The Technology and Construction Court has clarified the scope of duties to warn arising under a construction contract or professional appointment. The court has emphasised the importance of confining such duties to the agreed scope of work and that dangers falling within the duty should be obvious and significant, rather than mere possibilities.
Goldswain v Beltec Ltd
The case concerned the collapse of a London property owned by Mr Goldswain and his partner following the construction of a basement. Beltec Ltd was retained as structural engineer, and the co-defendant, AIMS Plumbing & Heating Ltd (“Aims”), carried out the works.
The Court found that breaches by Aims caused the collapse, due to their failure to construct the basement in accordance with Beltec’s drawings and method statement. As Aims was not a company of substance, and had not defended the proceedings, a claim was also made against Beltec alleging a duty to warn against the dangers of the work carried out by Aims. This claim was based on an isolated site visit by Beltec (requested and paid for by Aims) where it had observed that Aims had begun to perform the works not in accordance with Beltec’s drawings and appeared not to have those drawings on site. Beltec advised the Aims that the work would need to be redone and explained what was required in accordance with its drawings. It also provided further copies of the drawings to Aims.
A duty to warn?
Duties to warn can arise under English law either as part of the contractual obligations accepted by a contractor or consultant or as part of the usual tortious duties owed to third parties to avoid damage to property or personal injury. In a contractual context, the duty forms part of the wider obligation to carry out work with reasonable skill and care.
In considering the application of the contractual duty to Beltec’s inspection, Mr Justice Akenhead provided the following guidance as to the limits of the duty:
- The Court should first determine the scope of contractual duties and services to be provided by the professional or contractor and the duty to warn should only be considered in this context.
- The duty forms part of the duty to act with the skill and care of a reasonably competent person in that profession, in the context of what they are engaged to do.
- Whether, when and the extent to which the duty arises depends on all the circumstances.
- The duty will often arise when there is an obvious and significant danger either to life, limb or property or where a careful professional ought to have known of such a danger, with regard to all of the facts and circumstances.
- The Court is unlikely to find liability simply because there was a future possibility of some danger.
The court concluded that Beltec’s duty to warn was limited to the scope of its single site visit and did not require it to warn of the possibility that Aims might not follow its design in the future. As work appeared to have started without reference to the drawings, it was sufficient for Beltec to have explained the requirements of the design to the contractor and to have required the work already commenced to be redone.
Conclusions and implications
This case highlights the importance of considering a party’s precise scope of work when considering duties to warn. Had Beltec been retained in an ongoing capacity in relation to the works, the position may well have been different. Its attendance at a single site visit requested by Aims was not sufficient to support the broad allegations made against it for breach of a duty to warn.
This decision should provide comfort to both consultants and contractors that the court will closely confine duties to warn to the agreed scope of work and is likely to insist on actual danger rather than a future contingency. Parties should carefully consider the defined scope, limitations and exclusions included within their contracts in order to assess any potential liability for claims of this nature.