The Law and Engineering

The notion of engineering due diligence has expanded into Australian society, gradually displacing pure risk management as the ultimate aim of engineering decision-making. Numerous national and state-based laws have moved from mandating risk assessments to imposing specific duties to exercise due diligence, in health and safety, environmental protection and other areas.However, some standards and other non-mandated guidelines, regardless of legislated and common law precaution-based (SFAIRP) requirements and judgments (the laws of man), still promulgate approaches requiring the ‘scientific’ (ALARP) measurement and comparison of risk. This is presumably done with the view that risk can be examined and dissected as part of the laws of nature. Engineering and legal practitioners find themselves caught between these competing paradigms.An egalitarian society like Australia desires to ensure fairness amongst its citizens. One outcome of this view is that no one should be inequitably exposed to risk, and certainly not for the benefit of others. Being a free society, an individual can choose to be ‘riskier’, but this should be a matter of personal choice, not economic necessity.Risk equity can be demonstrated in two key ways. One is a scientific exercise that sets and complies with a maximum level of risk to which any person may be exposed. This requires detailed modelling of potential event sequences and comparison to a predetermined maximum acceptable level of risk.The second provides a minimum level of precaution (i.e. protection from risk) for all persons exposed to the undesired outcomes. This minimum level is generally demonstrated in recognised good practice, i.e. precautions considered reasonable by virtue of their implementation in similar situations.Pre-event, both methods conceptually provide for equal risk outcomes. However, post-event, only the minimum precaution equity approach can be tested objectively – either the precaution was in place or it was not. The maximum risk level equity approach is problematic to justify on a number of levels.The courts, reflecting Australia’s societal desire for fairness, established the precautionary approach in the common law duty of care. Post-event, the courts test whether all reasonable steps were taken to avoid damage to people. This long-established approach considers both precautionary risk equity and financial efficiency in determining what precautions, for any particular event, were reasonable.Unlike the courts, engineers and lawyers don’t have the benefit of hindsight in determining what is reasonable. Decisions must be made, with business, safety, societal and environmental implications, to address any number of potential events. These often include complex issues with valid but irresolvable competing stakeholder points of view.Due diligence engineering expands the courts’ ‘equal minimum level of precaution’ principle to a pre-event precaution-based decision-making philosophy incorporating the requirements of both science (the laws of nature) and society (the laws of man). This philosophy allows engineers and lawyers to together cut the Gordian knot that has developed when decision-making at the complex interface of physical and social infrastructure.

Engineering’s Golden Rule

The Golden Rule, or the rule of reciprocity, states that one should treat others as one would wish to be treated. It is an astonishingly widespread maxim, appearing in some form in virtually every major religion and belief system.As a result, the Golden Rule permeates Australian society, in our courts and parliaments, and our laws and judgments. It is an integral and inalienable part of our social infrastructure.Cambridge professor David Howarth’s recent book, Law as Engineering: Thinking About What Lawyers Do, considers some of the implications of this. Howarth’s thesis is that most UK lawyers do not argue in court. Rather, on behalf of their clients, they design and implement, through contracts, laws, deeds, wills, treaties and so forth, small changes to the prevailing social infrastructure.Australian law practice seems to follow a similar pattern, and this is a good and useful thing; without these ongoing small changes to social infrastructure there would be large scale confusion, massive imposition on the court system, and general, often escalating, grumpiness.Engineering serves a similar function. Engineers, on behalf of their clients, design structures and systems that change the material infrastructure of society.This is also a good and useful thing. And, with the history of and potential for significant safety impacts resulting from these physical changes, engineers have over time developed formal design methods to ensure safe outcomes.These methods consider not only the design at hand, but also the wider physical context into which the design will fit. This includes multi-discipline design processes, integrating civil, electrical, mechanical, chemical (and so on) engineering. It also includes consideration of what already exists, and the interfaces that will arise. Road developments will consider their impact on the wider network, as well as nearby rail lines, bike paths, amenities, businesses, residences, utilities, the environment, and so on.Howarth’s book considers this approach to design in the framework of changing social infrastructure. He argues that lawyers, in changing the social infrastructure, ought to consider how these changes may interact with the wider social context to avoid unintended consequences. As an example, he examines the 2009 global financial crisis in which, he argues, many small changes to the social infrastructure resulted in catastrophic negative global impacts.Following formal design processes could have, if not prevented this situation occurring, perhaps at least provided some insight into the potential for its development. But the question arises: how should negative impacts on social infrastructure be identified? In contrast to engineering changes to material infrastructure, social infrastructure changes tend not to have immediate or obvious environmental or health and safety impacts.One option that presents itself is also apparent in good engineering design. Engineers follow the Golden Rule. It is completely embedded in engineering practice, and is supported and reinforced by legislation and judgements. Engineers design to avoid damaging people in a physical sense. Subsequent considerations include environmental harm, economic harm, and so on.A key aspect of this is consideration of who may be affected by infrastructure changes. Proximity is critical here, as well as any voluntary assumption of risk. That is, potential impacts should be considered for all those who may be negatively affected, and who have not elected to put themselves in that position. This is particularly important when others (such as an engineer’s or lawyer’s client) prosper because of such developments.A recent example involving material infrastructure is the Lacrosse tower fire in Melbourne. In this case, a cigarette on a balcony ignited the building’s cladding, with the fire spreading to cladding on 11 floors in a matter of minutes. The cladding was subsequently found to not meet relevant standards, and to be cheaper than compliant cladding.In this case, it appears a design decision was made to use the substandard cladding, presumably with the lower cost as a factor. Although it is certain that the resulting fire scenario was not anticipated as part of this decision, the question remains as to how the use of substandard materials was justified, given the increased safety risk to residents. One wonders if the developers would have made the same choice if they were building accommodation for themselves.In a social infrastructure context, an analogy may be that of sub-prime mortgages being packaged and securitized in the United States, allowing lenders to process home loans without concern for their likelihood of repayment. In this scenario, more consideration perhaps ought to have been given by the lawyers (and their clients) drafting these contracts as to, firstly, how they would interact with the wider context, and, secondly, whether the financial risks presented to the wider community as a result were appropriate. In many respects the potential profits are irrelevant, as they are not shared by those bearing the majority of the risk.The complexities here are manifest. Commercial confidentiality will certainly play a role. No single rule could serve to guide choices when changing social or material infrastructure, and unforeseen, unintended consequences will always arise. But, when considering the ramifications of a decision, a good start might be: how would I feel if this happened to me?

This article first appeared on Sourceable.