A Consultant’s Duties With Regard To Landslide Risks Encountered In Development Projects

A Consultant’s Duties With Regard To Landslide Risks Encountered In Development Projects

Introduction

Landslide risks in development projects can vary tremendously in type and magnitude depending on the conditions on the site to be developed.

Slope stability analysis alone will not provide a sufficient safeguard against potential landslide risks on a development site as such analysis will usually account for circular slip type of slope failures, and will be of no or little predictive value where other type of slope failures may be relevant.

Landslide failure mechanisms are not easily predictable in advance by way of mathematical analysis.  Even where landslides have occurred there is often a dispute between experts on the mechanism involved.  Thus, rather than anticipating with some degree of precision how a landslide may occur when consultants propose and prepare designs for a development, it is far more fruitful for consultants to determine how to manage anticipated landslide risks when advising a client on any potential development that is to be carried out on a project site.

The present article seeks to briefly explain how consultants should deal with potential landslide risks on a project site as part of their legal duties to their clients and third parties during three key stages of the projects.  These three key stages are:

  • Firstly, the initial stage of a project when a consultant is asked to advise a client (or potential client) on the type of development that can be carried out on a project site;
  • Secondly, the design stage of a project; and
  • Thirdly, the construction stage of a project.

First Stage

A consultant who is formally engaged by a client to provide advice on the suitability of a site for development purposes will be legally responsible in contract to the client for any professional advice he gives to the client.

It is important to note that even if a consultant advises a potential client on the type of development that can safely be carried out on a project site in the absence of a contractual relationship between himself and the potential client, he can still come under a duty of care to the potential client if the law finds that as a professional he has assumed a responsibility for the advice he has given to the potential client.  It is also important to note that if there is a contract between the consultant and client, the consultant will owe the client concurrent obligations in contract and tort.  The only qualification is that the duty of care in tort to the client may be qualified by the terms of the consultant’s contract with the client.

The duty that a consultant will owe a client either in contract or tort when advising the client about the landslide risks posed by a site and the type of development that can be carried out on the site will involve the following considerations:

(i) identifying the landslide risks and hazards posed by the site to the proposed development that the client wishes to carry out;

(ii) the magnitude of the landslide risks and hazards during the construction stage and after the development is completed; and

(iii) advising the client whether the proposed development on the site should proceed or be modified in some way to mitigate the landslide risks and hazards involved.

At this initial stage of the development, it may be important for the consultant to involve the client (or potential client) as well as relevant government and statutory agencies and the relevant local authority in helping to evaluate the magnitude of a landslide risk posed by an intended project site.  This is important: if a consultant recommends to a client a type of development that can be carried out on the project site after assessing the landslide hazards posed by the site without adequately consulting the client or the relevant government and statutory agencies and the client proceeds to accept the consultant’s recommendation without qualification, then there is a risk that the consultant may be liable to the client for any financial loss incurred by the client if the client commissions design work based on the recommendation and then discovers that the relevant government and statutory agencies will not approve the designs because they do not make adequate provision against the landslide risks posed by the site.

If the views of the client and the relevant government and statutory agencies on how to deal with the landslide risks posed by the project site are properly considered by the consultant at the time he makes his recommendation on the type of development that can be carried out on the project site, it would be difficult to accuse him of failing to take into account the views of any relevant party on how the landslide risks should be dealt with when designs based on his recommendation are prepared.

Second Stage

The duty of a consultant during the design phase of a development will principally involve a duty to prepare designs for the works that will form part of the development, a duty to determine the costs of the development and a duty to advise the client on the selection of contractors and other professionals or consultants for the purpose of carrying out the development.  The duty to design will involve:

(i) A duty to use reasonable care and skill when preparing the design. In the present context, the design must sufficiently address the landslide risks and hazards identified in the hazard identification stage of the analysis that the consultant has determined must be addressed if the development is to proceed.  In this regard, it is important that the design must be both buildable and supervisable by reasonably competent builders and supervisors without exposing them to undue risk of injury from the identified landslide risks and hazards;

(ii) A duty to advise the client, if necessary, that a specialist must be involved in carrying out part of the design to adequately address the landslide risks and hazards identified earlier;

(iii) Where a novel design is to be used to address the landslide risks and hazards identified in the hazard identification stage, the design must have a rational basis;

(iv) If the designer is to coordinate the preparation of the design with other consultants, then he must ensure during the course of the coordination exercise that the landslide risks and hazards are also adequately addressed by these other consultants, where relevant; and

(v) A duty to ensure that the design chosen strikes a reasonable balance between cost effectiveness and safety.

The consultant who advises the client on the appointment of a contractor to carry out the development must ensure that he takes reasonable care to advise the client to appoint a contractor who can deal with the identified landslide risks and hazards.

Third Stage

The consultant who is engaged to supervise construction works must ensure that critical aspects of the works that may be affected by the identified landslide risks and hazards are adequately supervised by competent persons.  In this context, the buildability and supervisability of a design become important.  The greater the complexity of a design, or the more difficult its buildability, the more onerous the obligation to supervise the works will become.

The consultant designer must also continually review his design before it is incorporated as part of the works to ensure that the design will not pose any risk as a result of the identified landslide risks and hazards in the course of its implementation or after it is implemented.

There is in general no duty on a consultant to review his design once it is incorporated as part of the works, subject to one important exception.  If the design as implemented as part of the works shows signs that it is inadequate while the works are being carried out, the consultant must review his design and advise his client on remedial action. It must be stressed here that although there is no general duty on the part of a consultant to review his design once it is incorporated as part of the works, overall responsibility for his design will still rest on him. Therefore, if the design fails once the works are completed, he can be held legally responsible for this failure of his design.

A consultant who has undertaken the duty to coordinate the designs prepared by other consultants must also take reasonable care to ensure that these consultants carry out their respective design review obligations when incorporating their respective designs as part of the works.  The coordinating consultant must also ensure that these consultants review their designs, if necessary, up to the point these designs are incorporated as part of the works.  The coordinating consultant must also take reasonable measures to ensure that these consultants review their designs once these designs are incorporated as part of the works if the designs as implemented show that the landslide risks and hazards are not adequately addressed by these designs.

Liability Of The Consultant To His Client And Third Parties

In the event a consultant breaches any of his duties described above, he could be liable to his client in tort for:

  • Any pure economic loss sustained by the client if the law concludes that the consultant has assumed a responsibility to the client to prevent such loss;
  • Any loss caused to the client’s property other than the works designed by the consultant;
  • Any losses suffered by the client as a result of having to pay damages to third parties for damage to their property or personal injury on account of the consultant’s breach of duty.

The consultant’s liability in contract to his client for any breach of his duties will include liability in respect of all the matters set out in the preceding paragraph, subject to any limitations on his liability set out in his contract.

The consultant can be directly liable to third parties for any damage to their property or personal injury resulting from a breach of his duties.

Standard Of Care

When carrying out each of his duties described above, the consultant must exercise reasonable care.  What is reasonable care will depend on what the law expects a reasonably competent consultant to do in the circumstances of a particular case.

There is one aspect of the standard of care that is important to discuss here.  This is the fact that the law does not expect a reasonable person to guard against all possible risks of harm.  The law requires a reasonable person to balance a number of factors when deciding whether precautions should be taken against a particular risk:

(i) Firstly, a reasonable person must consider the magnitude of a risk;

(ii) Secondly, the social utility of the objective to be achieved may be an important factor in determining the standard of care;

(iii) Thirdly, the cost of a precaution when carrying out a socially useful activity may be a factor that is relevant when determining the standard of care.

The standard of care in any scenario will primarily depend on the magnitude of a risk to be guarded against.  The magnitude of a risk has two components: firstly, the seriousness of the injury or damage that will be caused if the risk does cause harm; and secondly, the likelihood that the risk will cause personal injury or damage to property. In the case where landslide risks are concerned, a consideration of the magnitude of the risk will involve considering the likelihood of a landslide occurring, and if it does occur, the seriousness of the consequences to human life and property.

For example, if the probability of a landslide occurring on a project site is considerable and will have serious consequences to human life and property in the event it does occur, the magnitude of the risk is considerable. The magnitude of the risk may be so high that no development can be carried out on the project site.

Conversely, if a landslide on a project site is unlikely to occur and will have no or little impact on human life or property in the unlikely event it occurs, then the magnitude of risk is minimal.

In most cases, the magnitude of risk will lie somewhere between the extremes suggested by the two examples set out in the preceding paragraphs. A consultant engaged to advise his employer on a project would be well advised to use his knowledge and experience as well as the collective knowledge and experience of other consultants working on the project, government agencies and the employer to determine where on the scale between the two extremes the magnitude of landslide risks for the project lies.

Conclusion

It is an uncomfortable fact that when injury, death or damage to property results from a landslide, society looks for a scapegoat.  In most such instances, a design or supervising consultant will find himself in the line of fire and will have to defend himself against claims that he failed to fulfil his design or supervision responsibilities.  The best way for a consultant to protect himself against such liability is to show that he has properly assessed the landslide risks in a development project during each of the three stages discussed in this article and has adopted an appropriate standard of care during each of these stages to deal with these landslide risks. It is my respectful view that a consultant can only be blamed for a landslide if he cannot show that he properly managed the landslide risks that could be reasonably anticipated to exist on a project site.  He should not be held liable simply because he could not predict the occurrence of a landslide as the occurrence and mechanisms of landslides are often unpredictable.

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By Yatiswara Ramachandran (view profile)
Partner , Azman Davidson & Co (Construction, Arbitration, Administrative, Contract, Tort Law, Real Estate & Property, General Litigation)
+603 2164 0200 (ext no. 170)
yatis.ramachandran@azmandavidson.com.my

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