Professional liability: civil, administrative and criminal
A single accident can end with the engineer paying compensation, suspended from the register and prosecuted. These are three independent routes.
01Three independent liabilities
When something goes wrong in work signed by an engineer, the engineer can be held liable through three channels at once, each with its own purpose, rules and tribunal:
| Civil | Administrative and disciplinary | Criminal | |
|---|---|---|---|
| Purpose | Repairing the damage caused | Penalizing the breach of the rules of the profession or of an agency | Punishing a crime |
| Who decides | A civil judge, or arbitrators | The disciplinary tribunal of the association or council; the oversight agency | A criminal judge |
| Consequence | Paying compensation | Warning, fine, suspension or revocation of the license; fines and closures | Imprisonment, fine, special disqualification from practicing |
| Main rule | Civil and Commercial Code | Professional-practice law and code of ethics; the agency’s rules | Criminal Code |
They are independent: a professional can be acquitted in the criminal case and still have to pay compensation, or be sanctioned by the association without any damage having occurred. The order in which they are resolved is regulated by Articles 1774 to 1780 of the Civil and Commercial Code.
02Civil liability
Article 1716 establishes the duty to repair damage caused by failing to perform an obligation or by violating the general duty not to harm others. For liability to exist, four elements must be present:
| Element | What it means |
|---|---|
| Unlawfulness (antijuridicidad) | Conduct that causes unjustified harm (Article 1717) |
| Damage | An injury to a right or an interest: pecuniary or non-pecuniary |
| Causation | The damage must be an adequate consequence of the conduct (Article 1726) |
| Basis of liability (factor de atribución) | Subjective: fault or intent; objective: the risk or defect of a thing, or a guarantee, regardless of fault |
Fault, according to Article 1724, is the omission of due diligence, and includes imprudence, negligence and lack of skill in the art or profession. For a professional, diligence is measured against the expert standard of Article 1725. Their liability is in general fault-based, unless they promised a result (Article 1768).
Article 1757 imposes strict liability, with no need to show fault, on the owner and the custodian of hazardous or defective things and on whoever carries out dangerous activities. Electrical energy is one such thing. The activity of the liberal professional as such does not fall under that rule, but an installation company, the owner of an installation or the manufacturer of defective equipment can be caught by it.
A claim for damages is subject to a limitation period of, in general, three years (Article 2561). For long-lasting works, liability for structural ruin covers damage that occurs within ten years of acceptance of the work.
03Administrative and disciplinary liability
The disciplinary tribunal of the association or council judges breaches of the professional-practice law and of the code of ethics: lending a signature, practicing outside your own competence, failing to meet obligations to the client, breaching secrecy. Penalties range from a warning to revocation of the license, and do not require that any damage have occurred.
In addition, oversight agencies impose their own penalties on those who breach their rules: the ENACOM for an installation that causes interference or is not authorized, a municipality for work without a permit, the labor authority for breaching health and safety rules.
04Criminal liability
The crimes that a professional can commit at work are almost always negligent (culposos): the professional did not want the result, but caused it through imprudence, negligence, lack of skill in their art or profession, or non-compliance with regulations or with the duties of their position. The main ones:
| Crime | Article of the Criminal Code | Example |
|---|---|---|
| Negligent homicide (homicidio culposo) | 84 | A person is electrocuted by an installation without residual-current protection |
| Negligent injuries (lesiones culposas) | 94 | A worker suffers burns from an arc flash in a poorly designed switchboard |
| Negligent fire or devastation (incendio o estrago culposo) | 189 | A fire originating in an installation that did not comply with the regulations |
In addition to imprisonment or a fine, these crimes carry special disqualification: a ban on practicing the profession for a period of time. “Non-compliance with regulations” is the formula that connects criminal law with technical standards: failing to comply with a mandatory regulation is already, in itself, a form of fault.
You choose a situation and the tool indicates which channels of liability could be opened and why. It is a classification exercise: in a real case, each channel depends on proof of its elements.
05How a professional protects themselves
- Work within your own competence and keep your license up to date.
- Follow the technical standards and document it: calculation reports, measurements, test protocols, as-built drawings.
- Write down the scope and limits of the work, and keep a record of the warnings given to the client.
- Take out professional liability insurance, which covers compensation —not the criminal penalty— up to the insured amount.
- Keep the documentation for the entire period during which claims may be brought.
06Activities
Find in SAIJ a ruling on an electrical accident and identify the elements of civil liability that the court considered proven.
For a fire originating in a switchboard, describe what the property owner could claim, what the professional association could do and what the criminal courts would investigate.
Build the index of the documentation that an engineer should keep for an installation in order to defend against a claim.
07Common mistakes
- Believing that a criminal acquittal closes the matter. The civil claim can continue.
- Thinking that without damage there is no penalty. The disciplinary tribunal judges the breach, whether or not there is damage.
- Relying on insurance for everything. It covers compensation up to an amount, not the criminal penalty or the disciplinary sanction.
- Not documenting compliance with the regulations. What cannot be proven was not done.
08Self-assessment
What are the elements of civil liability?
Unlawfulness, damage, causation and a basis of liability.
What forms of fault does the Criminal Code list for negligent crimes?
Imprudence, negligence, lack of skill in the art or profession, and non-compliance with regulations or with the duties of the position.
What is the general limitation period for a claim for damages?
Three years (Article 2561 of the Civil and Commercial Code).
What is special disqualification?
The penalty that prohibits practicing the profession for a period of time.
09Further reading
- Félix A. Trigo Represas and Marcelo J. López Mesa. Tratado de la responsabilidad civil. La Ley (in Spanish). The elements of liability and their application to professionals and builders.
- Carlos Creus. Derecho penal. Parte especial. Astrea (in Spanish). Negligent crimes against persons and crimes of devastation.
- Civil and Commercial Code and Criminal Code. Articles 1708 to 1780; 84, 94 and 189. InfoLEG (in Spanish). The current texts on civil liability and negligent crimes.