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The Expert Witness and Professional Ethics 

B S C RAO

The Expert Witness

The principal job of the forensic engineer is to establish in thorough detail the causes for an accident or failure. But it does not end there, since, in the wake of such a failure/accident, issues of liability and culpability crop up especially when there is damage and destruction and more so when there is injury or loss of life. The forensic engineer is then called upon to give evidence in a court of law as an "expert witness".  A weak case can be won, or a strong case lost, depending how well or how badly the expert witness presents evidence and how well he can hold his ground and retain his assurance under even the most intense cross examination. He therefore needs to be very thorough in his investigation and preparation of evidence; very knowledgeable about the case details and the subject; very clear, dispassionate and articulate in his presentation of the evidence and finally be able to stand up to cross-examination with confidence and without losing his composure. These define the essential qualities and requirements in an "expert witness" - who may work for either the prosecution or the defendant, or directly for the court as an independent authority.

An expert witness, in the context of forensic engineering, is a person who is qualified by virtue of his professional  education, training, specialised knowledge, skill and experience to form definite opinions regarding the special or particular engineering aspects of a case, which would lie beyond the knowledge, experience or capabilities of a lay person. In the case of an engineering failure or accident which is being prosecuted in court, the presiding judge may not have the ability to understand the intricacies and nuances of the engineering evidence and arguments presented or the conclusions drawn there from. The services of the expert (engineering) witness then become necessary. Thus if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case. The U.S. Supreme Court further observed that the reliability of a scientific technique may turn on whether the technique can be and has been tested; whether it has been subjected to peer review and publication; and whether there is a high rate of error or standards controlling its operation.³²

There is no rigid rule or stipulation which mandates the employment of an expert witness in every case that comes before the court. It is left to the discretion of the court /judge to decide whether an expert witness is even required or should be allowed to testify. However, if either, or both, of the parties in a case request(s) the court’s permission to present expert evidence(testimony) the court cannot refuse. Section 45 of the Indian Evidence Act, 1872 lays down, that, when the court has to form an opinion upon a point of science, the opinion upon that point of a person specially skilled in such science is a relevant fact.³³

However, the court may not straightaway accept the qualifications and credentials of any person claiming to be an "expert witness" and may order a separate peer review or special scrutiny or examination of the person concerned by other recognized authorities in the particular field of specialisation. It is also notable that the court is not obliged to accept the testimony of an expert witness, and that such acceptance may be decided on a case-by-case basis.

Much reliance may not be placed on the testimony of a first time expert, and conversely the fact that an expert has made presentations on many previous occasions does not guarantee that his testimony will be accepted in a subsequent case. The acceptance, or otherwise, of expert testimony is the prerogative of the court/judge and depends on whether the court/judge determines that the expert's opinion is helpful in adding clarity to the understanding of the case or not.

Legal Provisions

The Indian Evidence (Amendment) Bill, 2003³⁴  proposed by the Law Commission of India  in its 185^th Report  Part V has sought to expand the scope of Section 45 of The Indian Evidence Act, 1872 to include the term "technical terms" in the definition of expertise and also to introduce in a new Clause 45A which lists what the Expert’s report must contain. The Federal Court of Australia has issued a "Practice Direction: Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia^35" which lays down very clear guidelines for the conduct of the expert witness and also regarding the form and content of his evidence.  Others have also produced similar guidelines eg. “Guidelines For The Expert Witness"³⁶ by Judge Timothy T. Daley ,  "The Structural Engineer's Standard of Care"³⁷by Joshua B Kardon (which also is an excellent treatise on the ethical duties of structural engineers) and  The American Society of Civil Engineer's (ASCE) comprehensive "Guidelines for Forensic Engineering Practice 2003".

In summary, therefore, the duty of the forensic engineer as an expert witness is to lay before the court as clear an explanation as possible of the engineering background and facts and his analysis of the case, give his expert opinion on what might have caused the failure and answer all queries that may be raised by the court and/or the opposing party so that the presiding judge (or jury as the case may be) may in his (its) wisdom and judgement reach a verdict. The credibility, assurance and composure of the expert witness during (cross) examination will play a crucial role in whether his evidence/testimony will be accepted by the court.

Why Do Failures Occur?

Engineering failures and accidents occur all the time, but only some of them end up being called "disasters". So, what distinguishes a "disaster" from a mere "failure"? The dictionary defines a "disaster" as a "great and sudden misfortune; a complete failure". But it is common experience that some failures come to regarded as "disasters" and yet failures of similar scale in another setting do not. Prof. V Srinivasan, in a paper titled "Engineering Disasters and Learning from Failure"³⁸ gives the interesting explanation that this has much to do with public perception of risk. He states that "in 1992 roughly the same number of fatalities occurred (in the United States) in transportation accidents involving airplanes (775), trains (755), and bicycles (722). Yet the public perception of the risk associated with air travel is often much higher than that for trains and certainly for bicycles. This stems from two reasons: (1) the large loss of life (and associated wide spread news reporting) resulting from a single air crash, and (2) the air passenger's lack of control over their environment in the case of air or, to a lesser degree, rail accidents. Both of these reasons results in increased fear, and hence a higher degree of perceived risk."

Failures can occur for a very large variety of reasons, but invariably there are some that occur more frequently than others. A "failure" may mean a loss of function or performance (to varying degrees) and not necessarily a collapse. But broadly the primary causes of failures can be grouped essentially into the following five categories³⁸:

i)Human failures (including ethical failure, negligence and accidents)

ii)Design failures (many of which are the result of unethical practices)

iii)Material failures

iv)Extreme or unforeseen conditions or environments

v)Combinations of the above - eg. Construction Failure

Many researchers have carried out studies to find why failures occur and have attempted to classify them according to their reasons for occurrence. A study by the Swiss Federal Institute of Technology³⁹ which analysed 800 cases of structural failures in which 504 people were killed, 592 were injured and the damage was in several millions of dollars. When engineers were at fault the causes of failure were classified as under:

HUMAN FAILURES	%
Insufficient knowledge	36
Underestimation of influence	16
Ignorance, carelessness, negligence	14
Forgetfulness, error	13
Relying upon others without sufficient control	9
Objectively unknown situation	7
Imprecise definition of responsibilities	1
Choice of bad quality	1
Other	3

Dr. N Krishnamurthy has reported⁴⁰ that in "295 cases of damaged structures, the types of errors in design and planning were as follows:

Failures Due to Errors in Design/Planning	%
Conceptual errors	34
Structural analysis	34
Drawings and specifications	19
Work and planning and preparation	9
Combinations (of the above)	4

He also adds that in 723 cases of damaged structures, the damage-initiating influence was considered in the building process as follows:

Consideration of Damage Initiating Influence	%
No consideration	26
Incorrect consideration	26
Insufficient consideration	16
Considered but risk accepted	22
Consideration unknown	10

Table 1 below classifies the primary causes of failure, while Table 2 summarises the distribution of failures at different stages, according to different authors.

Table 1   Primary Causes of Failure⁴⁰

Table 2  Distribution Of Failures At Different Stages⁴⁰

Ethics In Professional Practice And The Social Responsibility Of Civil Engineers

Civil engineers design and build structures for people to use and live in. So they have a bounden duty to provide their professional services exercising due care to the best of their ability, ensuring the safety, health and welfare of the public and with honesty, impartiality and integrity. Their services must be consistent with the "standard of care" of their professions which means that it must be a " level of service that is ordinarily provided by other normally competent practitioners of good standing in that field, contemporaneously providing similar services in the same locality and under the same circumstances”³⁷. A popular, and not entirely inaccurate, definition of structural engineering, which is often quoted is "Structural engineering is the art of moulding materials we do not wholly understand into shapes we cannot precisely analyse so as to withstand forces we cannot properly assess in such a way that the public at large has no reason to suspect the extent of our ignorance."⁴¹

The civil engineer is neither infallible nor perfect, but has to provide services using the knowledge and training he has gained and the judgement born of experience. He is very often called upon to deal with very difficult situations which have unknown, or uncontrollable, conditions, and not covered in the Codes of Practice, where his judgement and experience will probably play a greater role with greater risks. The courts have recognised and allowed that there can be some fallibility and error that can occur in such circumstances. It is said that when you hire an engineer you ‘purchase service, not insurance' and so you are not justified in expecting perfection or infallibility, only ‘reasonable care and competence’.^{37 "}To err is human" is a well-known maxim, and that errors can, and do, occur is an accepted fact of life. So can an engineer be held liable for every error that occurs. The answer is "No". There is always a level of risk, accepted by society, in the level of services provided by an engineer, but what determines whether an engineer is liable for his errors is whether or not he has exercised  "reasonable care and competence"(also known as  "standard of care") And that is the crux of the matter: the engineer must exercise reasonable care and competence. It is when this is not exercised, or when the engineer compromises on his integrity and deliberately or negligently ignores or violates his professional duty and responsibility that he becomes professionally, and even criminally, liable. In all cases of engineering failure which are tried in the court, this is what is sought to be established to help decide who becomes liable to pay compensation. The judge hears the arguments of all parties in the case and then decides whether the defendant was negligent or not by determining whether or not he met required "standard of care".

In the United States, there is a standardised set of "Jury Instructions" governed by the "Bench Approved Jury Instruction" (BAJI 1986)⁴² which defines when negligence has occurred and reads as under⁴³ (emphasis added by author) :

• "In performing professional services for a client, a (structural engineer) has the duty to have that degree of learning and skill ordinarily possessed by reputable (structural engineers), practicing in the same or similar locality and under similar circumstances.

• It is (the structural engineer's) further duty to use the care and skill ordinarily used in like cases by reputable members of the (structural engineering) profession practicing in the same or similar locality under similar circumstances, and to use reasonable diligence and (the structural engineer's) best judgment in the exercise of professional skill and in the application of learning, in an effort to accomplish the purpose for which (the structural engineer) was employed.

• A failure to fulfil any such duty is negligence"

Engineering Ethics is, therefore, the application of moral principles to the practice of engineering. It is that set of rules and obligations which govern the conduct of engineers in their service to the society they live in, their clients and their profession. The field of engineering ethics came into being in the early twentieth century after a series of major structural failures, including some spectacular bridge failures eg. the  Ashtabula River Railroad Disaster (1876), the Tay Bridge Disaster (1879), the Quebec  Bridge Collapse (1907). These accidents forced the engineering profession (which had by then become an independent professional discipline) to introspect into their own failures in professional and ethical practice. Three out of the four founding engineering societies [ASCE(1851), AIEE(1884), ASMR(1880) and AIME(1871)]developed the first formal code of ethics and adopted them in 1912 and 1914. Only AIME (American Institute of Mining Engineers) did not adopt the code. 

Subsequently in the following decades of the last century almost all the professional societies and organisations in the world, including India, have adopted similar codes of ethics in their charters or operating principles, and several countries have incorporated them into their regulatory laws. They are all, by and large, quite similar in their fundamental aims and objects, and it is significant that all of them place great emphasis on the responsibility of the engineer to safeguard the public interest and the fundamental provisions of the codes of ethics adopted by the American Society of Civil Engineers (ASCE) and the Institution of Engineers (India) are given below as illustrations. However, the code of ethics is, after all, only a set of guidelines. It is the engineer’s responsibility to use his mature and sound judgement to interpret and apply the code to specific circumstances; in this consulting his peers and seniors would be most prudent.

ASCE Code of Ethics⁴⁴

Fundamental Principles

Engineers uphold and advance the integrity, honor and dignity of the engineering profession by:

1. using their knowledge and skill for the enhancement of human welfare and the environment;
2. being honest and impartial and serving with fidelity the public, their employers and clients;
3. striving to increase the competence and prestige of the engineering profession; and  
4. supporting the professional and technical societies of their disciplines.

Fundamental Canons

1. Engineers shall hold paramount the safety, health and welfare of the public and shall strive to comply with the principles of sustainable development³ in the performance of their professional duties.  
2. Engineers shall perform services only in areas of their competence.
3. Engineers shall issue public statements only in an objective and truthful manner.
4. Engineers shall act in professional matters for each employer or client as faithful agents or trustees, and shall avoid conflicts of interest.
5. Engineers shall build their professional reputation on the merit of their services and shall not compete unfairly with others.
6. Engineers shall act in such a manner as to uphold and enhance the honor, integrity, and dignity of the engineering profession and shall act with zero-tolerance for bribery, fraud, and corruption.
7. Engineers shall continue their professional development throughout their careers, and shall provide opportunities for the professional development of those engineers under their supervision.

Institution of Engineers (India) Code of Ethics⁴⁵

1. 1.0 Preamble
2. 1.1 The Corporate Members of The Institution of Engineers (India) are committed to promote and practice the profession of  engineering for the common good of the community bearing in mind the following concerns :
3. 1.1.1 Concern for ethical standard;
4. 1.1.2 Concern for social justice, social order and human rights;
5. 1.1.3 Concern for protection of the environment;
6. 1.1.4 Concern for sustainable development;
7. 1.1.5 Public safety and tranquillity.