserted horizontally between the piles to support or shore up the soil in the side of the excavation - in this case soil that is adjacent the existing building’s foundation soil.

A soldier pile shoring system is a good support system if constructed properly and its limitations kept in mind.

Research construction technique

I researched the shoring system and found that it “gives” or yields a little – deflects along it’s length in engineering terms, when mobilizing its strength to provide support to the soil it is retaining.  The retained, shored up soil behind the shoring system gives a little as well - moves sideways and away from the foundation soils to which it is providing lateral support.  This effectively undermines the foundation soils a little causing the soils to settle and the building foundations to settle as well.

This deflection is due to the piles bending along their length.  The piles will also deflect or tilt a little if they are not driven or embedded deep enough during installation.

This lateral movement of the shoring system and settlement of the soils and foundations is normal.  It can be negligible if the shoring system is properly designed and installed.  The movement can be significant causing damage to the foundations the shoring system is designed to protect if the support system is not well designed and installed.

Installing soldier piles by driving them in place causes the soils in the immediate area to vibrate.  Soil settles when it is vibrated.  Anything in the soil – like building foundations, settles as well.

Cause

I analysed the data that I had collected – the manner of construction of the shoring system and the results of my research, and concluded the cause of the failure and submitted my student engineering report.

In this case the soldier pile system deflected too much causing the foundation soils to yield or move sideways and settle in the process.  This caused the building walls to settle as well and the corners to crack and open up.  The deflection was probably due to a combination of the causes noted above:

  • Vibration of the soils during installation of the piles
  • Tilting of the soldier piles due to shallow embedment
  • Deflection along the length of the piles

Post mortem

I passed my year so I must have got it right, not treading on any toes in the process – the engineers who approved the soldier pile system that failed were my professors who had formed a consulting engineering company to do this type of work.  Failures occur in spite of the best efforts of the best people.

International engineering magazine publishes information on forensic engineering in eastern Canada – and also information useful to Counsel on the causes of failure

International report on forensic engineering practice in eastern Canada

“Built Expressions”, is an engineering magazine published monthly with a readership of about 10,000 engineers and architects in Asia, the U.K, and the U.S.  The magazine published three of my blog postings last year (Ref. 15, pg. 74 to 80):

  • What is forensic engineering?
  • Steps in the forensic engineering investigative process
  • Writing forensice engineering reports

My articles reflected what I have experienced practicing forensic engineering in eastern Canada.  Requests to publish these articles in the magazine suggests to me that we have a standard of practice in forensic engineering in eastern Canada of interest to the world.

(These postings and their publication dates are contained in the References below.  The References list 12 postings forming a series I published last year for counsel.  The series was on the role of a professional engineer assisting Counsel at the different stages of the civil litigation process)

These three articles were included in the December 2012 issue of Built Expressions that featured several articles on ‘Forensic Civil Engineering’.

(Please contact me if you would like to review an electronic version of the magazine, or contact the publisher (Ref. 15). The file containing the magazine is quite large at 14.8 MB and not included in this posting for that reason)

Learning from others about the cause of failures in the built environment

But we can learn from the others as well.  There were nine articles in the Cover Feature including my three articles.  The articles described various aspects of forensic civil engineering as experienced by the authors.  Most of the articles would be of interest to forensic engineers.  One or two would be of interest to Counsel.

One article in the magazine, ‘The expert witness and professional ethics’, (Ref. 15, Rao, B.S.C., pg. 38), reports on the categorizing and classifying of the causes of structural failure as determined by researchers in the U.S. and Europe.  This research reviewed the causes of hundreds of failures.  Based on the research the primary causes of failure were categorized as follows:

  • Human failure
  • Design failure
  • Material failure
  • Extreme or unforseen conditions or environments
  • Combinations of the above

When professional engineers were at fault (human failure) the causes of failure could be classified as follows:

  • 36%…Insufficient knowledge on the part of the engineer
  • 16%…Under estimation of influence
  • 14%…Ignorance, carelessness, negligence
  • 13%…Forgetfulness, error
  •   9%…Relying on others without sufficient control
  •   7%…Objectively unknown situation
  •   1%…Imprecise definition of responsibilites
  •   1%…Choice of bad quality
  •   3%…Other

When the percentage distribution of the failures were summarized the research found that almost half were due to errors in the planning and design of a structure and a third occurred during construction:

  • 43%…Planning and design
  • 36%…Construction
  • 16%…Use and maintenance
  •   7%…Others and multiple factors

I reviewed research a few years ago that found many, possibly most, foundation failures were due to inadequate geotechnical investigation of the foundation soils.

This type of information based on what appears to be quite exhaustive research is valuable to a forensic engineer in forming an initial hypothesis of failure at the beginning of an investigation.

Counsel can also learn from engineering research

The information is also valuable to Counsel in assessing whether or not to take a case or gaining an appreciation of where a forensic investigation may be leading based on initial oral reports by the professional engineer investigating the cause of the failure.

References

  1. What is forensic engineering?, published, November 20, 2012
  2. Writing forensic engineering reports, published, November 6, 2012
  3. Steps in the civil litigation process, published, August 28, 2012
  4. Steps in the forensic engineering investigative process, published October 26, 2012
  5. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
  6. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
  7. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
  8. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
  9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
  10. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
  11. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012
  12. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
  13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012
  14. The role of a professional engineer assisting counsel prepare for Trial, published, December 19, 2012
  15. Built Expressions, Vol. 1, Issue 12, December 2012, Argus Media PVT Ltd., Bangalore, E: info@builtexpressions.com, info@argusmediaindia.com