(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

(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.