Practical Law

The tragic earthquake in L’Aquila, Italy, followed a number of minor tremors and not only shook the population of the historic town, killing 308 people and leaving tens of thousands homeless, but also sent shock waves through the scientific and engineering communities both in Italy and worldwide, stirring much indignation among them.

Why? Four seismologists, two engineers (members of the Italian National Commission for the Forecast and Prevention of Major Risks) and a public official have been convicted of manslaughter (culpable homicide) and sentenced to six years in jail for failing to properly assess and communicate the risk of the earthquake. It’s said they painted an overly optimistic picture that reassured the local population leading them to return home and remain in their houses.

So what actually happened?

There is no question about the fact that, following a series of tremors in the preceding weeks, a major earthquake occurred with devastating consequences. The rest is somewhat uncertain.

What we do know is that the Commission relied on a supposedly controversial (and discredited) earthquake predictor that predicted a major earthquake would occur. The Commission met in L’Aquila to give guidance on the risk of a major earthquake. Some reports suggest that the meeting only lasted an hour, others say the minutes of the meeting were written after the earthquake occurred. The minutes report that a number of statements were made, such as:

• “unlikely but cannot be ruled out”;
• “recent earthquakes have been preceded by minor shocks… but on the other hand many seismic swarms did not result in a major event”; and
• “there is no reason to believe a swarm of minor events is a sure predictor of a major shock”.

It seems that none of the scientists suggested that there was no risk of an earthquake.

Following the meeting a press conference was given by the public official. He is reported to have said:

“the scientific community tells us there is no danger, because there is an on-going discharge of energy. The situation looks favourable.”

The members of the Committee were not present at the press conference but they did not comment or seek to correct what the public official had said.

A dangerous precedent

As the Financial Times reported on 23 October 2012, “the court’s decision sets a dangerous precedent”. It has been felt that the prosecution was politically motivated, but that is scant comfort to the scientists. The jail sentence has shocked and stirred over 4,000 engineers and scientists globally to write in protest to the Italian President.

While most of the commentary on the prosecution and sentence suggests that it will be overturned on appeal, we await the judgment (which has to be given within 90 days of the sentence) to find out what the judge’s rationale was, and what he established on the facts.

What does this mean for engineers?

So what could the consequences of this prosecution be for the engineering community both in Italy and further afield? Much of this of course depends on local laws in Italy and political motivation. But in an increasingly blame-orientated world, it should not be ignored. There are a number of possible repercussions:

• Reluctance to engage.
• Over-forecasting and over-engineering.
• Limiting liability.

Reluctance to engage

While scientists and engineers work hard to understand natural phenomena, they may be more reluctant to engage with government and the public due to a fear of being criminalised for the very fact that they are not dealing with an exact science. This could have an adverse impact on the development of engineering or technological solutions needed to meet the challenges thrown up by the seemingly increasing worldwide natural disasters.

Over-forecasting and over-engineering

It could lead to overly pessimistic forecasts or warnings of possible natural disasters. If seismologists are prosecuted, it could equally apply to those making predictions or forecasting floods, hurricanes, tidal damage and storms. (Michael Fish and the October 1987 great storm springs to mind.)

In these health and safety conscious times, this could lead to governments and public bodies demanding building and engineering standards that are over-engineered to cater for the perceived “worst case risks” posed by climate and seismological phenomena. If it did, state and/or publicly funded engineering and construction projects would see a significant (and possibly unjustified) rise in costs at a time when nations can least afford it, and it could result in fewer projects due to a lack of funding.

Limiting liability

Due to the risk of criminal prosecution employees of consultants may refuse to work in certain jurisdictions where their advice is sought. Indemnities and limits or exclusions from liability for such prosecutions in consultancy appointments are unlikely to be effective in any jurisdiction. So how will consultants deal with the risk of their employees potentially exposing themselves to criminal prosecution for the work they do, non-negligently, in the course of advising on risk?

The bigger question

The Italian prosecution raises an altogether bigger question. Is it a bad day for the scientific community, who may be weary of open debate and advice to governments, as well as for the legal community, which could be incarcerating the very people whose research could, in the future, save lives?

Instead, surely the focus should be on ensuring building codes are sufficiently robust and prosecuting or claiming against those who have failed to impose or comply with them. For example, in L’Aquila it is reported that if the building codes had been followed, many of the buildings in the town would have withstood the earthquake.

Let us hope that this appeal is successful, and that this prosecution proves to be an extremely isolated event, not a sign of things to come.