Professional Negligence: Permanent v Temporary works and an Engineer’s “duty to warn”

In a recent case, the Technology and Construction Court has rejected an attempt to extend the scope of an engineer’s “duty to warn” and clarified an engineer’s responsibilities in relation to permanent and temporary work design.

Background

The defendant firm of structural engineers (Beltec) was retained by the claimants to design a new basement at the claimants’ ground floor flat in north London. The claimants engaged a contractor (AIMS) to carry out the works using the defendant’s design and calculations. The contractor subsequently engaged the defendant to carry out a site visit to inspect the first pin being cast in the basement. During the visit, the defendant stressed the importance of following the design, in particular the reinforcement and the casting of the basement slab. A month later, cracks began to appear at the property and the first floor occupants also raised concerns of further cracking. The property had to be evacuated, the flank wall collapsed and the local council deemed the building a dangerous structure; ultimately, the property had to be demolished. The claimants issued proceedings against the defendant and the contractor, claiming the costs of reinstating the property, consequential losses, and an indemnity against third party claims from neighbours. By this time, however, the contractor was insolvent, and so the real target was the engineer and his professional indemnity policy.

Decision

The Court examined the scope of the defendant’s retainer to provide the permanent works designs. The Court was satisfied that the retainer did not extend to on-going supervision obligations once the contractor’s works had started.

Although it was common ground that an engineer has responsibility for the permanent works and it is for the contractor to decide what temporary works are necessary to achieve the permanent work design, the claimants argued the defendant should have provided more detailed drawings in respect of temporary works, particularly in areas of the site which posed a higher risk. However, the Court took into account that, as per standard industry practice, the defendant’s drawings made it clear that temporary works were the contractor’s responsibility.

It was alleged that the defendant failed to warn both the claimants and the contractor about the shortcomings in the contractor’s activities following its single site visit; importantly, a visit which arose under a separate retainer between the defendant and the contractor. The Court was satisfied that, at that stage, there was no real danger which it found unsurprising given that only one small hole had been excavated by that point. The Court took the view that the defendant was not expected to realise that the contractor did not have the necessary skill to perform its contractual duties; it was the breaches of contract on the part of the contractor which caused the loss rather than any breach by the engineer.

Comment

This decision will be welcomed by engineers as it will put a brake on those attempting to extend the engineer’s “duty to warn”. Permanent works engineers will not be responsible for temporary works design unless expressly contracted for in their retainer. While each case will turn on its facts, it seems that the Court has taken a step towards confining a “duty to warn” to situations where there is actual danger to life or property.

Homeowners would be well advised to appoint a temporary works engineer if they are in doubt whether their builder has the appropriate experience to carry out temporary works; retaining an experienced contractor, albeit at a higher cost, is better advice still.

Further reading: Goldswain & Another v Beltec Ltd (trading as BCS Consulting) and Another [2015] EWHC 556 (TCC)