There has been debate over the years regarding the liability of Safety Practitioners for the design, job site Inspection, safety and contract administration. When it is discussed, the magnitude of potential personal liability is frequently poorly understood. The reality is that a safety engineer can be personally & professionally liable through tort law theories even when practicing for an employer.

The responsibilities and liabilities of safety practitioners or engineers, both contractually and from case law, I recently met with a group of 4^th year engineering students from Ottawa University, I was shocked that they did not cover safety in their curriculum, certainly they need to understand the interrelationships between engineers, safety practitioners, owners and contractors on a project, and the contract and legal principles which apply effecting their activities.

As a consultant myself, I teach engineers and safety practitioners how to properly document the job and why it is essential. They need to learn how to head off problems by using the right contract language, including clean and fair terms. Advice is given on actions to take during the design phase and the construction phase which will minimize problems, and how to effectively resolve disputes that inevitably surface.

If an engineer or safety practitioner is sued, there are two grounds for liability: contract liability and professional negligence. In the case of contract liability, contracts contain various terms that impose contractual obligations and standards on the engineer and safety practitioner. If a contract fails to express the same, our legal system implies that safety and engineering services shall be provided to a standard that would protect the integrity and purpose of the contract. If the contracted or implied obligations are not met, the engineer and or safety practitioner may be sued for breach of contract.

If there is no written or verbal contract for the engineering and or safety services, then a claimant must sue the engineer and or safety practitioner in tort, which is a system of law that allows recovery from those whose actions have resulted in damages.  For professional negligence to be established, three conditions must be met. First, the engineer or safety practitioner owed the claimant a duty of care. Second, the engineer’s conduct breached the duty of care by falling below the standard of care.  Third, the engineer’s conduct caused loss to the claimant.

Regardless of whether the legal action is in contract or tort, the standard of care is central in determining if the engineer’s conduct should attract legal culpability. If the standard of care is breached, the engineer will be found to have “negligence” and may be at fault for providing inadequate services.

Section 72 of the Regulations under the Professional Engineers Act of Ontario defines “negligence” as an act or omission in carrying out a practitioner’s work that constitutes a failure to maintain the standards that a reasonable and prudent practitioner would maintain in the circumstances.

The standard of care is the threshold used to determine if the engineer’s conduct should attract legal culpability. It is an objective standard that begs the hypothetical question of “whether other persons exercising the same profession or calling and, being men of experience and skill therein, would or would not have come to the same conclusions as the Defendants”

A duty of care, if an engineer with similar experience and skill would have come to similar conclusions and provided similar services, then no liability would be found. The standard of care differs from profession to profession, but there are some common principles. Below you will find some Canadian past legal decisions and precedents which tell us the following about the standard of care:

• Standard: A professional is held to a higher standard than a lay person
  (Hilton Canada v S.N.C. Lavalin Inc. (1999, N.S.J. No.188));
• Competence: The standard is of a professional with average professional competence
• Comparison: A professional should not be compared to the most skilled person in the field
  (Hilton Canada v S.N.C. Lavalin Inc. (1999, N.S.J. No.188));
• Perfection: A professional should not be held to a standard of perfection (Trizec Equities Ltd. V. Ellis-Don (1998, A.J. No. 179));
• Conduct: An error or mistake does not result in liability if others in the field would have acted in the same manner (Lapointe v Hopital Le Gardeur (1992, 90 D.L.R. (4^th) 7);
• Mistake v. Judgment: Courts distinguish between conduct that is incompetent and an “error in judgment”. Not every error in judgment will result in negligence (Lapointe v Hopital Le Gardeur (1992, 90 D.L.R. (4^th)
• Expertise: The standard may increase if a professional represents special skills or expertise in a contract or verbal and written communication (B.C. Rail Ltd. v C.P. Consulting Services Ltd. (1990, 41 C.L.R. 89).

Dr Bill Pomfret; MSc; FIOSH; RSP. FRSH;
Founder & President.
Safety Projects International Inc, &
Dr. Bill Pomfret & Associates.
26 Drysdale Street, Kanata, Ontario.K2K 3L3.
www.spi5star.com      pomfretb@spi5star.com
Tel 613-2549233