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Rowan Turrall
Rowan Turrall,
SENIOR ASSOCIATE - SOLICITOR
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Scope of an engineer’s duty to warn
02 June 2015

In Goldswain and Hale v Beltec Limited and AIMS Plumbing and Building Services [2015] the court was asked to consider whether an engineer was liable for the collapse of a building following construction work and particularly, whether he should have warned of the potential danger.

Background

The judge described this as a “sad case”. The claimants engaged Beltec to design the structural works to enable them to convert a cellar into living accommodation by lowering the floor and underpinning the outer walls to create more height. The letter of engagement stated that:

This letter instructs [Beltec] to carry out structural designs in accordance with their estimate letter…

This cost being £1,350 plus VAT and disbursements.

Any subsequent site visits will be charged at £200 plus VAT per visit…”

Beltec carried out relatively detailed calculations and then prepared five drawings which following various amendments were submitted to the local authority for Building Regulations approval. The drawings showed how the walls were to be underpinned on a sectional basis in “pins” and included notes on how and the order in which the works should be undertaken.

The claimants appointed AIMS as the contractor. AIMS wrote to Beltec to say that they needed input from a structural engineer in relation to inspection of the initial bays, concrete and reinforcement specifications and temporary structural propping. It was eventually agreed that Beltec would attend the property to inspect the initial pin to be constructed.

When Mr Pistilli of Beltec attended the property as agreed he found that AIMS did not have copies of the drawings. Contrary to what he was expecting, they had already cast the first pin and Mr Pistilli formed the view that the pin had either been cast without any reinforcement or without following the drawings. He told AIMS that the pin should be completely replaced and explained the drawings, further copies of which he sent the following day.

The underpinning was eventually completed in October 2012 but it later transpired that no part of the reinforced concrete slab or the thickened parts of the slab forming the kicker connected to the underpinning, as required by Beltec’s drawings, were ever cast.

Some weeks later the claimants started to notice some cracks. By mid-November the cracks in the flat above their property were becoming more obvious and the tenants in that flat were very worried. At 9am on a Saturday morning the claimants noticed that the cracks in their property had opened up and they could see daylight through the crack. Later in the morning the upstairs tenants knocked on the door to say there was serious cracking upstairs. They decided the house needed to be evacuated and with their baby and little more than what they were wearing they all rushed outside. The house started to tilt by 5-10 degrees before a substantial V shaped crack appeared between it and the neighbouring property. The house then collapsed in on itself.

The proceedings

Proceedings were brought against both AIMS and Beltec. AIMS played no part in the proceedings and was believed to be insolvent. The judgment therefore focused on whether Beltec had been negligent in various respects. One of the grounds relied on was that Beltec had failed to warn the claimants and AIMS in light of what Mr Pistilli had discovered during his inspection.

The decision

The judge reviewed case law on the extent of a duty to warn and summarised the principles as follows:

  • Where the professional is contractually retained the court must determine the scope of the contractual duties. It is in the context of the contractual engagement that the scope of the duty to warn and when it may arise should be determined.
  • The duty must be looked at in the context of what the professional is engaged to do - the duty to warn is an aspect of the obligation to exercise reasonable skill and care.
  • Whether, when and to what extent the duty arises will depend on all the circumstances.
  • The duty will often arise when there is obvious and significant danger to life and limb or property. It can arise when a careful professional should have known of the danger, taking into account all the facts and circumstances.
  • The court will be unlikely to impose liability simply because at the time the professional sees what is happening, there is only a possibility of some future danger. Any duty may not be engaged if there is a possibility the contractor may in future not do the works properly.

The judge concluded that on the facts of this case, there was no supervision obligation and no requirement to visit the site once work was due to start. In relation to the visit which did take place he found that there was no danger at that time and it had not been established that Mr Pistilli should have realised that AIMS was out of its depth or incompetent. It was not an unreasonable response for Mr Pistilli to believe that at least a major part of the problem was that the pin had been cast without the drawings on site, an issue which he had remedied by providing the drawings and explaining how AIMS should go about casting the floor slab and pins. The judge decided that a sizeable number of engineers would have done no more or less than what Mr Pistilli had done – advising AIMS to follow the drawings and explaining the requirements orally.

On this ground, and the others advanced, the judge found that Beltec had not been negligent. Whilst he had great sympathy with the claimants he dismissed the claim against Beltec. He entered judgment against AIMS but it seems that the claimants will have little success in recovering any damages. 

If you would like to discuss this further or find out more about how the Construction team can help your business please contact Rowan Turrall on 0118 952 7247 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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