It was dinner time in the Robinson household, work was great – he’d just completed a major project and Brian was looking forward to sitting down to eat with his family for the first time in quite a while. The kids had willingly relinquished their tech devices for once, and he could smell steak – life was good. The doorbell went and Brian, went to answer it. “Another Amazon delivery, no doubt…” he said (quietly) to himself. Brian was much braver saying such things quietly to himself than he was directly to his wife, but Brian liked a happy, calm existence, he wasn’t looking for trouble and strife. He opened the door, and an ordinary-looking chap was standing there. He confirmed, by politely asking Brian whether he was indeed the ‘Brian Robinson’ he was seeking. This was an unusual level of formality for Amazon…He then handed Brian a half-inch-thick stack of papers. As the fellow turned to leave, he stated hastily: “You have been duly served. Have a nice evening.”
In a moment he was gone.
Brian looked down at the papers and unfolded them. The papers looked very official. At the top he noticed the name of a court. Then he saw a group of names that he didn’t recognise, followed by the word “Plaintiffs.” Then his eyes drifted to a second list of names that were followed by the word “Defendants.” BRIAN ROBINSON jumped out at him.
Not even aware that he was doing it, Brian closed the door and zombie-walked to the nearest chair and flopped into it before his legs gave way. He tried to read all the words at once, but they were barely registering in his overwhelmed brain.
The realisation came in a wave of understanding. “I am being sued!”
This scenario is every self-respecting engineer’s worst nightmare. Engineering projects are often complex, challenging, and difficult to manage, with long timelines and many different stakeholders. The pressure – and the potential for errors – is high.
Prosecution of experts in the wake of disasters has emerged as common as we have seen with the Deepwater Horizon blowout (USA, 2010), the L’Aquila earthquake (Italy, 2009) and the Wivenhoe Dam floods (Brisbane, 2010-11). The aftermath of Wivenhoe and other similar cases have contributed to a growing conversation within the Australian engineering profession about expertise, liability and responsibility.
Regardless of who’s at fault, today’s society is quick to point the finger, people want and need someone to blame. Accusations of negligence or malpractice won’t just cost a fortune to defend, they’ll also tarnish your reputation and your credibility.
There is hope though. In late 2021 we ran a series of webinars for Engineers Australia, focusing on how individual engineers can use ‘preventative law’ and associated techniques to help keep themselves out of trouble in the first place, and minimise fallout if trouble is inevitable.
What follows is a synopsis of the key take-aways from our training.
A bit about law
When most people think of law, it’s usually the dramatic, and (sometimes) controversial legal battles that rage across courtrooms and make headlines in the media. However, in most cases, this isn’t what the practice of law looks like. Usually, it’s scrutinising documents and spreadsheets, undertaking research and trying to keep massively expensive messes like those you see on television from ever happening—in essence, it’s preventative law.
At its core, preventative law is the process of making sure you avoid legal difficulties. This contrasts with traditional law in that rather than trying to defeat something that has already happened, you do everything possible to prevent those conflicts, lawsuits, and disputes in the first place.
A preventative approach can also put you in greater control of the outcome. Those who wait until a crisis occurs before looking at their legal standing will not have as much control over whether they win or lose as someone who has planned ahead. Preventative law, can help you influence the end result more positively, even if you still end up facing litigation later on. It is a useful insurance policy, should the worst-case scenario come to pass.
Companies often use preventative law to help manage business liabilities. Perhaps less common is the practice of using preventative law techniques to help manage the personal liabilities of professionals such as engineers.
The possibility of disputes involving providers of professional services is a feature of professional life. So, what are the key points to keep in mind for Engineers who wish to manage risk and the extent of their personal liability to clients when providing engineering services?
1. The importance of relationships and communication in Engineering projects and managing disputes
The law cannot undo what was done. Not everything can be captured in a contract, a policy, or a handbook, but the power of positive human interactions can overcome any obstacle, or slightly shaky contract. Or…if inexpertly managed, they can make a bad situation much worse and add fuel to the fire of a disagreement. Relationships and communications underpin everything and drive behaviours and actions and good relationship and communications management can help resolve issues and stop them escalating to the courts.
There is significant evidence within the field of medicine that ‘poor communication and problematic relationships’ are more likely to get you sued than failing at the technical aspects of clinical care. People don’t sue people they like – people are more likely to cut someone some slack if they feel they have been kept in the loop and have good rapport.
The law is a blunt instrument, it cannot make something that has happened, ‘un-happen’, it does not often result in a fairy-tale ending. But good communications and good relationships could bring a situation back from the brink, and all parties can be better off for it.
In reality though, what does good communication and relationship management look like?
Keep clients in the loop
A lot of lawsuits could be avoided with proper communication. Take steps to:
- Keep all relevant parties informed of updates to: design plans and layouts, pricing and deadlines, and bylaws, government, and safety protocols. Pay special attention to budget overruns, scheduling issues, delays, and anything else that could cost the client more money.
- Sign off on all changes in the scope of work with the project owners.
- Communicate all changes in a timely manner. Note the time and date when you do so and if done verbally, always send an email to follow-up.
- If a client asks questions, voices concerns, or complains, address them immediately. Your clients will appreciate your directness and transparency.
Be selective – choose your friends wisely
Just like in real-life, you shouldn’t try to be friends with ‘everyone’.
- Stay away from clients that have a reputation for being litigious or who insist on cutting corners. If they’re willing to take shortcuts during the design process, they’ll also likely be more willing to put the blame on you when push comes to shove.
- Additionally, be wary of taking on too many jobs. It might seem like a great idea to make connections with different clients and build your networks, especially if you’re just starting out, but it might cost your firm money in the long run if you don’t have time to put the right attention and detail into every project. Keep a manageable list of active clients to make sure you don’t over-commit and under-deliver.
But make sure your relationships are both deep and wide
- Build relationships at all levels, and if you are in a senior/management position empower junior engineers to do the same with their peers.
- It is not just the CEO who is important and has influence within a business – identify the other influencers, gatekeepers and people who ‘get stuff done’ and are respected within the business. These people’s opinions of you also matter.
- 1/3 of your life is spent at work – now more than ever the boundaries between work and life are blurred. Take an interest in your clients as human beings. How do they take their tea?
2. “It’s the contract, stupid”
Why does an engineer need to understand the law? Isn’t that what lawyers are for?
There are many possible answers to this question, but first and foremost, everything that an engineer does over the course of any project, large or small, is governed by the contract that was signed to set it in motion, every bit as much as the laws of mathematics and materials. As an engineer/engineering company, if you are going to be sued, one of the most likely reasons for this will be due to a ‘breach of contract’. Therefore, knowing your way around a contract and how to use it to best protect yourself, is key to you managing liability and your professional reputation.
The role and purpose of contracts for engineering:
- Engineers need to understand the basis and practicalities of contract law to deliver successful projects and supplier relationships. Failure to understand the basics can prove very expensive.
- Having a detailed client contract is the best way to set clear expectations regarding the scope of a project. This will also help resolve claims faster and at a lower cost.
- It is important to draft a contract that provides adequate protection and limits your liability in the event of a claim.
- But even if there is an excellent contract in place, this is only useful if engineers know how to navigate it and understand the obligations it imposes
- We run bespoke training courses for our regular clients on understanding contracts, and we have also produced a contract assessment tool which you can access for free and use to assess the ‘riskiness’ of a particular contract and whether it might be a good idea to get a lawyer to take a look.
3. To err is human – (but do your best not to)
Avoiding negligence liability means giving attention to process, contracts, and insurance. Process is prevention. Contracts are avoidance. Insurance is mitigation. Most negligence claims against engineers fall into the categories of errors or omissions. Error, meaning that what was designed was wrong. Omission, meaning that the engineer failed to include something in their design.
How to avoid err-ing
Be cautious – No matter how much you trust your team or collaborators, don’t accept things in good faith or skip any steps. Be vigilant and keep the following list in mind to maintain the standard of care:
- Don’t avoid problems. Tackle them head-on immediately—if you don’t, they’ll escalate, and it’ll be even trickier to find a solution.
- Don’t put your stamp of approval or sign-off on anything you are not 100% comfortable with. Remember, you’ll have to explain your reasoning to a judge if it’s called into question.
- Similarly, don’t agree to switch materials unless you’ve tested them yourself and can guarantee the change will have no major impact. Document your reasoning for switching and/or not switching materials.
- Don’t take anyone’s word for it. Don’t certify what you can’t see, even if a contractor tells you they’ve done something before with no issues. Instead, do your research and ask for third-party reports on efficacy and safety before making any changes or approving anything risky.
- Record any assumptions you’ve made and put disclaimers in your design documents, especially on paperwork and documents that have been provided to you based on other’s work.
- Implement quality control processes. Even if you’re confident in your work, it’s a good idea to implement strict quality control processes to ensure accuracy and boost your performance. Consider:
– Setting aside a few hours every day to review your designs;
– Having other colleagues check your work through a peer review system or hiring an independent consultant to do so if possible; and
– Developing proper communication and reporting protocols for all roles when issues arise.
But just in case things do go wrong…Document everything
Comprehensive client records are your best defence against a claim. Suing for negligence is harder if you can show the court your responsiveness to the client’s needs and what steps you’ve taken to address any problems. Remember to:
- Maintain a complete record of all provided services, actions, and interactions, including online correspondence. Inform all involved parties that you will do so.
- Note: the time and date, all discussed topics and next steps, any issues and your attempts to resolve them, any recommendations you made and why, along with the client’s refusal if applicable.
- Take photos and/or videos of any problems or errors that you encounter.
- Document all verbal agreements, key information, and decisions. Always follow up with a summary email, particularly for any direction given to other parties.
- Ensure that all documentation is objective—avoid personal opinions.
- State clearly any assumptions you have made and put disclaimers in your design documents where needed.
- Check your insurance coverage – does your company’s policy cover you? Is it the right level of cover? There’s nothing worse than finding out there’s a big gaping hole in your safety net!