Engineer's duty to warn in respect of contractor's incompetence

Goldswain v Beltec Ltd (t/a BCS Consulting Ltd) [2015] EWHC 556 (TCC)

Facts

Mr Goldswain wanted to convert the basement of his flat into living space.  He appointed Beltec to produce a design for the works pursuant to a retainer letter.  The letter expressly set out Beltec's scope of works. Regular site visits were not included in the scope, and neither was supervision, but the parties agreed that if any site visit was needed there would be a separate fee.  Goldswain then appointed a building contractor, AIMS, to carry out the works in accordance with Beltec's designs.  Beltec was asked to visit the site specifically to inspect the initial pinning work.  On this inspection, Beltec's engineer noticed that AIMS did not have a copy of the design and the initial pin was not in accordance with the design.  The engineer provided further copies of the design, advised that the pin should be replaced and spent time explaining the design so that AIMS could understand how to rebuild the pin.

The underpinning works were completed, but very quickly cracks and subsidence at the property occurred, cumulating in its collapse.  Unfortunately for the claimants, their insurance company refused cover on the basis that the cause of the failure was the inadequate construction and design of the property, which was not an insured event.

Goldswain therefore commenced a claim against Beltec and AIMS.  Practically, the claim was only against Beltec as AIMS were insolvent.

Held

Beltec was not liable for the damage caused.

In this case, there were no supervision or site visit obligations in Beltec's scope of services.  All Beltec had to do was provide the design, which AIMS should have been competent to carry out with no further involvement.  The evidence in the case pointed to the overwhelming conclusion that AIMS had failed to carry out the work with reasonable skill and care, or in compliance with the designs it had been provided.

Akenhead J expressed support for the proposition that "generally, the engineer or architect is often required to design the permanent work but it is the contractor's responsibility to build those permanent works and the temporary works and how it constructs the permanent works is the responsibility of the contractor".

Comment

The judgment provides a useful analysis of an engineer's duty of care, particularly in the context of a duty to warn:

1. where professionals are engaged, the Court's first port of call is to determine the scope of contractual duties and services;
2. the professional will almost certainly be expected to exercise reasonable skill and care, which necessarily involves a duty to warn relating to the existence of problems which are either known or should have been known;
3. the duty to warn will often arise where there is obvious and significant danger to either life or property, or where the professional "ought to have known" of such danger;
4. however, the Court is unlikely to determine liability on the part of the professional if, at the time the professional sees what is happening, there is only the possibility in future of some harm. In other words, there is unlikely to be a duty to warn imposed if the danger is merely that the contractor may not do the works properly; and
5. the duty to warn is NOT a duty to inspect or to seek out defects which will be dangerous.

The professional firm should ensure that its scope of services is as accurate and concise as possible.  Ambiguous or ill-thought out definitions could lead to the professional taking on a greater role than envisaged.  Further, Akenhead J emphasised that the assessment of a professional's duty of care will depend heavily on the circumstances.  Professionals should be careful when taking on additional jobs on an ad hoc basis, such as supervision or making site visits, as the scope of the duty of care will probably then extend to warning of the implications of any defects observed.

The duty to warn is not a burden only upon professionals, but also upon contractors – in cases such as Plant Construction v Clive Adams Associates [2000] BLR 137 a sub-contractor at the Ford Motor factory was responsible for not warning of the consequences of removing supports from a vulnerable roof.

For more information, help or advice please contact Rob Langley on 0191 211 7975 or [email protected]