Waterworks

Following the tragedy in Walkerton, Ontario, the crisis in North Battleford, Saskatchewan and many other recent incidents of contamination and boil water orders across the country, attention has focused on water supply. The tainting of public and private water supplies through the introduction of biological and other agents in quantities that are harmful to humans has made the public come to realize that clean drinking water in Canada cannot be taken for granted.

Where contamination of the public water supply occurs and personal injury or death ensues, legal actions will undoubtedly follow. The Walkerton disaster, for example, has spawned a class action lawsuit, framed in legal actions of negligence, strict liability, and even breach of fiduciary duty and breach of contract. This one claim alone, alleging environmental contamination by foreign biological entities and the municipality’s failure to prevent and warn of such contamination, seeks to recover well over $300 million.

The civil liability of engineers and similar consulting professionals in Canada has been, and continues to be, based predominantly on traditional civil liability principles. This situation is true even in the sphere of municipal operations and in the design of water supply and treatment systems.

Over time, additional innovative remedies have developed to expand the traditional legal principles. For example, legal actions framed as interference with riparian rights — a very long-standing legal doctrine — are now being used to challenge the use of modern ground surface heat pumps. The removal of heat from groundwater can cause chemical changes affecting groundwater quality in nearby wells and is considered an interference with the riparian rights of the well owners in some cases. In fact, any change in the chemical quality of drinking water due to human engineering and construction activities can give rise to legal actions on the basis of an interference with riparian rights. The construction of the Mactaquac hydroelectric dam on the Saint John River in New Brunswick in the late 1960s, for example, required raising the head pond waters behind the dam. Raising water levels induced a rise in manganese concentrations in the groundwater that affected many drinking water wells along the head pond. The result was a change in the character or quality of the groundwater beneath the land owners’ property, and the potential for a class action law suit based on interference with riparian rights against the developers and the engineers involved in the construction process.

While the safe operation of drinking water facilities is a prime liability concern for municipal and provincial governments, consulting professionals involved in the design, construction, manufacture or operation of such facilities should also be aware of the legal liability issues. Many operators in small municipalities have limited resources and technical knowledge and rely on consulting engineers who advise and instruct them.

In the past it was held that a professional technical consultant such as an architect or engineer employed under a contract owed his or her client a duty in “contract” only, and not in “tort” (the area of law relating to civil liability for negligence). It is now clear, however, that generally consultants can be held liable to their clients in both contract and tort.

In addition to the client who has engaged the services of the professional consultant pursuant to a contract, a design or construction professional may be liable in negligence to third parties with whom he or she has no contract. This source of liability is not limited as easily as the contractual liability. The actions in Walkerton are an example.

Professional consultants have a duty to use reasonable care to prevent damage to persons whom they should reasonably expect to be affected by their work. That liability can arise irrespective of whether the third party has placed reliance on the consultant and can even, in certain circumstances, extend to the people of an entire community.

For those consulting professionals involved in the design, construction, manufacture or operation of water supply facilities, wells, treatment plants, equipment, etc., a duty of care exists between the designers/builders/manufacturers and the end-users of those systems. If, for example, there is contamination and individuals relying on the system for their drinking water suffer injury or death as a proximate result of that contamination, and if it can be shown that the contamination could have been prevented but for a particular design or construction flaw, then those who designed and/or built the system will share in the liability for the contamination.

Operations the biggest risk

While there can be considerable liability exposure where design defects have caused or contributed to a contamination event, a consultant’s involvement at the operations and monitoring level presents the primary exposure. This is particularly true where engineering firms serve as consultants to (ordinarily) smaller municipalities in the operations and monitoring of their drinking water supply network. There may, for example, be periodic questions from a municipal representative or municipal utilities supervisor (who may or may not be an engineer) to the consulting engineer regarding design changes to improve the system, about how and where to monitor, and as to modifications that may affect the functioning of system parts. All these operations could be undertaken based on phone calls, memos, e-mail, etc. It is in these circumstances that the consulting engineer has the greatest exposure to liability should the system fail.

That is not to say that failing to use the latest in treatment technologies such as genomic testing and ultra-violet filtration will result in liability, even if that technology might have better prevented the contamination that took place. What is required of the consultant is to show that he or she has created the system that was requested by the client, using a standard of care that is equal to that which would be employed by an equivalent professional in the same circumstances. If the consultant’s role extended to advising the client as to the operation of that system, then the duty also extends to the provision of reasonable advice.

The engineer’s duty of care may also extend to ensuring the integrity of the source of the drinking water. It is certainly arguable that the engineer who is engaged as a professional consultant in water supply system design and operation is an expert in water treatment and that this role must, therefore, include ensuring that the drinking water source is also up to acceptable standards and is suitable for the type of treatment and supply system designed.

Duty to warn

Consultants involved in the development or operation of water supply and treatment facilities may now have a duty to warn their clients (the municipality, province, etc.) of the inadequacies of using older water treatment technologies, such as chlorine, and of the need to use more advanced techniques. This would be particularly so where the client relies on the consultant to operate the system.

There is case law indicating that the standard of care required of the reasonable design professional may dictate that where the risks of a project are substantial and their elimination difficult, he or she should abandon the project. For example, designing a chlorine-based water treatment facility for use in the heart of cattle country, with a limited budget for testing and limited due diligence infrastructure, may now require a higher standard of care. The professional may either have to demand that the project use more modern technologies to improve safety and to reduce risks, or refuse to work on the project.

The minimum required to discharge this duty appears to be to alert the client, forcefully, of the inherent risks. In a limited number of instances, where consultants are aware that a system has special requirements in order for it to meet a reasonable standard, tbey may have to take special
steps to see the requirements are met before their duty of care is discharged.

Public-private operations

Consulting professionals who have recently moved into the field of water supply system operations are subject to more sources of liability than those involved only in the design or construction aspects. Increasingly in Canada, and already in a number of U.S. municipalities, equipment companies have entered into public-private agreements whereby they are providing the physical water treatment and supply facilities to municipalities or local governments under a lease and license or similar arrangement. In exchange for providing and operating the treatment and supply facilities, the private companies receive the exclusive right to sell water to the municipality.

While this arrangement usually brings about the use of more modern technologies for water treatment, the issue of who then becomes accountable for the consequences of water supply contamination becomes more complex.

Of the major legal claims advanced against those operating/owning water supply and treatment systems, the frequent grounds of action are nuisance and strict liability.

Under the law of nuisance, any unreasonable interference with another’s use and enjoyment of land is actionable. That unreasonable interference could include the presence of contaminants (man-made and/or natural, above background levels) in a home’s drinking water supply or well water.

Similarly, under the legal principles of strict liability, anyone who collects, uses and maintains on their land a substance that would cause damage to others if it were to escape, will be held strictly liable for any damage so caused. Contaminated water held in a treatment facility and then dispersed into the community could potentially fall within this category. Despite the fact that there may be no construction or design flaw in a water treatment and supply facility, should contamination occur and affect the end-users, then the owners/operators of the system may well be held liable.

Nuisance and strict liability claims are particularly difficult for a defendant to resist because, unlike claims of negligence, they do not require the plaintiff to establish that the defendant’s conduct (i.e. in designing, building or operating the system) fell below a particular standard. They need only to show that the harm occurred and that the defendant was the proximate cause. Furthermore, private companies generally are unable to seek the protection of some of the more expansive legal or statutory defences that are available to governments and municipalities.

To conclude, consultants involved in the design or construction of water treatment and supply facilities and systems can expect to attract potential civil liability in the following instances:

when they have made errors in their designs;

when they have failed to undertake an adequate examination of the site where their systems will operate;

when they have failed to comply with the applicable legislative design standards;

when, in some cases, they have failed to supervise the construction of their designs;

when they have provided incorrect certification; and

when they have been negligent in their advice or directions as to some aspect of system operations.

Of these, it is a consultant’s involvement in operations that presents them with the greatest risk of liability and will continue to do so as long as operaters, regulators and owners rely on their expertise. CCE

John P. Barry, Q.C. is a senior practitioner and trial lawyer with the law firm of Barry Spalding Richard in Saint John, New Brunswick.ating that where the risks of a project are substantial, the professional should abandon the project.