| Date | 16 May 1996 |
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| Judgment | Willmott Dixon Housing (Southern) Ltd -v- John Savage Associates and Others: March 1996 (unreported) |
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| The Issue | Engineer's liability for subconsultant's default. |
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| Implication |
Sub-consultant for geo-technical investigations engaged as agent of the client under the ACE conditions. Engineer not negligent in designing on the basis of soil report prepared by the specialist subconsultant. |
printMany of the ills of the construction industry would be cured if the present day tendency to cut corners at every opportunity in the planning and design stage of projects was avoided. Nowhere is this more evident than in the steady flow of litigation surrounding inadequate soil investigation. The case of Willmott Dixon Housing (Southern) Ltd -v- John Savage Associates concerned an action for damages for professional negligence by a builder against its civil and structural engineers. Willmott intended to construct a housing development at a site in West Sussex and in order to consider the viability of the project they required to investigate the site conditions. Accordingly, they wrote to Savage to arrange for a soil investigation to be carried out. They agreed to cover the costs of the investigation and, subject to agreement of fees, also agreed to appoint Savage as engineers if the scheme went ahead. Savage had no geo-technical expertise, were incapable of carrying out a soils investigation personally and were not expected by Willmott to do so. Accordingly they wrote to Soils Limited, specialist site investigation and geo-technical consultants, asking for a quote the site investigation works. In due course the investigation was carried out by Soils Limited and the result transmitted by Savage to Willmott. Of particular relevance was that the report contained advice that the shallowest water strike had been found at 2.35 metres (later it was to be found, once construction commenced, that water would actually be encountered at 0.6 metres below ground level). Subsequently Savage received their formal appointment. No further ground investigations were carried out, and relying upon the existing report Savage designed the foundations of the houses to bear on gravel at an average depth of 1.7 metres. It became common ground between the parties that if no significant rise in the water table was to be anticipated, this was the best engineering solution. Although Willmott had intended to start works on site in the summer of 1993, in fact commencement was not made until October. This is where the problems started. Rainfall in September had been extremely heavy - 222% of average. October was also wet - 135% of average. The ground works subcontractor started excavation and found ground water much higher than anticipated as mentioned earlier. Well point de-watering had to be introduced. The foundations were re-designed as were the designs for surface water drainage. By December the contract was in serious trouble. By now the cause of the problems had become complicated by the very heavy rain in December - 229% of average. In January Willmott decided to abandon the works for the winter. They intended to resume work in May of the following year but at that date discussions were taking place as to whether the level of floor slabs should be raised to avoid flooding of the houses in the future. In the event the effective resumption of work was delayed until July and as a result of these delays Willmott were forced to work into the next winter and encountered further problems with water. Willmott sued Savage to recover losses allegedly flowing from all these problems. Before dealing with the question of negligence, William Crowther QC, sitting as an Official Referee, had to deal with the argument that Savage instructed Soils Limited as principals and were contractually liable for the content of Soil Limited's report. He held this to be wrong. Since Savage were not instructed as engineers at that stage, they had no present need of the report. The ACE conditions which they were to subsequently enter into specifically provided that geo-technical investigations were arranged as agents of the client and he observed that it would be very surprising if a request to arrange an investigation prior to engagement as engineers produced a different and more onerous relationship. Accordingly, Savage were not contractually liable for the content of Soil Limited's report. Turning to the question of negligence, the court considered that one question to be answered was whether a reasonably competent engineer reading the report as a whole should have appreciated that the uncertainty of ground water levels was such as to invalidate the assumptions upon which the foundations were designed. On this point Mr Crowther held that to have done so Savage would have had to be more percipient than Soils Limited. He held that since Soils Limited had given no warning that in winter the ground water would be likely to rise well above the proposed level of foundations, Savage were entitled to assume that a reference to seasonal effects in the report was to fairly nominal variations which would not effect significantly the findings and recommendations of the report. This may seem to be a surprising finding, for rather than testing the actions of Savage against the levels of reasonable skill and care to be expected from suitably experienced and qualified engineers in general, the test appears to have been made against actual performance of Soils Limited whether it could be said that the latter had acted competently or not. In the light of these findings he held that there could be no valid criticism of the foundation or drainage designs and it followed that all the allegations of negligence made against Savage failed.
CJ-9618
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