The claimant, Hart Investments, sought to hold the first defendant, Fidler, responsible for the collapse of part a building that Hart owned. Fidler was a structural engineer and denied responsibility for the collapse. He was employed by both the claimant and the second defendant, building contractor Larchpark.
Hart alleged that Fidler was liable to the firm in contract, or alternatively in tort, for two alleged failings:
1 Failing to design any, or any appropriate scheme for the temporary support of underpinning, which surrounded a deep basement excavation; and/or
2 Failing to require the contractor to take precautions so as to support the underpinning when Fidler allegedly saw that the underpinning was unsupported.
Fidler argued that he had no contractual responsibility to Hart for the temporary works, which included the propping of the underpinning. He further argued that: he owed no tortuous duty to the claimant to prevent economic loss of the sort claimed; he had in any event designed an appropriate scheme; he had not seen anything to suggest that the contractor had not carried out his design; and he did not in any event cause the collapse in question.
The issues before the court were: what if any of the design of the temporary works for the propping had been carried out by Fidler; what had Fidler observed before the collapse; the extent of Fidler鈥檚 contractual responsibility; whether Fidler owed Hart a tortuous duty; and whether the Fidler鈥檚 failures caused the collapse.
Reference
The court held that design drawings showing the necessary propping were in existence before the collapse. Accordingly, it was an issue that was in Fidler鈥檚 mind. Further, the court held that the building contractor had commenced, and indeed progressed, the excavations to a level where they were dangerous prior to Fidler鈥檚 final site visit before the collapse. Fidler was, therefore, in breach of contract by not warning the contractor as to the risk of the site collapsing and in not requiring the contractor to take immediate steps to prevent that danger. Such contractual duty was also concurrent with a duty of care in tort to prevent economic loss.
* Full case details:
Hart Investments Limited v Terence Maurice Charles Fidler (t/a Terence Fidler Partnership) Larchpark Limited (in liquidation) 30 March 2007, Mr Recorder Rodger Stewart Q.C. [2007] EWHC 1058 (TCC)
Contact Fenwick Elliott on 020 7421 1986 or NGould@fenwickelliott.co.uk
Postscript
This case clarifies the extent of a consultant鈥檚 duty to warn. In this particular case even though the structural engineer was employed in relation to the permanent works he was obliged to warn in respect of an obvious danger with the temporary works when he had seen the excavations (without any propping) during one his site visits. Consultants are well advised to keep in mind the extent of this duty when undertaking site visits.
