CONSTRUCTION Alert: By accident or design? How far does an engineer’s duty to warn extend in structural design?

Apr 27 2015

Publications

In the recent United Kingdom decision in Mr E Goldswain and Miss J Hale v Beltec Limited (trading as BCS Consulting) and AIMS Plumbing and Building Services Limited [2015] EWHC 556, the Technology and Construction Court considered an attempt to widen the scope of an engineer’s duty to warn.

The Court clarified the position regarding an engineer’s responsibility regarding the safety and risks for both permanent and temporary works design, and how far a reasonable engineer must go in warning a client or builder of risk.

Background

In 2011, Mr Goldswain and his partner Ms Hale (Claimants), attempted to convert the cellar of their ground floor flat into living accommodation. They retained a firm of professional engineers, Beltec Ltd (Beltec) to design the structural works and AIMS Plumbing and Building Services Ltd (AIMS) to implement the works.

AIMS began works in September 2012 by installing the underpinning, however after increased amounts of cracking in the superstructure, the flat collapsed leaving nothing but a rear extension behind.

The Claimants commenced proceedings against both Beltec and AIMS, alleging a failure to exercise reasonable care and skill in both contract and tort. The Claimants relied on some key propositions, including that one of Beltec’s engineers had inspected the first pin installed by AIMS.

AIMS failed to lodge a defence, and default judgment was entered against it. Beltec filed a defence denying the allegations that it had breached its duty to the Claimants.

Beltec argued that it exercised the level of care and skill expected of a competent engineer, and that the retainer between it and its clients had been discharged before the damage was incurred. Beltec also denied that it held any responsibility in relation to supervising the installation of the pins by AIMS.

Decision

Beltec’s responsibility in relation to the scope of its retainer, and its duty to warn were considered by the Court, amongst other things.

Scope of Retainer

The Court considered whether there was an informal retainer between Beltec and AIMS, arising from a Beltec employee inspecting the first pin and providing directions as to how the pins should be installed by AIMS.

The scope of this retainer was held to be limited, and did not extend to a role of ongoing supervision. The Court could not attribute any negligence to how Beltec handled this initial check, and advised that any reasonable engineer “would have done no more and no less than he did which was, in essence, advising his client (AIMS at that stage) to follow the requirements set out on the Drawings“.

Duty to warn

The Court had regard to a long line of authority in respect of a professional’s duty to warn, and formulated a list of relevant propositions to be considered when deciding whether a duty to warn exists.

The propositions included that the Court must initially determine the scope of the contractual duties in the context of what the professional is engaged to do, and this will almost always be measured against a reasonable level of care and skill. The Court also noted that the extent of the duty will depend on all the circumstances, and will often arise where there is an obvious and significant danger to life and limb or property, but not where there is only a mere possibility of danger.

The Court declined to attribute a duty to warn to Beltec, because on the proper construction of its contract with the Claimants, it was engaged only to perform the permanent-design works. On review, the Court held that all designs were prepared with a reasonable level of care and skill.

Whilst expressing great sympathy for the Claimants’ position, the Court dismissed the Claimants’ case against Beltec, awarding judgment in Beltec’s favour.

Implications

Although the case occurred on (and under) English soil, it can be expected to influence Australian Courts. Ultimately, the existence and scope of a duty to warn on the part of an engineer will turn on the scope of its retainer; however the Court has indicated a willingness to construe that scope narrowly.

With engineers breathing a sigh of relief, builders should be aware of their duty to ensure that all temporary works are performed in a safe and reasonable manner, especially if there is no third-party design upon which to base their construction methodology.

Written by:

Andrew Kelly | Partner | +61 7 3338 7550 | akelly@tglaw.com.au
Tom McKillop | Associate | +61 7 3338 7530 | tmckillop@tglaw.com.au