PNBA

Goldswain (and Anor) v Beltec Limited (t/a BCS Consulting) (and Anor)

Goldswain (and Anor) v Beltec Limited (t/a BCS Consulting) (and Anor)
Technology and Construction Court (Akenhead J)
10 March 2015
[2015] EWHC 556 (TCC)

Subject: Professional Negligence—Engineers—Residential cellar conversion—Underpinning—Collapse of property—Works undertaken by contractor not in compliance with engineer’s method statement and drawings—Inspection by engineer—Duty to warn contractor and/or claimants about shortcomings in contractor’s works—Whether duty breached—Mechanism of collapse

Summary: Akenhead J reviewed the law on a professional’s duty to warn and helpfully distilled five key principles. On the facts, the Defendant engineers had not been in breach of any duty to warn when they inspected the building contractor’s temporary works. The Defendant had acted as many other competent engineers would have done and there was no evidence of any actual danger to the property at the time of their inspection.

Abstract

The Claimants were the leasehold owners of a ground floor flat at 4 Stanhope Avenue, London N3 3LX (“the Property”). The Property had a cellar which the Claimants decided to convert into living accommodation by underpinning the outer walls to create more height.

Ms Hale (the second claimant) approached Beltec Ltd (“Beltec”) by telephone on 10 February 2012 with a view to Beltec providing structural engineering services. On 17 February 2012, Mr Smith of Beltec wrote to the Claimants with a quotation:

“…to prepare details and justifying calculations, based on our conversation which I understood to be carrying out a survey of the existing basement/ground floor, designs for excavating the basement, underpinning the perimeter walls, providing support to the internal walls and structure as necessary, providing details for damp proofing and drainage, in sufficient detail to satisfy the building regulations…”

The quoted price was £1,350.00. Mr Goldswain signed an enclosed letter of instruction and returned it on 18 February 2012.

Mr Pistilli, a structural engineer who worked for Beltec, visited the Property to take measurements and notes. He produced five drawings referenced 12065 and numbered S001 to S005. It was later agreed that he would revise the drawings to include for light wells. He sent the revised drawings to Mr Goldswain on 28 March 2012.

Drawing S0002A was entitled “Basement Underpinning Plan”. This showed a plan of the basement with each individual “pin” – namely, each section of the basement to be excavated and underpinned – marked with numbers 1 to 5, to indicate the sequence of their excavation. The notes on this drawing included an “Underpinning Method Statement” and certain “Underpinning General Notes”. The method statement included requirements to construct a basement slab ‘kicker’, and for the use of propping, to absorb the horizontal forces that would be imposed by the Property’s walls.

In May 2012, the Claimants retained AIMS Plumbing and Building Services Ltd (“AIMS”) to carry out the works. They accepted AIMS’s quotation in the sum of £20,995 (although this was later revised), which offered to carry out underpinning “as per drawing the Method Statement and notes included on drawing 12065/S002 Rev A“. It was clear that AMIS had been sent the Beltec drawings and the calculations.

AIMS started the work in September 2012. AIMS and Beltec agreed that Mr Pistilli would visit the Property to inspect the initial pin to be constructed, at an agreed price of £200 plus VAT. Upon inspection on 26 September 2012, Mr Pistilli concluded that the reinforcement for the pin had not been carried out in accordance with Beltec’s design. He told Mr James of AMIS that the pin should be completely replaced and spent some time explaining the drawings to him so that AMIS could understand how to rebuild the pin and proceed with the works. He explained the importance of placing the reinforcement as shown on the drawings, of first casting the kicker section of the basement slab at the base, and of following the underpinning sequence and the recommended method statement.

AMIS completed the underpinning in October 2012 but no part of the reinforced concrete slab or the thickened parts of the slab forming the kicker connected to the underpinning were ever cast.

On returning from a holiday at around this time, Ms Hale began to notice a few cracks in the Property’s walls. She reported these to AMIS, who came back in the second or third week of November 2012 to inspect. The cracks worsened. On 24 November 2012, the Claimants noticed that daylight was visible through the walls of their bedroom. They contacted AMIS, and Mr James attended immediately. He fitted some sort of brace over the relevant crack, and then left. But by midday, the Claimants and their upstairs neighbours could actually hear the fabric of the house tearing apart. They rushed from the Property; Ms Hale was eight months pregnant at the time. The Property tilted and collapsed in upon itself. Fortunately, no one was injured.

The buildings insurer declined cover on the basis that the failure was inadequate construction and design, and these factors were not insured contingencies. Mr Goldswain and Ms Hale issued proceedings against Beltec and AIMS on 31 January 2014. AMIS played no part in the proceedings; judgment in default was entered against it. However, AMIS was believed to be insolvent.

The Claimants made a number of allegations against Beltec. By trial, the key remaining allegations were of: failures in relation to the preparation of the drawings; an alleged lack of guidance as to how the base slab sections to the corner pins were to be constructed; and of a failure properly to warn AIMS and the Claimants about the shortcomings in AMIS’s works in the light of what Mr Pistilli observed on 26 September 2012. Beltec denied all of these complaints. It blamed the collapse on the failures of AIMS properly to construct the underpinning, to provide the kickers and to provide any temporary propping.

Akenhead J dismissed the claims against Beltec. He surveyed the case law relevant to a professional’s duty to warn, beginning with Oldschool v Gleeson (Construction) Ltd (1976) 4 BLR 103, and taking in:

  1. Plant Construction PLC v Clive Adams Associates [2000] BLR 137;
  2. Aurum Invetsments Ltd v Avonforce Ltd [2000] EWHC 184 (TCC);
  3. Hart Investments Ltd v Fidler [2007] EWHC 1058 (TCC);
  4. Cleightonhills v Bembridge Marine Ltd [2012] EWHC 3449 (TCC); and finally
  5. Stagecoach South Western Ltd v Hind [2014] EWHC (TCC).

Helpfully, the learned judge set out the following five conclusions from these authorities in relation to a professional’s duty to warn (para 47):

“(a) Where the professionals (engineers in this case) are contractually retained, the Court must initially determine what the scope of the contractual duties and services were. It is in the context of what the professional person is contractually engaged to do that the scope of the duty to warn and the circumstances in which it may in practice arise should be determined.

(b) It will, almost invariably, be incumbent upon the professional to exercise reasonable care and skill. That duty must be looked at in the context of what the professional person is engaged to do. The duty to warn is 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.

(c) Whether, when and to what extent the duty will arise will depend on all the circumstances.

(d) 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 the facts and circumstances.

(e) 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 (see Aurum); any duty to warn may well not be engaged if all there is a possibility that the contractor in question may in future not do the works properly.”

In the context of an engineer’s obligations to inspect and warn about the condition of temporary works, Akenhead J also observed:

There are a number of cases and textbooks in which it is said that, generally, the engineer or architect is, often, required to design the permanent works but that it is the contractor’s responsibility to build those permanent works and the temporary works and how it constructs the permanent works is the responsibility of the contractor. In general terms, that is true but it will always be necessary to consider what services the professional is engaged to provide. There may well be contracts for professional services in which, for instance, the engineer is retained to consider and approve temporary works proposals and, if so, that must be done with reasonable care and skill. On other contracts the engineer may be retained to supervise or inspect the works and, again, that will have to be done with reasonable care and the scope of that duty may well involve a consideration of how safely the works are being carried out by the contractor.”

On the evidence, the judge found Beltec’s engineering expert the more impressive witness. He dismissed the allegations that related to Beltec’s drawings, because there was nothing in the permanent works design documentation which would have prevented the contractor from doing its work in a reasonably safe way. Beltec’s design was capable (indeed readily capable) of being implemented safely by AMIS, provided that what was specified was provided with care, by following the recommended sequence and using appropriate propping. Had this been done, the basement could have been created without any significant damage to the structure above.

The only other allegation with any potential causative significance was the alleged failure to warn either AMIS and/or the Claimants about the shortcomings in AMIS’s work, following on from the 26 September 2012 visit by Mr Pistilli.

When considering this allegation, the context was important. The inspection arose out of an informal contractual retainer made as between Beltec and AIMS, not the Claimants. The visit was arranged simply to enable Mr Pistilli to see what AIMS had done in relation to the first pin.

When he attended, Mr Pistilli looked at it and formed the view that the pin should be re-done, because it appeared to have been constructed in a way which was obviously non-compliant with Drawing S002A. However, there was no danger to the structure at that stage, which was unsurprising given that only one small hole had been excavated. It had not been established that Mr Pistilli should have realised that AIMS was completely out of its depth or not competent to do the job which it had been employed to do. On the facts, Mr Pistilli did no more and no less than what a sizeable number of engineers in his position would have done. He  advised his client (AIMS at that stage) to follow the requirements set out on the relevant drawings, he made sure that Mr James actually had those documents, and he explained the requirements of the drawings to Mr James orally during his visit. In these circumstances, Akenhead J said it was “very difficult to see how Mr Pistilli’s or Beltec’s conduct at or following that visit could be considered to be negligent.”

The learned judge concluded that the cause of the collapse was undoubtedly breaches of contract on the part of AIMS, and gave judgment against them in the sum of £287,754.55.

Comment

The Claimants in this action were effectively forced to pursue allegations against Beltec given that AMIS was insolvent. The outcome on the facts appears an unremarkable one.

Nonetheless, Akenhead J’s review and summary of the law relating to a professional’s duty to warn is a useful restatement of the relevant principles, in the context of construction design and beyond.

Simon Hale
4 New Square