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As predicted by Powel (2000) claims for professional negligence are very common and their frequency is increasing due to the increasing demand for professionals’ services, specialisation, higher standards, intolerance of poor performance by societies and the increasing litigious nature of business.
The increasing expectations of the society are reflected in the changing attitude of the authorities and courts towards professionals when things go wrong. The changing attitude is fuelled by the unprecedented media coverage of failures of structures with human and environmental losses. This is particularly relevant to the tailings industry, which is marked by the recent dam failures in Canada, Brazil, Mexico, China, Australia and India.
The far reaching expectations for duty of care of professionals has been strikingly illustrated from the fallouts from recent major and widely publicised TSF failures such as Mt Polley (three consultant engineers accused of unprofessional conduct), the 2015 Samarco failure (22 individuals charged with various criminal offences including homicide) and the recent Brumadinho failure (charges of false representation have also been brought against the consultant engineers).
This paper examines the responsibilities and duties of engineers operating in the tailings industry with respect to the professionals’ duty of care and the consequences of breaching those responsibilities and duties. This paper also discusses the potential conflicting interests of consulting engineers and proposes that engineers are, in the vast majority, ill-prepared for navigating the changing waters of professional negligence.
The authors of this paper believe that a better understanding of the professional duty of care could reduce the number of claims for professional negligence. As a corollary, the reduced rate of professional negligence could result into fewer tailings failures in the future.
Professional industry bodies such as Engineers Australia should act to clarify the legal obligations and duties of engineers, as they are the best placed institutions to do so for the whole industry. In addition, consideration should be given to inclusion of a discussion of the aforementioned obligations and duties into relevant ANCOLD Guidelines.