Geotechnical News • March 2016
55
GEO-INTEREST
The lessons learned from the Geo-
Consultant’s involvement in the proj-
ect can be summarized as follows:
• If you are called to assist in such a
“rescue” problem consider care-
fully whether or not to undertake
the assignment. Seek direction
from a senior colleague(s) who
has more experience in dealing
with the various parties involved
in such situations. If the decision
is to proceed, try to obtain (at the
outset) liability indemnification
for the provision of your services.
Alternatively, as a minimum, get
your professional liability limited
to a quantum not to exceed your
fees on the assignment;
• Do not provide an opinion or solu-
tion based on inadequate base
information.
• If in doubt, present a safe conserva-
tive solution.
• If obliged to accept a compromise
or expeditious solution, which in
your opinion cannot be technically
substantiated, state this clearly in
a report, together with the risks
involved;
• Document major points of discus-
sion and opinions provided at
meetings and during telephone
conversations;
• Insist on being allowed to continue
monitoring the whole of the geo-
textile installation operations. If
not permitted such ongoing moni-
toring, provide written detailed
instructions to the Prime Consul-
tant regarding proper geotextile in-
stallation procedures, together with
the provision of a departing “non-
involvement” statement clearly
absolving youself of liability;
• Last, but not least, it is stressed
(particularly for young Practitio-
ners) that direct assistance on site
by a senior colleague(s) experi-
enced in dealing with designers
and contractors, is important.
Defensive measures
An obvious defensive measure is to
ensure that geotechnical work is accu-
rate, to a high standard of care, and
adequate for the needs of the end-user.
Whereas avoidance of formal dis-
pute resolution activities should be
the priority, younger members of the
geotechnical profession should also be
aware of such methods since despite
all precautions they are likely to be
encountered. Geotechnical Engineers
in consulting practice, and in Owners
or Contractor organizations, should
be encouraged to incorporate into
contractural arrangements, appro-
priate provisions for resolution of
disputes by ADR methods. In a sense,
this becomes a significant defensive
measure. Its value to all parties is dem-
onstrated by an example where such
provisions were made in a contract and
where dispute resolution was achieved
by application of “reverse engineering”
(Fielding et Al. 2012). The various dis-
pute resolution methods are covered in
the literature (e.g. Naismith, 1986 and
XL Insurance, 2004) and are therefore
not detailed herein except to men-
tion that they include ADR Methods
through organizations such as the ADR
Institute of Ontario (ADRIO); PWC’s
Contract Disputes Advisory Board
(CDAB); and the International Dispute
Adjudication Board (IDAB), as well as
minitrials and comprehensive litiga-
tions. The Authors have collectively
been involved in all of these Methods
and consider that active participation
by suitability qualified geotechnical
engineers in organisations such as
ADRIO and IDAB has considerable
merit. It is timely to also keep in mind
the important role played by experi-
enced members of the legal profession
in the use of the ADR Method because
of the legal issues that are generally
associated with dispute situations.
The value of professional liability
insurance as a defensive measure
is well known to Geo-Consultants.
Some Firms elect to be self-insured.
In most cases, however, Geotechnical
Consultants obtain insurance through
Insurance Companies. As might be
expected, such Companies see first-
hand the problems that their Clients
encounter, in the process of defending
them in litigation proceedings. In the
case of XL Insurance, it makes avail-
able to the Insured copies of excellent
publications such as the 2004 “Les-
sons in Professional Liability, A Loss
Prevention Handbook for Design Pro-
fessionals”. Such a document covers
the many areas important to lowering
exposure to claims and the best meth-
ods to prevent or mitigate claims.
Some Authors cover the insurance
aspects, e.g. Naismith; XL Insurance;
ASFE and self-insurance which can be
referenced in the context of “recom-
mended to at least know about” for
younger geotechnical engineers. To
quote from XL Insurance (2004),
“First try to resolve your dispute
through one or more of the non-adju-
dicative DR procedures. These include
mediations, mini-trials, settlement
conferences, and advisory arbitra-
tions. In these procedures participants
work to solve their own problems
rather than place their collective fates
in the hands of someone else.”
For firms engaged in geotechni-
cal consulting it is, for all practical
purposes, essential in this day and age
to have professional liability insurance
coverage. It is a mandated require-
ment, for example, for a Certificate
of Authorization and designation of
Consulting Engineer status by Profes-
sional Engineers Ontario. Some client
organizations require that a contract-
ing party maintain, at its sole expense,
minimum substantial insurance on its
own behalf, including errors and omis-
sions insurance (sometimes referred to
as professional liability or professional
indemnity insurance), amongst other
insurance coverages. Irrespective of
how the profession got into this situa-
tion, the effect is becoming such that
insurance premiums are a significant
cost burden. Time to reflect on this
matter more and find a way out of this
dilemma.
