Structural Failures in India and the Indian Legal System
L.V. Sreerangaraju, Advocate
Society In Relation To Science and Technology
The society of which the scientists and technologists form an inseparable and integral part has developed from the primitive age to its present form. Man in the society is always in the pursuit of knowledge for the sake of understanding the various laws and principles underlying the creation of nature. The quest for this knowledge is continuously on the increasing trend from the primitive age culminating in what is today called the engineering or technology which is the professional art of rationally applying the scientific principles and knowledge to the optimum conversion and utilization of the natural resources for the benefit of society. Science is to know while engineering is to apply this scientific knowledge to the benefit of society by creating and developing a number of contravances which contribute to the welfare of mankind; by furnishing, food, shelter, clothing and comfort; by making work (labour) transportation and communication easier and safer; by prolonging the life and making it pleasant and satisfactory.
Engineer in Contemporary Society
The word engineer has the Latin root Ingenerare meaning to create. The early English verb engine meaning to contrive is responsible for the word engineer who was the designer of engines of war such as catapults, floating bridges etc. Just as literature is considered to be the reflection of the contemporary society the engineering achievements can be considered as the contemporary objects producing these reflections. The engineering achievements contributed to society since the time of Imhotep, the first known engineer by name who built the stepped pyramid at Saqqarah near Memphia in 2550 BC, through his successors in the Egyptian, Persian, Greek and Roman antiquity till today, remain as the evidence of interaction between the engineer, society and civilization. The Pharos of Alexandria; Solomon's Temple in Jerusalam; the Colosseum in Rome; a number of dams, bridges and water conveying systems in Egypt and Rome-Sadal-El-Katara dam in Egypt dating back to 2800 BC; the existence of baths with ceramic pipes in the houses and brick conduits for underground drainage in the Harappa and Mohenjodaro civilization around 3000 BC in India are only a few examples in the endless list of such achievements in the antique not to mention the recent technological achievements including space exploration.
Socially Acceptable Technology
The function of an engineer in the society lies primarily at the socio-technological interface with the individual and society on one side and science and technology on the other. The benefit derived by the application of scientific knowledge is transmitted to the society through the engineer by means of technological developments. This transmission of the benefit fundamentally requires that it should be acceptable to the society as otherwise the technological invention would be of little social value. For example; Ctesibus of Alexandria around 2500 BC invented a double piston positive displacement pump which was used for production of a waterjet for fighting fires, but not for irrigation or other purposes. Around 150 BC Hero of Alexandria invented a steam engine and many mechanical transmission systems such as multiple pulley systems, lever systems etc., which increased the human work efficiency. Vitruvius, a little later, had described the principles of water mill. But neither the steam engine & mechanized transmission system of Hero nor the water mill of Vitruvius were accepted by the society at that time as in the contemporary civilization the muscle power, in terms of slave owning, was a status symbol and mechanical power was considered unnecessary. Thus, the technological inventions should be acceptable to the society so that the benefit of scientific invention and knowledge is transmitted to the society.
Present Day Engineering Structures
Various engineering structures that were planned, designed, ably executed, are infact the true representation of the saying that 'civil engineering structures are the immortal creations of mortal men'. The methods of analysis, the various computational aids, finite element methods, experimentation techniques have all contributed immensely to the success of engineering projects. However it is very true that we continue to learn from our failures. There are a number of instances where the failure analysis has opened up newer concepts and have indeed contributed to the success of the profession. If one were to call such failures and analysis of failures as forensic civil engineering it needs to be examined de novo. Every failure of a structure should not be construed as a case of forensic engineering.
It is essential that the failure must have happened not because of the acts commissions and omissions at the design stage or at the planning stage or at the execution stage due to lack of or inadequate professional expertise. In such an event the professional responsibility of the engineering in providing a safe structure would be shifted to the so called forensic engineering, while actually the reason for failure would show clearly lack of professionalism and professional ethics. Hence a reengineering of a structure to make good the professional deficiencies cannot be called Forensic Engineering.
Why Do Engineered Structures Fail?
With the present day technology, the advancements in the various fields of Engineering starting from planning, investigation, conceptualization, designing, applying the appropriate construction and execution methodology and completion of successful execution are all controllable at the hands of engineers with the specialized tools; specialized codes of practice, both National & International; methods and mechanization at each and every stage of construction are so precisely controllable. This should ensure safety in the structure to the acceptable qualities in construction and also the long term safety of the structure to ensure that the structure behaves as planned designed and executed to satisfy all the safety aspects and the structure is made wholly utilizable for the purpose for which it is designed.
It is universally accepted that the Engineer's who are engaged in the planning, designing, construction, executing of the structures are competent enough to analyze and address various divergent conditions met with during the construction stage and reengineer the structure so as to ensure the primary aspect of safety and utilizability are not forsaken. Such reengineering is a part and parcel of the engineering with the implicit goal of achieving the main aim of the engineering profession to transmit the benefits of technological development to the society, while no risks or burden is transmitted to the society. With this background it is obvious that the expectation of the public, the society and the common man is clearly that the structure designed by an engineer should not fail and should not cause any risk either to individuals or society. It is this insulation of risk that is of paramount importance in achieving the safety in structures. It is also of common knowledge that when a structure is completed it should serve the purpose for which it was contemplated. If the objective of the serviceability of the structure is lost it creates a great void in the minds of public and the society regarding the efficacy, safety and utilizibility of the structure. This also results in a breach of implied warranty given by the Engineer.
It is trite that engineering encompasses the principles of various natural laws. Ex., The law of Gravity; The laws of equilibrium - static & dynamic; Newton’s Laws of motion - linear or circular; Laws of friction - static & dynamic; Laws of Thermodynamics; Faradays Laws of Electricity; Laws of Continuity of flow of fluids, Electricity, stress etc. All these are natural laws which form the foundation for every engineering design. Any violation of the principles of these natural laws should result and will result only in the failure of the structure. Hence, the basic requirement for ensuring safety of the structure is to follow the principles of the natural laws. When once the natural law is violated it is incumbent and automatic that the civil law of a country is also violated resulting in failure of the structures or machines and infusing risk to the society at large. It is not my intention to delve with various aspects of structural failures. But at the same time it would be appropriate and relevant to identify and recognize the basic aspects of structural stability that would ensure the safety. The Law of Tort recognizes various aspects of the requirement of stability. A Tort is a wrong independent of contract and gives rise to a civil remedy for which compensation is recoverable. The word 'TORT' is derived from the Latin term 'tortum' meaning to twist, and implies the conduct of a party which is twisted or tortuous.
Under the Law of Torts there are certain provisions which deal with the stability or support of structures and buildings. Right to support is a natural right. This right to support has different aspects which in fact are of a common knowledge in the principles of engineering which would enshrine the safety. These are reproduced from the Law of Torts:
a. Lateral Support: The Lateral support of land by adjacent. Every proprietor of land is entitled to such an amount of lateral support from the adjoining land of his neighbor as is necessary to sustain his own land in its natural state, not being weighted by walls or buildings. This is a natural right. Such a right is not an easement but a right of property. The natural right does not extend to the additional support from a neighbor's soil necessary for the maintenance of building; for one landowner cannot, by altering the natural condition of his land, or by erecting buildings thereon, deprive his neighbor of the privilege of using his land as he might have done before. But a right of support in extension of the natural right may be acquired by prescription or grant.
b. Vertical Support: The Vertical support of the surface by the subsoil, where the property in the two is distinct. There is a right of support of land by subjacent land, when the surface and subsoil are vested in different owners. The owner of the surface is entitled to common law right to the support of the subjacent strata, so that the owner of the subsoil and minerals cannot lawfully remove them, without leaving support sufficient to maintain the surface in its natural state. If the owner of the land grants the subsoil, reserving the surface to himself, he impliedly grants reasonable means of access to the subsoil, and the grantee would have a right to go upon and dig through the surface, to enable him to reach the subsoil, if he had no other means of access thereto. But the owner of the subsoil may maintain an action against the owner of the surface, if he digs holes into the subsoil to a greater extent than is reasonably necessary for the proper and fair use, cultivation and enjoyment, of the surface; or if he removes so much of the surface that the mines below are flooded.
c. Support of Buildings by land: Support of buildings by land may be either:
i. The support of buildings laterally by adjacent soil; or
ii. The support of buildings vertically by subjacent soil.
The natural right to support exists in respect of land only, and not in respect of buildings, but a right to support for buildings both from adjacent and subjacent land may be acquired by-
(1) Grant: Which may be
Thus, if land not granted expressly for building purposes is weighted with buildings, the owner of the surface has no right to additional support necessary for the maintenance of the buildings until he has acquired the right; so that if the owner of the subsoil in working mines leaves sufficient support for the surface, but the land sinks in consequence of the weight of the buildings, that have been placed upon it, the owner of the subsoil is not responsible for the damage done. But if the weight of the building has in no way caused the sinking of the land, and the land would have fallen in, whether the building had been erected on it or not, the building on the land becomes quite immaterial, and the defendant is responsible for damages to the extent of the injury done both to building and land.
(2) Prescription. A building which has de facto enjoyed, under the circumstances and conditions required by the law of prescription (viz. openly and without concealment), support for more than twenty years, has the same right as an ancient house would have had. Though the right of support to a building is not a common law right and must be acquired, yet when it is acquired the right of the owner of the building to support it is precisely the same as that of the owner of land to support for it.
d. Support of buildings by buildings
The right to support for one building from an adjoining building is not a natural right. It may, however, arise in different ways, e.g., grant, prescription, or both houses having been built by the same owner.
The mere fact of contiguity of buildings imposes an obligation on the owners to use due care and skill in removing one building so as not to damage the other, even though no right to support has been acquired.
If one man builds two or more houses, each needing the support of the other, and then if he sells one, it is presumed that he reserves for himself and grants to the buyer, the right of mutual support; and so, if he sells several such houses to the several persons at different times, each has the same right of support, having regard to the priority of titles.
e. Support of land and buildings by water
An owner of land has no right at common law to the support of subterranean water. The right of vertical support does not extend to have the support of underground water which may be in the soil, so as to prevent the adjoining owner from draining his soil, if for any reasons it becomes necessary or convenient for him to do so, the presence of the water in the soil being an accidental circumstances, the continuance of which the landowner has no right to count upon.
Support by water - Some cottages were built on land of a wet and spongy character, the land not having been properly drained; the adjoining land was sold for the purpose of erecting a church, and on excavation for the foundations, the water was drawn from the spongy land, the surface subsided and the cottages were cracked and injured. It was held that there was nothing at common law to prevent the owner of land from draining his soil if it was necessary or convenient for him to do so, though he might, by grant, express or implied, oblige himself to suffer the underground water to remain.
Support by running silt - Where the plaintiff's land was supported, not by a stratum of water, but by a bed of wet sand or ‘running silt’, and the defendants caused the subsidence of the plaintiff's land by withdrawing this support, it was held that they were liable. The decision in the former case was held not applicable as it dealt only with support by water.
Strict Liability
The Strict Liability has its origin in the case of Ryland's Vs Fletcher (1866-LR-1-EX-265, 279) where the facts were that the defendants who had a mill near Ainsworth in Lancashire wanted to improve its water supply. They constructed a reservoir by employing reputed engineers to do it. When the reservoir was filled water flowed down, the plaintiff's neighbouring coal mine causing damage. The engineer's were independent contractors. There was some negligence on their part in not properly sealing disused mine shafts which they has come across during the construction of the reservoir and it was through those shafts that the water flooded the Plaintiff’s mine. The defendant's were in no way negligent having employed competent engineer’s to do the job and has engineer's who were independent contractor, the defendant's could not be made vicariously liable for their negligence. The Court of Exchequer dismissed the claim as showing no cause of action. But the Court of Exchequer chamber allowed the appeal; the judgment of Black Burn J of that court laid down a new basis of liability and was approved by the House of Lords.
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Figure: Bhopal Gas Tragedy
The basis of liability as laid down by Black Burn J was "The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escape, must keep it in at his peril; and if he does not do so is prima-facie answerable for all the damage which is the natural consequence of its escape". Black Burn J further added "The general rule as above stated seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works is damnified without any fault of his own; and it seems but reasonable and just that the neighbour who has brought something on his own property which was not naturally there, harmless to other so long as it is confined to his own property, but which he knows to be mischievous if it gets on its neighbour should be obliged to make good the damage which ensures if he does not succeed in confining to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences".
This rule in Ryland's Vs Fletcher has been accepted by the Supreme Court of India and has held in the case of the Bhopal Gas Tragedy and various other environmental cases that there is a strict liability on the part of the owner to compensate for all the damages caused as a consequence of the escape of any unnatural thing brought and stored by the owner and when this unnatural thing causes a mischief on the neighbour's land.
The world's largest industrial engineering accident is the Bhopal Gas disaster. On 02.12.1984 a highly toxic chemical - Methyl Isocynate (MIC) contained in the plasticides factory of Union Carbide leak and sent toxic clouds of gas surrounding Bhopal City. More than 15,200 people died and more than 5.7 lakh people were affected. Future generations have suffered continuously because of permanent damage. The leak was attributed to an accidental pouring of water into the tank containing 10,000 gallons of MIC causing heating of the liquid to an estimated temperature of 400 Fahrenheit. There were two pipes one carrying nitrogen as a coolant and another carrying water. The accident apparently was due to connecting the water pipe instead of the nitrogen pipe. Pressure relief valves popped open leaking MIC vapors into the air. There was also mismanagement in the O&M.
The alarms equipped to the tanks were improperly set which failed to give any warnings. A scrubber that was used to neutralize the toxic vapors was not activated until the vapor released caused the damage. Plant designers had anticipated the problems, while the management of the plant was obviously negligent. All safety factors had become inoperative simultaneously which is an inexcusable mismanagement. Compensation from Union Carbide is yet to be finally settled.
25 years after instituting the case the trial court convicted 8 people for a two year jail term and a penalty of Rs.1.00 lakh each. All those who were punished are Indians, while the CEO of the Union Carbide Mr. Warren Anderson lives safely in a multi-million dollar home in the New York Island. What happened to the Forensic Engineering? Even after the Supreme Court upholding the case of strict liability for all consequential damages based on the accepted rule of Ryland's Vs Fletcher the compensation and the damages are still to be finalized.
This raises very serious issue in the engineering safety of structures and the consequential liabilities that would arise. It is unfortunate that in our country there is no statutory law fixing the liabilities on engineering professionals and engineers personally. The Law of Tort and the Laws of the Country are quite competent to handle the consequences of various failures. But the unfortunate missing link is the appropriate independent failure analysis, the proper fixing of responsibilities on the engineers and a total absence of any statutory code of ethics and the appropriate licensing system. In the absence of this the evidence that is produced before the court will be conflicting since an independent review of the cause of failure and the consequences of the damage are more marred than are truly reflected.
The rule of law should prevail irrespective of the status of a culprit and all citizens should be held equally liable and the liability should not depend upon the rule "Show me the man I will show the rule". It is this lacuna in the engineering profession that should get eliminated, at least now, so that the structural failures should be treated as a falsification of the warranty given by professional engineers and consequently it is the individuals / the companies who are responsible for this should be either de-licensed to practice or debarred from practicing the profession and should be made liable to compensation. Unless such situation emerges in our country with the concentrated efforts of all the engineers, I am afraid that failures would go unnoticed and nor will it add to the professional ethics in engineering.
One of the most well documented failure analysis of a major dam is with respect to the Teton dam failure, Idaho, USA. The analysis of failure made by two separate groups came to a conclusion. That the cause of failure in the core of the dam was due to differential strains and hydraulic fracturing of the core material and also the report highlighted
Figure: Teton Dam Failure
| that a combination of geological factors and design decisions all taken together permitted the failure to develop is a classic case of forensic engineering which deals essentially with the designs, failure analysis and the possible modes of failure so that the future engineering of the dams can concentrate on the specific issues and avoid possible risks and failures. |
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Another case of forensic engineering well recorded is the collapse of the Atrium Lobby at Hyatt Regency in Kansas City. The failure resulted in killing nearly 159 people. The analysis of the failure showed that there was a design deficiency and it was aggravated by a change order during construction, heeding to the request of the contractor that he would put two screws instead of one single solid screw. The failure was precisely fixed on the design. The impact of this was that Jack Gillum lost his license to practice engineering and Gillum and associates lost its license as an engineering firm. Unfortunately there is no such statutory control for engineers in our Country.
Forensic engineering essentially is investigation of materials, products, structures or components that failed or do not operate as required but have intended causing personal injury or damaged to property. In the Indian scenario there are a number of failures that have occurred. It is the greatest failure of the engineering profession in India that a true independent, impartial, technical enquiry is made and much more published so that the professional values and engineering are brought to the notice of the professional forum. This is essential so that there should be a proper exchange of information and the analysis made is debated in a professional atmosphere and the conclusions so drawn should be the legacy left by the profession.
The failure of the foot over bridge under construction, just before the Common Wealth Games, is a classic example as to how the forensic engineering is being practiced in our country. The suspension over bridge, the 95mt long under construction foot over bridge crashed on 21st September-2010. It is noteworthy that there was a design consultant, a project manager, a contractor and a supervision company all with specific responsibilities. An enquiry panel constituted had blamed the faulty construction methodology adopted by the contractor. It also held PWD responsible for supervisory failure and blamed Macalloy for design constraints of the materials. It is only on 3rd July-2013 some three people were charge sheeted. The Sections under which they were charge sheeted are IPC Sec. 336, 337 & 338. These sections read as follows:
Figure: Foot Overbridge Collapse at CWG
Sec.336: Whoever does any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.
Sec.337: Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
Sec.338: Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
Based on the above, no evidence of any engineering failure either in the designs / constructions / supervision / Project Management by the respective people have apparently not been placed on record to prove through documents and evidences that there is an engineering failure. This classically exemplifies the essential need for an independent forensic analysis of the failure. Even then since there is no statutory law in our country to punish an engineer for his professional deficiencies nor there is any law to debar him for practicing the profession, the outcome of the case is a matter that is to be seen based on the manner in which the case is made out, evidenced and argued for an appropriate punishment. Only the time should tell us of what would happen in future.
The issue that needs to be addressed by this August fora is whether such investigations made at the behest of Governmental agencies can really through open an independent impartial technical appraisal particularly keeping in view that the members of the committee are invariably in some way or other associated with the Government. What would be the result of such forensic engineering when there is no independent impartial view that comes out?
Bangalore has also witnessed many building failures. In 1983, Gangaram Building, a 7 storey under construction stage crashed, 100 of people were buried. No Forensic Engineering, no analysis, no action taken. 123 people lost their lives and more than 120 people were injured. After a judicial enquiry by the state the owner of the building and the three contractors were arrested. One reason for the collapse was identified as structural violation. Charges were filed against the owner & the contractors. All the six accused were acquitted by the Karnataka High Court on 22.02.2005 and the court observed that "the witnesses were not properly cross examined by the prosecution".
This is again a case where an improper examination of witnesses by the prosecution for the reasons best known to them has resulted in acquittal of the accused. There is no action to identify the faults, no action to pinpoint the responsibility. The Economically Weaker Section (EWS Scheme) buildings constructed for the economically poor/weaker section of the society was constructed by the Bangalore Mahanagara Palike. Two to three years afterwards the buildings collapsed. Subsequently the design analysis showed that the buildings are unsafe. Here again many a times the investigations, cause of failure, are not professionally examined so as to render the Forensic Engineering worthy of being utilized.
It is unfortunate in our country, engineering is the only profession which is not governed by any statute or law unlike advocacy, medical, chartered accountant, architect, etc., It calls for a very serious inner questioning whether the engineers are to be governed by any profession ethics or not? I can also say based on my experience that there are very many cases where the investigation man, the designer, the consultant, the contractor, the project manager are all being done by the same person. Added to this if there were to be something wrong in the design even the responsibility of rechecking the design is also given as an additional bonus to the same agency thereby wholly violating the principles of natural justice. In fact one should not accept to do the failure analysis of a design which was originally done by him. There are no ethical standards in this. It cannot be a purely commercial proposition without proper professional ethics and established code of Ethics to be strictly adhered to.
References
1. Law of Torts - Ratanlal & Dhirajlal - Twenty-Forth Edition 2002, Publisher-Wadhwa & Company, Nagpur
2. Indian Penal Code - Ratanlal & Dhirajlal - Twenty-Ninth Edition 2002, Publisher-Wadhwa & Company, Nagpur
3. Role of Engineers in Society - L. V. Sreerangaraju - Journal of the Institution of Engineers, India Vol. 66, Pt IDP-2, February-1986.
Note: Images shown are not part of the original paper.
The Author
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L.V. Sreerangaraju
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Mr. L.V. Sreerangaraju is presently an Advocate, Techno legal Advisor and as an Arbitrator dealing with Techno legal matters. He is a fellow of the various professional & Arbitration institutions and he is in the panel of Arbitrators of Institution of Engineers (IEI), Indian Council of Arbitration (ICA), Construction Industry Arbitration Centre (CIAC), Singapore Institute of Arbitrators. Previously he served as a lecturer from 1968 to 1973 in Siddaganga Institute of Technology, Tumkur, Karnataka (State). |
He later worked in various capacities in the Karnataka Power Corporation dealing with designs, constructions and contract management of various Dams, Tunnels, Power houses, etc., and retired as General Manager (Executive Director) in 2002. He has to his credit more than 25 papers published in National & International Conferences.
He can be contacted at:
#537, 'JYESHTA',
3rd Main, Hosakerehalli Cross,
BSK 3rd Stage, Bangalore-85
Ph: +919845006201
Email: lvsreerangaraju@yahoo.com