{"id":2860,"date":"2014-06-28T21:25:24","date_gmt":"2014-06-28T21:25:24","guid":{"rendered":"http:\/\/www.ericjorden.com\/blog\/?p=2860"},"modified":"2022-07-11T14:24:02","modified_gmt":"2022-07-11T17:24:02","slug":"how-the-standard-of-care-is-determined-when-a-failure-or-an-accident-occurs-in-the-built-environment","status":"publish","type":"post","link":"http:\/\/www.ericjorden.com\/blog\/2014\/06\/28\/how-the-standard-of-care-is-determined-when-a-failure-or-an-accident-occurs-in-the-built-environment\/","title":{"rendered":"How the standard of care is determined when a failure or accident occurs in the built environment"},"content":{"rendered":"<p><em>(<strong>Note:<\/strong> I posted this blog on June 28, 2014 and updated it since, most recently on October 30, 2020.\u00a0 The purpose was to help counsel, the judicial system, and insurance claims managers and consultants understand how the standard of care is determined.\u00a0 To help you gain some appreciation of the technical issues in the stepped process that are understood by an expert but not so well by others.<\/em><\/p>\n<p><em>Also, to draw attention to how the assessment\u00a0can at times be easy and inexpensive and at other times quite difficult.\u00a0 This is <strong><span style=\"color: #3366ff;\">illustrated with two brief case<\/span> <span style=\"color: #3366ff;\">histories<\/span><\/strong>.<\/em><\/p>\n<p><em>The\u00a0following is based on the literature in the <strong>References,\u00a0<\/strong>particularly Refs 3, 4 and\u00a07\u00a0and my engineering experience in eastern, western, and northern\u00a0Canada, and overseas.\u00a0 The literature emphasizes the process as it applies to professional people.\u00a0 I have\u00a0extended it to include\u00a0other specialties.<\/em><\/p>\n<p><em><span style=\"color: #0000ff;\"><strong>I updated the blog<\/strong> <span style=\"color: #000000;\">October, 2017<\/span> <\/span>to include a list of questions that should be answered when assessing the standard of care.\u00a0 I&#8217;ve also noted the specific importance that is assigned to the practitioner&#8217;s application of judgement, diligence and the elements of care.\u00a0 The questions have been taken from Chapter 3, The Standard of Care, in the Guidelines for Forensic Engineering Practice, 2012, Ref. 7 and from Refs 8 and 9.<\/em><\/p>\n<p><em><span style=\"color: #3366ff;\"><strong>I updated the blog again<\/strong><\/span> on <span style=\"color: #000000;\">October 30, 2020 <\/span>to note that some areas where failures and accidents occur have not adopted the National Building Code of Canada.\u00a0 The Code is a document relevant to assessing the standard of care for incidents in buildings as distinct from other civil engineering structures) <\/em><\/p>\n<p>***<\/p>\n<p>Often when a building or a civil engineering structure fails, or a component is defective in some way, the performance of the parties involved is called into question.\u00a0 Did they exhibit the degree of care that a reasonable person should exercise?<\/p>\n<p>Civil engineering structures can be anything built by man.\u00a0 Also, anything in the natural environment that affects people, like floods and landslides.<\/p>\n<p><span style=\"color: #3366ff;\"><strong>Parties whose performance might be questioned<\/strong><\/span><\/p>\n<p>The parties involved could be anyone associated with:<\/p>\n<ul>\n<li>The exact\u00a0<strong><em>technical cause<\/em> <\/strong>of the failure or accident\u00a0&#8211; the <em>failure mechanism<\/em><\/li>\n<li>And\/or the <strong><em>process cause<\/em> <\/strong>that led to the failure or accident &#8211; the <em>procedural<\/em> cause of the failure or accident, the circumstances that led to the occurrence of the failure mechanism (Ref. 1)<\/li>\n<\/ul>\n<p>For example, any of those parties in the process from the original owner of the building or civil engineering structure to the workers who maintained it.<\/p>\n<p>And all those specialties and trades in between.\u00a0 Like the architects, the design and construction engineers, construction and building trades&#8217; workers, material and product manufacturers and suppliers, and product and equipment installers.<\/p>\n<p>It&#8217;s also the case &#8211; questioning the performance of the parties involved &#8211; when an accident occurs causing property damage, personal injury, or death.<\/p>\n<p><span style=\"color: #3366ff;\"><strong>&#8220;Standard of care&#8221; questions<\/strong><\/span><\/p>\n<p>If that is the question &#8211; the performance of the people involved &#8211; there is often a need for an\u00a0expert to do two things:<\/p>\n<ol>\n<li><strong>Determine and describe the skill<\/strong> possessed by normally competent practitioners\u00a0involved in the technical cause of the\u00a0failure and\/or the process leading to the failure, and,<\/li>\n<li><strong>Develop an opinion<\/strong> &#8211; if requested by counsel &#8211;\u00a0as to whether the defendant party conformed to that level of skill<\/li>\n<\/ol>\n<p>These are &#8220;standard of care&#8221; questions.<\/p>\n<p>1. The expert determines and describes the standard of care existing at the time the structure and\/or its components were designed, built or maintained, or the accident occurred.\u00a0 He or she determines what a reasonable person would do in similar circumstances.<\/p>\n<p>2. Then the judicial system uses the description of the standard in assessing the actions of those associated with the structure or the accident scene.\u00a0 The judicial system may consider an expert&#8217;s opinion on whether or not the parties involved deviated from the standard.<\/p>\n<p><span style=\"color: #3366ff;\"><strong>Experts are human<\/strong><\/span><\/p>\n<p>There are three problems with this approach of using an expert to determine the standard of care and whether or not the standard was breached:<\/p>\n<ol>\n<li><strong>Being human, experts are susceptible to\u00a0applying personal standards.<\/strong>\u00a0 They risk raising the standard of care by relying on their personal experience and practice.<\/li>\n<li><strong>Litigation is retrospective.\u00a0<\/strong> Usually an expert must determine what the standard of care was in the past, not what it is at present.\u00a0 If\u00a0he did not practice during the time period in question, he would have to determine\u00a0the standard\u00a0by interviewing others and reviewing documents.\u00a0 Also, if there were a number of different procedures\u00a0for getting something done\u00a0at the time it would be necessary to determine the nature of each, and which one would have been seen as a standard.\u00a0 Again by interviewing others and reviewing documents.\u00a0 This is difficult and time consuming and involves a lot of e-mail, telephone, document, and leg work.<\/li>\n<li><strong>There are unique services, and some quite ordinary<em>, <\/em>for which no standard exists.<\/strong><\/li>\n<\/ol>\n<p>Experts retained to determine the standard of care must solve these problems.<\/p>\n<p><span style=\"color: #3366ff;\"><strong>Steps in determining the standard of care<\/strong><\/span><\/p>\n<p>Although a protocol for answering the two &#8220;standard of care&#8221; questions above in every case does not exist, the following steps will at least assist the expert.<\/p>\n<p>They\u00a0will also assist counsel and the judicial system acquire some understanding of the comprehensive nature of the process.\u00a0 Also the technical issues involved in determining the standard of care.<\/p>\n<p>Such a determination can be quite easy and straightforward in some cases, and quite difficult in others.\u00a0 This affects costs as might be expected.\u00a0 This is <strong><span style=\"color: #3366ff;\">illustrated\u00a0by <\/span><span style=\"color: #3366ff;\">two<\/span><\/strong> <span style=\"color: #3366ff;\"><strong>case histories<\/strong><\/span>\u00a0described below.<\/p>\n<p>I developed the stepped process &#8211; by extending the one in Ref. 4 &#8211; to include workers in the various supply industries, the building trades, and maintenance, in addition to the professions.\u00a0 I found in researching the standard of care that much of the material concerned the performance of people in the professions.\u00a0 However, there are circumstances when the performance of people in other fields of endeavour is of interest.<\/p>\n<p>Before the process begins, counsel will need to advise when the building, civil engineering structure, and\/or component was built.\u00a0 He\u00a0may also want to\u00a0ask the expert for an opinion on\u00a0whether or\u00a0not the performance of those involved conformed\u00a0to the standard of care:<\/p>\n<p><span style=\"color: #3366ff;\"><strong>Steps in the process<\/strong><\/span><\/p>\n<ol>\n<li>Establish\u00a0the time period involved.<\/li>\n<li>If there is reason to believe the standard is locality-specific, determine the applicable geographic locality.<\/li>\n<li>Determine the circumstances that relate to the failure or accident.<\/li>\n<li>Determine the technical cause of the failure or accident &#8211; the <em>failure mechanism<\/em>.<\/li>\n<li>Determine the process in developing the structure or component involved in the failure or accident &#8211; the <em>procedural<\/em> cause.<\/li>\n<li>Identify the professions, industries, and\/or trades involved in the process\u00a0and if they are well defined and understood as such.<\/li>\n<li>Do these things\u00a0by interviewing a number of representatives in the different\u00a0fields of practice.\u00a0 If there is variance, speak with more until you\u00a0are satisfied you know the average. (Ref. 5)<\/li>\n<li>Review the contract, or any other documents that define the party&#8217;s scope of work and any limitations on their services.<\/li>\n<li>Perform a literature search to determine if the standard of care was documented in publications, manuals and guidelines, regulations, and\/or codes.\u00a0 This literature should be known to representatives and workers in the professions, industries, or trades associated with the failure or accident.<\/li>\n<li>If the failure or accident occurred in a building, determine if the Building Code of Canada was in force at the time of the incident.<\/li>\n<li>Interview a number of professional, industrial, product, and trade representatives to determine a consensus standard of care.\u00a0 If there is variance, speak with more until you\u00a0are satisfied you know the average.<\/li>\n<li>Compare the consensus standard, as modified by contract, circumstances, or other justifications, with the questioned performance during\u00a0design, construction, and\/or maintenance of the building, civil engineering structure, or component.<\/li>\n<\/ol>\n<p>This stepped process is quite comprehensive.\u00a0 If followed it will assist the expert come to a clear understanding of the standard of care\u00a0for a particular set of circumstances\u00a0and\u00a0enable the expert\u00a0to describe it &#8211; answer the first of the two &#8220;standard of care&#8221; questions above.<\/p>\n<p>It will also enable the expert\u00a0to\u00a0formulate an opinion as to\u00a0whether or\u00a0not\u00a0the actions of the parties associated with the failure or accident conformed to the standard of care at the time &#8211; the second question.<\/p>\n<p><strong><span style=\"color: #0000ff;\">Questions that should be answered in a stepped process for determining the standard of care<\/span><\/strong><\/p>\n<p>In going through a stepped process like the above\u00a0to determine the standard\u00a0of care\u00a0the expert should make certain he or she answers the following questions.\u00a0 These are as published almost verbatim in Guidelines for Forensic Engineering Practice (Ref. 7).\u00a0 In a sense this is basically a stepped process separate from my own taken from the Guidelines:<\/p>\n<ul>\n<li>Does the expert have the degree of learning and skill ordinarily possessed by reputable professionals or workers, practicing or working in the same or similar locality, and under similar circumstances?<\/li>\n<li>Did the expert use the care and skill ordinarily used in like cases by reputable members of his or her profession or work practicing or working in the same or similar locality under similar circumstances?<\/li>\n<li>Did the expert use reasonable diligence?<\/li>\n<li>Did the expert use his or her best judgement?<\/li>\n<li>Did the expert do all that in an effort to accomplish the purpose for which he or she was retained?<\/li>\n<\/ul>\n<p>To answer these questions, the following must also be determined:<\/p>\n<ul>\n<li>Who are &#8220;reputable professionals or workers&#8221;?<\/li>\n<li>What are &#8220;same or similar&#8221; localities and circumstances?<\/li>\n<li>What is &#8220;skill&#8221;?<\/li>\n<li>What is &#8220;care&#8221;?<\/li>\n<li>What are &#8220;like cases&#8221;?<\/li>\n<li>What learning and skill are &#8220;ordinarily possessed&#8221;?<\/li>\n<li>What care and skill is &#8220;ordinarily used&#8221;?<\/li>\n<li>What is &#8220;reasonable diligence&#8221;?<\/li>\n<li>What is &#8220;judgement&#8221;?<\/li>\n<li>What is the expert&#8217;s &#8220;best judgement&#8221;?<\/li>\n<li>What was the purpose for which the expert was retained?<\/li>\n<\/ul>\n<p>&#8220;The standard of care is an assessment of the quality of care exercised by a practitioner, with specific importance assigned to the expert&#8217;s application of judgement, diligence, and the following five elements of the ethic of care, all of which are pertinent in engineering.&#8221;: (Refs 7, 8 and 9)<\/p>\n<ul>\n<li><strong>Attentiveness:<\/strong> Caring about; noticing the need to care, or recognizing the need of others.<\/li>\n<li><strong>Responsibility:<\/strong> Taking care; having more than an obligation, but a responsibility arising in part from one&#8217;s position or knowledge.<\/li>\n<li><strong>Competency:<\/strong> Care giving; having the ability to carry out the caring act effectively and correctly.<\/li>\n<li><strong>Responsiveness:<\/strong> Care receiving; being receptive to care, being aware of the care receiver&#8217;s perceptions.<\/li>\n<li><strong>Integrity:<\/strong> Knowledge on the part of the caregiver of the situations, needs, and competencies of all the parties to the care interaction, including an assessment of needs in a social and political, as well as personal, context. (Refs 7, 8 and 9)<\/li>\n<\/ul>\n<p>Workers in general, quite apart from those in the professions, must be assessed on their application of judgement, diligence and the five elements of the ethic of care.<\/p>\n<p><span style=\"color: #3366ff;\"><strong>The cost of the process<\/strong><\/span><\/p>\n<p>The cost of determining the standard of care can vary considerably.\u00a0 It depends on:<\/p>\n<ol>\n<li>The time period<\/li>\n<li>The location of the failure or accident<\/li>\n<li>The specialty, trade or profession\u00a0of the person whose performance is questioned<\/li>\n<li>The number of documents to research<\/li>\n<li>The number of persons to interview<\/li>\n<li>Whether or not there is a well-defined process guiding development of the building or civil engineering structure, and it&#8217;s components, or associated with the elements in an accident<\/li>\n<li>Identifying the relevant parties in a\u00a0poorly-defined process and how they are connected<\/li>\n<li>The existence of relevant codes, industry standards, and guidelines<\/li>\n<\/ol>\n<p><span style=\"color: #3366ff;\"><strong>The following two cases illustrate how cost and difficulty can vary:<\/strong><\/span><\/p>\n<p><span style=\"color: #3366ff;\"><strong>1. <em>Large, complex structure<\/em> but easy and inexpensive assessment of the standard of care<\/strong><\/span>:<\/p>\n<p>I assessed\u00a0the standard\u00a0for the catastrophic failure of a soil-steel bridge &#8211; a very large, corrugated steel culvert &#8211; that permanently disabled a woman.<\/p>\n<p>The assessment was easy and inexpensive because the design and construction process was well defined.\u00a0 There were only two parties to interview: (1) The one design firm working in the area at the time and (2) The culvert manufacturer.<\/p>\n<p>The assessment of the standard of care was easy even though it was a large, complex structure, the failure occurred about 10 years prior to my assessment, and the soil-steel bridge was designed and constructed about 35 years previously.<\/p>\n<p><span style=\"color: #3366ff;\"><strong>2. <em>Small, simple component<\/em> but difficult and expensive assessment:<\/strong><\/span><\/p>\n<p>Another assessment\u00a0for a simple accident was difficult and expensive.\u00a0 This was\u00a0because the industry and the process associated with development of the small component of the structure involved &#8211; a floor &#8211;\u00a0was poorly defined and\u00a0made up of 11 parties, with many persons to interview.<\/p>\n<p>The relationship between the parties, and who was responsible for what, was not well defined. \u00a0It was expensive even though a simple\u00a0component was involved and the accident occurred\u00a0quite recently.<\/p>\n<p><span style=\"color: #3366ff;\"><strong>References<\/strong><\/span><\/p>\n<ol>\n<li>Nicastro, P.E. David E., ed., <em>Failure Mechanisms in Building Construction<\/em>, American Society of Civil Engineers (ASCE) 1997<\/li>\n<li>Black\u2019s Law Dictionary, 4<sup>th<\/sup> pocket edition 2011<\/li>\n<li>Kardon, J. B. 2000, 2010\u00a0Chapter 7, Standard of Care in <i>Forensic Structural Engineering Handbook<\/i>, R. T. Ratay, Editor-in-Chief, McGraw-Hill, New York.<\/li>\n<li>Thompson, D. E. and Ashcraft, H. W. 2000, 2010\u00a0Chapter 9 Page 9.17 in <i>Forensic Structural Engineering Handbook<\/i> R. T.\u00a0 Ratay, Editor-in-Chief, McGraw-Hill, New York.<\/li>\n<li>Association of Soil and Foundation Engineers (ASFE) 1985 <i>Expert: A Guide to Forensic Engineering and Service as an Expert Witness<\/i><\/li>\n<li>Mangraviti, Jr.,\u00a0James J.,\u00a0Babitsky, Steven, and Donovan, Nadine Nasser, <em>How to Write an Expert Witness Report<\/em>, SEAK, Inc., Falmouth, MA 2014<\/li>\n<li>Kardon, Joshua B., Editor, 2012 Chapter 3, The Standard of Care in <em>American Society of Civil Engineers,<\/em> Reston, Virginia<\/li>\n<li>Tronto, J. C. (1993), <em>Moral Boundaries: A Political Argument for an Ethic of Care<\/em>, Routeledge, New York.<\/li>\n<li>Kardon, J. B. (2005), <em>The Concept of &#8220;Care&#8221; in Engineering.<\/em>\u00a0 American Society of Civil Engineers, Journal of Performance of Constructed Facilities, Vol. 19, No. 3, pp. 256-260.<\/li>\n<\/ol>\n<p><em data-rich-text-format-boundary=\"true\">Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada, June 28, 2014. Updated October 30, 2020 <strong><span style=\"color: #ff0000;\">ejorden@eastlink.ca\u00a0<\/span>\u00a0<\/strong><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"<p>(Note: I posted this blog on June 28, 2014 and updated it since, most recently on October 30, 2020.\u00a0 The purpose was to help counsel, the judicial system, and insurance claims managers and consultants understand how the standard of care &hellip; <a href=\"http:\/\/www.ericjorden.com\/blog\/2014\/06\/28\/how-the-standard-of-care-is-determined-when-a-failure-or-an-accident-occurs-in-the-built-environment\/\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[15,16,17],"tags":[],"_links":{"self":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/2860"}],"collection":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/comments?post=2860"}],"version-history":[{"count":36,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/2860\/revisions"}],"predecessor-version":[{"id":10201,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/posts\/2860\/revisions\/10201"}],"wp:attachment":[{"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/media?parent=2860"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/categories?post=2860"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.ericjorden.com\/blog\/wp-json\/wp\/v2\/tags?post=2860"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}