Professional negligence – Engineer – Duty of care – Damages – Claimants employing first defendant engineers and second defendant construction company to develop cellar of flat – Property requiring underpinning – Whole house subsequently collapsing – Claimants seeking damages for negligence – Whether defendants acting negligently and failing to exercise reasonable care – Claim allowed in part
The claimants acquired a leasehold interest in a ground floor flat in north London, part of a pair of semi-detached houses. The flat had a cellar, which they decided to convert into living accommodation by underpinning the outer walls to create more height. They retained the first defendant professional engineers to design the essential structural works and later employed the second defendant company to carry out the work. A structural engineer working for the first defendant carried out drawings of the proposed work which expressly stated that underpinning was necessary. The first defendant provided copies of the drawings to the second defendant and representatives of both companies met to discuss the work.
The second defendant carried out the underpinning work but, after substantial cracks appeared in the superstructure, the entire house collapsed save for a rear extension. The insurer of the property declined cover on the basis that the cause of the failure had been inadequate construction and design which were not insured contingencies.
The claimants issued proceedings against both defendants with the backing of a conditional fee agreement and after the event insurance. The claimants claimed damages on the basis that both defendants had acted negligently and had failed to exercise reasonable care in contract and tort. The second defendant played no part in the proceedings and was believed to be insolvent.
A report provided by a structural engineer advise that the cause of the collapse had been a combination of inadequate construction and inadequate design. The complaint about design was the way on which it had been communicated to the contractors and the employer, whilst the inadequate construction was said to be the failure to provide any propping to resist the lateral loads imposed on the basement walls.
Held: The claim was allowed in part.
(1) Where professionals, engineers in this case, were contractually retained, the court had to determine initially what the scope of the contractual duties and services were. It was in the context of what the professional person was contractually engaged to do that the scope of the duty to warn and the circumstances in which it might in practice arise had to be determined. It would, almost invariably, be incumbent upon the professional to exercise reasonable care and skill. That duty had to be looked at in the context of what the professional person was engaged to do. The duty to warn was 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 would arise would depend on all the circumstances. The duty to warn would often arise when there was an obvious and significant danger either to life and limb or to property. However, it could arise when a careful professional ought to have known of such danger, having regard to all the facts and circumstances. In considering a case where it was alleged that the careful professional ought to have known of danger, the court would be unlikely to find liability merely because at the time that the professional saw what was happening there was only a possibility in future of some danger; any duty to warn might well not be engaged if all there was a possibility that the contractor in question might in future not do the works properly: Oldschool v Gleeson (Construction) Ltd (1976) 4 BLR 103, Plant Construction PLC v Clive Adams Associates [2000] BLR 137, Aurum Investments Ltd v Avonforce Ltd [2000] EWHC 184 (TCC), Hart Investments Ltd v Fidler [2007] EWHC 1058 (TCC), Cleightonhills v Bembridge Marine Ltd [2012] EWHC 3449 (TCC) and Stagecoach South Western Ltd v Hind [2014] EWHC 1891 (TCC); [2014] EGILR 40 considered.
(2) In general terms, the engineer or architect was often required to design the permanent works but it was the contractor’s responsibility to build those permanent works and temporary works. How it constructed those works was the responsibility of the contractor. However, it would always be necessary to consider what services the professional was engaged to provide. On the facts of the present case, professional negligence had not been established with regard to any warning which the first defendant could have given either to the second defendants or the claimants. A sizeable number of engineers in the position of the first defendant would have done no more and no less than it had done, in essence, to advise the client to follow the requirements set out on the drawings which it made sure the second defendant had in its possession and which had been explained orally at a meeting at the site. Accordingly, the claimants’ case against the first defendant would be dismissed.
(3) Although the court had not had the benefit of any evidence from the second defendant, on the evidence, the overwhelming probability was that the second defendant had failed to carry out its work with reasonable care and skill or in compliance with the drawings. It was clear that, from the start of the work up to the collapse, no or no effective propping had been provided and that the specified sequence had, for no good reason, not been followed. Accordingly, the second defendant was liable to the claimants in the sum of £287,754.55.
Gideon Scott Holland (instructed by Birketts LLP) appeared for the claimants; Steven Walker QC (instructed by Bond Dickinson LLP) appeared for the first defendant; The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
