Preliminary

Describe about the Term for Engineers Code of Ethics.

The 2010 Engineers Code of Ethics surely marks a watershed and is a compendium for skills and good practice that professionals should embrace. Accordingly, the code of ethics assigns a pivotal role, which cannot be snuffed as negligible, to individuals in the engineering firmament. At the outset, steadfast and impartial measures to ensure that the demands of the code are given life must be a priority.   

Demonstrate integrity

It will be fatuous to downplay the essence of integrity as it is the natural and inherent impulse of life to seek to protect and respect the dignity of other individuals who may likely be affected by the consequences of ones actions. This assertion stems from the wisdom supplied by the neighbor principle enunciated in the famous dicta authored by Lord Atkin.(Stevenson,1932) In its concrete manifestation, integrity demands of managers and professionals to practice the principle of honesty and trustworthy. Needless to say, ignorance is on the face of the law no defense hence professionals should act on a well-informed conscience bearing in mind that the reward of ignorance is disasters such as the one in dispute now.( Stewart, Sprinthall, and Shafer, 2001)

Lack of knowledge and skills typically defines incompetency. The challenging question embedded in this whole debate on the disaster that occurred is whether the team of professionals in BHP Billiton Ltd possessed enough skill and expertise to prevent the crisis. It would be strategically unreasonable to dissociate the calamity from the veracity that it indeed manifested an ineptitude and complicit team of professionals from BHP Billiton Ltd. It should thus be conceded that the capacity of the professional to display a coherent and principled approach in handling of affairs in the profession is absolutely essential in defending ones competence. (Australian Institute of Builders, 2001)

Exercise Leadership

The term leadership is nothing new but rather as old as human civilization. It is the conveyor belt towards a successful career in any profession. The entire BHP Billiton Ltd could easily sleep into a comma if the professionals fail to facilitate true leadership. It is inconceivable that with plausible leadership skills that are predicated on honesty and effective communication, the disaster would have transpired. In this sense, it is vital that such skills are cultivated in a manner that incorporates diversity and uphold the reputation of the profession. ( Davis, 2001) Impeccable leadership is manifested by proper vision, purpose and it influences judgement in practice.

Demonstrate Integrity

Promote Sustainability

It is imperative to note that every action of an engineer should be one that furthers the advancement of better lives of the society and ensures the protection of the environment and natural resources. BHP Billiton Ltd offended the above principle as there was a massive environmental destruction including a devastating effect on the livelihoods of the settlers around that has since presented intractable problems for the locals. This should not be the aim of a profession’s undertakings.

Preliminary

The tragedy that occurred in the samarco case mirrors a company that still has a long way to go to fully embrace the code of ethics and conduct. It is worth noting that the code of ethics is still a command only on paper in the company. It is the failure or the laxity of the management to ensure effective and efficient running of the company that bespeak of the company’s lack of commitment to breathe life to the code of ethics. It is equally not enmesh in controversy that the reputation of the company has been watered down. It is however advisable that they apply the below recommendations. At the onset it is paramount that the company obeys the Golden Rule that states that do unto others what you expect them to do to you. ( Badger, and Gay 1996)

Impact on society/Negligence

The samarco case could be one of negligence. Negligence occurs where one person owes another a duty of care but breaches such a duty. The tort of negligence entails failing to do what a reasonable person ought to do that in end caused damage. It is submitted to the corporation that they ought to contemplate their neighbors and the consequences of their act or omissions which eventually have an impact on society. The duty of care gives rise to a legal obligation that they should not harm others and that they ought to reasonably foresee any such harm. The company should thus exercise reasonable standards of care and skill expected of the engineering profession. (Charles and Martin, 2002) Professional negligence attracts liability as was held in Turner v Garland and Christopher,1853 (Barrister,1914) where a roof collapsed because of negligence in architectural design.

Disclosure

The principle of full disclosure raises a legal obligation to act in utmost good faith and honesty. Members of BHP Billiton Ltd should cultivate cooperation among them that includes disclosing material information to the relevant authorities in the company. A breach of such a duty amounts to a professional misconduct. (Harris , Pritchard, Rabins, 1995) The duty of disclosure encourages a good working relationship among colleagues in the company.

Practice Competently

The company management may be involved in questionable atrocious conducts that may ruin the reputation of the company and eventually affect the financial standing. Such conducts include cases of massive corruption .The company should thus invest in mechanisms to ensure that that such practices are not bred in the company. Cases of embezzling funds lead to substandard projects being performed which may later cause an accident. The management should thus create an ecosystem that is a stalwart of integrity.

Competence

The company should have regulations formulated to ensure that highly qualified personnel are employed. Half-baked professional are disastrous to the company as there level competency put the company to a risk of failure to meet its objectives. (Mason, 1998) The personnel should possess a standard of skill and knowledge that is expected of their profession. If this is effected even cases acts omissions that lead to Negligence will no longer be in issue.

It is a general principle in law that one has to read and appreciate the terms of a contract before signing any contract. (Paterson & Robertson, 2015) It was held in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd, 2004 that parties to a contract are bound by the terms in the contract once they have signed regardless of whether they read or understood the terms.  Such terms essentially covers liabilities and exclusion clauses that any buyer ought to be aware of before appending a signature. The discussion in this question falls within the rubric of Australian Consumer Law (ACL) and the common law of contract.

The ACL has long recognized that goods sold to a consumer must be of merchantable quality. (Gooley 2014) This implies that the goods must safe for use by the consumer at the time of buying the goods. (Australian Knitting Mills Ltd v. Grant ,1933) It can be argued that it was indeed honorable for   Better Car Ltd to acknowledge that the self-drive mode utility was faulty and was due to the negligence of one of its engineers. The company was however not ignorant of the safety of the driver and its passengers when the car is on self-drive mode and to that effect they had a clause in the contract insisting on the driver to take safety measures.

It is an implied condition in the contract that the goods are of merchantable quality and it is submitted that Better Car Ltd is liable for the breach of this condition. It should however be borne in mind that there was a clause limiting the liability of the company in case of a breach of this condition. It should be noted that since the contract was signed by the buyer despite several attempts to explain to the buyer on the effects of the terms of the contract he is agreeing to, the extent of limitation entrenched by the contract is permissible. It was noted in Astley v Austrust Limited, 2000 that implied terms are applicable in contract law and the defendant is liable for a breach where they are breached

Exercise Leadership

Better Car Ltd will only be liable for the breach to the extent of the negligence caused by the engineers. On the contrary, personal injuries resulting from the accident were also contributed by the negligence of the buyer in not reading the terms of the contract so as to be aware of any safety precautions that ought to be taken when driving under self-drive mode.

Under the ACL ss142 a manufacturer or supplier could put up a defense that at the time that the transaction in the product was taking place the defect in the product could not be detected despite application of reasonable skill and expertise. The success of such a defense is determinate on a balance of probability though this would be the best possible argument that Better Car Ltd could apply.

The buyer in the contract could only recover damages to the extent that the car self-drive mode was faulty. Since Better Car Ltd acknowledged there carelessness a case on a tort of negligence would be proper when claiming damages. The company could plead contributory negligence because the driver did not read the contract he signed and he went on to negligently sleep in a car despite the clause that stated that one should still be careful even when the car is on self-drive mode.  If the buyer brings the case under contract law to put full liability on the company, the company could sue again under tort of negligence so that the liability is shared. In Astley v Austrust Ltd,2000 it was held that damages for a breach of contract could not be reduced by contributory negligence, however, the Law Reform (Miscellaneous Provisions) Amendment Act 2000 (NSW) allows for a reduction of the damages for a contractual breach based on contributory negligence. 

References

Astley v Austrust Ltd , HCA 197 CLR 1(2000).

Australian Knitting Mills Ltd v. Grant, 50 CLR 387 (1933).

Australian Institute of Builders, 2001 URL: https://www.aib.org.au/about.html

Badger, W., and Gay, S.W., (1996) The top ten lessons learned in construction contracting, Cost Engineering, 38(5), May, 20–9.

Barrister R., (1914). Hudson’s Building Contracts

Charles V. and Martin S. (2002). Professional Ethics the Construction Industry

Davis, I., 2001, “Health and safety”: an economic and moral issue, Master Builder, The Magazine of the Federation of Master Builders, Mar, 17.

Donoghue vs Stevenson, AC 562 [1932].

Harris Jr, C.E., Pritchard, M.S., Rabins, M.J., 1995, Engineering ethics: concepts and cases, Wadsworth Publishing Company, USA

Gooley  J., (2014).Principles of Australian contract law: cases and materials.

Mason, R.R., 1998, Ethics: a professional concern, Civil Engineering, American Society of Civil Engineers, 68(12), Dec, 63–6.

Paterson J., & Robertson A., (2015) Principles of Contract Law.

Stewart, D., Sprinthall, N., and Shafer, D. M. 2001. “Moral Development in Public Administration.”

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd, 79 ALJR 129 (2004).