Practical Law

I had a call from a client (I’ll call him “Mr D”) not so long ago. Mr D was developing a scheme behind an existing façade, which the lovers of early 20th-century architecture at planning control had insisted needed to be retained.

Mr D’s contractor therefore had to construct various brackets and supports during excavation in order to prevent the collapse of the existing façade while he built the permanent structures. Due to the delicate nature of this task and the fact that Mr D’s site was surrounded by some potentially litigious neighbours, Mr D was keen to ensure that his structural engineer acted as a second pair of eyes looking over the contractor’s temporary works and their design.

A look at the structural engineer’s schedule of services revealed that, while there was provision for a generic site monitoring role, there was no clear requirement for him to check either the design of the temporary works or the contractor’s activities on site. The question that Mr D asked was: is the structural engineer under any duty to warn him of the risk that the existing façade wall may fall down and cause damage?

Is there a duty to warn?

This issue has been considered by the courts a number of times and there is no easy answer.

The courts have traditionally taken the view that a structural engineer employed in respect of permanent works does not have a general duty to warn the employer of inadequacies in a contractor’s temporary works, nor to instruct the contractor as to the manner in which it is to execute the works. However, it is clear that:

• The frequency and duration of inspections required of a professional consultant should be proportionate to the nature of the works going on at site from time to time (Corfield v Grant 29 ConLR 58).
• An engineer is under a duty to warn the contractor if he witnesses an obvious danger and to advise the contractor to take precautions (Old School v Gleeson 4 BLR 103).
• If a structural engineer is on site and witnesses activity that is likely to result in imminent collapse and threat to health and safety, he may be held to have not only a contractual duty to warn his employer, but also – in special circumstances – a tortious duty of care to prevent economic loss (either concurrent with, or even in the absence of, any contractual duty) (Hart Investments Ltd v Fidler).

To be honest, it is difficult to see how a court would find otherwise. If it did so it would be allowing a professional simply to sit back and watch damage occur, despite having the expertise to prevent it. There is a distinction here between the engineer’s duty (a) to design the permanent works and update the design to take account of the interface between the temporary and the permanent works, as he is required to do under the CDM Regulations and (b) to warn of an obvious danger.

However, the extent of the duty to warn is still not entirely clear, in particular the level of knowledge required to trigger the duty. Solicitor’s negligence cases provide some guidance on this issue. In Credit Lyonnais SA v Russell Jones and Walker the court held that a solicitor is under a duty to point out to his client a plain and obvious risk (in that case relating to a payment for a break clause in a lease) which he notices, or ought to notice, in the course of carrying out instructions within his area of competence, even though the risk is not strictly part of his retainer.

In contrast, in Swain Mason & others v Mills & Reeve the Court of Appeal found that a firm of solicitors was not under a duty to warn its client of a particular risk (adverse tax consequences) that would arise on the death of the client shortly after completion of a management buy-out, where he had not asked for advice and the death occurred during a routine medical procedure that the solicitors knew of only by chance.

So what about that wall?

In Mr D’s case, circumstances may have arisen during the course of his project which triggered the structural engineer’s duty to warn Mr D of a risk or potential risk of the façade collapsing. However, our advice to Mr D was that if he wanted his structural engineer to check his contractor’s temporary works design, then he needed to agree with the engineer that this would form part of his services and amend the professional appointment accordingly. The engineer may ask for an increased fee to take on this role, but this seemed a far better solution than trying to explain to the local authority where that elegant Edwardian façade had disappeared to.