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When does an engineer have a duty to warn of the risk that a danger exists?

A recent case provides a very helpful summary of the authorities that have considered when an engineer or other professional involved in construction works has a duty to warn of the risks or dangers which exist with the works. The position was summarised as being:

  1. What was the engineer’s scope of the contractual duties and services that it was engaged to provide.
  2. An engineer is under a duty to exercise reasonable skill and care when providing those services.
  3. 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.
  4. The duty to warn will often arise when there is an obvious and significant danger of personal injury or damage to property.
  5. A duty to warn is unlikely to arise where there is only the possibility of a danger arising in the future if a contractor failed to carry out the works properly.
  6. Where an engineer has notice or should be aware when carrying out his contractual duties that a danger exists he may then be under a duty to warn.

In the case of Mr E Goldswain and Miss J Hale v (1) Beltec Limited (trading as BCS Consulting) (2) AIMS Plumbing and Building Services Limited [2015] EWHC 556 (TCC) the Court considered whether an engineer was under a duty to warn having designed the permanent works for the excavation of a basement, including the underpinning of the external walls and the provision of support for the internal walls and structure. The engineer was not retained to provide ongoing supervision in respect of the works on site. The design of the temporary works was the responsibility of the contractor.

The engineer was instructed to inspect the first pin being constructed by the contractor, which he advised should be redone because it was not in compliance with the relevant drawing. On the evidence it was found that the engineer could not be criticised for not warning of the risk of the contractor failing to carry out the works going forward in accordance with engineer’s design as there was little for him to inspect and at that point in time there was not any actual danger. There was no reason for the engineer to think that the contractor was out of its depth or not competent to do the job which it had been employed to do.

On the facts, the Court found that an engineer had performed its duties as any reasonably competent professional would have done and that the cause of the property subsequently collapsing was that the contractor had not followed the design produced by the engineer and their workmanship was defective.

Construction professionals will welcome the clarification this case gives to the circumstances as to when a duty to warn might arise but it will turn on the facts of each case. Property owners need to ensure that they employ contractors with the relevant experience to carry out the works instructed and to employ an engineer to design the temporary works design if the contractor does not have that experience.