October 2017 – Law and Civil Engineering

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Think Ahead
by Eugene Bass

In a recent prior article, the issue of the scope of liability of a negligent surveyor was discussed. The case involved a surveyor who was found to be liable to a future buyer of surveyed property even though the surveyor never had a contract with that future buyer. Several factors were cited in the decision that went into the determination of the liability for the negligent survey. Points mentioned were the extent to which the transaction was intended to affect the injured party, the foreseeability of harm to him, the degree of certainty that the injured party suffered injury, the closeness of the connection between the surveyor’s conduct and the injury suffered, the moral blame attached to the surveyor’s conduct, and the policy of preventing future harm.

An engineer should always be mindful of the potential extent of liability for any project undertaken. Not only must care be taken to avoid negligence in the performance of your own work but, where sub-consultants are engaged, their non-negligence must be achieved as well. Their work will be incorporated into your work and any errors by the sub-consultant will be your responsibility as well as the sub-consultant’s. And, if you are acting as a sub-consultant, you should be aware that any negligence by the prime consultant that results in litigation can readily cause you to be drawn into an expensive lawsuit for which you had no responsibility.

Bearing in mind the potential for liability associated with a project one should ask first if the project is one that should be undertaken at all. Will the fee be sufficient to compensate for the level of potential risk involved? Are present liability insurance limits sufficient and if not, should they be increased, and to what level? Will there be enough money in the job for an adequate level of pre-design investigation to provide a reasonable certainty that conditions will be known and that the design appropriately deals with those conditions. An example that comes to mind is the determination of the extent of subsurface investigation for a project. The more extensive the investigation, the more certainty there is that the completed project will function as intended. Bidders will not need to factor in as much contingency to compensate for the possibility of disruption and changes during construction that can be the result of an inadequate pre-design investigation. More money spent up front for a more thorough investigation will encourage bidders to reduce contingencies and give the owner better bids reflecting the true anticipated costs of construction.

Sometimes the best decision is to not get involved with a project. A low budget “you get what you pay for” may land the project initially but the potential for problems later is vastly increased. Client’s can forget that the highest results do not always derive from the lowest price.


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