The duty to warn arises as no more than an aspect of the duty to act with the skill and care of an ordinarily competent professional. The existence of the duty recognises that in some circumstances the professional must go beyond what is specified as the desired performance in a contract (e.g. carrying out a design) and account for any risks of which he is aware by virtue of that expertise and warn others who may not be so aware.
The imposition of the duty to warn is relatively uncontentious in cases where a structural engineer observes a state of affairs so obviously dangerous that the duty is necessarily triggered by that observation. In such cases the duty arises by operation of common sense, and a fairly vociferous warning may be required to discharge the duty if the risk is one which is particularly obvious and particularly threatening: Plant Construction Plc v Clive Adams Associates, JMH Construction Services Limited  B.L.R. 137 and Aurum Investments Ltd v Avonforce Ltd  EWHC 184 (TCC).
Although the court has on numerous occasions entertained the prospect of imposing wider duties based on a party’s contractual scope of works and area of expertise, there has not yet been a case where such a duty has successfully been found. The only duty to warn that has consistently found to exist has been where the scope of a contract requires inspection or supervision, or where a party has observed an obviously dangerous state of affairs and said nothing.
In the case of Goldswain & Anor v Beltec Ltd (t/a BCS Consulting) & Anor  EWHC 556 (TCC) the court provided guidance on the ‘duty to warn’ in construction contracts and professional appointments. This case represents another illustration of the conservative approach, with the courts entertaining the possibility of the wider duty without actually finding it to exist in the circumstances.
Goldswain v Beltec: the Facts
During 2011, Mr. Goldswain and his partner Ms. Hale decided to convert the cellar below their ground floor flat into living accommodation by lowering the floor and underpinning the outer walls to create more height.
In February 2012, the couple engaged Beltec Limited (“Beltec”) to carry out a survey of the existing basement/ground floor and provide structural designs for excavating the basement, underpinning to the perimeter walls, support to the internal walls and structure as necessary and details for damp proofing and drainage. A fee of £1,350.00 + VAT was agreed between the parties, which allowed for a single visit to site. It was agreed that any subsequent site visits would be charged at £200 plus VAT per visit.
Mr. Pistilli of Beltec visited the Property on 24 February 2012 to take measurements and notes; on 28 March 2012 he sent five design drawings to the couple, which were submitted to the local authority for Building Regulations approval some months later.
The drawings showed what permanent works needed to be done. In effect, new reinforced concrete foundations (the underpinning) were to be placed under the old foundations all the way round the basement and the existing floor was to be lowered with the new reinforced concrete floor to be placed and tied in with the underpinning.
One of the well understood problems with underpinning in these circumstances is that the earth pressures on the outside walls, here mainly the flank wall, are sufficiently large that steps had to be taken to ensure that the walls were supported against those horizontal forces at least until the whole of the reinforced concrete floor was in place so that the external walls were then braced to counteract the forces. It is generally recognised that it is therefore bad practice to have one continuous excavation; this is overcome usually by requiring the underpinning to be done in short (often one metre) sections at a time. These sections are and were often referred to as “pins”.
Beltec’s specification therefore required the underpinning to be carried out in one-metre sections with temporary structural propping between one pin and another to provide horizontal reinforcement. The Underpinning Method Statement also referred to the need to construct about 1m of basement slab adjacent to and below where each individual pin was to be placed (referred to as a ‘kicker’) and the need for reinforcement.
During September 2012 the Claimants engaged AIMS Plumbing and Building Services Limited (“AIMS”) to carry out the work. AIMS had previously carried out a similar basement underpinning project and their quotation made reference to Beltec’s design indicating that AIMS had seen Beltec’s drawings and calculations.
AIMS began work on 24 September 2012. On 26 September 2012, Beltec’s structural engineer, Mr. Pistilli, was instructed to visit the property by AIMS to inspect AIM’s initial ‘pin’ construction prior to casting (at the agreed price of £200 + VAT). He expected to find the reinforcement in place and the pin ready to be cast in accordance with the drawings. Instead, the pin was already cast, but there was no kicker and possibly no reinforcement. Astonishingly, there were no drawings on site. It became apparent to Mr. Pistilli that the pin was cast incorrectly and the drawings were not being followed.
Mr. Pistilli told AIMS that the pin should be completely replaced. He handed them another copy of the drawings and stressed the importance of following the same. However, he took the matter no further and did not warn Mr. Goldswain or Ms. Hale about his discovery.
AIMS continued to construct the underpinning without following the drawings; the underpinning was completed in October 2012 without any of the reinforced concrete slab or the thickened parts of the slab forming the kicker connected to the underpinning having ever been cast.
At the end of October 2012, Ms. Hale noticed a few cracks and thought they were “nothing serious”. AIMS came back in the second or third week of November 2012 to look at the cracks and to plane off the front doors to both the ground and first floor flats, which were sticking. Both AIMS and a council inspector thought the cracks were superficial.
However, on 24 November 2012 the cracks around a bedroom window became so severe that daylight could be seen. Later that day, a tenant from upstairs came knocking on Mr. Goldswain and Ms. Hale’s door to say that there was serious cracking upstairs. The property had to be evacuated as Mr. Goldswain and Ms. Hale described that they could “actually hear the fabric of the house tearing apart”. Eventually, part of the building collapsed.
Unfortunately the insurer of the property declined cover on the basis that the cause of the failure (according to a structural engineer’s report) was inadequate construction and design and the collapse mechanism was said to be “a combination of vertical movement down of the newly installed underpinning foundation due to bearing pressure failure together with lateral sliding of the basement retaining wall to the left flank”.
Goldswain v Beltec: the Judgment
Mr. Goldswain and Ms. Hale commenced proceedings against Beltec and AIMS on 31 January 2014. The case against AIMS was straight forward (inter alia, a failure to install the kicker parts of the reinforced slabs, a failure to install the reinforcement in the underpinning correctly and a failure to install props to the front and rear walls), but they had become insolvent. The Claimants’ only hope of compensation was to recover damages from Beltec.
The Claimants made various allegations of negligence against Beltec. Amongst other things, the Court had to consider whether Beltec was negligent in failing to warn both AIMS and the claimants about Mr. Pistilli’s discovery on 26 September 2012.
Drawing from various authorities, the judge, Mr. Justice Akenhead, provided the following guidelines about the duty to warn:
- Where the professionals 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.
- 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.
- Whether, when and to what extent the duty will arise will depend on all the circumstances.
- 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.
- 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; 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.
- The basic standard of care is that of a reasonably competent professional.
The considerations of whether the scope of the contract included any supervisory role or whether there was ever any state of affairs that was ‘obviously dangerous’ to Beltec were dealt with in a straightforward manner.
In determining whether Beltec held any supervisory role in relation to the contract, Mr Justice Akenhead considered the Letter of Instruction signed by Mr Goldswain:
“49… This letter instructs [Beltec] to carry out structural designs in accordance with their estimate letter…”
This points strongly also to the scope of the services not covering any supervision or inspection of the contractor. The fact that there is nothing in either letter referring to any involvement with the contractor underlines this as well. The reference to “subsequent site visits” to be charged at £200 plus VAT is comprehensible as advising the clients that if they require such visits this is what it would cost.” (underlined emphasis added).
The issue of whether there was an obviously dangerous state of affairs to Beltec when the site visit was conduct by Mr Pistilli was considered later in the judgment:
“63. One then moves on to the ramifications of the visit made by Mr Pistilli on 26 September 2012. One needs to see this visit in the context that it arose as a result of an informal contractual retainer made as between Beltec and AIMS. I have no reason to doubt the thrust of Mr Pistilli's evidence about this visit which was to the effect that it involved a request for him to consider the arrangements for the first pin to be constructed. He arrived and found that, instead of there being reinforcement set up for him to inspect, the first pin had simply been cast without the subjacent slab and kicker. There was clearly little to inspect, only a hole in the ground which was not very large. Mr Train accepted that there could be no criticism of him in relation to a lack of propping at that stage because it would not need to have been installed at or by the time of his visit (see Day 2 Transcript Page 149/1–7). Mr Pistilli had the impression that Mr James did not have the relevant drawings on site and that the pin had been cast without such drawings being followed. He handed over his own copies of the drawings and explained to Mr James how to go about the job, particularly emphasising the importance of getting the base slab and kicker in first and following the sequence set out on Drawing S002A. There is no evidence that at that stage there was any actual danger, which is unsurprising given that only one small hole had been excavated. In effect Mr Pistilli thought that the problem really was that the pin had been constructed without the relevant drawings being on the site and he sought to get over that deficiency by handing over his own and, later, sending another full version to AIMS, as well as explaining how AIMS should go about the job. He sent the next day his Drawing TW001 which showed two additional heavy duty mechanical props which he was clearly recommending should be installed to counteract lateral movements on the flank wall; it would be unlikely that he had not mentioned something about this proposal the day before to Mr James. He also invited Mr James to contact him as necessary.
64. I find it very difficult to see how Mr Pistilli's or Beltec's conduct at or following this visit can be considered to be negligent. The 26 September 2012 visit was simply arranged to enable him to see what AIMS had done in relation to the first pin. He looked at it and formed the view that it should be re-done because it appeared to have been constructed in a way which was obviously non-compliant with Drawing S002A. There was no danger at that stage and it has not been established on any balance of probabilities 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. It was not an unreasonable response for him to consider that at least a major part of the problem had been that the pin had been cast without reference to any drawing available on site, to hand over his drawings to Mr James and to explain how AIMS should go about casting the subjacent floor slab and the pins; essentially, he was telling Mr James no more than was on Drawing S002A. He was not worried, he told the court, about the contractor's ability or arrangements. It was his belief that a company like AIMS would not necessarily need to have a temporary works designer if it had the experience in-house. It is a reasonable inference that he did not appreciate that AIMS did not have that experience; there actually is no evidence that it did not have the experience in-house, albeit that Mr James himself personally may not have had that experience.”
The broader issue considered by Mr Justice Akenhead was whether the scope of the contract which the structural engineer was engaged under could impart a duty to warn about the dangers Beltec ought to have known about and ought to have warned against. The starting point in considering whether such a duty could be found to exist in this case was in considering the scope of Beltec’s contract and the division of work between the structural engineer and the contractor. To this end, the judge considered a bulletin put out by the Health and Safety Executive: “Domestic basement construction projects: What you need to know as a busy builder” (March 2012), and determined that:
“53. It is, rightly, common ground between the parties that the engineer has responsibility for the permanent works and the contractor for the temporary works, the temporary works in effect being the work necessary to achieve the permanent works design; usually, the temporary works are just that, temporary, and do not remain once the permanent works are completed.”
It would therefore require something quite extraordinary to impose upon Beltec a duty to warn about dangers faced when carrying out the temporary works which it ought to have known about when the temporary works were necessarily the responsibility of the contractor. Mr Justice Akenhead considered further guidance about the contractual scope of the responsibilities of a structural engineer provided by “Industry Guidance for Designers” in relation to the Construction (Design and Management) Regulations 2007. Crucially, the Regulations provided an instance where the responsibilities of the structural engineer might be sufficient to impose a duty to warn in respect of the temporary works:
3.1.1 This element of guidance has been provided for two reasons: firstly because temporary works are within the ambit of CDM 2007 as structures within their own right; and secondly because they are inextricably linked to, but distinctly different from, the permanent works.
3.1.2 Although the contractor is responsible for a safe system of work relating to temporary works, permanent works designers often have a major contributory role.
3.2 Permanent works design
3.2.1 The permanent works designer will need to be satisfied that the permanent works design allows for a reasonable safe system of work in respect of temporary works (having regard to hazard elimination and risk reduction to be implemented by the temporary works designer and subsequently the contractor).
3.2.2 Where the likely solution is an industry standard, that is based on codes of practice and established temporary systems, then there may be no need to take any further action. However, if the solution is not standard, or will result in risks which may not be obvious to the contractor, then this should be highlighted. Information should include details of the interaction with the permanent works, paying specific attention to interim instability issues…”
In order to follow the regulation, it would not be enough to merely design a scheme of works that, if followed to-the-letter, would obviate a risk which would not be obvious to a contractor. More must be done: the structural engineer would need to highlight those risks to inform the contractor of the underlying danger. If such an obligation were to be imported into a structural engineer’s requirement to provide reasonable care and skill, then it could well have been used to impose a duty to warn even where Beltec only ought to have known that there was a risk to a contractor who had not been informed of the unusual circumstances and the non-obvious risks would create significant danger.
However, this consideration had no impact on Goldswain as the case involved the dangerous but widely known risks undertaken in any work underpinning the foundations of a building. Therefore the risk would be well known by any competent contractor and could not be passed on to the structural engineer in both the form of a duty to design a safe scheme of work and a duty to warn of all the dangers that were inherently risked in an underpinning.
Accordingly, Mr Justice Akenhead found that:
“Mr Train specifically accepted in cross-examination that propping was an industry standard solution to issues such as interim stabilities and basement construction (Day 2 Transcript page 128/19). Mr Tutt said, and I accept, that Note 15 was the standard industry practice. I therefore consider that in general terms it cannot be said that Beltec was negligent in that it did what many other engineers would do; the permanent works design was one which was capable and indeed readily capable of being implemented safely by the contractor because, if what was specified was provided with care, following the sequence and using appropriate propping, there is little doubt that this basement could have been created without any significant damage to the structure above.”
The case of Goldswain is therefore significant in the context of structural engineers and more generally as it informs professionals of the scope of any duty to warn that they may be under. The decision appears to follow Mr Justice Akenhead’s earlier ruling in Cleightonhills v Bembridge Marine Ltd  EWHC 3449 (TCC) in appearing to once again open up the prospect of a duty to warn against a danger that ought to have been known to a party. However, once again the eventual decision in the case was conservative and largely determined by the fact that there was no obvious danger seen by Beltec and their contractual duties were merely to design, not supervise.
Summary of the Law Following Goldswain
In the wake of Goldswain, the structural engineer’s duty to warn can therefore be expressed as follows:
- Obvious dangers personally observed: the engineer is under a clear duty to warn where he observes a state of affairs which poses an obvious and significant danger of personal injury or damage to property, unless there are circumstances which justify no warning being given.
- Engineer hired to inspect or supervise: where the engineer is under a contractual requirement not just to design the work but also to inspect or supervise its construction, he is under a clear duty to warn of the risks that are apparent (or ought to have been apparent) to him upon such inspection or supervision.
- Ought to have known: there is a suggestion that the duty may arise when a careful professional ought to have known of such danger, having regard to all the facts and circumstances (although no decided case on this point).
- Unusual risks embodied within a design: there is some suggestion that the engineer is under a duty to warn about such risks if they are sufficiently unusual that a reasonably competent contractor would be unaware of them, though this duty has not yet been found to exist in any case;.
- Risks within the knowledge of the reasonably competent contractor: there is no suggestion of any duty for an engineer to warn about the dangers of which a reasonably competent contractor is expected to be aware of, subject to (a).
- Risks created by a negligent contractor: there is similarly no suggestion of a requirement for the engineer to prospectively warn a contractor about any possible danger or risks in the project that would be created by that contractor’s own negligence in failing to carry out the works properly, again subject to those failures being personally observed by the engineer under (a).
In relation to disputes arising
- Some cases are more clear cut: look out for obviously dangerous situations or where the contract contains a supervision role.
- We now know that there may be cases where a court entertains liability if the professional ought to have known of the danger; however, there are no decided cases on point.
- Thinking about possible factual scenarios that might result in liability:
- According to Beltec, a structural engineer will not be liable for contractor’s failure to carry out that design; however a duty may arise if the structural engineer carries out future inspection on site (which takes you back to a contract with a supervisory element).
- Given the discussion in Beltec relating to the well known risk of carrying out underpinning, might a duty to warn be imposed if there are unknown and inherent risks in design?
- It is more likely that a duty will arise in respect of a contractor who inherits the design – the authorities demonstrate that there may be a failure to warn of problems with the design.
Practical tips on avoiding risks through the contract:
- Most of these cases relate to dangers occurring in the way in which the temporary works have been carried out – does your employer want to appoint the professional to design the temporary as well as permanent works?
- Does a professional need to be engaged in a supervisory role?