English court considers an engineer’s duty to warn of contractor’s inadequate works

In the recent case of Goldswain & Another v Beltec Ltd (t/a BCS Consulting) & Another [2015] EWHC 556, England’s Technology and Construction Court had to decide whether engineers were in breach of any duty to warn home owners about the building contractors’ inadequate work. The judgment very usefully sets out the Court’s conclusions about a professional’s duty to warn, as derived from the numerous case authorities reviewed by the court.

Background

The Property owners decided to excavate the basement of their property to convert it into additional living space. This involved underpinning the outer walls to create more height. The property owners hired structural engineers, Beltec, to design the structural works. The property owners subsequently employed AIMS Plumbing and Building Services Ltd (AIMS) to carry out the excavation and construction works as per Beltec’s drawings and method statement and notes stated on those drawings.

AIMS subsequently asked Beltec to visit the site and inspect the works that were underway and Beltec agreed to do this at an agreed fee, to be paid by AIMS. When Beltec’s engineer visited the site he had expected to find the reinforcement already in place and pin ready to be cast. However, he found that the pin had already been cast, without any reinforcement. He concluded that the reinforcement for the pin had not been carried out in accordance with Beltec’s design and advised the contractors that the pin should be completely replaced. He also explained to them the importance of placing the reinforcement and following the underpinning sequence, as specified on the drawings and method statement.

AIMS continued with the works and Beltec was not requested to carry out any further inspections. AIMS completed the underpinning, but failed to cast the reinforced concrete slab or kicker connected to the underpinning.

Claims against AIMS and Beltec

Subsequently, cracks started to appear in the property and it eventually collapsed. The property owners commenced proceedings against both AIMS and Beltec. AIMS did not defend the proceedings and default judgment was entered against them. However, AIMS was believed to be insolvent, leaving the property owners to pursue their claim against Beltec only.

The property owners’ claim against Beltec was in both contract and tort and based on their alleged failure to exercise reasonable care and skill, including failures in preparation of the drawings and failure to warn AIMS and the property owners in light of what Beltec’s engineer had seen on his site visit.

Court’s Ruling

The Court dismissed the claim against Beltec, finding that there had been no negligence on their part in relation to the design or specification. It also found that Beltec did not owe the property owners a duty of care to warn them that the construction works were not being carried out in accordance with the engineering design. In coming to this conclusion, however, the context was important. The Court found that Beltec had been employed by the property owners to provide the permanent works design for the excavation, the underpinning of the perimeter walls and the provision of support to the internal walls as necessary. The Court was completely satisfied that there was no supervision obligation and no requirement to visit the site once work was due to start. It was in this contractual context, the Court said, that one had to review what it was that the property owners were entitled to contractually expect from Beltec. Beltec, the Court said, was required to provide the property owners with the structural designs with reasonable care and skill.

The Court said that competent engineers, exercising reasonable care and skill would have readily assumed that builders would read and understand the drawings in the way intended. Similarly, they would have understood that builders would understand that the basement slab and “kicker” under the adjacent pins had to be constructed first because this is what the drawings and method statement specifically said. Common sense would also come into play, the Court said, because it would be virtually impossible, and certainly impracticable, as anyone involved would know, to construct the pins first and the subjacent slab and kicker later, given the need for there to be continuing reinforcement from the slab into the pins (or vice versa). Although there had been no specific guidance on how the base slab sections to the pins in the various corners were to constructed, that, the Court said, was something which could be reasonably left to the contractor to work out, the contractor having the responsibility for how the works were done.

The inspection by Beltec’s engineer had come about as a result of an informal contractual arrangement between AIMS and Beltec and not the property owners and had been arranged simply to enable Beltec’s engineer to see what AIMS had done in relation to the first pin. Beltec’s engineer had formed the view that the pin should be redone because it appeared to have been constructed in a way which was obviously not compliant with Beltec’s drawings. However, there was no danger to the structure at that stage. The Court held that it had not been established that Beltec’s engineer should have realised that AIMS was completely out of its depth or not competent to do the job. Beltec’s engineer had, the Court said, done no more or no less than what a sizable number of engineers in his position would have done, namely to advise AIMS (his client at that stage) to follow the requirements set out in the drawings. Beltec’s engineer had made sure that AIMS had those drawings and had orally explained the requirements in those drawings to AIMS. In those circumstances, the Court said that it was very difficult to see how the conduct of Beltec’s engineer could be considered negligent.

The Court set out the following five conclusions about a professional’s duty to warn, as derived from the numerous case authorities that it reviewed:-

1. Where the professionals (engineers in this case) are contractually retained, the Court must initially determine what the scope of the contractual duties and services were. It is in the context of what the professional person is contractually engaged to do that the scope of the duty to warn and the circumstances in which it may in practice arise should be determined.
2. It will, almost invariably, be incumbent upon the professional to exercise reasonable care and skill. That duty must be looked at in the context of what the professional person is engaged to do. The duty to warn is 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.

3. Whether, when and to what extent the duty will arise will depend on all the circumstances.
4. 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.
5. 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.

In the context of an engineer’s obligations to inspect and warn about the condition of temporary works, the Court also observed:

“There are a number of cases and textbooks in which it is said that, generally, the engineer or architect is, often, required to design the permanent works but that 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. In general terms, that is true but it will always be necessary to consider what services the professional is engaged to provide. There may well be contracts for professional services in which, for instance, the engineer is retained to consider and approve temporary works proposals and, if so, that must be done with reasonable care and skill. On other contracts the engineer may be retained to supervise or inspect the works and, again, that will have to be done with reasonable care and the scope of that duty may well involve a consideration of how safely the works are being carried out by the contractor.”

The Court found that AIMS had failed to carry out their work with reasonable care and skill or in compliance with the drawings and that it was clear that from the start of the work up to the collapse, no or no effective propping had been provided and that the sequence was, for no good reason, simply not followed. The court entered judgment against AIMS for £287,754.55.

Comments

Professional negligence is always a complicated area of law. In recent years, claims against construction professionals have become more common. This case takes a narrow view on the scope of duty of an engineer to warn his client, which should be welcomed by professionals. However, one should not assume that the Hong Kong Courts will necessarily take the same view when a similar question arises here. Further, as noted above, the Court made it clear that when determining what the property owners were contractually entitled to expect from Beltec, one had to review the contractual context. Here, the Court had no doubt that Beltec was employed to provide the permanent works design for the excavation of the basement, the underpinning of the perimeter walls and provision of support to the internal walls and structure as necessary. However, the Court was wholly satisfied that there was no supervision obligation on Beltec and no requirement for them to visit the site once work was due to start. Further, the site visit by Beltec’s engineer once works had started, came about as a result of an informal contractual arrangement between AIMS and Beltec and not the property owners.

In Hong Kong, the usual practice is for the consulting engineers to be responsible for both design and supervision of the works. If such practice is not to be followed on a particular project, the property owner should make sure that some other parties such as the project manager and contractor are fully responsible for supervision of the works.

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