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Careful now – what is the extent of a professional consultant’s duty to warn?

11 May 2015 #Construction

Goldswain v Beltec (t/a BCS Consulting) [2015] EWHC 556 (TCC)

The recent Goldswain case gave the High Court the opportunity to summarise the relevant case law relating to the extent of a consultant’s duty to warn its client in relation to the potential failings of other parties or of the client itself.

The Claimants had bought a leasehold interest in a ground floor flat at 4 Stanhope Avenue, London N3, and wished to convert the cellar of the flat into living accommodation by underpinning the outer walls to create more height. Beltec were engaged to design the essential structural engineering works. AIMS Plumbing and Building Services Limited (“AIMS”) were engaged to carry out the work.

After the initial underpinning work by AIMS in September 2012, the building suffered increasingly severe cracking and in November 2012 the whole of number 4 collapsed, save for a rear extension. Proceedings were brought against both Beltec and AIMS, although AIMS is believed to be insolvent.

Beltec’s design for the underpinning required that the basement excavation be carried out in a series of sections or “pins” rather than one continuous excavation. It was acknowledged to be best practice to underpin in this gradual way to minimise the effects of the large horizontal earth pressures on the outside walls. The walls had to be sufficiently supported at all times against those horizontal forces until the whole of the reinforced concrete floor slab could be put in place. Beltec’s design required the reinforcement of around 1 metre of basement slab adjacent to and below each individual pin, to provide essential lateral support to the vertical reinforcement of the concrete pin itself.

After some negotiation with AIMS, Beltec agreed to visit the site to inspect the first pin going in, at an agreed price of £200 plus VAT for the visit. During the visit it became apparent to Beltec’s engineer that AIMS had cast the first pin without following the Beltec drawings and without first casting a section of floor slab to provide lateral reinforcement. Beltec advised AIMS of the necessity of first casting the section of basement slab (the “kicker”) before each pin; Beltec advised that the first pin should be completely replaced. The following day Beltec sent through to AIMS further copies of Beltec’s drawings and calculations. AIMS paid Beltec £200 plus VAT for these services.

The underpinning was completed in October 2012, but it was apparent that no part of the reinforced concrete slab or the kickers connected to the underpinning were ever cast. AIMS had told the Council’s Building Control that Beltec had supervised all the pins; Beltec responded that this was not the case and that in fact only one site visit had taken place, relating just to the first pin.

By November 2012, cracks in the superstructure of Number 4 were becoming obvious and worrying. In late November the residents evacuated the building and it collapsed in on itself shortly afterwards. The insurer of Number 4 declined cover, on the basis that the failure of the structure was due to inadequate construction and design, these not being insured events. The complaint in relation to design was “particularly the way in which it was communicated to the contractor and the employer”.

The subsequent claim insofar as it was made against Beltec for breach of contract and in tort was based on a failure to exercise reasonable skill and care. In Beltec’s defence it was asserted that they had exercised the reasonable skill and care to be expected of competent engineers and that it had discharged its retainer to provide the design. Beltec claimed that the collapse was due to the failures of AIMS to properly construct the underpinning and in particular to install the reinforced concrete slab “kicker” sections. The questions arose whether Beltec’s contract imposed on them a continuing obligation, after providing the design, to visit the site and give appropriate advice, and whether Beltec had been negligent in failing to warn both AIMS and the Claimants about the shortcomings in AIMS’ work.

The Court restated the clear test for negligence; if the consultant in question has done what other reasonable members of their profession would have done, they will not be liable for professional negligence. One unsatisfactory feature of the evidence raised in the case, noted by the Court, was that the expert engineers called to give evidence did not comment on Beltec’s duty to warn. Even so, the Court went on to restate the law relating to the duty to warn. In the Oldschool v Gleason case of 1976, the Court found in very similar circumstances that the engineer had a duty, if it knew or ought to have known that the contractor was risking damage to property, to warn the contractor to take the necessary precautions. But generally, the ultimate responsibility for achieving the consulting engineer’s design remains with the contractor. The Courts have over the years since that decision made clear that:

- the existence of a duty to warn flows from the contractual basis of the consultant’s appointment; and

- the duty itself is simply an aspect of the duty of a professional to act with the skill and care of a reasonably competent person of that profession.

The duty to warn can arise where there is an obvious danger of personal injury or property damage; but it can also arise when a careful professional ought to have known of such danger, having regard to all the facts and circumstances.

The Court found that the extent of Beltec’s contractual obligation was limited to providing the permanent works design. There was no supervision obligation and no requirement to visit the site once work was due to start. Did it make any difference that Beltec had in fact visited the site and inspected the first pin, as part of an informal contractual retainer with AIMS?

The Court found that Beltec’s conduct during and after the visit could not be considered negligent. Beltec advised AIMS to re-do the first pin because it did not comply with their design; but at that stage the work did not constitute a danger and there was no reason why Beltec should have concluded that AIMS would proceed to carry out the rest of the underpinning work in a non-compliant and dangerous way. Beltec had not, by agreeing to visit the site once, assumed responsibility for a more extensive duty to inspect or to warn.

Although the Court expressed great sympathy with the Claimants, their case against Beltec was dismissed. AIMS was found to be liable in full to the Claimants, although this decision may be of limited value to the Claimants considering the likely insolvency of AIMS.

Clarkslegal, specialist Construction lawyers in London, Reading and throughout the Thames Valley.
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