REUTERS | Kim Hong-Ji

Mr Oliphant, the Toblerone and the caravan

In the New Year, the Court of Appeal handed down judgment in an obscure dispute between two homeowners and their structural engineer (Penny and Anr v Digital Structures Ltd).  While the judgment creates no new law, it highlights some practical issues relating to structural surveys.

The Pennys’ tale

Mr and Mrs Penny bought their home in 2005. Before buying, they commissioned a structural survey from Digital Structures Ltd (DSL), which confirmed that the property was structurally sound. Shortly after moving in, the Pennys decided to alter the house and commissioned a second structural survey from a different engineer, Mr Oliphant. Mr Oliphant advised the Pennys, on the basis of a visual inspection, that their roof was not properly supported and was on the “point of catastrophic collapse”.

The Pennys acted on Mr Oliphant’s advice and engaged a builder to alter the roof. They also sued DSL for damages, alleging that DSL was negligent in failing to advise them about the roof’s inadequacy. Unfortunately for the Pennys, the judge at first instance agreed with DSL that the roof was in fact structurally sound. The judge’s decision was upheld on appeal.

The judgment must be upsetting for the Pennys. Not only have they incurred the expense of unsuccessfully suing the first surveyor of their new home, they have also been living in a caravan since August 2005. The judgment also underlines some practical lessons for an engineer or surveyor when carrying out a survey and when acting as an expert witness.

Points to remember when carrying out a survey

An engineer or surveyor must take care when assessing a structure solely on the basis of a visual inspection. The client should be informed of the limitations of such an inspection and the cost of more detailed testing, so that the client can make an informed decision about how to proceed.

If an engineer or surveyor’s initial advice leads the client to contemplate litigation, both the client and the engineer or surveyor should once again consider the need for more detailed testing.

The fact that a structure is still standing and shows no sign of distress or damage is not always a guarantee of its soundness. However, it is important evidence, especially in the absence of detailed testing or opening up of the structure. In this case, the judge took into consideration the fact that the house showed no sign of distress.

Points to remember when acting as an expert witness

An expert witness should, where practical, be prepared to deal with new points or issues that emerge during the evidence. For example, in this case, the natural course of the evidence led to DSL’s expert explaining a point about structural integrity to the judge with the aid of a Toblerone packet.

If an expert witness feels unable to deal with a point that emerges in the evidence he should make this clear and ask for more time to consider his opinion. This case illustrates how difficult it is to challenge a judgment on the grounds that the expert witness was given insufficient time to address a point, unless that objection was made clear to the judge during the trial.

Anyone involved in this type of dispute may find it helpful to read PLC’s Practice notes on expert evidence and evidence in the Technology and Construction Court (TCC).

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