Partner Article

Why didn't you warn me?

The Engineer’s Duty to Warn

With Watson Burton LLP Law Firm

There is a well known saying that ‘silence speaks volumes’and this is something that is becoming ever more prominent in the constructionand engineering industry. A trend in case law over recent years hasaffirmed the principle that there is now a duty to go beyond the contract and tovolunteer further, additional information in certain circumstances.

If you are asked to do something dangerous speak up! If your contractor, your client, your employer, in fact if anyone suggests workis carried out which may cause a wall to collapse, a floor to cave in or afaçade to crack you could be liable for failing to warn of such a possibility.

In the case of Hart Investments v Terence FidlerPartnerships (2007), Fidler was instructed to design a deep double basement forHart and to act as an engineer on subsequent construction works. Thefaçade of the building collapsed into a hole, excavated by the contractor, whodid not provide any support to its underpinning. Fidler (as engineer) wassued for failing to warn either Hart or the contractor of the dangers of thecontractor’s activities. Fidler was obliged to take steps to prevent thedanger, including warning the contractor about his methods.

If the problem is within his area of competence, an engineerhas a duty to warn others.

An engineer now has a duty of care outside of his immediatecontractual responsibilities and the engineer now has to show ‘care’ and, aboveall else, common sense. The well known phrase ‘reasonable skill and care’,which previously tended to focus on ‘skills’, is now expanding and more weightingis being placed on ‘the duty of care.’

Going back to 2004 and the case of Chester -v- Afshar, the courts were becomingincreasingly conscious of whether or not a professional had exercised theirskill sufficiently. Even if there is only the mere possibility that, forexample, excavation works would be carried out, the engineer shouldbeware. If there are any risks of danger, especially danger to life, youcould find that the fact the contractor has acted carelessly may not exemptyou.

Obviously, every case will depend on its own facts but, inorder to protect themselves, Engineers would be well advised to explicitlystate the risks and potential dangers for every site, regardless of how obviousthe danger is or how competent the contractor appears, (Aurum Investments vAvonforce).

Again we are back to ‘common sense.’ Â Engineers wouldbe advised to ‘go the extra mile’ and perform duties voluntarily but, at the same time, to protect themselves from the risks of a complicated, protractedand potentially costly court case.

In Plant Construction Plc v JMH Construction Services, evenwhen JMH suggested that the design proposals were inadequate, they were forcedto carry them out and, ultimately they were found liable. The Court of Appealconsidered they should have protested more vigorously.

To some it may appear as though JMH were in a catch 22situation with the obligation to carry out the contract weighing heavy on theirminds, despite the fact that they had made it clear that there appeared to be aproblem.

The engineer should protect himself as much as possible atall times. Protest more vigorously, gothe extra mile, use common sense.  Don’tlet silence be your down fall. Thecourts are now taking the duty to warn more seriously and it is likely that astrict approach will be taken should litigation ensue.

If you have anyqueries relating to this article, or any other construction or engineeringmatter, please contact Claire Pringle on 0191 244 4316 or e-mailClaire.pringle@watsonburton.com.

“This article waspublished on 2 April 2008 and was correct at time of publication. The materialcontained in this article is intended as a guide only. Whilst the informationis correct at time of publication, it is not a substitute for legal advice.Watson Burton can accept no responsibility for actions taken based on thisinformation.“

This was posted in Bdaily's Members' News section by Ruth Mitchell .