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the sad case of an engineer's duty to warn and responsibility for temporary works

31 March 2015

Summary

In the recent case of Mr E Goldswain and Miss J Hale v (1) Beltec Limited (trading as BCS Consulting) (2) AIMS Plumbing and Building Services Limited [2015] EWHC 556 (TCC), the Technology and Construction Court declined to extend an engineers duty to warn. Despite the overall merits of the case (involving a claim by a blameless couple who had lost their home and were apparently without any meaningful recourse against their contractor), the court also confirmed general industry understanding that an engineer is not responsible for temporary works design.

Background

Mr Goldswain and Ms Hale owned the leasehold of a ground floor flat in London. In 2011 they decided to extend downwards by converting their cellar into additional living accommodation. They retained professional engineers Beltec Ltd (Beltec) to design the essential structural works and AIMS Plumbing & Heating Ltd (AIMS) to carry out the work.

AIMS commenced work in September 2012, installing the underpinning but seemingly failing in many other regards. In November 2012, following increasing amounts of cracking and a hasty evacuation, the property (together with a first floor flat) collapsed. Barnet Council removed the dangerous parts of the collapsed building, installed bracing where the property used to stand and pumped substantial amounts of concrete into the basement to provide some stability.

Mr Goldswain and Ms Hale were left without a home following the dramatic collapse and commenced proceedings against Beltec and AIMS. AIMS did not respond to the claim and judgment in default was entered against them. Against Beltec the claimants contended, amongst other things, that Beltec had (i) failed to warn AIMS and the claimants of issues following a site visit; and (ii) failed properly to specify details in relation to the temporary works.

Beltecs duty to warn

The judge emphasised that a professionals duty to warn was "no more than an aspect of the duty of a professional to act with the skill and care of a reasonably competent person in that profession." The extent of the duty will depend on all the circumstances and will be determined in the context of the contractual position. He also commented:

"The duty to warn will often arise when there is an obvious and significant danger either to life and limb or to property. It can arise however when a careful professional ought to have known of such danger, having regard to all the facts and circumstances…

… In considering a case where it is alleged that the careful professional ought to have known of danger, the court will be unlikely to find liability merely because at the time that the professional sees what is happening there was only a possibility in future of some danger … any duty to warn may well not be engaged if all there is is a possibility that the contractor in question may in future not do the works properly."

The judge found that Beltec was not negligent for failing to warn. Beltecs initial services did not provide for site supervision and whilst it did attend site after AIMS had commenced work, that was for a very limited reason (to enable Beltec to see what AIMS had done in relation to the first pin in the underpinning). The judge found "there was no danger at that stage and it has not been established on any balance of probabilities that Mr Pistilli [of Beltec] should have realised that AIMS was completely out of its depth or not competent to do the job which it had been employed to do."

Beltecs responsibility for temporary works

The judge recognised that it is often the position that an engineer will be required to design the permanent works but the contractors responsibility as to how it constructs the permanent works (and therefore the contractor that takes responsibility for the temporary works). However, he emphasised that it will always be necessary to consider what services the engineer is engaged to provide and there may be contracts in which the engineer is retained to consider and approve temporary works proposals.

As there was nothing in the permanent works design produced by Beltec which prevented the contractor from doing its work in a reasonably safe way, nor any indication of a departure from the usual division of responsibility, the judge also found no case for professional negligence against Beltec in relation to the temporary works design.

The claim against AIMS

With regard to AIMS the judge commented:

"Although I have not had the benefit of any evidence from AIMS, the evidence which I have heard, in effect supported by both liability experts, establishes the overwhelming probability that AIMS failed to carry out their work with reasonable care and skill or in compliance with the drawings which it was provided with."

AIMS had not taken any part in proceedings and were therefore liable to the claimants in default. The judge assessed damages in the sum of £287,754.55. However, given AIMSs lack of involvement in the proceedings, it appears likely that the claimants will unfortunately never see any payment from them.

Comment

As the judge commented in his opening remarks, this is a "sad case" in which blameless homeowners found themselves without a property or any meaningful recourse against their contractor. However, despite the hard and emotive facts, the court resisted the claimants invitation to extend an engineers duty to warn. An engineers duty to warn is an aspect of its general duty to act with skill and care and the scope of that duty must be judged by reference to the circumstances. It seems relatively clear that if there is an obvious and significant danger either to life and limb or to property, the duty will be engaged. However it may also be engaged if a professional ought to have known of such danger.

In relation to temporary works, the court affirmed what most in the industry believe to be the appropriate division of responsibility - namely that the engineer is responsible for the permanent works but the contractor takes responsibility for the temporary works. However engineers must be alive to the fact that each case is different and would be well advised to make the extent of their responsibility for temporary works clear and consistent in their retainer and the work they undertake.

Employers of works would be well advised to ensure a properly insured professional is appointed to design the temporary works (for example extending the permanent works engineers scope of service or appointing a separate temporary works engineer) if they have any reservation over their contractors experience.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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