Engineering Ethics

Engineering Ethics: Do engineers owe duties to the public?
John Uff CBE QC FREng Nash Professor of Engineering Law, Kings College, London

Engineering Ethics: Do engineers owe duties to the public?
John Uff CBE QC FREng Nash Professor of Engineering Law, Kings College, London

Contents
Introduction Codes of Conduct and the Institutions Legislation governing safety and environment Duties arising in contract Limits on enforceability Duties arising in tort Ethical duties recognised by the law Provisional conclusion as to public duties Warnings of preventable disasters Publication of relevant research and data Can disclosure be restrained? Consequences of unauthorised disclosure Other means of securing disclosure Amicus action by Institutions Ethics in other roles of the Engineer Conclusions Acknowledgment 4 5 7 8 9 10 11 12 13 14 15 16 17 17 18 20 20

Engineering Ethics: Do engineers owe duties to the public? © John Uff

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The information contained in this publication has been published in good faith and the opinions expressed are those of the author not of The Royal Academy of Engineering. The Academy can not accept any responsibility for any error or misinterpretation based on this information. Published by The Royal Academy of Engineering 29 Great Peter Street, Westminster, London, SW1P 3LW Telephone [phone] Facsimile 020 7233 0054 www.raeng.org.uk The Royal Academy of Engineering is a Registered Charity (No. 293074)

Engineering Ethics: Do engineers owe duties to the public?

John Uff CBE QC FREng Nash Professor of Engineering Law, Kings College, London

Professor John Uff CBE QC FREng is an internationally renowned barrister and arbitrator and an authority on construction law. Having graduated with a BSc in Engineering from King's College London in 1963, he went on to gain a PhD in Geotechnics in 1966 and was called to the Bar in 1970. During the 1980s he served on the Council of the Institution of Civil Engineers and has played a role in new ICE contract forms and arbitration procedures. In 1987 he established the Centre for Construction Law and Management at King's College where he continues teaching and research activities. He is perhaps best known publicly for chairing the Yorkshire Water Enquiry in 1996, the Southall Railway Accident Enquiry in 1999 and the Joint Public Enquiry into Railway Safety in 2000.

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Engineering Ethics: Do engineers owe duties to the public?
Introduction The subject of "Engineering Ethics" is no longer novel: there is a growing body of literature, both in the United Kingdom1 and elsewhere,2 particularly in the USA.3 The subject still lacks any generally accepted definition and its scope remains uncertain. However, a convenient summary of the practical objectives of the subject is to be found in the Codes of Conduct promulgated by the Engineering Institutions. The Codes currently in operation within the United Kingdom are briefly reviewed below. Taking these Codes as a starting point, I have selected for examination the narrow but significant question that underlies much of their content: "Do Engineers owe duties to the public?" In addressing this question, I shall examine both the nature and scope of any such duty as well as the means by which it may be implemented. In the course of this inquiry, I shall also address a number of specific ethical questions that arise. It is then necessary to define an objective for any duty to the public. In this respect, the literature is largely focused on safety issues coupled increasingly with the need to avoid damage to the environment, and it is convenient to examine the postulated duty initially in this context. It needs to be borne in mind, however, that there are many other objectives that may equally merit inquiry, only some of which will be touched on. Duties in relation to safety and the environment will plainly be owed to particular individuals and perhaps to wider groups. In this context, the question to be considered might be stated more fully as whether Engineers individually owe duties to the public at large to act or to refrain from acting so as to promote or secure the safety of the public or the maintenance of the environment. In addition to individual Engineers, it is necessary to consider the role of Engineers acting collectively, through their Institutions, either as the voice of the profession or in the alternative role of setting and enforcing standards of conduct. This inquiry will, therefore, seek to cover both the role of individual Engineers and their Institutions. Any postulated ethical duty must take account of existing recognised legal duties. One aim of this inquiry will be to examine whether such legal duties are consistent with and conducive to the wider ethical duties that are promulgated by the Engineering Institutions. In classic legal terms, Engineers owe well-defined duties under the law of contract to their immediate clients, and under the law of tort to those persons whom they should reasonably have in contemplation as likely to suffer injury or loss as a result of acts of negligence. The latter category plainly includes some sections of the public, and the Courts, both in the UK and the USA, while acknowledging the existence of the "floodgates" argument, have consistently ignored it when allowing further extensions to the categories of persons to whom such duties are owed. However, the question is whether the duty of the Engineer extends to the ordinary members of the public who potentially suffer as a result of technical mishaps. This constitutes the individuals who may suffer delay, disappointment and financial loss as part of the wider effects of any major accident; or who have a legitimate interest in knowing just how safe are our transport systems, buildings and structures or power stations and process plants.

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Ethics in Engineering, Brian Tomkins and Ian Howard, Ingenia Nov 2001, p65; Preventing Disasters: proceedings of a Conference organised by the Fellowship (now Royal Academy) of Engineering, 1991. The morality of safety, PAD Sheen, Engg Mgmt Journ April 1999. For academic work in the UK see http:www.surrey.ac.uk/news/releases-ethics,html The Institution of Engineers, Australia, has an established code of ethics, together with detailed enforcement procedures. For a general review and list of further authorities see Ronald R Klein, ‘Ethical Issues in Engineering : Beyond Disaster Ethics’ (2000) at http://www3.itu.edu.tr/~sosbil/Sciencesemnars2.html. Several U.S. web-sites contain extensive bibliographies as well, including those of the National Society of Professional Engineers (NSPE) at http://www.nspe.org/ethics/eh5-rel.asp and the Online Ethics Center for Engineering and Science at http://onlineethics.org/.

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Engineering Ethics: Do engineers owe duties to the public?

A further distinction must be drawn at the outset, which may in part be a function of language. As the terms are commonly used in the United Kingdom "Engineering" covers a vast range of activities carried out by a wide variety of individuals and organisations, only some of which are properly described as "Engineers". While the law would undoubtedly take a pragmatic view and examine the function rather than the professional standing of the individual, the identification of any ethical principles should properly concentrate on the profession. Engineering Ethics, particularly in terms of potential disasters, may affect whole populations. The range of Engineering activities is indeed representative of the whole of organised society, which it essentially underpins. The range includes static construction such as buildings and structures, which will be used directly by many individuals; dynamic devices including all modes of transport, which affect all users; and processes, including manufacturing, power generation and transmission, mining and processing plants, which directly involve few individuals but have the potential to affect whole populations. All such activities and more fall within the realm of Engineering and involve vital decisions being taken by Engineers at all stages of their planning, design, construction, operation, refurbishment and ultimately their decommissioning. Engineering ethics covers a range of factors which may impact upon the process of decision making by individual Engineers as well as the actions of their Institutions. Given that such decisions are often primarily economic and that certain duties will be implanted by the law, the question is how additional ethical principles can play a part in determining the actions of Engineers. The subject of accountability and public duties of Engineers is regularly aired in the informed press. As a recent example, an article in The Chemical Engineer has drawn attention to the ethical dimension involved in many complex technical decisions that are typically made under time and economic constraints. Clear failures by Engineers to act in a manner which hindsight now plainly indicates are shown by examples such as the revelation of forged testing documentation for spent nuclear fuel rods, the spectacular chemical process disasters of Flixborough, Bohpal, Seveso and the massive discharges into the Swiss Rhine, to which may be added the explosions at the Milford Haven Texaco Oil Refinery and more recently at the Port Talbot Steelworks. The author of the article comments that in the light of these events and the huge publicity that they rightly generate, public disillusionment with science and engineering as a means of solving society’s problems has developed into occasional hostility. The author suggests that we should not be surprised if the public do not trust scientists and Engineers.4 Engineering Ethics has many challenges to face and much ground to catch up. Codes of Conduct and the Institutions As a condition of qualification, Engineers are required to accept and be bound by published Codes or rules of conduct of their particular professional body. Such Codes are variously expressed, but contain certain common features in regard to the public interest. In the 1970s an attempt was made to unify the United Kingdom Institutions through the former Engineering Council which also, before its demise, prepared draft Guidelines for Institution Codes of Conduct. The unifying role of the Council has to some extent been taken over by The Royal Academy of Engineering (originally the Fellowship of Engineering), which encompasses a full range of mainstream Engineering subjects as well as some on the periphery. The Royal Academy has made its particular contribution to Codes of Conduct, specifically in terms of Guidelines for Warnings of Preventable Disasters. Individual Institutional Codes of Conduct vary in terms of their stated purpose, and include as objectives "the respect in which the community holds persons who are engaged in the profession";5 the need to "safeguard the public interest in matters of safety and health";6 and ensuring that the fair and proper interests of the community prevail over personal interests.7 Some of the rules refer expressly to "broad

4 5 6 7

Chris Kent: Guest column in The Chemical Engineer, January 2002. Institution of Mechanical Engineers. Institution of Structural Engineers. Institutions of Electrical Engineers and Chemical Engineers.

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ethical principles" and there is evidently a general consensus which sees the codes or rules as expressing an intention beyond that required by strict application of the law. Examples of specific requirements relevant to public duties are the following: • • A member shall at all times so order his conduct as to safeguard the public interest, particularly in matters of Health & Safety and the Environment8 A member shall: At all times take all reasonable care to ensure that their work and the products of their work constitute no avoidable danger of death or injury or ill-health to any person; Take all reasonable steps to avoid waste of natural resources, damage of the environment, and wasteful damage or destruction of the products of human skill and industry9 • • • • Every corporate member shall….safeguard the public interest in matters of Health & Safety and otherwise10 Members of the Institution in their responsibility to the profession shall have full regard to the public interest11 A member shall have full regard for the public interest, particularly in relation to the environment and to matters of Health & Safety12 A member when discharging his professional duties shall, if his professional advice is not accepted, take all reasonable steps to ensure that the person over-ruling or neglecting his advice is aware of the possible danger which he believes may result from such over-ruling 13

It is difficult to see any justification for the existence of different sets of rules. At least there may be discerned a number of common principles relating to health, safety and the environment, which can be linked to specific duties created by common law or statute. However, there are two significant differences between the Codes of Conduct and the underlying legal principles: (a) no distinction or limitation is made in relation to the persons who might potentially suffer or be at risk in relation to the conduct of the Engineer; (b) the duty is placed upon the individual Engineer irrespective of his or her situation or status. It may also be noted that some at least of the rules contain express reference to the "public interest". This raises further questions as to the scope of any such duty, where it is seen as extending beyond the relatively clear issues of health, safety and the environment. For example, is the Engineer to have regard to the public interest in reliability of transport systems, where these are provided by private corporations? As regards the public, Engineering Institutions perform a multiple role. On one hand, through their learned society function, they represent the informed collective opinion of the profession; while in their qualifying role they aim to maintain standards, including their Codes of Conduct. In promulgating rules and Codes of Conduct, they must be taken to represent to the public that their members will be required to comply with such requirements, including safeguarding the public interest as regards matters of health and safety and the environment as well as more general issues. Institutions do not enjoy any degree of immunity or legal protection.14 An Institution might be vulnerable to action in negligence for failure to
8 9 10 11 12 13 14 Institution of Mechanical Engineers, Rule 33.6 Institution of Electrical Engineers, Rules 1 and 2. Institution of Structural Engineers, Code of Conduct, Rule I. Institution of Structural Engineers, Rules of Conduct, Rule I. Institution of Civil Engineers, Rules of Professional Conduct, Rule 3. Institution of Chemical Engineers, Rules of Professional Conduct, Rule 3 Compare section 39 of the Arbitration Act 1996 which gives such immunity to arbitral institutions. An arbitrator enjoys similar immunity.

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take steps to prevent an incompetent Engineer from being held out as qualified.15 Similarly, while proof of damage may pose problems, an Institution might conceivably also be held to account by members of the public who suffer damage through failure to take steps to enforce a wider duty of members to uphold the public interest. While such an action would be likely to be grounded in negligence, other causes of action could not be ruled out.16 This role of Institutions is discussed further below in relation to sanctions. The point needs to be made at this stage, that such bodies cannot regard their role as secondary or as being limited to giving advice and encouragement. Their role must encompass some degree of monitoring and enforcement and they should not wait for the courts to define that role for them. Legislation Governing Safety and Environment An ethical duty bearing upon safety and environment issues must take account of the increasingly complex statutory network which now exists. For well over a century, statutes aimed at promoting safety have played a significant role, initially in terms of piecemeal legislation covering particular trades and activities. Wider duties were imposed by general Acts such as the Factories Acts and Public Health Acts. A comprehensive code intended to apply across all industries was brought in by the Health and Safety at Work etc Act 1974. Under this Act detailed regulations have gradually replaced the former specialised legislation. Meanwhile, with UK domestic Health & Safety law continuing to evolve, the European Community has made its contribution, largely since 1987. In particular, the EC Framework Directive 89/391 sets out the policy underlying all subsequent Directives and implementing Regulations, by placing new duties on employers for the avoidance, evaluation and tackling of risks to health and safety. Many detailed Directives have followed, together with implementing European Regulations, either having direct effect or separately enacted by the UK Parliament. An example of the latter which has had considerable impact on the construction industry is the Construction (Design and Management) Regulations 1994. These measures have undoubtedly led to enhanced awareness of health and safety issues as well as a vast increase in bureaucracy directed to implementation and enforcement. Regrettably, there are regular reports of regulation proving to have only limited effect and in some cases (for example deaths and injuries on construction sites) showing little sign of improvement. Another effect of relevance to the present inquiry is that Engineers, as a general profession, have not been required to take on any special duty or responsibility in relation to health and safety. While the increasing awareness of health and safety has produced a general safety ethos affecting all Engineers, the existence of so much detailed legislation has, it is suggested, had two further effects. First, those on whom duties and responsibilities are laid by statute will be more concerned with satisfying the letter of the law, by setting up systems and procedures that satisfy the legislation, rather than any other objective. It has been observed that this is not necessarily conducive to the actual achievement of higher levels of safety. Secondly, those on whom responsibility for compliance has been placed have developed new roles as health and safety specialists, leading to a situation in which the degree of expertise and corresponding duties placed on Engineers of other disciplines is diluted. Thus, the question whether legislation has contributed to ethical duties of Engineers is difficult to answer positively and the general effect may arguably prove to be negative. It is to be noted that the sections of the Health and Safety at Work etc. Act 1974 that prescribed general statutory duties on Employers (Section 3), Manufacturers (Section 6) and other persons (Section 4) are expressed in terms of avoiding "risk". While all such duties are subject to the limitation of what is "reasonably practicable" it is important to note that, while convention normally limits prosecution to the occurrence of injury and damage, the offence is committed by creating or permitting a risk to safety.17

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On a similar note, the House of Lords in Marc Rich & Co. v Bishop Rock Marine Co. Ltd [1996] A.C. 211 recognised that an association might owe a duty of care to third-parties in discussing whether a classification society owed a duty of care to cargo owners when surveying a vessel. See also Welton v. North Cornwall D.C. [1997] 1 W.L.R. 570. Although presently speculative, the possibility exists of action under the Human Rights Act 1998, alternatively for Judicial Review. As to the latter see R v. Takeover and Mergers Panel ex parte Datafin [1987] Q.B. 815 (CA). See R v Board of Trustees of the Science Museum [1993] 3 AER 853 CA.

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Section 3(1) of the Act creates absolute criminal liability and it has been held that it is no defence that management had taken all reasonable care to delegate the supervision of the work in question.18 Thus, legislation has created an impressive armoury of weapons aimed at avoiding risk. Regrettably, health and safety enforcement continues to operate largely after the event. Enforcement is principally through the Health & Safety Executive, via one of their specialist departments.19 Government funding of HSE has placed severe limits on its ability to investigate even serious accidents. The individual Engineer, when considering what steps should be taken in the public interest, may look to HSE for guidance but not necessarily for action. Many of the same points are to be made in relation to the increasing impact of environment legislation. The history of the two topics has many parallels, running from substantial indifference or unawareness throughout most of the 19th Century to a gradual development of recognisable principles largely through Public Health Acts, mostly in the first half of the 20th Century, to the explosion of concern in the last decades of the 20th Century. There is, however, one major difference. While health & safety matters, historically, have buried their victims beyond further concern, neglect of the environment has created new spectres of historical contamination which are now becoming matters of increasing economic concern, in addition to any legal or even ethical dimension. Specifically, the Environment Protection Act 1990 contains extensive measures controlling both current activities in relation to the emission of waste20 and even more controversial measures for identifying and dealing with historical waste on or in what is now formally designated "contaminated land".21 Environment law has also been the subject of a series of European Action Programmes but, unlike economic measures, pollution and contamination know no boundaries, particularly as much of it ends up (and often originates) in the seas and coastal waters. Thus, environment issues are peculiarly international and depend, for their effectiveness, on international recognition and cooperation. Given the nature of decisions that will affect environment issues, this may indeed be a fruitful area in which further exploration of Engineering ethics would be timely. Enforcement action in the UK is primarily through local authorities. As in the case of the Health & Safety Executive, the Environment Agency is primarily a source of information. Duties arising in Contract It is now proposed to consider duties placed on the Engineer by the law, in order to examine further the extent to which they are consistent with and conducive to wider ethical duties. The inquiry begins with the law of contract which will usually underpin the particular role being undertaken. Engineers have no special status under the law of contract and, with certain exceptions, may be held to any contractual duty or promise which they undertake. The professional codes of conduct are not usually incorporated into contracts of engagement. Even if they were, the client could recover compensation only for his own loss, and members of the public would have no right to enforce the contract for their own benefit. For many years Engineers, in common with most professionals (notably doctors and lawyers), undertook commissions on a simple exchange of undertakings which often set out no details other than the nature of the project and the remuneration to be paid for the services. The law supplied all the missing terms by implication, including an implicit duty to act with reasonable skill and care commensurate with the task in hand. Legal authority established a truly level playing field in that the same duty of care and skill was expected of the novice.22 But equally the highly skilled and famous had only to supply the usual degree of ordinary competence.23 The duty implied by the law could be enhanced by special circumstances, such as an Engineer performing professional work for a client who was himself under the higher duty of fitness for purpose.24 It remains the case that the parties can, with limited exceptions, make and enforce any bargain they wish. This has indeed been seen in recent years, not in terms of the duties undertaken, but
18 19 20 21 22 23 24 R v British Steel Plc [1995] ICR 586. For example the Railways Inspectorate, the Nuclear Inspectorate or the Construction Inspectorate. Part II. Part IIA, inserted by the Environment Act 1995. See Wilsher v Essex Area HA [1987] QB 730. Duchess of Argyll v Beuselinck [1972] 2 Lloyds Rep. 172. Greaves v Bayham Meikle [1975] 1 WLR 1095.

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in terms of fees, which have become subject to the commercial practices of the market place, if not the bazaar. The fee to be paid for Engineering services does indeed give rise to ethical issues in that the pursuit of ever lower professional fees by clients, strongly encouraged by government during the 1980s, has given rise to Engineering commissions which could not be performed economically on the basis of what were once regarded as normal professional standards. While the evidence for this is largely anecdotal, there can be little doubt that many Engineers have been faced with the choice between developing new and progressive designs at enhanced cost to themselves and adopting or adapting an existing design at a more economic cost. The government itself has become well aware of the "innovation trap" and has sought to adapt its guidelines, now favouring adoption of the "best value" tender. In some cases, elaborate grading systems have been devised to select between competitive design tenders, necessarily including the price. Fee competition is, however, here to stay and its impact both on professional standards and on the scope of ethical duties beyond the strict letter of the contract is a matter of concern which should fall within the remit of the Institutions. The amount and adequacy of the remuneration payable for Engineering services is irrelevant to the standard of duty required. As noted below, substantially the same duty will be demanded for gratuitous services. The Engineer has nothing to gain by reducing his fee. Limits on enforceability The law of contract touches on ethical issues in terms of contracts that may be unenforceable under English Law on the grounds of public policy. As regards safety or environment issues, the principle may apply to Engineering services being undertaken, and may also be of relevance to the actions of the Engineer who subsequently discovers information concerning breach of safety or environment law that he considers it his duty to make public. The legal principle covers contracts for an objective which is illegal, immoral or contrary to the operation of justice. The precise boundaries of the principle, and indeed its scope remain uncertain and in many cases the effect is that the Courts will refuse enforcement of only part of the contract. Public policy may thus prevent enforcement where: "it would be an affront to public conscience to grant the plaintiff the relief which he seeks because the Court would thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts".25 An example of the principle in operation occurred in the case of Initial Services Limited v Putterill.26 This concerned a former employee who had disclosed to the National Newspapers information about his former employer as to the existence of a liaison system between laundries aimed at keeping up prices in apparent breach of the law.27 The agreement should have been registered and referred to the Monopolies Commission. The employer brought proceedings for damages and an injunction, which was initially granted on a temporary (interlocutory) basis. The Defendant then served a Defence in which he repeated the allegations of breach of the law. The Plaintiff applied to strike out the Defence (which would otherwise be reported in the press). The Court of Appeal refused the application. It was accepted that there was an implied obligation not to disclose information received in confidence, as would be the case with an Engineer employed or engaged on a project. The court held that this did not apply in the case of misconduct of such a nature that it ought, in the public interest, to be disclosed, where there existed a proper interest in receiving the information. Lord Denning in his judgment said: "Thus it would be proper to disclose a crime to the Police, or a breach of the Restrictive Trade Practices Act to the Registrar. There may be cases where the misdeed is of such a character that the public interest may demand, or at least excuse, publication on a broader field, even to the press".

25 26 27

Euro-Diam v Bathurst [1990] QB 1 per Kerr LJ. [1968] 1 QB 396. Restricted Trade Practices Act 1956, Section 6

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Lord Justice Salmon commented that the argument (for the Plaintiff) that the press was not the proper authority for the receipt of confidential information: "raises questions of great importance with far reaching consequences about which there is very little relevant authority. I think that it would be quite impossible to strike out a defence on the narrow ground that, although there is an exception in this case, the exception does not avail the Defendant because he went to the wrong person to disclose the information". There is ample scope for the application of the doctrine to issues of health and safety and to environmental issues arising under construction contracts, where Engineers are involved both in the performance and the supervision and approval of the work. It is clear that the Courts would not directly enforce an obligation under a contract which has the effect of contravening health and safety law or environment law. There may be difficulty in drawing a distinction between contracts which necessarily involve illegality and those which only permit performance in an illegal manner. The point is illustrated by the leading case of St. John Shipping Corporation v Joseph Rank28 in which cargo owners resisted a claim for the payment of freight on the ground that the carriers had illegally overloaded the ship. Although this amounted to a statutory offence, Devlin J held that the legality of the contract was unaffected and that the statute29 prohibited merely the act and not the contract under which the act was done. Under construction contracts, however, much more complex situations may arise. What is the position when an unforeseen safety risk becomes apparent and the removal of this risk requires the re-execution of otherwise satisfactory work? The question of payment and legal liability will ultimately be resolved by legal process.30 But the ethical issues arising in the course of finding a solution are complex, and further illustrated by some of the examples which follow. Duties arising in tort The law of tort renders certain conduct actionable by persons who suffer loss. All Engineers may owe duties under the law of tort, or more precisely in the present context, under the law of tortious negligence. Given that the law of contract operates only where an agreement can be identified or inferred, it is of particular relevance to inquire whether the law of tort supports the existence of a wider duty to the public. The law operates to impose a duty of care as between individuals who are in a sufficient state of proximity such that, in the reasonable contemplation of one person, his negligent act may be likely to cause damage to the other. This branch of English law started quietly in 1932 with the celebrated speech of Lord Atkin in which the rule that you are to love your neighbour was first translated into legal terms.31 The law remained largely undisturbed until a sudden development in 197232 led to a series of landmark cases in which the House of Lords were compelled to examine the roots of every element in the concept of tortious negligence, particularly those concerning proximity, duty and damage. At its zenith, the law of negligence seemed entirely to supersede the law of contract.33 Yet over the next eight years the House of Lords doubted and then reversed its previous decision,34 firmly but not entirely closing the floodgates. What is left is potential liability to some individuals in some circumstances for particular elements of their damage, plainly falling well short of a general duty to the public. In the case of Engineers, however, their tortious liability has throughout been grafted onto a different stock35 in which, in particular, the ability to recover purely economic loss as opposed to loss consequent on physical damage, has never been a relevant barrier. The liability of those tendering advice is viewed on an analogous footing to advice given pursuant to contract where the Courts seem to regard the existence of a contract and its parties as almost immaterial. The result is that Engineers will be held to account for
28 29 30 31 32 33 34 35 [1957] 1 QB 267. Merchant Shipping (Safety and Load Line Conventions) Act 1932. See Townsend v Cinema News [1958] 20 BLR 118 and generally Keating on Building Contracts para. 6-62, 62A. Donoghue v Stevenson [1932] AC 562. Dutton v Bognor Regis UDC [1972] 1 QB 373. Junior Books v Veitchi [1983] AC 520. Murphy v Brentwood DC [1991] 1 AC 398. Hedley Byrne v Heller [1964] AC 465.

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the consequences of their advice (including design and most other activities short of physical construction) almost on the same footing as though they had been commissioned to carry out the task in question. There are indeed many situations in which Engineers (and other professionals as well) can be worse off as a result of gratuitous advice than they would be having charged a fee for their services. This needs to be borne in mind when considering the extent to which Engineers might be thought to owe a duty to volunteer their advice, e.g., when they see a situation giving rise to danger. This aspect of ethics is further illustrated by the examples which follow below. Ethical duties recognised by the Law Given that the primary duty of the Engineer is to serve the interests of his client, exercising appropriate skill and care, there are a number of situations in which the law may be seen as recognising wider duties which may have an ethical rather than commercial basis. For this purpose it makes no practical difference whether the wider duties are regarded as based on the law of contract or tortious negligence. Thus, where a Contractor, possessed of competent Engineering skills, becomes aware of danger arising from the design of the works, even where those works are under the control of a competent Engineer, the law may impose an obligation to the ultimate client, as part of the ordinary duty of skill and care, to warn of the danger which they should perceive. This was the result in a recent Court of Appeal judgment36 in which May LJ referred to the Contractors, who had become aware of a risk in the design for which they had no primary responsibility, as "not mere bystanders". The same principle will apply to another Engineer involved in the project. The result in other cases has not always been the same, however. In an even more recent case, Dyson J. declined to hold specialist contractors liable for failing to advise of a potential danger on another part of the project, on the grounds that other contractors then engaged in the work could have performed it safely. He considered it relevant to the question whether there was a duty to warn that the client was being advised by a professional person.37 The cases, therefore, do not support a universal duty to warn clients and would not seem to support such a duty to the public at large. However, where acts or omissions of the Engineer may lead to personal injury or death, the likelihood of a wide ranging duty being imposed becomes higher. There is little doubt that an Engineer in charge of a construction site will be held liable for failing to warn those on site about concealed dangers of which he is or should be aware.38 In the much publicised and difficult case of Eckersley v Binnie & Partners, Engineers were held liable for the consequences of a methane explosion in a pumping station some years after its completion, where the design had failed to take into account the possibility of methane build-up in a transfer tunnel. In this case, a party of 38 people from a nearby village were taken on a tour of the Abbeystead Pumping Works. While in the valve house an explosion occurred in which 16 people died. At the trial, Rose J. held the consulting Engineers (Binnie), the contractor (Nuttalls) and the operator (North West Water) respectively 55%, 15% and 30% to blame. On appeal to the Court of Appeal,39 Nuttall and the Water Authority were held not liable. A majority held Binnie liable on the basis that the trial judge had been entitled to find on the evidence that there was a risk of methane being present which should have been taken into account in the design. In a powerful dissenting Judgment, Bingham LJ (now Lord Bingham) held that the evidence did not support any finding of negligence against Binnie. Of particular interest is that the trial judge had suggested that the designer might be under a continuing duty, after completion of the project, to advise on new information that might indicate a danger. While not being prepared to rule out such a possibility, Bingham LJ said: "What is plain is that if any such duty at all is to be imposed, the nature, scope and limits of such a duty require to be very carefully and cautiously defined. The development of the law on this point, if it ever occurs, will be gradual and analogical. But this is not a suitable case in which to launch or embark on the process of development, because no facts have been found to support a conclusion that ordinarily competent engineers in

36 37 38 39

Plant Construction v Clive Adams Associates [2000] BLR 137. Aurum Investments v Avonforce [2001] CILL 1729. Clay v Crump [1964] 1 QB 533. [1988] 18 Con LR 1.

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the position of the first defendants would, by May 1984, have been alerted to any risk of which they were reasonably unaware at the time of handover. There was, in my view, no evidence to support such a conclusion. That being so, I prefer to express no opinion on this potentially important legal question." The case has not yet been followed by others and the development of this particular principle remains uncertain. Were the principle to become established, it would have far reaching consequences in terms of the duty of individual Engineers who might succeed those in the same firm or company who were involved at the time of design. Provisional Conclusion as to Public Duties Having reviewed the legal background to public duties, it may be concluded that while the law may recognise and support ethical action, it affords no support to the existence of a general duty owed by individual Engineers to the public at large. The civil law is concerned solely with duties owed by Engineers to individuals or to groups or classes whom the Engineer ought reasonably to contemplate as likely to suffer, particularly in terms of physical injury, as a result of his negligence. Such a duty is enforceable by the person or group suffering relevant loss. The range of persons and the circumstances which the Engineer ought reasonably to consider as affected by his actions or inactions is wide and may lead to potential liability to very large numbers of people. But the law affords no support to a general duty enforceable by or at the suit of the public at large. This is consistent with and reinforced by the increasing range of statutory duties, some placed upon specific persons, in regard to matters of health and safety and the environment. If a general duty to uphold the public interest, as set out in Institutional rules and codes, is not enforceable directly as a matter of law, it becomes necessary to consider how effect is to be given to such rules. The absence of direct enforcement by process of law points firmly to the Institutions, which publish the codes and rules, as the appropriate bodies to take action to enforce compliance, where necessary. This may be seen as underpinned by the possibility of legal liability falling on the Institution itself, as discussed above. Institutions have the power, subject to their members, to enforce duties created by their Codes of Conduct, through appropriate sanctions, ultimately amounting to depriving those who breach the rules of their professional membership. Such enforcement procedures are more familiar in other professions, particularly medicine. The type of conduct which may be expected to lead to a medical practitioner being struck off the register and prevented from engaging in practice is established, in broad terms, by precedent. There is no such body of precedent in the UK Engineering profession, partly through lack of any body of reported disciplinary proceedings and also, partly, because there are few areas in Engineering where professional registration is a requirement of practice.40 It appears that practices, as regards enforcement of professional codes, varies between countries.41 It is important that the question of enforcement by the UK Institutions, if it is to be enlarged, should be approached in a systematic manner, avoiding the tendency of fragmentation between different Institutions. Lessons should also be learned from experience abroad. The support of both members of the profession and the public will be vital to the establishment of a credible and respected procedure. Having now reviewed the issue of public duties and enforcement, it is appropriate to turn to what might be regarded as the converse issue, namely direct action taken by individual Engineers in response to ethical issues. Indeed, this might be regarded as the more appropriate starting point for any discussion on Engineering ethics. This topic concerns primarily actions in response to what is perceived to be an impending but preventable disaster. As will be seen, the Engineering professions in many countries have an honourable tradition of direct action where an individual considers that a preventable situation will endanger public safety or otherwise prejudice the public interest. Such actions can breach the Engineer’s terms of employment and result in serious economic harm. Many different ethical as well as practical issues flow from such actions.
40 41 See, e.g., Reservoirs Act 1975 s.4, repeating provisions in the former Reservoirs (Safety Provisions) Act 1930. The Institution of Engineers, Australia, is reported to receive over 150 complaints each year, from fellow members as well as the public, which are pursued in accordance with detailed disciplinary regulations, including an initial filtering system and an appeals procedure. The accused member is often legally represented and results of the proceedings are publicised, in similar manner to medical disciplinary proceedings.

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Warnings of Preventable Disasters A great deal of the literature published in the USA on Engineering ethics is concerned with the actions of individual Engineers in the face of actual disasters which can be seen to have been preventable. Perhaps the most appalling and thoroughly researched incident was the loss of the space-shuttle Challenger in 1986, following clear warnings by Engineers from the Morton-Thiokol company, manufacturers of the solid-fuel booster rockets, as to the danger of launching the vehicle at low temperature. The Engineers’ warnings were overruled by a management decision. The cases raises fundamental issues as to the actions which ought to be taken by those in a position fully to understand the implications of foreseen technical hazards. Likewise, numerous cases concerning the nuclear industry, airlines, the motor industry and most other branches of Engineering, have provided a rich source of practical materials which forms the basis of the study and teaching of Engineering ethics in the USA. The UK has suffered its share of Engineering disasters. Few have given rise to issues comparable to the space-shuttle Challenger, but many have revealed deep seated management problems, particularly a succession of serious railway accidents which have been fully investigated and reported.42 All such accidents can be seen to have been preventable in hindsight, often by timely action by professional Engineers. In 1991 the Royal Academy of Engineering (then the Fellowship) published proceedings of a conference on Preventing Disasters including "draft" Guidelines for Warnings of Preventable Disasters. The Guidelines were offered to the professional Institutions for consideration.43 The Guidelines note that Engineers: "are placed under a professional duty to uphold the safety of the public and the environment by the code of conduct of their Institutions and organisations. A reciprocal responsibility is placed on the Institutions and organisations to assist any member who turns to them for help in furthering this duty…" The Guidelines note that many organisations have established procedures and that Engineers should work within those procedures where they exist. The guidelines emphasise the need for the Engineer to stay within his existing framework of responsibility by passing on warnings to others in a position to take action and to those ultimately responsible for resolving the situation. Individual Engineers are encouraged to consult others or obtain guidance from the relevant Chartered Engineering Institution. The notes state that informal warnings should be followed by a formal written statement and that this process may involve senior executives or ministers. Guidelines and notes are, however, infused with concern about legal liability as well as confidentiality.44 The document represents an important if somewhat circumscribed recognition of the action which individual Engineers should take in practice, given the practical constraint of working in an employed role. The papers published in the volume of proceedings bear out the complexity of any real life situation in which an Engineer is faced with the burden of passing on a warning of perceived danger. The papers indeed demonstrate the way in which even well-expressed principles and guidance can be of little assistance when faced with the need for practical action. The most valuable contribution in the collection is a paper by the late Dr Edmund Hambly FREng,45 describing two situations in which, as an independent consultant, he had been driven to act and the difficulties in the path of attaining appropriate action, inevitably involving serious economic consequences. Dr Hambly’s examples concerned major structures where, largely through the effect of carefully considered action, appropriate remedial steps were taken in time to avert disaster. The papers contain other examples of warnings delivered, but acted on too late, including the case of High Alumina Cement (HAC) on which Professor Adam Neville CBE FREng FRSE had given clear published warnings in the 1960s. Despite this, a series of collapses in the 1970s still took the industry and the public by surprise.

42 43 44 45

These include the public enquiries into the railway accidents at Clapham Junction (1988), Southall (1997) and Ladbroke Grove (1999). The Institutional Rules quoted above are those current at the date of this Paper. In most cases no significant amendments have been made since the Royal Academy draft. The document itself ends with a complete disclaimer on behalf of the Fellowship. Subsequently President ICE.

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The issue of warning of preventable disasters has also been considered by the Standing Committee on Structural Safety (SCOSS).46 The 13th Report of SCOSS issued in May 2001 includes a section on duties to warn and to heed warnings, which are to be regarded as essential elements in ensuring structural safety. The Royal Academy of Engineering Draft Guidelines for Warnings of Preventable Disasters are endorsed by the SCOSS report, which discusses three types of situation in which professional Engineers can find themselves under a duty to warn or to heed warnings. These are: (1) (2) (3) when the Engineer is part of a group of professionals, where warnings should be given to the group; when the Engineer has direct responsibility for the relevant work either by checking or certifying the design or construction or monitoring the structure; in more complex situations such as where a warning has been given to a proper person, but is being ignored; where the control of the unsafe structure is out of the Engineer’s direct responsibility; where the Engineer is a member of the public; or where an unsafe situation has passed, but could recur or arise elsewhere.

It is emphasised that in all these situations the Engineer must deal with each of the questions. • whether to warn • when to warn • who to warn • how to warn The report points out that there is a corresponding duty on persons to heed warnings both in the immediate and in the long term, and also to consider the significance of warning in relation to other projects. The question of warning of preventable disasters gives rise to many further issues, notably the following: 1. 2. 3. 4. 5. Can research and data relevant to safety or environment issues be assured of prompt publication or dissemination to those having a proper interest? Can disclosures of safety or environment information be restrained by legal proceedings? What consequences are likely to follow unauthorised disclosure and what redress is available? Are there more satisfactory means of achieving appropriate disclosure? Is further action by the professional Institutions needed?

These issues are now addressed. Publication of relevant research and data Publication of information relevant to safety or environment issues is primarily in the hands of the individual research worker or team and subject to the overriding control of the organisation for whom the research is carried out and the client who may have commissioned it. There is no guarantee that relevant work will be published. That is a matter for the ethical judgment of the professional Engineers involved. There is, of course, every difference between research work being reported to the organisation or client for which it was carried out and publication. There is anecdotal evidence that significant information relevant to safety or environment issues is created for the purpose of litigation or arbitration and never published. In many cases, particularly those
46 The Standing Committee was established jointly between the Institutions of Civil and Structural Engineers (and Municipal Engineers before their merger) following the partial collapse at Ronan Point, Newham, in 1968.

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involving accidents or failures, expert evidence comprising original research and testing involves novel or original material which, in the ordinary course of science and Engineering, would be disclosed by publication. In the case of arbitration and litigation, the material is subject to strict confidentiality at the suit of the client, often an insurer. In some cases, such material will be reported in the technical press to the extent it is produced during court proceedings.47 However, in arbitration proceedings, such documents remain confidential; and in cases which settle the evidence may never see the light of day. In 1985 SCOSS launched an initiative by which they sought to persuade those who "owned" such important technical expertise to permit its publication in the public interest. Strenuous efforts produced little more than a voluntary code of conduct by which the Law Society were prepared to advise solicitors to request their clients, in appropriate cases, to give consideration to disclosure in the public interest. No actual cases are known in which this led to any disclosure and it does not appear that the matter has progressed further. Expertise continues to accumulate in confidential files without any public access. Can disclosure be restrained? It has been suggested above that a contract purporting to restrain the disclosure of confidential information which should be disclosed in the public interest would not be enforced by the Courts. However, the way in which such an issue arises depends on the particular steps taken by the parties and the procedural rules applicable. In the case of Initial Services Ltd v Putterill,48 the issue came before the Court on an application by the plaintiff to strike out the defence which asserted that the confidential information in question disclosed a breach of the law. After a full hearing, the Court of Appeal refused to strike out the defence (see above). Not all Defendants can be expected to take such a robust line. Although not known to be the subject of any reported decisions of the Court, it was widely reported in the press that, after the untimely death of the late Robert Maxwell and the ensuing revelations of serious financial misconduct, successive journalists who sought to reveal Maxwell’s business methods had been restrained by substantial numbers of injunctions. This device apparently achieved its purpose, to the serious financial detriment of those whose pension funds were lost. At no point did these matters reach a full hearing before the Court.49 Mr Maxwell did not invent this procedure, nor has it disappeared from the lawyer’s armoury of weapons with his passing. It is relevant to consider the extent to which defamation proceedings could be maintained under English law where safety or environment issues are at stake. While a corporation can be defamed under English law,50 it seems that a local authority cannot.51 It has been held in South Africa that a public authority responsible for the railways could not sue in respect of a publication alleged to have injured its reputation as the authority responsible for running the railways.52 A libel on a thing (which is not actionable) may amount to a libel on a person in some circumstances,53 for example a statement that a ship is unseaworthy necessarily imputes a charge of mismanagement and is defamatory. It is clear how this might apply in the case of railways, but in other circumstances it might depend on the precise facts. In all such cases the person seeking to warn would be vulnerable to being silenced by temporary injunction. A defence may be available on the ground of qualified privilege, relying on a reciprocal duty or interest in giving and receiving the information. If the Engineer has some form of ethical duty to warn the general public of an imminent catastrophe, privilege may well apply. The question has been stated as being: "Would the great mass of right-minded men in the position of the defendant have considered it their duty under the circumstances to make the communication?" 54
47 48 49 As an example, the expert evidence produced in Eckersley v Binnie (op. cit) contained original work on the origin of methane contamination which was of wider interest and of substantial relevance to safety issues. [1968] 1QB 396. Subject to the unreported decision of the CA in Maxwell Communications plc v Newspaper Publishing plc 1 August 1991, in which it was held by the CA that, in case of doubt, the court must lean in favourof the right of publication since the law favours freedom of publication in the absence of a clear and lawful objection to it. See Clerk and Lindsell on Torts at 22-32. Derbyshire County Council v Times Newspapers [1993] AC 534. Die Spoorbond v SA Railways [1946] AD 999. See Clerk and Lindsell 22-23. Stuart v Bell [1891] 2 QB 341.

50 51 52 53 54

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Privilege applies "Where a person is so situated that it becomes right in the interest of society that he should tell to a third person certain facts".55 The practical question is whether a claim of privilege was sufficiently compelling to dissuade the court from restraining the disclosure by injunction.56 Where the injunction is refused the Engineer would still face the burden of establishing the defence at trial, with the consequence of heavy costs, unless the defence was so meritorious as to justify summary dismissal of the claim.57 It should be added that English law of defamation pays more regard to the rights of the person defamed than in other jurisdictions. In the USA, normally in the vanguard of more extreme classes of civil action, public interest in disclosure is afforded much more weight, such that it is claimed that the gagging procedures of Robert Maxwell would not be possible. Consequences of unauthorised disclosure If an Engineer takes it upon himself to deliver a warning to the public in relation to issues of safety or environment he exposes himself to personal risks beyond the threat of legal proceedings. It is the actions by Engineers in such circumstances which have given rise to major activity in the field of Engineering Ethics in the USA. There are many reported cases of Engineers acting in a responsible manner, assuming the existence of a duty to warn members of the public, and of suffering personal hardship in consequence, frequently through being victimised as "whistleblowers". While extensive state and federal legislation exists in the USA,58 publications on ethical issues report numerous cases of hardship following loss of employment and other forms of victimisation. It is abundantly clear from the American experience that Engineers acting in pursuit of a supposed public duty are not necessarily perceived as heroes and there seem few instances of appropriate recognition being accorded to them.59 In England relief is now available in such circumstances through the Public Interest Disclosure Act 1998.60 The Act prohibits dismissal in relation to certain disclosures defined as "qualifying disclosures". These include information which, in the reasonable belief of the employee, tends to show one or more of the following: (a) (b) (c) (d) (e) (f) that criminal offence is being committed; that a person is failing to comply with a legal obligation; that a miscarriage of justice is occurring; that the health or safety of an individual is being endangered; that the environment is being damaged; that information is being concealed.

A qualifying disclosure is a "protected disclosure" when made in accordance with the procedure under the Act. In most cases the employee is obliged to go first to his employer but in some circumstances may go over his head. These include where the worker reasonably believes he will suffer a detriment if he goes to the employer or that evidence will be concealed. Going direct to the public might also be justified where the matter is of an exceptionally serious nature. Where a disclosure is protected the employer is prohibited from subjecting the employee to detriment, dismissing him or making him redundant on the grounds of the disclosure. The Act follows experience in the USA which, as noted above, has not been
55 56 57 58 Per Blackburn J in Davies v Snead [1870] LR 5 QB 608 at 611. See Clerk and Lindsell 22-124 Defamation Act 1996 s.8; and see also Loutchansky v The Times [2002] 2 WLR 640; Branson v Bower [2002] 2 WLR 452. Whistleblower protection on the federal level in the U.S. is scattered throughout various statutes, including the environmental laws (such as Superfund, 42 U.S.C. 9610, the Water Pollution Control Act, 33 U.S.C. 1367, and the Atomic Energy and Energy Reorganization Acts, 42 U.S.C. 5851), the employment laws (such as the Occupational Safety and Health Act, 29 U.S.C. 660(c), the Federal Mine Health and Safety Act, 30 U.S.C. 30 U.S.C. 815 (c) (1977) and the National Labor Relations Act, 29 U.S.C. 158(a)(4)), and in a number of other subject areas. See, e.g., Rachel Davis, ‘For Whistleblowers, Ethical Mile is a Hard Walk’ (Mar. 2001) at the NSPE website at http://nspe.org/etweb/13-01feature.asp and Walter Elden, ‘Curtailing Ethical Harassment (Feb. 1996) at the IEEE website at http://caffeine.ieee.org/INST/feb96/ethics.html. By insertion of a new Part IV A of the Employment Rights Act 1996.

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wholly successful in preventing victimisation of "whistleblowers". The effect of the English Act remains to be established. Other means of securing disclosure The importance of disclosure, and the adverse consequences which may flow from it, dictate that all other avenues should be explored to find more satisfactory means of passing on significant information. The most useful procedures presently available take the form of limited confidential reporting systems. Such reporting does not guarantee either publicity or action, but does have the advantage of informality and avoids accusations of disloyalty. The 13th Report of SCOSS noted the existence of proposals for a confidential reporting system for the construction industry and that such systems had been developed in other sectors particularly in air transport61 and in shipping.62 A confidential reporting system has been set up for the Rail Industry, initiated by the University of Strathclyde and subsequently adopted across the whole network as a result of government initiatives and public enquiries.63 At a different level, SCOSS itself welcomes warnings from Engineers relating to long term dangers which it may itself pursue. However, where an Engineer becomes aware of facts which might lead to imminent disaster there is little alternative to the more direct procedure discussed above and illustrated by the examples quoted from the paper by Dr Hambly. Amicus action by Institutions Given the difficulties faced by individual Engineers in regard to disclosure, it is to be expected that the Institutions will themselves consider action in support of Engineers who themselves publish warnings. As a result of pioneering activities within the Ethics movement in the USA, it seems that such action is available in the form of amicus curiae or intervention proceedings in an existing court action relating to the issue. The existing action has usually comprised action by the Engineer following dismissal, but it might also involve proceedings against the Engineer, as already discussed, to restrain disclosure. The purpose of amicus or intervention proceedings is to afford to the Institution, or other appropriate body, the opportunity of placing material before a Court supporting the actions of the Engineer and of upholding the public interest. Amicus curiae means literally a "friend of the Court". Historically, this title referred to those individuals and entities who were independent of the parties and who provided advice and information to the Court in particular cases. In England, the Courts have retained this more traditional notion of amicus curiae and in most cases restrict amicus submissions to those requested by the Court, although the request may be at the instigation of one of the parties. A Guidance Memorandum has recently been issued by the Attorney General and the Lord Chief Justice on requests for appointment of what is now (since the abolition of Court Latin) renamed an "Advocate of the Court".64 Since the original term remains more generally understood, it will be retained here. Frequently the Court requests an amicus curiae to advise on an issue of law but, of particular relevance to this paper, may also request information on issues of fact and expertise.65 English Courts also have the discretion to permit additional parties to "intervene" in litigation where they demonstrate a sufficient interest in the proceedings but these parties are not considered amicus curiae.66 It may be noted that the term "intervener" and "amicus curiae", are beginning to fuse in other jurisdictions with the growth of outside intervention in litigation.
61 62 63 64 65 Tait P "Confidential Reporting in the UK Commercial Air Transport Industry" HSE Seminar, 1998. Beedel R "International Marine Accident Reporting Scheme: Lessons from MARS" Conference, London, October 1999. The railway version is known as the Confidential Incident Reporting and Analysis System (CIRAS). Published in Counsel: February 2002 with an explanatory article by the Attorney General. Under English Law, there is no settled rule as to whether amicus curiae can place evidence before the Court. See Gaskill v Gaskill [1921] P 425 and Keys v Keys [1921] P 204 but see also Re: H per Booth J. However, the Court’s very request for factual information indicates that the amicus filing will be considered as evidence by the Court. In the recent and widely publicised Pinochet case, the Divisional Court and the House of Lords permitted Amnesty International to intervene as an interested party – an intervener, as well as appointing an amicus curiae to assist the Court R v Bow Street Magistrates ex. parte Pinochet Ugarte [1998] 4 AER 897.

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One of the earliest examples of intervention or amicus curiae in the field of Engineering occurred in the celebrated case of Holger Hjortsvang v San Francisco Bay Area Rapid Transit District,67 brought in the State Court of California. The US Institute of Electrical and Electronics Engineers (IEEE) was granted leave to file an amicus brief on behalf of three Engineers who were sacked for "whistle blowing". The plaintiff, with two colleagues, had expressed concerns about the safety of the Rapid Transit System to the Board. Their concerns were dismissed, but not long afterwards, a BART train malfunctioned because of the problem pointed out by the Engineers, and overran a station, injuring passengers. The Engineers brought proceedings against their former employer in which the IEEE intervened. The petition to the Court stated that: "California Courts recognise this principle and discretion should be liberally applied to favour Amicus Curiae intervention. The Court has broad discretion to permit the filing of an Amicus Curiae brief…because IEEE has a particular expertise with respect to Engineers’ obligation to provide public safety". The case settled and shortly afterwards the IEEE set up a formal amicus curiae review mechanism whereby Engineers could request the IEEE to file an amicus brief in a particular case when an ethical question was raised.68 This procedure is now provided for in the Institute’s Policy and Procedures Manual, which provides that the amicus statements submitted to the Court will be those judged "to be objective, verifiable and properly coming within the purview of the IEEE".69 After over twenty years in operation, twenty-three amicus requests have been made to the IEEE under this mechanism, but for varying reasons (including settlement) none of these requests have led to the filing of amicus briefs in ethical support cases. Even so, there is much to learn from IEEE’s experience. After more than two decades following the BART case, experience in the USA has seen a blurring of the line between intervener and amicus, coupled with an exponential increase in the use of such briefs. This was the impetus behind several Federal and State Courts prescribing the manner in which such briefs were to be submitted. At the Federal level in the United States, the amicus practice is now regulated by procedural rules which require that private entities and individuals seeking to participate in a case as amicus curiae must either gain the consent of all parties or, if such consent is refused, file a request with the Court which describes the applicant’s interest in the case and whether any portion of the brief was authored or funded by a party.70 This separation of the lobbyist brief from the true amicus brief is now essential when it is considered that amicus filings before the United States Supreme Court have increased eight-fold in the last fifty years and that amicus briefs were filed in over 85% of all Supreme Court cases in the period 1985 to 1996.71 There is, as yet, no similar development within the UK, which is still at an early stage in considering the usefulness of amicus briefs in aid of the maintenance of ethical standards. The experience from the USA indicates that caution will be required when seeking to establish appropriate procedures and that there will be a need to distance true ethical considerations from the interests of pressure groups. Ethics in other roles of the Engineer The inquiry thus far has concentrated largely on health and safety and environment issues arising in the course of the Engineer’s normal advising role, where it has become evident that many different ethical issues can arise. While this paper has already become over-long, the opportunity to comment on the

67 68 69 70

71

Walter Elden, Curtailing Ethical Harassment, on the IEEE website at http://caffeine.ieee.org/INST/feb96/ethics.html. Walter Elden, IEEE’s Member Conduct Committee – 20 Years of Operation at http://www.spectrum.ieee.org/INST/feb98/conduct.html. IEEE Policy and Procedures Manual 7.13 Preparation and Filing of Amicus Curiae Briefs at http://www.ieee.org/about/whatis/policies/p7-13.html. SUP.CT.R.37 and FED. R.APP. P.29. Many of the State Courts in the United States also have rules permitting the submission of amicus requests. However, the rules vary and in some cases are much more restrictive than Federal Court practice. For a sampling of State Court practice, see Nancy Bage Sorenson, ‘The Ethical Implications of Amicus Briefs’ (1999) 30 St. Mary’s LJ 1219. Joseph Kearney, ‘The Influence of Amicus Curiae Briefs on the Supreme Court’ (2000) 148 U.PA. L. REV. 743, 752 – 753

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ethical issues involved in other roles undertaken by Engineers is not to be missed. Two roles in particular invite consideration. First, the role of appointed administrator under a construction contract (as The Engineer) plainly involves important ethical issues in the requirement to act in a fair and balanced way when giving an opinion on matters which involve opposed interests between Contractor and Owner. The difficulty arises because the Engineer is engaged or even employed by the Owner, to whom he will owe other duties, including a duty to act in the Owner’s best interests. Despite this, the role has been acknowledged and accepted universally,72 and may be seen as an implicit recognition of the existence and operation of ethical principles. The debate which has taken place, and which continues, concerns the ability of the individual Engineer to withstand the inevitable pressures to which he may be subjected, often from both parties to the contract. As an exception to the general position, a breach by the Engineer of his duty of independence will be susceptible to legal remedy,73 since the duty in question is owed in law as well as ethics.74 The second role of the Engineer which involves important ethical dutes is that of acting as an expert witness. Express provisions governing this role can be found within the Code of Ethics of the Institution of Engineers of Australia.75 The general problems involved in placing scientific and technical evidence before Courts and Tribunals have been recently reviewed in a seminar held at the Royal Society, London, whose proceedings are now available in published form.76 The particular ethical problem is that expert witnesses, whether Engineers or from other technical disciplines, while purporting to act "independently", invariably support the case of the party by whom they are instructed. The problem has been the subject of many judicial observations including, notably, a detailed list of duties to be followed by expert witnesses laid down in The Ikarian Reefer.77 The essence of these rules is that the expert is said to owe a duty to the Court or Tribunal, rather than to the parties. There are various difficulties about this including the obvious fact that the expert in question is vulnerable to negligence proceedings at the suit of the original client, while breach of any duty to the Court is unlikely to lead to more than rejection of the evidence. Despite all attempts to improve the situation, expert witnesses instructed by individual parties continue to support the case advanced by that party, often in the form of thinly disguised technical advocacy. The situation in other jurisdictions, notably in the USA is reportedly even worse than that in the UK, but the problem is universal. Solutions in the form of using a single joint expert, whether appointed by the parties or by the Court are generally successful in the sense of ensuring that the evidence given is genuinely independent.78 The success of this approach plainly indicates that the root of the problem lies in the expert being instructed by one party only, when it becomes almost impossible for him to act in a truly independent fashion. This exposes two ethical issues at least. The first is whether experts who accept instructions from one party only should continue to hold themselves out as "independent", knowing the inevitable result of accepting such an appointment. Second, and more fundamental, is the question whether it is acceptable for Engineers to take instructions exclusively from one party, so as to become aware of the objectives and interests of that party in the matters in dispute. It is at this level that possible action on ethical grounds might offer a solution. It is not the purpose of this paper to seek to define how ethical principles might govern Engineers acting as experts. It is suggested, however, that the public interest does require that Engineering evidence should be objectively independent and that this will not be achieved without appropriate regulation. At the root of such regulation should be a requirement that the expert is not pre-disposed to support any particular conclusion or viewpoint. In practice, that is likely to be achieved only by avoiding any direct contact with interested parties. Ideally, the expert should be unaware of, and should be indifferent to, which party instructs him.

72 73 74 75 76 77 78

See the English House of Lords case Sutcliffe v Thackrah [1974] AC 727. See Hickman v Roberts [1913] AC 229. See Pacific Associates v Baxter [1990] 1 QB 993 on the issue whether the Engineer owes a duty to the Contractor. 2000 edition, Guidance Notes Science and Technology in the eye of the law: Conference 21st March 2000. National Justice Compania Navieria SA v Prudential Assurance Co Ltd [1993] 2 Lloyd’s Rep 68 per Creswell J. Civil Procedure Rules 1998, Part 35.

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The Lloyd’s Register Lecture

Conclusions This paper has attempted to investigate one aspect of Engineering ethics in terms of the underlying assumption of many individual codes and institutional rules that Engineers owe a duty to the public. An examination of the law of contract and of tortious negligence confirms that legal duties are owed to a wide, but limited class of persons and that duties to the public are not in general enforceable against individual Engineers by or on behalf of members of the public. The inquiry has, however, identified many separate ethical issues which merit further research. In addition, a number of ethical dimensions have been identified within existing legal principles, particularly in terms of the limits on the extent to which the Courts will enforce contractual obligations where the public interest is involved. The lack of legal backing as respects the action of individual Engineers requires consideration of other means by which the assumption of a duty to the public may be given appropriate effect. The first approach is through appropriate disciplinary action by the Institution by whom any offending member is held out as qualified. While the general absence of compulsory registration in regard to Engineering activities deprives such disciplinary action of the effect which it would have in a more closely regulated profession, the possibility of action being taken against Institutions by individuals who suffer loss due to the negligence of accredited members means that the Institutions have a real interest in pursuing disciplinary measures. If more systematic enforcement is to be considered by the UK Institutions, it is important that they should avoid the tendency to fragment, and that the opportunity is taken to learn from experience elsewhere, notably Australia. Plainly, if the UK Institutions are to take this enhanced role seriously, they must begin by speaking with one voice, as proposed by the Engineering Council in one of its last acts. There is, in addition, growing interest in the UK in an alternative sphere of action by which professional Institutions may seek to intervene in Court proceedings involving Engineering issues, where the public interest is thought to provide justification. Such proceedings have developed rapidly in the USA to such extent that the Courts there are now somewhat stringent in permitting this form of intervention. Such experience will no doubt be considered carefully by the UK Institutions when deciding whether to follow this example. The most significant area of activity in terms of public duty and the maintenance of ethical standards in Engineering is in relation to the giving of warnings about preventable disasters. This has been the subject of considerable activity and thought in the UK. Given that Engineers in responsible positions continue to be motivated by a public duty, many subsidiary questions arise as to how individual Engineers should conduct themselves and as to how those who seek to act in the public interest should be appropriately protected against the consequences of their actions. This paper has reviewed the major issues and current guidelines available. It can be concluded that a duty to the public, assumed and required in many Institutional Codes and rules, exists both in the letter to the extent that Institutions are prepared to take enforcement action, and in the spirit, through the selfless action taken by individual Engineers in the public interest. The task of translating public duty in particular circumstances into appropriate action can be difficult, complex and risky both for the individual and for the corporate bodies involved. While support systems exist they remain fragmented and piecemeal and there can be little doubt that the principal burden will remain on the individual Engineers. It is thus a matter of the highest importance that individual Engineers should continue to acquire their training and experience on the footing that a duty to the public does exist which, on occasions, transcends all other duties under which the Engineer operates. Given the high profile accorded to the debate on medical (now re-named bio) ethics in the last decade, it is fitting and timely that Engineering ethics should be accorded a status appropriate to its public importance. The Engineering Institutions must take a lead in this process. In doing so, the most important condition is that they should act together, a feat which is almost without precedent. Only by these means will Engineers and the public they serve be able to establish the bond of trust that presently seems to be lacking. Acknowledgment I would like to acknowledge the considerable assistance received in preparing this paper from many individuals, notably Ms Juliette La Chapelle on US practice, Mr Toni de Fina on Australian practice, Professor Charles Turner FREng on amicus issues and the staff of the Royal Academy of Engineering on UK materials.
20 The Royal Academy of Engineering

The Royal Academy of Engineering
The objectives of The Royal Academy of Engineering are to pursue, encourage and maintain excellence in the whole field of engineering in order to promote the advancement of the science, art and practice of engineering for the benefit of the public. The Academy comprises the United Kingdom’s most eminent engineers of all disciplines. It is able to take advantage of their wealth of knowledge and experience which, with the interdisciplinary character of the membership, provides a unique resource with which to meet the objectives. Its activities include an extensive education programme, research chairs and fellowships, visiting professorships, industrial secondments and international travel grants. It provides expert advice on engineering matters to government and other bodies and administers the UK’s premier annual prize for innovation in engineering, The Royal Academy of Engineering MacRobert Award. The Royal Academy of Engineering 29 Great Peter Street, Westminster, London SW1P 3LW Telephone: [phone] Facsimile: 020 7233 0054 Website www.raeng.org.uk Registered Charity No. 293074

Lloyd's Register of Shipping
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