DUTY TO WARN - A CRACKING CASE

Introduction

In the recent case of Goldswain & Anor v Beltec Ltd (t/a BCS Consulting) & Anor [2015] EWHC 556
(TCC) (10 March 2015) the court provided guidelines on the ‘duty to warn’ in construction contracts
and professional appointments.

This is essential reading for construction professionals and consultants alike, especially when
defining scope, limitations and exclusions within their contracts.

Background

Mr. Goldswain and his partner Ms. Hale decided to convert the basement of a ground floor flat into
living accommodation which required the underpinning of the outer walls to create more height.

They engaged Beltec Ltd as professional engineers (“Beltec”) to carry out a survey of the existing
basement/ground floor and provide designs for:

 excavating the basement;

 underpinning the perimeter walls;
 providing support to the internal walls and structure as necessary; and
 providing 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.

Mr. Goldswain and Ms. Hale then engaged AIMS Plumbing and Building Services Ltd (“AIMS”) to
construct the work in accordance with Beltec’s drawings.

Trouble in the Basement

The construction work began sometime in mid-September 2012.

On 26 September 2012, Beltec’s structural engineer, Mr. Pistilli, visited the property to inspect AIM’s
initial ‘pin’ construction prior to casting. 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.

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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.

Alas, AIMS constructed the underpinning without following the drawings. The consequences would
be devastating for Mr. Goldswain and Ms. Hale.

The Nightmare

The perilous underpinning was completed in October 2012 and the basement was now ready for
construction of the reinforced concrete slab.

Then along came the cracks.

At first, Ms. Hale noticed a few cracks and thought they were “nothing serious”. However, 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 now sticking.

AIMS and the council inspector thought the cracks were just superficial. Beltec knew nothing about
them.

By 24 November 2012 the cracks around a bedroom window became so severe that daylight could
be seen. AIMS fitted some sort of brace, but they kept on coming.

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. To their horror, they could actually hear the fabric of the
house tearing apart and several stones from a stone arch came down.

Things were so bad that the property was immediately evacuated and the council treated the
building as a dangerous structure. Eventually, part of it collapsed.

This was devastating for Mr. Goldswain and Ms. Hale and they were deeply shocked. She was eight
months pregnant and became highly stressed and had to be taken to hospital suffering from early
contractions.

If only AIMS had done the job properly. If only Beltec had warned them about Mr. Pistilli’s discovery.
Somebody has got pay for this nightmare - right?

The Court

Mr. Goldswain and Ms. Hale commenced proceedings against Beltec and AIMS on 31 January 2014.

The case against AIMS was straight forward, but they had become insolvent. So the claimant’s hope
of compensation was pinned on Beltec.

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The claimant made various allegations of negligence. 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. Akenhead, provided the following guidelines about
the duty to warn:

a) 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.
b) 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.
c) Whether, when and to what extent the duty will arise will depend on all the circumstances.
d) 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.
e) 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
(see Aurum); any duty to warn may well not be engaged if all there is is a possibility that the
contractor in question may in future not do the works properly.

Mr. Akenhead also reiterated that the basic standard of care is that of a reasonably competent
professional.

The fact that the engineer "gets it wrong" does not mean that he or she is liable. If the engineer in
question has done what other members of his or her profession would have done, he or she will not
be liable for professional negligence.

So how did this affect Beltec?

A critical issue for the court to consider was the scope of Beltec’s services. The court found that they
were simply required to carry out a survey and provide designs. Mr. Akenhead was “wholly
satisfied” that Beltec had no supervision obligation and no requirement to visit the site once the
work was due to start. For this reason, he found that professional negligence had not been
established when failing to warn AIMS or the claimants.

The court found that the purpose of Mr. Pistilli’s visit on 26 September 2012 was simply to see the
first pin. Despite, AIMS wrongdoing, there was no danger at that stage or indication that AIMS was
completely out of its depth. A sizeable number of engineers would have done “no more and no less”
than Mr. Pistilli in the same situation.

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Although Mr. Akenhead had the greatest sympathy with Mr. Goldswain and Ms. Hale, he held that
the case against Beltec was dismissed.

Conclusion

To summarise, the court has provided guidelines on the matter of duty to warn and highlights that:

 A duty to warn is confined to the agreed scope of work

 The court is likely to insist on actual danger rather than a future possibility
 The basic standard of care is that of a reasonably competent professional.

It could have been a different story for Beltec had its scope of works included a supervisory role,
where it would have had a duty to warn. Then again, the problem arising from AIMS construction
methods might have been avoided in the first place.

This decision will undoubtedly be welcomed with open arms by many consultants and contractors.

On the other hand, parties should carefully consider the defined scope, limitations and exclusions
included within their contracts to assess their exposure and risk in the light of this case.

The full judgment is available to view here:

http://www.bailii.org/ew/cases/EWHC/TCC/2015/556.html

Mike Lynn
Senior Consultant
mike.lynn@jrknowles.com

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