Engineers and other professionals alike will breathe a sigh of relief after the recent case of Goldswain v Beltec Ltd (t/a BCS Consulting) [2015] EWHC 556 (TCC) affirmed the Courts' previous common sense approach to the extent of duty to warn and also provided welcome guidance on the interplay of engineer/contractor responsibility for temporary and permanent works.

What happened?

The claimants owned a ground floor flat in a semi-detached house. The flat had a cellar and the claimants decided to convert the cellar into more accommodation by underpinning the outer walls and lowering the floor. The claimants appointed engineers Beltec Ltd to design the essential structural works and AIMS Plumbing & Heating Ltd to carry out the work. AIMS started the work and installed the underpinning. AIMS retained Beltec to visit the site to inspect the construction of the initial pin. Beltec duly visited the site and advised AIMS that the pin had not been constructed in accordance with the design. The underpinning was completed but shortly afterwards the house collapsed. The claimants' insurer refused to cover the claim on the grounds of inadequate construction.

The claimants issued proceedings against Beltec and AIMS claiming that Beltec had failed to exercise the appropriate level of skill and care when designing the basement and failed to warn the claimants about the contractor's progress following the initial site visit. AIMS became insolvent and so did not take part in the proceedings. 

The Court ruled in favour of Beltec. There was an overwhelming probability that AIMS had failed to carry out its work with reasonable care and skill or complied with the drawings with which it had been provided; AIMS' breaches of contract had caused the collapse. Beltec did not owe the claimant a duty to warn. It was AIMS, not the claimants, who had retained Beltec to visit the site. Beltec advised that the pin should be redone but there was no danger at this stage. 

In reaching its decision, the Court reviewed Beltec's retainer and held there was no ongoing supervision obligation. The obligation was limited to providing the claimants with the structural designs with reasonable care and skill. Competent engineers should expect builders to understand and act upon the construction method indicated in the drawings.

Regarding the duty to warn, the Court ruled that the extent to which it applied depended upon the case.  It would typically arise if there was an obvious and significant danger to life and limb or property or, when a careful professional ought to have known of such danger. 

Looking at the responsibility for temporary and permanent works, the Court held that while generally it is the engineer/architect's responsibility to design the permanent works and the contractor's responsibility to construct the temporary works, it is always necessary to consider what services the professional is engaged to provide. Here, Beltec's design provided a sequence of work which, if followed, would have resulted in little damage to the structure above. Nothing in Beltec's design prevented AIMS from working in a reasonably safe way.

Lessons

  • Be clear on the scope of each professional's retainer. If you want the professional to carry out a service then make sure it is in the retainer.  
  • Do your homework when appointing professionals and contractors. Take up references, visit properties that they have previously worked on, check solvency.   
  • Make sure all the professionals and contractors that you appoint have adequate insurance for the project.