PEPC Question 1

Question

PEPC A was appointed, as consultant, in a project under a conventional contract. After all the design part is completed, the project is tendered out to find a suitable contractor.

A contractor was selected (let say Contractor B). Contractor B then brings PEPC C and he offers to the Client an alternative design, which will be cheaper and faster to construct.

The Client was happy with the proposal and "force" PEPC A to adopt it for submission to Local Authority.

Upon checking the alternative design, PEPC A refuses to adopt the alternative design due to safety issues, but the Client still insists.

A) If you are PEPC A in this situation? What will you do?

B) Then the design failed (let say the structure collapsed), who will be responsible in this situation?

C) The Client sue you (PEPC A) and PEPC C as design negligence, what is your approach in this situation?

D) As for PEPC C, what will be the damages that need to be paid to the Client if the Client wins the case?

___________________>_<_______________

Model answer based on the Malaysian legal and professional engineering framework, including the Registration of Engineers Act 1967 (Revised 2015), Registration of Engineers Regulations 1990, BEM Code of Professional Conduct, Engineers Act, CIDB Act 520, Street, Drainage and Building Act 1974 (Act 133), Uniform Building By-Laws (UBBL) 1984, and accepted engineering practice.

A) Question PEPC in this situation, what will you do?

As PEPC A, my primary duty is to protect public safety, not merely to satisfy the Client.

Step 1 – Conduct Independent Technical Review

Review the alternative design against:

Malaysian Standards (MS)

Eurocodes / British Standards (if adopted)

Relevant Design Codes

Client specifications

Contract requirements

Local Authority submission requirements

Document every non-compliance.

Step 2 – Advise the Client in Writing

Issue a formal letter stating:

the proposed design is technically unsafe;

the engineering reasons;

potential risks;

possible legal consequences.

Everything must be documented.

Step 3 – Refuse to Endorse

A Professional Engineer must never sign drawings that he does not believe are safe.

This is required under:

Registration of Engineers Act 1967

BEM Code of Professional Conduct

Professional Engineer's ethical obligations

Signing unsafe drawings could amount to professional misconduct.

Step 4 – Request PEPC C to Take Full Design Responsibility

If the Client insists on using PEPC C's design:

PEPC C should become the Design Engineer.

PEPC C must:

produce calculations,

sign drawings,

submit to authority,

assume professional responsibility.

PEPC A should not merely "rubber stamp" another engineer's work.

Step 5 – Withdraw if Necessary

If the Client continues forcing PEPC A to sign:

PEPC A should:

decline the appointment,

notify the Client in writing,

keep complete records.

Professional integrity is more important than retaining the project.

B) If the structure collapses, who is responsible?

Responsibility depends on who designed, endorsed and approved the design.

Possible parties include:

1. PEPC C

If PEPC C:

prepared the design,

performed calculations,

recommended the design,

he may be professionally liable.

2. PEPC A

If PEPC A refused to sign and documented his objections,

he is unlikely to be responsible.

However,

if PEPC A eventually signs despite knowing it is unsafe,

he may become jointly liable.

3. Contractor B

Contractor B may be liable if:

poor workmanship,

deviations from drawings,

use of inferior materials,

construction negligence.

4. Client

If evidence shows the Client knowingly forced adoption of an unsafe design,

the Client may share liability through contributory negligence.

5. Local Authority

Generally Local Authorities are not responsible merely because plans were approved.

Approval does not transfer engineering responsibility.

C) The Client sues PEPC A and PEPC C for design negligence. What is your approach?

PEPC A's Defence

Produce documentary evidence:

original design;

review comments;

calculations;

emails;

warning letters;

meeting minutes;

refusal letters.

Show that:

PEPC A identified safety concerns;

advised against adoption;

refused endorsement.

This demonstrates compliance with professional duty.

PEPC C's Position

The Court will examine:

calculations;

compliance with codes;

engineering judgement;

peer reviews;

whether reasonable skill and care were exercised.

Expert Witnesses

Engineering experts will assess:

whether the design complied with accepted engineering practice;

whether negligence occurred;

whether failure resulted from:

design,

construction,

maintenance,

misuse.

Professional Indemnity Insurance

Professional Indemnity (PI) insurance may respond, subject to policy terms.

However,

deliberate misconduct or fraudulent conduct is generally not covered.

D) What damages may PEPC C need to pay if the Client wins?

Possible damages include:

1. Cost of Reconstruction

demolition

redesign

reconstruction

2. Rectification Costs

Repair costs necessary to restore the structure.

3. Consequential Losses

Where legally recoverable:

project delay;

additional financing costs;

relocation costs;

business interruption.

4. Third-Party Claims

If people are injured or property damaged:

compensation;

medical expenses;

property damage;

fatal accident claims.

5. Professional Negligence Damages

The Court may award damages based on losses directly caused by negligent design.

6. Legal Costs

The unsuccessful party is commonly ordered to pay a substantial portion of the successful party's legal costs, subject to the Court's discretion.

7. Disciplinary Action by BEM

Apart from civil liability, PEPC C may face disciplinary proceedings by the Board of Engineers Malaysia (BEM), including:

reprimand,

fines (where applicable),

suspension,

cancellation of registration.

Relevant Malaysian Laws, Regulations and Codes

1. Registration of Engineers Act 1967 (Revised 2015) (Act 138).

2. Registration of Engineers Regulations 1990.

3. Board of Engineers Malaysia (BEM) Code of Professional Conduct, which requires engineers to hold paramount the safety, health and welfare of the public.

4. Street, Drainage and Building Act 1974 (Act 133).

5. Uniform Building By-Laws 1984 (UBBL).

6. Construction Industry Development Board Act 1994 (Act 520).

7. Applicable Malaysian Standards (MS) and adopted Eurocodes/British Standards, depending on the project.

8. The terms and allocation of responsibility under the applicable construction contract (e.g. PAM, PWD/JKR, FIDIC or other agreed form).

Conclusion

Under Malaysian law and professional ethics, public safety overrides client instructions. A Professional Engineer should never endorse or submit a design that they reasonably believe is unsafe. If an alternative design is proposed, the engineer who prepares and endorses that design should assume full professional responsibility. Thorough documentation, written advice, and adherence to statutory and ethical obligations are the strongest protection against allegations of professional negligence.