UK: Engineer´s Responsibility For Temporary Works

An engineer engaged to provide design services for permanent works may also owe a duty to his employer for temporary works, even if the employer's brief does not specifically refer to temporary works.

In Hart Investments v Fidler the court held that a consulting engineer was liable to the employer for the collapse of part of a building into a deep excavation. The cause of the collapse was patently inadequate support to the building during excavation. The engineer was specifically engaged by the employer to design the permanent works - for which he accepted full responsibility - but not the temporary works. Yet the engineer was held liable to the employer for the consequences of there being inadequacies with the temporary works.

The engineer visited the site on several occasions, and witnessed the progress of the excavations. The court held that the engineer ought to have pointed out the problem with the support to the building when he saw the excavations, and required the contractor to take emergency measures to shore things up. The fact that the contractor also ought to have been aware of the problem did not excuse the engineer's failure to take action.

On its face this case may seem a little unusual, i.e. an engineer was held liable for something not written into his brief. But this case is consistent with earlier authority, which is to the following effect:

• If an engineer is involved in the implementation of his design, and he sees something on site which is obviously dangerous, e.g. a wall which is on the verge of collapse, it is his duty to speak up and warn of the danger. Such a duty may not be written into the engineer's brief. It arises as a consequence of the engineer undertaking to provide professional services in a professional manner.

• The position is different in relation to defects with the design or workmanship of others which are not dangerous. If, for example, an engineer notices that a contractor's works are defective - but not dangerously defective - whether he has a duty to speak up depends to a large extent on the terms of his retainer, and whether he is charged with supervising the works. If he is not on site as a supervisor, and the works in question do not relate to his design, he may not be subject to such a duty.

Pointing out obvious dangers on site is something that most engineers will do instinctively, as a matter of common sense. In Hart Investments v Fidler the engineer saw the dangerous works, but did not twig that they were dangerous, even though the danger was obvious. Different issues arise where an engineer does not actually see a danger, but the allegation is that he ought to have spotted the danger and raised the alarm. This case should not set alarm bells ringing for engineers and other professionals. It simply expresses the position of the law that, subject to any specific obligations which are agreed, if a professional person exercises common sense and acts reasonably, he will usually be okay.

Reference: Hart Investments Ltd v Fidler [2007] EWHC 1058 (TCC).

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 25/05/2007.