What is a Forensic Engineer? This is a question I get asked a lot – even by my family!
In essence, a Forensic Engineer investigates the cause of a failure (system or physical), which has caused an insurable loss (personal injury, property damage etc), and gives fair and objective advice and evidence thereon. Generally, Forensic Engineers are employed either by a Solicitor or an Insurance Company to inspect the circumstances of an accident which has led to a Personal Injury Claim. Regardless of who has instructed the Forensic Engineer, we are primarily servants of the Court, with a duty it is to assist the Court in its deliberations.
Traditional or Neutral Forensic Engineers?
When instructed, the Forensic Engineer will attend the locus of the incident or accident wherein it is claimed the loss occurred, to establish what may have caused it. Oftentimes, there will be more than one Forensic Engineer at this inspection – one for each party involved (the Claimant, the Insured, third parties). The inspection is reported upon, with the experts having developed an opinion on the cause of the incident. When reports are issued by expert witnesses, these can be used in court later, and are therefore disclosable, which means that they will be shared with other parties (High Court Rules). Eventually, the experts may be called to court (if the claim is not settled beforehand) to give their evidence. This is what I consider Traditional Forensic Engineering – the adversarial services of 2 or more experts, acting for the courts firstly, and for their clients.
I find, however, that it can often be beneficial to have a Forensic Engineer assess the circumstances of an accident, without the need for the full adversarial process. Consider, for example, a small business in which a customer slips. The business owners will be nervous that this incident may result in a claim, and will let their insurers know of the incident. Rather than waiting to be informed of this claim, I find it can be beneficial to, at this early stage, call in the expertise of a Forensic Engineer, who can assess the circumstances of the accident, and advise on her expert opinion on likely liability, should the injured party make a claim. Sometimes, it is worth knowing early, if there was a problem with a system or premises, which caused the accident, and that – should a claim arise – whether there is a case for defending it. Any expert opinion reports submitted before the claim is made, need not be disclosed if the claim is later defended in court. Because, in this advisory capacity, a Neutral Forensic Engineer’s duty is primarily to her client. Even if a claim does not arise, we could be in a position to review the cause of the incident to avoid it happening again. This is, I feel, the value in the Neutral,or unbiased, Forensic Engineer.
What to expect from a Forensic Engineering Inspection
Both types of Forensic Engineering services involve the same investigative process:-
- Assessment of the physical and technical characteristics of the issue
- Photographing and/or sketching of locus
- Testing (for example slip testing, force testing, technical measurements, decibel/lumen levels etc)
- Consideration of relevant technical publications, guidance, statutory provisions, best practice and other references.
- Submission of expert opinion, including technical matters.
What to expect when a Forensic Engineering Inspection is scheduled on your premises:
- The purpose of any Forensic Engineering inspection is to establish the facts of the incident.
- The location, equipment and other materials relevant to the incident will be addressed.
- The circumstances of the incident will be described
- Questions/clarifications on the circumstances and procedures relevant to the incident may be raised by the inspecting Engineer(s).
- The inspection is confined to the location, equipment and materials identified as relevant.
Why Might a Forensic Engineering Inspection be Required
The most common types of liability claim for which this Forensic Engineer is instructed are:
- Employers Liability – this can be anything from repetitive strain injury, musculoskeletal strain, lifting, stress, occupational asthma, limb entrapment, slips, trips and falls, and many other injuries. Employers have a duty of care towards the health, safety and welfare of all employees (not only direct employees, but anyone on the wageroll including contractors), and where this duty has not been met, and an injury occurs, the employer will likely be found liable. It is the duty of the Forensic Engineer, therefore, to investigate whether employees have been provided with safe and healthy working conditions and environments, as provided for by the Safety, Health and Welfare at Work Act 2005, the Factories Act 1955, and The Organisation of Working Time Act 1997. It is important to note that this includes employees not working on the employers premises (home workers are of particular concern for this Forensic Engineer at the time of writing this article).
- Public Liability – similar range of injuries as with Employers Liability, but for members of the public. The duty here is towards any visitors, users, guests and trespassers.
Complying with your obligations, documenting that you have done so, and training your staff, ensuring that there is a continued environment of safety awareness in the workplace, are the best ways to defend negligence claims against your business.
Having the business inspected by a Risk Surveyor is the best way to prevent claims in the first place.