Legal Research and Argument to Begin the Case Study
Excerpt from Case Study :
Legal Research and Argument
To begin the research for this case and the argument that follows, one must first examine the case and determine what is essential. It is assumed that the engineer was negligent because he should have known about the circular which advised that further structural support would be required for the type of building he was constructing. It is not enough to rely upon 20 years-worth of experience in the field because situations change which may negate all of that experience. Thus, this does not seem to be a legitimate argument for the engineer. It could be argued that the engineer was not made aware of the circular and that this was not his negligence but the persons who filed the document before he had seen it. Unfortunately, this would seem to be immaterial because it is the engineer's responsibility to stay abreast of important changes within the industry and not that of anyone else. The fact that he had not heard of the contents of the circular in a six-month time span is curious for someone who is well-regarded in his field. Thus, it would be difficult for the engineer to find legitimate excuse for his actions.
Two other facets of the case remain. First, how is the building owner to be compensated for this mistake. Since the engineer performed the work in good faith with the knowledge he had, it could be said that it is not the incompetence of the engineer that cause the issue so the entire cost resides with the owner. However, this argument has already been refuted. Most likely it will be found that the owner of the unfortunate building should be completely compensated for the cost of reconstructing the building. Since the current building is completely unusable and another could be constructed on the same site if better structural support were used, it seems that the owner should be allowed to have the correctly constructed building built at the site if that is his wish. And, all of the additional cost should be incurred by the engineer. The second issue here regards the compensation. The fact that land has dropped in value should not affect the cost of constructing a new building and it has already been stated what the new building will cost to build.
The job of the advisor in this case is to examine legal precedent and determine what the outcome of the case will be, based on precedent, and discuss that with the client. This will be based on current law and the particulars of this case. The research will take into account the three separate items listed above as pertinent to the case.
This is the main thrust of the case. From former case law, it does not matter that the engineer was doing the original work as a favor for a friend and he reduced the rate of his services (Brickhill v Cooke, 1984). The fact that the two parties had a contract for the first building is what is important to the case. The engineer agreed to do the work for a lower price because he was being nice to his friend, but the friend would still have expected that the work would have been done to a standard that allowed him to conduct business on the premises. Thus, the court cannot take into account that the work was done for a lower price than it normally would have because the two were friends.
The primary problem here is the relative incompetence of the engineer, and there is precedent in Australian courts and legislation that addresses this issue. In an article written by construction lawyer Chris Lenz (2012), he states "Construction lawyers and their plaintiff clients are confronted with having to identify the likely cause or causes of construction defects." Therefore the onus of determining the cause of the issue is with the lawyer and complainant. In this particular case all that the lawyer and plaintiff have to do is refer to the circular which was discussed in the case study. The circular apparently reported to all personnel who would be engaged in a certain type of construction needed more structural support. The case says that the building was unique which probably means that it was a type that Charles, the engineer, had not constructed before. Because of this, he should have paid even more
attention to any new knowledge that could be gained before he took on the job. This would show him to be incompetent in this particular matter.
Whether the defendant had previously been the project manager on other sites that were successfully completed also does not matter. Because this was a unique construction undertaking, the engineer should have aware of the need to search recent documents which would give him a better understanding of the project he was undertaking. The fact that such a document actually existed in his office is problematic. It shows that the engineer did no prior research but, as the case suggests, relied solely on the knowledge he had acquired while doing previous jobs. The fact that this construction was "unique" did not seem to carry any weight with his decision to gain more knowledge as to the construction of the building in question.
The building that the engineer designed failed. The case states that workers were not able to safely use it, so the building is condemned. The fact that the building is unsafe to use, even though it is a new building and it was designed and constructed by an engineer who had a "sound reputation," suggests that the engineer was incompetent and culpable in this instance.
Another issue for the engineer is that it precedent already exists for this type of accident. In Carosella v Ginos & Gilbert (1981), the engineer of a project was held liable for not keeping his knowledge up-to-date. The key here is that the particular piece of knowledge, the circular, that would have upgraded the engineer's knowledge sufficiently to design and construct the project in a safe manner, had been sent to his office six months prior to the start of the project in question. This demonstrates that the engineer did not work to keep his knowledge current, and that was one of the major causes of the building's failure. According to Carosella v Ginos & Gilbert (1981), the engineer can then be held liable for the damage to the building caused by his negligence.
The owner of the building acted in good faith because he had some knowledge of his friend's standing as an engineer, and he expected Charles to act in the best practices of his profession. Since the owner was in no way culpable for the failure of the building, he will be compensated in full for the failure of the building. In NJF Holdings Pty Ltd. v De Pasquale Bros Pty Ltd., the judge found that "The loss is economic where damage consists of a defect in the structure itself arising from inadequate design or building so that the value of the structure is diminished and it may require remediation." This, and other precedents, can be drawn from to demonstrate that because the engineer designed the building and did not do his due diligence in making sure that the building would perform as intended, the engineer is fully culpable and needs to make restitution for the building.
The main question that the owner is asking is how much will he be compensated. The case states several facts that need to be examined using established case law. The first of those is that it will ostensibly cost the owner a million dollars to rebuild the structure to a usable condition. It can be assumed that none of the original building can be saved, so the construction must be from the ground up. The case also says that someone is willing to pay the owner $100,000 for the site and the building (probably for salvage) and that the owner can spend just $600,000 if he moves his building plans to another site. The lawyers for the engineer may say then that the owner of the building can be adequately compensated for $500,000 rather than the million. This is not the case.
Hadley v Baxendale (1854) is one of the oldest known cases that deals with the issue of compensation for a wounded party. As a matter of fact, it is considered foundational law. In this case Hadley sued Baxendale because the latter did not fulfill a contract and apparently caused 300 pounds of lost business to Hadley. The court gave Hadley 25 pounds because the court ruled that "the damages were those fairly and reasonably considered to have arisen naturally from the breach itself." This reasoning could be used in the case between Barry and Charles.
The problem here is the amount of damages caused by the breach. It is reasonable for Barry to expect that he would be…
Sources Used in Documents:
Brickhill v Cooke (1984) 3 NSAWLR 396.
Carosella v Ginos & Gilbert Pty Ltd. (1981) 27 SASR 515.
Hadley v. Baxendale, (1854) 9 Exch. 341, 156 Eng. Rep. 145.
Lenz, C. (2012). Guide to identification of construction defects. Retrieved from http://www.lenzmoreton.com.au/news.php?id=384&cat=general&lenz=41441761 925f2aa1e28a17500c9c2cd4
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