Goldswain & Anor v Beltec Ltd (t/a BCS Consulting) & Anor

A professional engineer’s duty to warn is determined in the context of the contractual services undertaken. It is an aspect of the duty to exercise the reasonable skill and care expected of a competent professional.

The duty may arise where there is an obvious and significant danger to life, limb or property, or where a careful professional ought to have known of such danger. A mere possibility that a contractor may carry out works improperly will generally be insufficient. Responsibility for temporary works ordinarily rests with the contractor, subject to the scope of the professional’s retainer and any obligation to design, inspect or supervise those works.

The claimants’ leasehold flat was severely damaged and substantially collapsed during basement conversion works. They claimed against Beltec, the structural engineers, for negligent design and failure to warn, and against AIMS, the contractor, for defective construction. AIMS did not defend the proceedings and judgment in default had been entered against it.

The principal issues were the scope of Beltec’s contractual retainer, whether its permanent works design was negligent, whether it owed a duty to warn after an inspection of the works, and whether any breach caused the collapse.

1. Beltec’s retainer. Beltec was retained to provide the permanent works design for the basement excavation, underpinning and necessary support to the internal walls and structure. Its retainer did not include supervision or inspection of the contractor’s work, nor a continuing obligation to visit the site. Beltec was required to exercise reasonable skill and care in providing the design (paras 49–50).
2. Design. The drawings adequately specified the underpinning sequence, the construction of the basement slab and kickers, and the need for horizontal and diagonal propping. A competent contractor could implement the design safely. The alleged deficiencies concerning slab thickness, sequencing, corner construction, the rear light well and the front bay were not established as breaches of duty (paras 51–62).
3. Duty to warn. The duty to warn is assessed by reference to the contractual services and is an aspect of the professional’s general duty of reasonable skill and care. It depends on all the circumstances and will often arise where an obvious and significant danger exists, or where a careful professional ought to have known of it. Liability will not ordinarily arise merely because there is a possibility that a contractor may later perform the works improperly (paras 40–48).
4. Beltec’s September 2012 visit occurred when only one small excavation had been made and there was no actual danger. Mr Pistilli supplied the drawings, explained the required sequence and propping, and later issued further drawings showing additional props. Beltec was not negligent in failing to warn the claimants or AIMS, and there was no obligation to issue the later illustrative drawing earlier (paras 63–66).
5. AIMS and causation. AIMS failed to follow the drawings and method statement, failed to install effective propping, failed to construct the slab and kickers, and used incorrect reinforcement. The primary mechanism of collapse was horizontal or lateral movement of the flank wall, although some downward movement also occurred. AIMS’s breaches caused the collapse. Damages were assessed at £287,754.55 (paras 67–72).
6. The claim against Beltec was dismissed and judgment was entered for Beltec. AIMS was liable to the claimants for the assessed damages (para 73).