Engineers: does your ‘Duty of Care’ mean you have a ‘Duty to Warn’?

9th June 2015

Professional consultants have a duty to exercise reasonable skill and care.

In the recent case of Goldswain and Another v Beltec Limited and Another [2015] EWHC 556 (TCC), the Technology & Construction Court (TCC) confirmed that in some circumstances, reasonable skill and care will require an engineer to warn its employer client if it suspects that the contractor is not carrying out the works correctly.

The case involved basement excavation works which caused the house above to collapse.

Before the collapse, the engineer visited the basement to check the first pin being cast by the contractor. The engineer found that the contractor did not have copies of the engineer’s drawings on site and the reinforcement for the pin had not been carried out in accordance with the design. The engineer told the contractor that the pin should be completely replaced.

Following the collapse, the Court had to consider whether the engineer was negligent in failing to warn the owners of the property regarding the problems that the engineer found with the contractor’s works when he inspected the first pin.

The Court concluded that the engineer did what many other engineers would do. The engineer’s permanent works design was one which was capable of being implemented safely by the contractor (because if what was specified on the drawings was provided with care, following the sequence and using appropriate propping, there was little doubt that the basement could have been created without any significant damage to the structure above).

The engineer was not negligent because:

• the engineer’s retainer did not include an ongoing obligation to supervise the contractor’s works;
• the purpose of the site visit was simply to see the first pin, and there was no danger at that stage or indication that the contractor was completely out of its depth; and
• a sizeable number of engineers would have done “no more and no less” in the same situation.

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 however when a careful professional ought to have known of such danger, having regard to all of the facts and circumstances. In considering a case 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. Any duty to warn may well not be engaged if all there is is a possibility that the contractor in question may in future not do the works properly.

Comment
As a matter of good practice, engineers should consider raising any issues that they identify on site with the employer and with the contractor in writing in order to protect their position in the event that things do go wrong.

Homeowners should consider taking out adequate insurance cover before instructing works, should ensure that the contractor has the required skill and experience, and consider engaging a supervising engineer to oversee the contractor’s works.