Expectations of a Competent Professional

A recent District Court decision in New Zealand has set an important precedent for the engineering industry. In particular, the proceedings between Canterbury Regional Council (“the Council”) and Eliot Sinclair and Partners Ltd (“Eliot Sinclair”) examined the level of skill, care and diligence that can be expected of a competent professional involved in development and subdivision projects.

Whilst the decision is in the context of defending a prosecution under the Resources Management Act (“RMA”), its message has widespread application for the engineering industry generally.

Background

Initially the Council brought charges against both the earthworks contractor and the development company for breaches of the RMA in relation to discharge of sediment laden water from a subdivision project at Duvauchelle Bay (“the site”). Both accepted liability and entered guilty pleas.

Following those proceedings, the Council also attempted to establish liability for Eliot Sinclair, on the basis that they were third party consultants involved in a project in which there had been breaches of the RMA.

Eliot Sinclair was engaged to design an Erosion and Sediment Control Management Plan (“ESCMP”) and provide engineering services during construction.

In these proceedings the Court considered whether the discharge of the sediment water was “permitted” (defined in the RMA as “allowed, acquiesced, abstained from preventing or tolerated the act or omission”) by the parties.

The discharge of the sediment water occurred due to a variety of factors, namely:

  • Amendment to ESCMP system

Due to a delay in completion of the stormwater pipes, a temporary ESCMP system was installed under the recommendation of Eliot Sinclair.  This system was of a satisfactory level until heavy rainfall in April 2013 caused sediment to enter Duvauchelle Bay through a trench cut through the bund wall a few days earlier.

  • Failure to meet engineers recommendations

After this event Eliot Sinclair made various suggestions on what work needed to be undertaken to restore the system to compliance and prohibited the contractor from performing any further works until the regulations were met.

The contractor did not complete all of the works recommended by Eliot Sinclair and in early May 2013, left the site without performing critical works, including filling the cut in the bund wall appropriately.

  •  Further heavy rains

On 6 May 2013 further heavy rains meant that more sediment was released into the Bay.

The Council argued that Eliot Sinclair permitted the discharge:

1)    By unsatisfactory amendment to the ESCMP; or

2)    By its management of the builder’s incomplete and insufficient work.

Decision

After considerable amounts of expert evidence from both parties, the Court held that:

    • Eliot Sinclair did not err in the decision to amend the ESCMP.  The Court held that there was no reason to expect inadequate performance by the contractor and the ESCMP was sufficient for the continuing work at the site.
  • The Court said that Eliot Sinclair had consistently maintained a thorough approach to its role as engineer consultant for the site having clearly outlined the works required for the contractor to meet all regulations, halted any necessary works and monitored the site during copious site visits (11 visits in 16 days).

At the completion of the matter, the Court found that Eliot Sinclair was not guilty of permitting the discharges as the judge was satisfied that it acted with the skill, care and diligence of a competent, professional consultant engineer.

This judgment serves as a reminder of the importance of giving clear directions, guidance and maintaining detailed records but, importantly, notes that the engineer’s role is not to supervise the contractor by “looking over its shoulder” nor can it be expected to complete the works itself.

If you need to protect your rights, hiring a reputable attorney can be your only solution. Contact Mike G Law and let the professionals deal with your legal issues.

Read More of Our Recent Updates

Conditional contracts can bite

Introduction Parties often sign contracts with conditions attached. These are properly called conditions subsequent if the parties have reached a concluded bargain but have also

Read More »

Rectifying a Mistake

Introduction A written contract is almost always the document which decides the rights and obligations of the parties in any construction dispute.  Occasionally, one of

Read More »