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Laws in

Forensic

PM DR AMINAH MD YUSOF
Course LEARNING outcome

– Apply legal ethic and legal standards in construction practice


(PROJECT & Final)
– Integrate advance knowledge on legal matters in the construction
practice (Homework, Test and Final)
– Analyse and evaluate problems related legal disputes in
construction practice .(Project and Presentation)
PURPOSE ..

– UNDERSTAND THE PROBLEMS/NATURE OF THE PROBLEMS


– INVESTIGATING THE ROOT OF THE PROBLEMS
– KNOW THE CONSEQUENCES OF THE PROBLEM
– KNOW THE LEGAL IMPACT CAUSED BY THE PROBLEM – THE
IMPACT OF VARIOUS PARTIES
Content..
Part 1 Part 2
• Introduction to Laws in Construction 12/2/2019 • Global forensic practice 10/4/2019
• Introduction to Tort • Construction, forensic and laws in Malaysia
• Significance of laws in Forensic • Construction Failures 17/4/2019
Engineering • deficient design,
• Negligence – Introduction 19/2/2019 • Inadequate workmanship defective
• Negligence - Elements materials
• Negligence in Construction 26/2/2019 • Expert Evidence 17/4/2019
• Professional Negligence • Expert witness – types and duties
• Professional Negligence in Construction 5/3/2019 • Burden and standard of proof
• An introduction to Statutory Liability in • Dos and Don’ts of an Engineering
Construction Statutes Related to 12/3/2019 Expert
Construction Practice • Expert’s report 24/4/2019
• Common Issues Related to Breach • Forensic Problem Based Exercise 2 8/5/2019
of Statutory Liabilities
• Disputes in Construction
• Litigation and Arbitration 19/3/2019
• Problem Based Exercise (PBE) 1 26/3/2019
• Assessment of PBE 1 3/4/2019
Forensic Engineering: The Integration of
Engineering Analysis and Law into a Specialized
Profession
– Historically, attorneys would call upon an engineer whom they believed had
technical knowledge on specific issues, while frequently overlooking the
consequences of the engineer's limited "legal" experience.
– Today however, attorneys who use engineers in litigation (which in reality still
make up a very small percentage of the attorney population) have become
increasingly aware of the importance of the engineer's prior testifying
experience.
– It is nearly imperative that a prospective attorney-client will ask, "How many
times have you testified?" before proceeding into the details of a specific case.
– The forensic engineer plays a key role in marshalling the evidence, both the real evidence – such as
failed products – and the often voluminous documentary evidence. For instance, if a product fails,
there will normally be in-house documents from the manufacturer relating to quality control. Such
documents are usually ‘discovered’ well before trial, and in technical cases may include the
following.
– Maps, plans, and engineering drawings.
– Quality control records.
– Testing records.
– Models and prototypes.
– Specifications and standards.
– Such documents assume great importance as a trial approaches, because they help to flesh out the
background as well as providing key details about the product in question. Where a claimant has suffered
loss or injury from a product failure, he or she does not have the information about the way the product was
made, or the way its quality was checked after manufacture.
– The claimant will often have an expert report on the failure, however, which will point to areas that show
how the defect could have arisen or how it slipped through quality control procedures. The expert performs
a valuable role here, by pointing out what ‘discovery’ should be made to clarify why something failed.
UNDERSTANDING..
– Forensic engineering has been defined as "the investigation of failures - ranging from
serviceability to catastrophic - which may lead to legal activity, including both civil and
criminal".[1] It therefore includes the investigation of materials, products, structures or
components that fail or do not operate or function as intended, causing personal injury,
damage to property or economic loss. The consequences of failure may give rise to action
under either criminal or civil law including but not limited to health and safety legislation, the
laws of contract and/or product liability and the laws of tort. The field also deals with retracing
processes and procedures leading to accidents in operation of vehicles or machinery. Generally,
the purpose of a forensic engineering investigation is to locate cause or causes of failure with a
view to improve performance or life of a component, or to assist a court in determining the
facts of an accident. It can also involve investigation of intellectual property claims,
especially patents.
– Forensic engineering projects often lead to litigation as parties try to avoid being liable for
damages when confronted with technical allegations. An engineering expert witness may
prepare a forensic engineering expert report after he or she completes an investigation. This
report may be shared with interested parties after its completion.

Purpose of a Forensic Engineering Report
– The main purpose of a forensic engineering report is to provide defensible conclusions that
address technical concerns. The report should be made in clear language so that the interested
parties who review it are not confused as to the findings or the basis of these findings.
Interested parties may include other technical experts, non-technical parties or jury members,
in some cases. If presented in a trial, the report may be analyzed by the plaintiff, defendant and
jury. Therefore, the report must be thorough and provide clear information that parties can
review after the expert witness testifies.
Sources of civil engineering disputes
– (1) quality problems;
– (2) security problems and quality accidents, e.g., structural collapse;
– (3) construction cost problems, e.g., inaccurate survey of the bill of quantities.
– Quality problems surface when a product does not conform to design expectations or when it can not meet a client’s
needs. In most cases, they may generate during design, execution, use and maintenance; on the other hand, their causes
can be of wide variety, such as:
(1) design flaws;
(2) improper use of materials or deficient materials, e.g., concrete strength deficiency;
(3) improper construction or defective workmanship;
(4) adverse/severe environment, e.g., extreme weather, freeze and thaw, marine denudation;
(5) improper use and maintenance, e.g., irrational alteration of usage. Security problems and quality accidents, in this paper,
mean structural failures which bring about unacceptable damage, injuries, or a loss of life.
– Since quality/security problems may conceive and germinate during the whole life cycle of a civil engineering
work, the subjects involved in the underlying disputes can be anyone of the stakeholders associated with the
work. In rare cases, the subjects may include government, or a third party who has no contractual relation with
the owner of the project/work. For instance, suppose that dewatering in deep excavation causes settlement of
surrounding soils and further a serious crack of an adjacent building. Under the circumstances, the owner of the
adjacent building may turn out to be a subject of the resultant dispute.
Forensic construction

– is then the application of science to decide questions arising from legal


disputes over the way in which structures such as: a house, road, or bridge has
been built; especially with regard to the type and quality of the structure,
materials, and workmanship.
– It may more broadly apply to the preparation of evidence by experts in
construction technology and practice in any form of formal dispute resolution.
– Usually this involves the formulation of expert evidence in litigation, arbitration
and adjudication and to giving written or oral expert testimony to the tribunal
or court.
Branches of law in Malaysia

Constitutional
Public
& Criminal

International Public vs
Laws
Private

Tort, Contract
Private
& Trust
INTERFACE OF THE LAW WITH
THE CONSTRUCTION INDUSTRY
– THE TYPICAL PARTIES

 CONTRACTORS/SUBCONTRACTOR
 ARCHITECT/ENGINEER
 CONSTRUCTION OWNERS(CLIENT)
 SERVICE AND SUPPLY ORGANISATION
 LABOUR FORCE
 LOCAL, STATE & FEDERAL AUTHORITY
 GENERAL PUBLIC
Laws in construction
– Realizing dream through drawings
– The reality about construction
– Nature of job
– Nature of product
– Process and procedure
– Nature of involvement-relationship
– Interaction with environment
NATURE OF INVOLVEMENT

– THE TYPICAL PARTIES


 CONTRACTORS/SUBCONTRACTOR
 ARCHITECT/ENGINEER
 CONSTRUCTION OWNERS(CLIENT)
 SERVICE AND SUPPLY ORGANISATION
 LABOUR FORCE
 LOCAL, STATE & FEDERAL
AUTHORITY
 GENERAL PUBLIC
Liability(ies) in law..

STATUTORY
– TORT LIABILITY – NOT LIMITED TO THE CONTRACT
PROVISION (Acts etc)
– INTENTIONALLY OR UNINTENTIONALLY

– CONTRACT LIABILITY
– EXPRESS CONTRACT PROVISION
– IMPLIED CONTRACT PROVISION
LIABILITY
– STATUTORY LIABILITY

– STRICT LIABILITY TORTIOUS CONTRACTUAL


Tortious
Liability
What is Tort? Why?
– WRONGFUL ACTS/OMISSIONS
– CIVIL WRONG INDEPENDENT OF CONTRACT
– LIABILITY ARISING FROM A BREACH OF LEGAL DUTY OWED TO
PERSON GENERALLY
– BREACH OF A DUTY PRIMARILY FIXED BY LAW
– ITS BREACH IS REDRESSIBLE BY AN ACTION FOR UNLIQUIDATED
DAMAGES
– REDRESS OF WRONGS OR INJURIES BY MEANS OF CIVIL ACTIONS
– REDRESS MAY TAKE IN THE FORM OF DAMAGES (MONETARY)
– TO SHARE THE BURDEN OF VICTIM’S LOSS
– COMPENSATION TO TEACH WRONGDOER TO BE CAREFUL AND
RESPONSIBLE IN FUTURE
Scope of Tort..
– Trespass
– Person (assault, battery and false imprisonment)
– Goods
– Land
– Negligence
– Ordinary?
– Professional
– Nuisance
– ISSUE – How to establish each?
TRESPASS ..
TRESPASS TO
PERSON
ASSAULT, BATTERY &
FALSE IMPRISONMENT
INTERFERENCE
ELEMENTS WITH GOODS
•A +VE ACT
TRESPASS,
•A DIRECT ACT OF CONVERSION &
THE DEF DETINUE
•ACTIONABLE PER SE

TRESPASS
TO LAND
INTEREFERENCE WITH GOODS

•MENTAL STATE OF
CONVERSION- DEALING DEFENDANT
WITH GOODS IN A MANNER •INTERFERENCE MUST
INCONSISTENT WITH THE AMOUNT TO A DENIAL
RIGHT OF TRUE OWNER OR A DEPRIVATION OF
THE OWNERS’ RIGHT
•INTERFERENCE OR
INCONSISTENT DEALING
TRESPASS TO GOODS
•A WRONGFUL AND DIRECT
INTERFERENCE WITH GOODS -TAKING POSSESSION
THAT ARE IN THE POSSESSION -ABUSING POSSESSION
OF ANOTHER

DETINUE –ILLEGAL
POSSESSION OF
•MENTAL STATE OF
DEFENDANT GOODS DUE
•INTERFERENCE WITHDRAWAL
CONSENT

•DEMAND & REFUSAL


•IMMEDIATE RIGHT
TO POSSESS
REMAINING ON ENTERING OR
THE PLACING AN
PLAINTIFF’S OBJECT ON THE
LAND PLAINTIFF’S
LAND

ENTERING
WITHOUT
INTERFERENCE PERMISSION
TO AIRSPACE /WRONGLY
ENTERED

Trespass to land
Thank you…