| Date | 20 June 2007 |
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| Judgment | Hart Investments Ltd v (1) Terence Maurice Charles Fidler (T/A Terence Fidler Partnership) (2) Larchpark Ltd (in liquidation), TCC 30 March 2007 |
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| The Issue | The extent to which an engineer who is employed in relation to permanent works is obliged to point out defects in temporary works to a contractor. |
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| Implication |
An engineer has a duty to its employer to warn the contractor as to the risks of the site collapsing. An engineer who is in breach of that duty in failing to warn the contractor will be liable to the employer for damages it suffered in consequence of that failure on the part of the engineer. |
printThis article considers the case of Hart Investments Ltd v (1) Terence Maurice Charles Fidler (2) Larchpark Ltd (in liquidation), in which Hart Investments sought to hold Mr Fidler responsible for the collapse of part of the front and side facades of a building which it owned. Hart engaged Larchpark as the contractor to undertake the building works, and subsequently engaged Mr Fidler to provide structural engineering services in respect of the permanent works. The work involved, amongst others, the retention of front and side facades and the construction of a basement which was approximately 5.3m below the existing foundation level, requiring propping of the existing retaining walls as part of the temporary works. No temporary propping was installed when the basement works were underway, during which part of the facades collapsed on 5 and 6 February 2004. In determining whether Mr Fidler was liable to Hart Investments for the collapse the Judge considered (i) the contractual arrangements (ii) the inspection requirements (iii) the design and the collapse and (iv) what Mr Fidler saw on his site visit on 3 February 2004. Mr Fidler was engaged by Larchpark in early March 2003 to provide it with advice in relation to the temporary works required to undertake the permanent works. In June 2003, Hart Investments engaged Mr Fidler as engineer in relation to those permanent works but no formal contract was entered into between Hart Investments and Mr Fidler. Mr Fidler had what was described as a combined retainer for providing the temporary works design for Larchpark and the permanent works design for Hart Investments. No express terms were agreed regarding inspection between Hart Investments and Mr Fidler. Thus it was implied that Mr Fidler should undertake the normal inspection duties to be expected of a structural engineer on behalf of Hart Investments. Mr Fidler attended the site regularly and his diary recorded at least thirty-seven visits. Mr Fidler acknowledged that not all of his site visits were recorded in his diary, but the conclusion was that he had attended site two to three times a week when works were being undertaken. This was in accordance with the parties’ expectations and satisfied the implied inspection requirements. Subsequently Mr Fidler provided Larchpark various versions of the temporary works design before the collapse occurred. Mr Fidler stated that one of the revised versions of that design produced in October 2003 contained a requirement for temporary propping (raking props) of the retaining walls when the excavation took place. The Judge concluded that Mr Fidler must have known that it was an essential requirement of undertaking the excavations safely that there should be propping in accordance with his scheme. The Judge considered that the requirement for temporary propping must have been something which was in his mind. Mr Fidler visited the site on the morning of 3 February 2004 to inspect the reinforcing bars at the rear of the site, as they would form part of the basement slab which was to be cast, and would form an important part of the permanent works. To get to that part of the works he would have had to go past the area of excavation in relation to the collapse which had occurred, enabling him easily to identify whether the propping that was required had been installed. Mr Fidler’s account of events was that in the two days after his visit Larchpark had suddenly, and without notice to him, undertaken the excavations contrary to the drawings and method statements which he had provided. The judge rejected Mr Fidler’s evidence as (i) it was inconsistent with his own report into the collapse (ii) it was inconsistent with the programme that he issued which indicated that the remaining excavations would start in early January 2004 (iii) it was most unlikely that Larchpark would have undertaken the excavation without any reference to Mr Fidler. In the circumstances the Judge decided that the excavations had progressed to a level where they were dangerous before 3 February 2004 when Mr Fidler visited the site. The question which therefore arose in this case was the extent to which an engineer who is employed in relation to the permanent works is obliged to point out defects in the temporary works to the contractor, and would the engineer be liable in damages to his employer for the consequences of failing to do so? The judge considered that if an engineer employed by an owner in respect of permanent works observes a state of temporary works which is dangerous and causing immediate peril to the permanent works in respect of which he is employed, he is obliged to take such steps as are open to him to obviate that danger. Additionally, it was noted that given the combined nature of the retainer it would be an impossible distinction to say that Mr Fidler owed no duty at all to Hart Investments to point out such plain and obvious defects in Larchpark’s temporary works. Mr Fidler (i) knew that temporary propping was required (ii) knew he had to inspect the works as they proceeded (iii) apparently failed to notice that the basement excavation had been undertaken without the use of temporary propping during his inspection on 3 February 2004 (iv) and failed to warn Larchpark of the consequences of failing to install the temporary propping. In the circumstances, Mr Fidler was in breach of his duty to Hart Investments in not warning Larchpark as to the risk of the building facade collapsing. The Judge held that Mr Fidler was liable to Hart Investments for damages in consequence of the collapse.
CJ-0724
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