The Defendant’s counsel prepares a Statement of Defense that replies to each allegation made by the Plaintiff.  The Defendant may file counter-claims and also claims against third parties with the court.  The Statement of Defense sets out the facts and the legal grounds that the Defense is relying on in their reply to the Plaintiff and in their allegations against the Plaintiff and third parties.

The Statement of Defense is the third step in the Pleadings:

• Notice of Claim
• Statement of Claim
• Statement of Defense
• Affidavit

A professional engineer retained by the Defense might focus on the following in his or her forensic engineering investigations:

• Review the technical evidence supporting the Plaintiff’s claims
• Carry out engineering investigations to confirm or refute the Plaintiff’s investigations
• Carry out engineering investigations of perceived wrongs and damages that could give rise to counter-claims and cross claims
• Assess the technical strengths and weaknesses of all parties

Once the last of the Statements of Defense have been filed, including any amendments, – one for each party, the pleadings are said to be closed.

The parties involved in the dispute may now exchange informal letters to try and come to an agreement and settle their differences before proceeding with a number of other steps.  In a sense, the clock starts ticking at this point in the countdown to going to trial.

The role of a professional engineer retained by the Defense at this stage would be similar to that of a professional engineer retained by the Plaintiff:

1. Visit and visually examine the site
2. Review the technical facts given in support of the Plaintiff’s claim and the technical evidence supporting these facts
3. Review available documentation and evidence of lay witnesses, and experts and specialists
4. Identify and explain the technical issues in the allegations in the Statement of Claim
5. Carry out engineering investigations to confirm or refute the thoroughness and reliability of the Plaintiff’s investigations and the evidence and facts arising from these investigations
6. Assess the technical strengths and weaknesses of the Plaintiff’s case and for each party identified by the Plaintiff
7. Identify the technical facts relevant to the Defense’s position and the evidence supporting these facts
8. Assess if enough technical data is available for the Defense to respond to the Statement of Claim
9. Assess the technical strengths and weaknesses of the Defense’s position
10. Carry out engineering investigations for the Defense of perceived wrongs and damages that might give rise to counter claims and cross claims
11. Evaluate preliminary design and costs of repair of the damaged structure
12. Identify parties that could be involved in the engineering failure or accident that have not been named in the Statement of Claim, the Defense, or any counter claims and cross claims
13. Review the Statement of Defense and counter claims, and response to Statement of Claim, for correct understanding and representation of the technical issues and facts 
14. Prepare a report, on instruction of counsel, describing the forensic engineering investigations, the analysis of the data collected, the findings, the conclusions, and the opinions formed relevant to the Statement of Claim’s allegations, the Defense’s response, and 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

They seem mysterious and frightening – Sinkhole!, suddenly appearing in the ground and “swallowing” things at the surface.  Like quicksand and all of a sudden there but, in another sense, not like quicksand which you maybe can see ahead of time and walk around.  Swallowing things like entire cars as shown in the picture on page A4 of the Globe and Mail yesterday.

The picture was of the rear of a vehicle just showing above the paved surface of the Highway 174 off-ramp at Jeanne D’Arc Boulevard in Ottawa.

The hole was deep enough that almost the entire length of the vehicle was in it, wide enough to take the width of the vehicle, and the width of the lane long.  A fair size hole to suddenly appear in the highway.

The traffic lane appears to be one of at least four lanes, two of which are at a lower level.  The lower lanes appear in the upper, right corner of the picture.  The lower lanes glisten with water.

We don’t expect this to happen in our highways, and particularly in the natural environment if the source of the problem lies there.  Seemingly natural events like this destroy our fundamental assumptions about the safety of the world (Ref. Janoff-Bulman).

But events like this are not so mysterious and their occurrence can be fairly easily predicted, but, unfortunately, not so easily the timing and location of their occurrence.

A forensic engineer investigating the cause of this sinkhole might consider four elements to the problem even before leaving his office (I’m pretending I’m the engineer and just got the call and haven’t even seen the site, but know about structures in general):

• Conditions in the terrain where the highway off-ramp is located
• Foundation soil, bedrock and groundwater conditions in the highway subgrade,
• Roadbed design and construction, and,
• Road and infra structure maintenance

As soon as a professional engineer gets to the site and does a visual assessment (see posting, September 4, 2012) he might well refine this listing but I don’t think a lot.  The visual assessment would draw the engineer’s attention to any unusual conditions in the terrain beyond the highway.  Conditions like evidence of heavy rain and its effects, flooding, nearby construction works that have impacted the road, etc.  The engineer is likely to have checked the recent weather reports for the area.

Seeing nothing unusual the engineer is certain to hyposthesize initially that the problem lies with the infra structure buried in the roadbed, service pipe work of some sort.  Like storm drains and water supply distribution pipes.

He might form this hypothesis based on evidence such as the following:

• Finding no unusual conditions in the terrain where the highway is located.
• The reasonable assumption that the highway roadbed has been properly designed and constructed.  We expect this of our highway departments.
• The rectangular shape of the hole in the road opening to the lower lanes on the right.
• The finite depth of the hole: 5 feet, 10 feet, 15 feet?  Depths that approximate those at which service pipes are placed.
• What he sees in the hole on looking in.

The forensic engineer might reason that the location of the hole and its shape are typical of those that might form when a water main bursts.  The escaping water seeks the easiest path down and out to the right eroding the roadbed as it flows.

Of course he would look in the hole once at the site.  If he sees a burst pipe discharging water then he’s reasonable in assuming he’s solved the problem of what caused the hole to form.

If he doesn’t see a burst pipe then he will start to think of other possibilities while waiting for documents on the existence and location of buried infra structure in the roadbed.  It’s possible there is a burst pipe but it’s buried deeper and not visible in the bottom of the hole.

One possibility is the types of natural soils and rocks forming the subgrade or foundation of the roadbed.  If he has geotechnical engineering experience he would want to know if the area of the road is underlain by Karst terrain. This is a type of terrain formed on rock like limestone that dissolves in the presence of water forming different types of solution cavities – like sinkholes, for example.  Or ‘roofed over’ sinkholes that are just about to break through like the banana holes in the Bahamas.  There is Karst terrain in the Windsor area of Nova Scotia.

Karst terrain has a certain appearance at the surface and the forensic engineer would look for this while waiting for a copy of the geotechnical report for this section of the highway.

So, the forensic engieer would form different hypotheses during his investigation of the sinkhole – the hypotheses above and possibly others, investigate each in turn with site work and information from documents until he arrives at the cause of the sinkhole.  The sinkhole wouldn’t be a mystery to him.  It would be a problem with a solution that he would be confident he could find.

For certain, professional engineers with the Department of Highways in this area are working on the problem now.  They would follow procedures like I’ve outlined above – consciously or unconsciously forming and revising hypotheses and checking them out.

The hole formed in the road and the vehicle drove into it on Tuesday.  Based on my experience of these things, I’m certain they have already solved the problem.  It can be that quick in forensic engineering.

References

1. Janoff-Bulman, R., Shattered Assumptions: Towards a New Psychology of Trauma, The Free Press 1992
2. Jorden, Eric E., “Technical” visual assessments: Valuable, low cost forensic method, posted September 4, 2012

I posted an item recently about an accident that injured four people when they were struck by flying pieces of metal from a ride in Yarmouth, Nova Scotia.  I thought, based on what I read in the paper, that it was an accident that might be adequately investigated on site by means of a simple visual assessment of exposed surfaces.

(See, “Flying objects, injured people, and forensic engineering investigation”, published August 3, 2012)

A visual assessment doesn’t sound very technical but it is always carried out at the start of even the most complex investigations, and sometimes it is all that is necessary for the simpler ones.  It can be thought of as “calibrating” the forensic engineer to the site (Ref. Sowers).  If little else is necessary by way of investigation then it can be quite a low cost investigation.  If more is necessary then it helps ensure a thorough, reliable, cost effective forensic engineering investigation.

A visual assessment is an essential part of the main steps in the failure investigation process:

• Acquisition of data
• Analysis of data
• Formulation of opinion

A visual assessment or examination involves simply looking – by whatever means, at what you can see in the exposed surfaces at the scene of a failure or an accident.  This as opposed to taking things apart and looking below the surface – an intrusive examination.

Forensic engineers sometimes go right up to an object and look at it with a hand held lens – I examined the fibres in a crack in concrete one time that told me when the crack was formed.  Other times we simply walk the site and look at the failed structure or an accident scene from a few feet off.  We take some measurements and a few photographs, and make sketches and notes.

We can also look at an object with binoculars (see below), and also with the telescopic lens on a camera – and study the exposed surfaces later as recorded by the camera.

A visual assessment, in a sense, can also mean examining the images of surfaces in photographs including photographs in documents provided by counsel (see below).  But, you can’t beat being “at the scene” and getting a feel for the situation with a site visit and a good look, a good poke around.

In the earlier article, I explained why I thought the visual assessment approach was possible and valuable in Yarmouth and gave an example from my own pracitice.  Of course, as soon as I published my article I thought of other good examples of visual assessments I’ve carried out.  Some of these are described below:

1. Flying Metal– In Yarmouth I noted that the exposed surfaces of different units on the ride (chairs?) would lend themselves nicely to a visual assessment of what caused the metal to come loose.  Having a number of chairs the same on the ride, presumably some with the metal still intact, would allow a valuable before-after assessment.

2. Falling Ice– I investigated the cause of ice falling and injuring a person solely on the basis of visual assessments.  This involved an examination from the ground surface of the exposed exterior surfaces of the lower level of the structure and the upper levels from a distance using binoculars. I looked at some photographs that recorded the position of the ice on the ground after the accident.  I was also able to carry out a before-after assessment in this case somewhat similar to what might be possible in Yarmouth.  It helped to look at how ice formed on other structures during the winter.  Application of some basic principles on how ice forms and melts coupled with observations from the visual assessment identified the cause.

3. Retaining Wall Failure– A quite high gabion retaining wall failed on the shore of Bedford Basin, Nova Scotia (a gabion is a wire basket filled with rock).  A part of the wall just fell over onto the shore during the backfilling stage.  Another part remained upright where it was connected to an anchor of sorts that prevented the wall falling over.

A site visit and visual assessment, comparison of the collapsed and upright sections of wall – the before-after comparison that forensic engineers like so much, and application of a well known rule-of-thumb in retaining wall design quickly identified the cause of the wall failure.

4. Tank Collapse – I was asked to establish why a fuel oil tank collapsed into a trench by examining photographs only and reading the documents – a visual assessment by remote.  I was instructed not to visit the site not even to drive along the road adjacent the site.

I examined the site as portrayed in the photographs, studied sketches prepared by other professional engineers – during a visual assessment, checked rainfall records, applied some very basic scientific soil mechanics principles and established the cause.

Explaining the scientific principles and the mechanism of failure was a bit of a challenge but I was pleased with the result and the clients said they understood.

5. Soil-Steel Bridge Failure – I investigated the reason a large corrugated steel culvert suddenly collapsed injuring a car driver.  The culvert carried a highway over a stream.  A culvert more than 10 feet in diameter in north America – in this case spanning or bridging about 22 feet, is defined as a bridge.

I was retained two years after the accident and after the collapsed bridge had been removed and a new bridge constructed.  Several different engineering investigations were carried out including detailed examination of photographs taken at the scene on the day of the failure – a visual assessment by remote.

The examination established the cause quite quickly but couldn’t completely discount a hypothesis of failure put forward by the defence.  Until a detailed topographic survey provided additional evidence that, coupled with data from the photographs, clearly showed why the hypothesis was not valid.

This was a costly forensic investigation because of the different modes of possible failure that had to be investigated and discounted and the fact the debris had been removed by the time I got there.  At the end of the day it was the visual examination of the exposed surfaces in the photographs taken at the scene and the results of a simple topographic survey that established the cause.

6. Fatal Step Ladder Accident

A simple visual examination of the scene of a fatal step ladder accident established that a re-enactment of the accident using stunt men was the best way to determine if a flaw in the ladder was the cause of the accident.  The first forensic method was inexpensive, the follow-up forensic method not so much by a long shot.  Fortunately, the case was resolved without proceeding to the costly and risky re-enactment.

7. Flooding Problems – I see quite a few engineering failures involving poor drainage and the flooding of land and the basements of structures.  Investigation relies on different methods, most notably establishing how the structure has been designed and constructed and the site topography – the lay of the land.   All investigation starts with a visual examination of the scene.

One of the most valuable investigations is an examination of the structure and the land before, during and after heavy rain – a visual assessment of before and after runoff and flooding conditions at the site.

In one instance, an initial visual examination that occurred during heavy rain suggested that flooding was not in fact occurring as thought by the client, contrary to the findings of very expensive investigations by others.  And in addition, another slightly different visual examination that could have been carried out years earlier would have established one way or the other if flooding was occurring – very unlikely, and saved the client many 1,000s of dollars.

 ***

Visual examinations don’t sound very technical but this simple method reduces forensic engineering investigative costs even when more complex investigations are seen to be necessary subsequently.  And simple visual examinations of exposed surfaces sometimes demonstrate that the complex investigations aren’t necessary – and weren’t necessary in some cases.

References

1. Sowers, George F., Introductory Soil Mechanics and Foundations: Geotechnical Engineering, 4th ed., MacMillan Publishing 1979

Professional engineers and other experts provide better services to civil litigation lawyers, the judge and the jury when they have some understanding of the civil litigation process.

Counsel, in particular, benefits when they retain an expert who is well informed about the process and their role in it.  Many experts are limited in this knowledge.  I know I was when I started practicing forensic engineering a number of years ago.

Expert witnesses play an important role in modern litigation (Ref. Stockwood, Q.C.).  The educational component of the contribution engineers provide to the civil litigation process is invaluable (Dunphy, Q.C.).  Experts fulfill this role better when they understand the process.

The purpose of this posting is to enlighten experts on the nature of the civil litigation process.  More detailed information can be had from David Stockwood’s easily read text, Civil Litigation, 5th edition.  Every expert should be given a copy of this text by retaining counsel.

Because of the sequential nature of the process, it is possible for an expert witness to start serving at almost any point during the process.  But, of course, beneficial to all concerned to be commissioned at the start of a lawsuit.  Joining the proceedings after they have begun requires the expert to “catch up” (ASCE Guidelines).  And risks counsel finding himself “out on a limb” with a weak case technically.

The following is what I’ve come to understand about the civil litigation process after a literature and internet search and conferring with acquaintances in law.  There is some comment in the following item on the role of professional engineers at different stages in civil litigation.  I added these comments to provide a little technical context.

The civil litigation process involves the following main steps:

• Pre-Civil Litigation
• Counsel’s First Meeting With Client
• Pleadings (Notice of Claim, Statement of Claim, Statement of Defense, Affidavit of Documents)
• Discovery
• Alternate Dispute Resolution (ADR) (Negotiation, Mediation, Arbitration)
• Settlement Conference
• Trial Date Assignment Conference
• Trial

1. Pre-Civil Litigation

This, in a sense, is the first step in the litigation process – trying to avoid a lawsuit.

All reasonable efforts are made at this stage to resolve a dispute with someone.  This would include talking with them and sending letters.  Counsel may be retained who would send letters as well.

If, in spite of the letters, the person who believes their property has been damaged, or believes they have been injured through negligence, if they still have not come to an agreement to resolve the conflict then the next step can be taken and a lawyer consulted and litigation possibly begun.

At this stage, professional engineers occasionally receive enquiring telephone calls in which a dispute is described and the engineer’s comments sought on the technical issues in the problem.

2. Counsel’s First Meeting With Client

The purpose of the lawyer and the client’s first meeting is so counsel can gather information to help him assess the merits of the case and decide if he should take it.  The lawyer will also be representing his firm to the client during the meeting.

In meeting with the client the lawyer obtains information from:

• the client’s description of the problem and the damages the client believes he has incurred,
• documents provided by the client,
• knowledge of witnesses,
• answers to questions raised by the lawyer, and
• the lawyer’s past experience of similar matters.

One of several important considerations covered by the meeting and the lawyer’s review of the facts is the need for an expert on the case.  An expert can make or break a case (Stockwood, Q.C.) and if thought to be necessary should be chosen carefully and retained early – even if only briefly in the event counsel decides not to take the case.

If the technical issues are complex – and a professional engineer can certainly help determine these issues, their complexity, and an order of magnitude of investigative costs – the monetary claim for damages likely to be substantial, and the lawsuit quite lengthy then this will affect the client’s litigation costs.  The client’s ability to bear these costs is important information in counsel’s decision on whether or not to take the case.

If the lawyer does decide to take the case, the next four steps in the civil litigation process are collectively known as the Pleadings – the Notice of Claim, the Statement of Claim, the Statement of Defense, and the Affidavit of Documents..

3. Notice of Claim

Civil litigation officially begins with the lawyer preparing and filing a Notice of Claim, a document that introduces the litigation.  It describes the parties and the fact that the plaintiff is starting a legal action in court against a defendant or a group of defendants.  The Notice of Claim is typically attached to the Statement of Claim, the documents filed with the court, and then served on the defendants.

A professional engineer could have a particularly critical role at this stage in litigation.  The engineer could contribute to counsel’s assessment of the strength of a case and whether or not to actually begin a lawsuit by filing a Notice of Claim.

4. Statement of Claim

The Statement of Claim is more particular.  It is a document that further describes the parties and defines their relationship(s) with each other.  It is a listing of the facts both legal and technical.  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 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, interest and costs, and 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 process server swears an affidavit that this was done.

5. Statement of Defense

The defendant’s lawyer prepares a Statement of Defense that replies to each claim and allegation made by the plaintiff.  The defendant may file counter-claims and also claims against third parties with the court.  The document sets out the legal and technical facts and the legal grounds that the defense is relying on in their reply to the plaintiff and in their claims and allegations against the plaintiff and third parties.

The role of a professional engineer retained by the defence at this stage would be similar to that of a professional engineer for the plaintiff:

Amendments to both the Statement of Claim and the Statement of Defence may be issued by the respective parties after their initial claims are made.

Once the last of the Statements of Claim and Defence and amendments have been filed – one for each party, the pleadings are said to be closed.

The parties involved in the dispute may now exchange informal letters to try and come to an agreement and settle their differences before proceeding with a number of other steps.  In a sense, the clock starts ticking at this point in the countdown to going to trial.

6. Affidavit of Documents

If the matter is not settled, the next step is disclosure of each party’s relevant documents.  This is done by means of an Affidavit of Documents that all parties prepare, swear, serve and file with the court.  A party must produce in its affidavit all documents and electronic information it has in its possession or control relevant to the matters in issue.

Note: Ideally, all forensic engineering investigations of the cause of the problem would be complete by this stage.  These would be the separate investigations commissioned by the different parties to the dispute.  Some would be quite simple like reviewing the work of other engineers.  Other investigations might be quite complex like determining the cause of the problem that initiated the claim for damages in the first place.  The resulting technical data would have provided the basis for well informed and well thought out pleadings.

7. Discovery

Discovery, in general, is a step in the civil litigation process whereby information is obtained from the opposing parties or other witnesses.

At the discovery stage all engineering investigation is complete, all evidence, engineering data, and testimony that any party may offer at trial is known and can be fully examined by all other parties.  The cause of the engineering failure, poor structural performance, or personal injury/fatal accident has been determined.

By reviewing the total body of evidence, the parties and their counsel are able to assess the strength of their respective positions if the action proceeds to trial.  This review and assessment is carried out in three ways:

• Discoveries (ask questions)
• Interrogatories (submit written questions)
• Undertakings  (agree/undertake to provide information, data and physical evidence later)

Prior to discovery in some jurisdictions, questions can be asked of an expert in writing by opposing parties.  In Nova Scotia this is Rule 55 of the Civil Procedure Rules.  These questions are delivered through counsel to the expert and must be responded to within a stipulated period of time.  This procedure was developed to limit the discovery of experts.

Discoveries are oral question-and-answer sessions under oath where each party’s counsel poses detailed questions to the other party’s witness(s), including engineering experts, about the opinions and testimony they will offer at trial.  A discovery is formal and similar to trial except it is not held in a court before a judge.  The sessions are recorded by a court reporter who transcribes the proceedings which can be used later at trial.

Interrogatories are written questions from opposing parties to engineering experts by agreement which were not asked at discovery.  The questions must be answered within a prescribed period of time.

Undertakings are agreements by the engineering expert who is answering questions to provide answers later or copies of documents or other material.  This would be information that the engineer could not readily provide to the opposing party at the time.  The information may consist of paper documents, electronic data and physical evidence.  The engineer undertakes to provide the information within an agreed period of time.

8. Alternate Dispute Resolution (ADR)

ADR is a step that can be carried out at any stage in civil litigation – even before an action is filed.  It’s a way of resolving disputes without going to court.  In some areas, over 90% of lawsuits involving the built environment settle before going to trial.

Once an action is commenced, ADR can still occur at any point but is mainly used after document production and discoveries have taken place. At that point, each side is more fully aware of the other side’s case and has more information to assess the merits of the case, the strengths and weaknesses for both parties, and the likely outcome if proceeding through to trial. As such, ADR becomes relevant as the parties know better where each side stands.

There are different forms of ADR but the following are common and particularly relevant to civil litigation.

• Negotiation
• Mediation
• Arbitration

An engineering expert’s services are generally the same regardless of the ADR method selected by the client.

In Negotiation, participation is voluntary and there is usually no third party who facilitates the process or suggests a solution.

If an individual or a firm has a disagreement with another they may get together to discuss the problem and reach a mutual agreement.  This way the parties can work out a solution that best meets the needs and interests of all parties.

In some cases individual parties may also prefer to hire a lawyer or a counselor who has the expertise to help a firm to negotiate or who can negotiate on behalf of the firm.

In Mediation, there is a trained, neutral third party, a mediator, who facilitates the resolution process (and may even suggest a solution) but does not impose a solution on the parties, unlike judges.  Mediation often leads to resolutions that are tailored to the needs of all parties.  The process is informal and completely confidential.  As a result parties may speak more openly than in court.

In Arbitration, participation is typically voluntary and there is a third party who, as a private judge, imposes a resolution.  At an arbitration hearing, a party to a dispute may have a representative speak on their behalf.

Arbitration may occur when parties have a dispute that they cannot resolve themselves and agree to refer the matter to arbitrators.  Arbitration can also occur because parties to contracts agree that any future dispute concerning an agreement will be resolved by arbitration.

Arbitrators are often people who are experts in a specific area of the law or a particular industry, for example, the professions, pharmacy and engineering.

The arbitrator makes a decision based on the facts, any contracts between the parties in dispute, and the applicable laws.  The arbitrator will explain how the decision was reached.

If the applicable law allows, parties can decide in advance whether the arbitrator’s decision will be final and binding or whether it can be submitted to a court for review if a party disagrees with the decision.

9. Settlement Conference

If ADR is not tried or is unsuccessful then lawyers for the parties meet and confer with a judge to decide if a settlement is possible with his assistance.  By this step in the civil litigation process the parties will be ready to go to trial.  They will have the documents that they will be relying on, reports from professional engineers and other experts, and information from discovery.

The lawyers, in advance of the Settlement Conference, send the judge a brief summary of their arguments and any relevant documents.

At the conference the judge will listen to the lawyers and try to achieve a settlement.  The judge will sometimes give an opinion on how they would decide the case if they heard it at trial.  However, the conference judge cannot force a settlement and would not officiate at the trial because of their role in the settlement conference.

10. Trial Date Assignment Conference

Once the discovery has taken place, any party can ask for a trial date.  This is done with a formal notice to the court for a Trial Date Assignment Conference.

These conferences are predicated on formal submissions by the parties setting out:

• how many witnesses they will have,
• how many of these witnesses are experts,
• the issues,
• the general subject matter to which each witness will speak,
• how long the trial will take and,
• whether the trial will be judge alone or judge and jury.

The lawyers for each party attend in front of a judge during the Date Assignment Conference or confer over the telephone.  The parties to the action do not usually take part in the conference.

At the conference, the court sets a number of applicable dates:

• the date by which all discoveries are to be completed,
• the date by which expert reports are to be circulated,
• the finish date,
• the date for the trial readiness conference and,
• the date of the trial.

11. Trial

When lawsuits occasionally reach this stage, the role of the professional engineer at trial is similar to that during discovery.  However, while discovery testimony can focus on intricate detail, trial testimony generally addresses key issues and themes.

The procedure at trial consists of a number of question-and-answer sessions on the evidence and witness testimony, similar to those during discovery, followed by closing arguments or summations.  The judge may ask questions at any time during the trial.

At the end of the trial in civil litigation, a judge studies the evidence and testimony, makes findings and arrives at a decision.  Decisions typically are issued later by the judge rather than from the bench and are given in writing.

References

1. The civil litigation process – an overview.  Heydary Hamilton, Ontario www.heydary.com
2. ASCE Guidelines for Failure Investigation 1989
3. ASCE Guidelines for Forensic Engineering Practice 2003
4. P.E.I. legal information, www.legalinfo.org Going to Court: Civil Trial Procedure
5. Community Legal Information Association of Prince Edward Island, Inc. ISBN 978-1-894267-51-9 2003
6. Personal communication, 2011, Gavin Giles Q.C., McInnes Cooper, Halifax
7. Personal communication, 2011, Michael Dunphy Q.C. and Ashley Dunn, Cox Palmer, Halifax
8. Personal communication, 2011, Jean McKenna, Partner, Ritch Durnford, Halifax
9. Walker, Janet, gen. ed., Civil Litigation, 6^th edition, 2005, Emond Montgomery Publications Ltd., Toronto
10. Stockwood, Q.C., David, Civil Litigation: A Practical Handbook, 5^th edition, 2004, Thomson Carswell, Toronto
11. Flowcharts summarizing the processes under the Rules of Civil Procedure, Ontario, January 1, 2010 (Google)

Landslides are frightening and an example of one more way nature has her way with us when conditions are right.  Such a large mass of soil and rock sweeping away everything in its path must be terrifying to see, and terrifying to be in.  I’ve seen the aftermath of large landslides and earthwork failures and investigated some.  They are a humbling experience.

The recent landslides in B.C. at Fairmont Hot Springs Resort and Johnsons Landing on Kootenay Lake certainly fall in that frightening category.  Others in B.C. and elsewhere in Canada, including the Atlantic provinces, are smaller but still serious in causing injury and financial loss.

News reports indicated that geotechnical engineers and geological speciallsts were on the disaster sites within hours of the landslide.  A good thing quickly getting knowledgeable technical people there.  Landslides are engineering failures, particularly when they affect people  The investigations they do and the data they collect are certain to assume the status of forensic engineering investigations.

(Geotechnical engineers are civil engineers who have specialised in the investigation and study of the physical properties of soil and rock as engineering materials)

These large landslides appear to have occurred after smaller landslides along streams – like Fairmont Creek, created dams causing water levels to rise.  Eventually the rising water would overtop the dam and wash it away and downstream.  The mixture of stream water and dam material would pick up other material along the stream bed to create the mass of soil that swept over the inhabited areas as a large landslide.

It’s certain more landslides are occurring in B.C. as I write, both large and small.  If not in or near inhabited areas then in remote areas for sure.

Landslides are natural geological events.  They occur when conditions are right – the strength of the soil on a sliding surface is not great enough to hold back the mass of soil.

The physics principle involved is the same as that underlying the reason we slip on ice in winter and fall and are able to ski on snow and have fun.

Sometimes the strength of the soil is just great enough that the mass of soil stays in place.  Until something comes along to reduce the strength that little bit so it’s no longer adequate.  Or increase the weight of the mass of soil.  That something can be water – rainwater.  The water is said to “trigger” the landslide, a term used by geotechnical engineers and sometimes the general public.

Once the mass of soil starts to move – the land starts to slide, it takes the easiest path like flowing water.  Simply downhill – down a slope, or down a natural channel in the terrain, for example, a water course or stream bed.  The mass of soil in a landslide can be quite “liquid”.

Geotechnical engineers can investigate, analyse, and predict with considerable accuracy that a landslide will occur.  They cannot really say when.  Except perhaps when it’s imminent if they are able to examine the terrain for the signs.  For example, signs like fissures in the ground surface – “tension” cracks to engineers, leaning trees, and muddy water like that seen at Fairmont Hot Springs Resort.

They can also advise with some confidence on the stability of a sliding mass of soil that has come to rest like the geotechnicians did at the Resort.  Their degree of confidence would likely be greater than that possible by structural engineers at the site of a collapsed building like the one at Elliot Lake.

Engineering Investigation

A geotechnical engineering investigation of a landslide – either before the event to predict the likelihood of its occurrence or afterwards to determine the cause – would have the fundamental components of an engineering failure investigation:

• Gathering data
• Analysing data
• Developing an opinion

Data would be gathered in two basic stages:

• Gather together existing data
• Gather new data

These basic stages are likely underway at present at the Fairmont Hot Springs Resort and Johnsons Landing.

Existing data is often concerned with conditions at the ground surface and new data with conditions below the surface.

Existing Data

Existing data might consist of:

• Air photos
• Infrared photography
• Topographic maps
• Geologic maps, particularly soil maps if the sliding mass is in soil
• Published soil physical properties
• Hydrogeologic maps
• Forest cover; vegetation in general
• Local weather and climate
• Walk-over surveys (several times during a study of the existing data)
• Local history and knowledge of past landslides

Reviewing and studying existing data like this, an experienced geotechnical engineer could offer a quite informed and fairly confident statement on the susceptibility of an existing hillside to landslides, or the cause of an existing landslide.

Statements like these have likely already been made about the landslides in British Columbia.

New Data

New data that would increase the confidence of the geotechnical engineer in his opinions would consist of:

• Surveying (topographic) the site to determine the size and dimensions of the landslide
• Estimating the volume of soil and rock that slid
• Augering and drilling boreholes to do field tests and get soil and rock samples for laboratory tests
• Determining the depth of the sliding surface
• Constructing groundwater monitoring wells to determine the depth to the watertable and the flow of the groundwater
• Installing instrumentation to monitor slope movement

Analysis

Investigative tasks like the above provide a lot of data to be analysed.  But the results of the analysis enable well-founded opinions to be formed on the cause of the landslide and remedial work to begin.  The analysis also enables areas prone to landslides to be avoided when building new structures or to be stabilized before building.

Specialists investigating the cause of a roof collapse like the one in Elliot Lake, Ontario, on June 23, 2012 might do some or all of the following tasks:

1. Walk around and visually examine the collapsed structure from all angles paying particular attention to the structural elements, their location and condition.
2. Photograph and film the entire collapsed structure from all angles including from a low flying plane or helicopter.  Include distance, mid range, and close-up sequences.  Also photograph and film the structure during the removal of the debris in the hunt for survivors.
3. Photograph and film the structural elements where these are exposed to view.  Include close-up sequences.
4. Interview witnesses of the collapse and occupants of the structure on different occasions prior to the collapse.
5. Study photographs and videotape taken during the use of the structure.  For example, security camera records.
6. Study photographs and film/videotape taken during construction of the structure.
7. Review design of the structure paying particular attention to the structural design.
8. Review the geotechnical investigation of the foundation soil, rock and groundwater conditions at the site of the structure.
9. Review the construction drawings and specifications for the structure.
10. Review the construction, and materials testing and inspection records.
11. Review the as-built drawings.
12. Review the structure’s maintenance records.
13. Identify additional specialists needed to investigate aspects of the structure and the collapse.
14. Schedule laboratory and field testing of materials used in construction.
15. Schedule laboratory and field testing of structural elements of the structure.  For example, connections.
16. Research the literature for similar roof collapses.
17. Develop a model of the collapse including the progression.
18. Analyse the data and formulate an opinion on the cause of the collapse.