by Allan Mungall, Chartered Engineer and Arbitrator
In the mid to late 20th century, graduate engineers could happily leave university with little or no knowledge of “the law”. At most, all that they needed to know, or learn very quickly, were some aspects of the Health & Safety at Work Act1 (“HSWA”) and perhaps a little of the form of contract they might use in later years. This knowledge was generally enough to allow them to progress and perform satisfactorily up to Director/Partner level in most engineering organisations. However, in recent years matters have changed dramatically and there is now a compelling case for making engineering law a fundamental part of engineering studies, either at undergraduate level or immediately thereafter. There are numerous reasons why this is so.
Over the past 50 years, the UK has become more and more litigious. Against this background, it is perhaps only brave or foolish engineers who do not take time to understand the contractual and delictual issues which they might encounter in almost any professional task undertaken. (For clarity, “delict” in Scots Law is similar to “tort” in English Law and embraces a range of issues, most significantly negligence.). This tendency to increased litigation has been worsened for many engineers by the introduction of the Housing Grants, Construction and Regeneration Act2 and associated legislation. This legislation permits an aggrieved or vexatious party to have a wide range of engineering disputes quickly resolved by statutory adjudication. The costs of such adjudication can be trivial compared to the hitherto more conventional routes of litigation or arbitration and it is therefore becoming increasingly common. Moreover, probably in part due to its speedy and inexpensive nature, adjudication does not always provide a satisfactory result – see, for example Gillies Ramsay Diamond3. Additionally, in many situations the “standard” engineering contracts previously used have been progressively replaced by “bespoke” contracts, or by modifications to the NEC suite of contracts. Because they have had little or no legal training, the implications of these contracts are often not fully understood by the engineers required to use them.
Contracts and delictual responsibilities are, of course, matters of commercial risk. It is for engineers and their organisations to choose how best, if at all, to seek to manage these risks. This luxury of choice, however, does not apply in the case of statutory duties (that is duties arising from legislation passed by Government as opposed to those agreed by the parties as in contracts, or those established by case law as in delict). Statutory duties must be managed, and must be managed properly and a failure can result in a criminal prosecution. Historically, these duties were largely embodied within “Regulations”, and it was relatively simple for a practising engineer to refer to these as and when there was a need. In recent years, however, these statutory duties have increased markedly. In particular, there have been two major changes which impact on engineers and on engineering.
The first of these was the Construction (Design & Management) Regulations4 (“CDM Regulations”). These placed, in many regards, much more onerous obligations on designers and contractors than existed previously, including for example the need for a designer to produce a “Design Hazard Identification and Risk Assessment”. These obligations, of course, are reinforced by s40 of HSWA which reverses the normal balance of proof – it is for the accused to show that they have complied with the provisions of the legislation. For this, and many other reasons the CDM Regulations must be applied with great care and appropriate records kept by those who are subject to them.
Secondly, the Corporate Manslaughter and Corporate Homicide Act5 introduced the statutory offences of corporate manslaughter in England and corporate homicide in Scotland. The Act in s1 provides that an offence may have been committed if an organisation’s activities are managed or organised so as to cause a person’s death and to amount to a “…gross breach of a relevant duty of care owed by the organisation to the deceased.” Craig6 indicates that the Sentencing Guidelines Council has suggested a fine equal to 5% of an organisation’s annual turnover. However, in at least one case, Cotswold Holdings Ltd8, this percentage was markedly increased with the fine exceeding the company’s turnover.
Engineers often see the law as “dry and tedious” and there is, perhaps understandably, an inclination on the part of many engineers to opt-out and leave legal matters to the lawyers. This may work with respect to the civil issues – contract and delict – although the wisdom of such a route is perhaps questionable. There can be no such opt-out in the case of statutory duties and responsibilities. Moreover, these duties and responsibilities can only be met properly by the engineer in the design office or on the site, the factory or the yard – and you can’t carry a lawyer in your pocket. It is clearly difficult for these responsibilities to be satisfactorily met if they are not fully understood. Such understanding requires study and such study should begin at undergraduate level or immediately thereafter.
A fundamental responsibility of all professionals is that they should have an understanding of the law as it applies to their work. Moreover, it is axiomatic that “Ignorance of the law is no excuse.” Arguably, it is also axiomatic that those of us responsible for the education, training, supervision or mentoring of young engineers must ensure that those young engineers have a knowledge of the law appropriate to the work they are being asked to do. Experience shows that this is not always the case.
References
- Health and Safety at Work etc Act 1974
- Housing Grants, Construction and Regeneration Act 1996
- Gillies Ramsay Diamond v PJW Enterprises Ltd [2002] Scotcs 340 https://www.scotcourts.gov.uk/search-judgments/judgment?id=818687a6-8980-69d2-b500-ff0000d74aa7
- Construction (Design and Management) Regulations 2007
- Corporate Manslaughter and Corporate Homicide Act 2007
- R Craig, “Thou shalt do no murder: a discussion paper on the Corporate Manslaughter and Corporate Homicide Act 2007”, 2009 Comp Law 30(1), 17-20
- R v Cotswold Holdings Ltd [2011] EWCA Crim 1337
The opinions expressed are those of the author and do not necessarily reflect the views of IES.