Author: Ian Smith
“This is a sad case” – first line of Mr Justice Akenhead’s judgment
The Claimants, Mr Goldswain and Ms Hale, bought a ground floor flat in 2011 and decided to convert the basement into living accommodation by increasing its depth. They hired Beltec, engineers, to design the structural works and a contractor to carry out the works, which took place from September 2012. On 24 November 2012, the Claimants noticed cracks in their bedroom and later that day tenants in the upper flat complained of serious cracking in their flat. The building was evacuated in rather a hurry and it began to tilt, crack and collapse in on itself: the local council later demolished the property as a dangerous structure. There had been a failure to provide any propping to resist the loads being placed on the basement walls and the specified sequence of works had been ignored.
The Claimants brought a case against the engineer and contractor, though the contractor took no part in the proceedings and is thought to be insolvent. The judge considered the allegation that the engineer had not exercised the appropriate level of skill and care when carrying out the structural designs for the basement but found that its duties were limited, the designs were sufficient and that there was no “case for professional negligence in relation to the design and specification”. The engineer had provided permanent work designs that were capable of being safely implemented by the contractor who was, in the usual way, responsible for the temporary works required to implement the design for the permanent works.
However, the engineer had also visited the property at the request (and cost) of the contractor in the very early stages of the excavation, and pointed out that the contractor had failed to reinforce the first concrete pin in the basement in accordance with the engineer’s drawings. He told the contractor to replace the pin, explained the necessary sequence of work in the recommended method statement and provided site copies of the engineer’s drawings for the contractor to follow. The engineer did not raise the issues discovered during this visit with the Claimants. Was the engineer negligent in failing to warn the Claimants (and contractor) about the failures uncovered?
The judge reviewed various authorities on the duty to warn and concluded that the court should consider the engineer’s appointment and the services to be provided, the duty of a professional to act with the skill and care of a reasonably competent individual in that profession, the underlying circumstances of the case, whether there was an obvious and significant danger to life, limb or property (or the professional ought to have known of such danger), and whether there was only a possibility at the time of some future danger. In the final instance, “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”.
Beltec’s site visit was early on in the contractor’s works when only one small hole had been excavated. The engineer took steps to guide the contractor to use the specified drawings. It was considered that there was no evidence of any actual danger at that time. The allegation that the engineer should have considered the contractor to be “completely out of its depth or not competent to do the job which it had been employed to do” was not established, and so it had no duty to warn following the site visit. The judge considered that a sizeable number of engineers would not have warned in the same situation.
This case illustrates the limits of an engineer’s professional duty in these circumstances. Homeowners need to check that the contractors they employ have the required experience to carry out both the permanent and temporary works. An engineer’s duty to warn will be engaged when the circumstances point to a real risk of danger, but the contractor’s failings with the first concrete pin were not sufficient to give rise to that duty.
Ian Smith, Associate, Fladgate LLP (email@example.com)