Court Rules that Engineers, Architects and Designers who are responsible for Permanent Design are also under an Obligation to the Employer in respect to Temporary Design not only under Contract, but also in Tort.

Court Rules that Engineers, Architects and Designers who are responsible for Permanent Design are also under an Obligation to the Employer in respect to Temporary Design not only under Contract, but also in Tort.

Those involved with the Industry and the law had taken a very simple approach to the issue of the design responsibility for ‘Temporary Works’ in that the design responsibility lay solely with the Contractor as is generally stated within most standard form construction contract. The lines between design responsibilities were clearly drawn. The design of the permanent works was the remit of the designer be he Architect or Engineer and they were not liable in respect of the methods adopted to construct or the ‘Temporary Works’.

This concept was supported by the judgments in the cases of Two Clayton v Woodman & Sons Builders Limited [1962] and AMF International v Magnet Bowling [1968].

Now we can consider the judgement in the case of Hart Investments v Fidler given on 30th March 2007.

During the execution of construction works at 53 – 55 Queens Avenue, Muswell Hill, London a section of the buildings front facade collapsed and it concluded to be as a direct result of the Contractor failing to take proper measures to support the structure whilst carrying out excavation to complete underpinning works.

Mr. Fidler had not only engaged by the Employer for design of the permanent works but had also been engaged by the Contractor to design temporary works. The Employer and the Contractor had agreed to share payment in respect of the Engineers professional fees.

The Plaintiff, Hart Investments (Employer) were claiming that the defendant, Mr Fidler (Structural Engineer) was under a duty to notify the Employer that the Contractor was executing the works in a dangerous manner and was also under a duty to require that the Contractor to support the underpinning works with by propping which would have prevented the collapse.

The Judge in his consideration of the circumstances stated:

“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 temporary works in respect of which he is employed, he is obliged to take such steps as are open to him to obviate that danger.  It seems to me that that follows, partly as a matter of common sense, but also because the Engineer is, after all, instructed in relation to the permanent works as a whole.  It would appear strange if he is under a duty to take such steps as he can to see that they survive for say, the next 25 years, or whatever the design life for the building is, but is not obliged to take any steps to warn of an immediate danger to those works caused by an imperilling act by the Contractor”.

In his judgement the Judge considered that not only was the Engineer in breach of his contractual obligations and duty under his appointment with the Employer but he was concurrently breaching his duty under Tort in respect of the UK health and safety legislation and others. He further considered that even if he would have been unable to find the Engineer in breach of his contractual duty to the Employer he would be able to find the Engineer in breach of his duty under Tort.

The Judge specifically removed any connect to his judgment in respect that the Engineer had been employed to design the temporary work for the Contractor and the fact that the Contractor and Employer has agreed to share the cost of his professional fees when he stated:

It seems to me that it would be taking too fine a point to suppose that at that point (i.e. the point of plain and obvious danger) he (the Engineer) would only be under a duty to his other client, the Contractor.  As I say, in my view that (i.e. the duty) occurs even if he had no obligations at all to the Contractor”.

Clearly this judgement challenges the concept that had been widely understand and accept in relation to the designers responsibilities with regard to ‘Temporary Works’ which had been support previously by the long-standing series of cases at common law.

In the case of Clayton v Woodman & Sons Builders Limited [1962] in which the Contractor had claimed the Architect had a duty, rather than it being the Employer making the claim as referred earlier the judge had agreed with the arguments presented by the barrister that the Architect had no right under the contract to instruct the contractor in the method of his work or indeed the safety precautions adopted. He had stated

So far as the law is concerned (the architect) would be within his rights were he to stand by and without protest or warning, watch the (builder) doing something which the architect knew to be highly dangerous”.  

In the case of AMF International v Magnet Bowling [1968] the Judge held:

 “That an architect has no right to instruct a builder how his work is to be done or the safety precautions to be taken.  It is the function and right of the builder to carry out his own building operations as he thinks fit”.

This was supported Hudson Building and Engineering Contracts which considered that many standard forms of contract removed the power of the Architect to intervene or give instruction in respect of the Contractors temporary works should he Architect wish to intervene.

Hudson does, however, provide examples where an Engineer may have a duty to the Employer on aspects of the build-ability of a project such as the Contractors methods being contrary to those specified in the contract; where the methods adopted in construction may affect the quality of the permanent works; where unsafe methods could result in delay or damages to owners or adjoining properties; where the Engineer relaxes specification to aid the Contractor method.

The concerns expressed in Hudson above would go some way to supporting the judgment in the case of Hart Investments v Fidler.

MALCONLAW