In 2011, the Claimants acquired a leasehold interest in a ground floor flat, which had a cellar which they decided to convert into living accommodation by underpinning the outer walls to create more height. They retained professional engineers, Beltec, to design the essential structural works and later AIMS Plumbing & Heating Ltd (“AIMS”) to carry out the work. AIMS started the work in September 2012 and installed the underpinning. Following increasing amounts of cracking in the superstructure, and a hasty evacuation of the premises, the property collapsed. The Claimants brought a claim against Beltec as well as AIMS but AIMS played no part in the proceedings and at the time of the hearing were believed to be insolvent. The primary matters at issue included:
- Whether Beltec, in the original design documentation, should have spelt out or explained any unusual risks not likely to be obvious to a competent contractor.
- Whether Beltec should have checked whether the contractor to be appointed had secured or had the appropriate internal expertise to carry out the job.
- Whether the contract between the Claimants and Beltec was such that Beltec had a continuing obligation after providing the design for the underpinning and floor slab to visit the site and give appropriate advice.
- Whether Beltec was negligent in failing to warn both AIMS and the Claimants about the shortcomings in AIMS’ activities.
- Whether AIMS would have done any better than it did do even if the risks had been spelt out more precisely than they were or if an appropriate warning had been given to it by Beltec.
Mr Justice Akenhead summarised the duty to warn in this way:
- Where there is a contract, the Court must review the scope of the contractual duties and services to determine the scope of the duty to warn and when such a duty may arise.
- “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.”
- “Whether, when and to what extent the duty will arise will depend on all the circumstances.”
- Whilst 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 “when a careful professional ought to have known of such danger, having regard to all the facts and circumstances”.
- 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”. If there is only a possibility then the duty to warn may well not be engaged.
The Judge 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 the provision of support to the internal walls and structure as necessary. There was no supervision obligation and no requirement to visit the site once work was due to start. The usual position is that an engineer has responsibility for the permanent works and the contractor for the temporary works, the temporary works being the work necessary to achieve the permanent works design. On the evidence, there was nothing in the permanent works design documentation produced by Beltec which would prevent the contractor from doing its work in a reasonably safe way.
A representative from Beltec did visit the site. This was arranged to enable Beltec to see what AIMS had done in relation to the first pin. The engineer looked at it and formed the view that it should be re-done because it appeared to have been constructed in a way which was obviously non-compliant with the drawings. There was no danger at that stage and no evidence to suggest that on any balance of probabilities Beltec should have realised that AIMS was completely out of its depth or not competent to do the job which it had been employed to do. Indeed the response of Beltec was a reasonable one. Beltec considered that at least a major part of the problem had been that the pin had been cast without reference to any drawing available on site. Beltec then handed over their drawings to AIMS and explained how AIMS should go about casting the subjacent floor slab and the pins. In doing this, Beltec were telling AIMS no more than was on the drawings.
Accordingly, in the view of the Judge, the Claimants had not established that there had been any professional negligence with regard to any warning which it is said that Beltec should have given either to AIMS or to the Claimants. A “sizeable number of engineers in the position of Beltec” would have done no more and no less than they did, which was to advise the client (AIMS at that stage) to follow the requirements set out on the drawings which they made sure AIMS had, and to orally explain to AIMS what those requirements were. On the other hand, the evidence established the overwhelming probability that AIMS failed to carry out their work with reasonable care and skill. No, or no effective, propping was provided and the specified sequence was, for no good reason, simply not followed; a finding which, unfortunately, was of little help to the Claimants, given the financial status of AIMS