This was an appeal against a Technology and Construction Court decision that Ove Arup was in breach of a design agreement by failing to design certain foundations with due care and skill and by failing to verify certain design assumption upon which the design was based.

The issues were whether the judge was wrong to hold that Arup had a duty under the design agreement to verify the design information, whether Arup was in breach of any such duty, and whether the judge's decision as to the causation of the failure of the foundations was wrong.

Reference

The Court of Appeal held that a competent foundation design requires a sufficient knowledge of the ground conditions to determine a safe bearing capacity for foundations. If the designing engineer's knowledge of the ground conditions was insufficient to enable him to determine a safe bearing capacity, he could work initially upon assumptions. But he had an obligation to see to it that the requisite additional information was acquired to verify the assumptions.

He did not necessarily have to get the additional information personally, but must have seen to it that someone did, and he must have seen to it that the client knows the additional information has to be obtained. Absent an explicit warning and disclaimer, it would not be sufficient for a designer, whose initial design was based on an unverified assumption, to leave it to the client alone to obtain and evaluate the additional information. The designing engineer was responsible for the design, and should normally see to it that the necessary additional information was conveyed back to him, so that he could judge that it was sufficient for the purpose of his design.

The court further held that the judge was entitled to hold from the evidence, that the foundations were in situ ground. This was direct evidence gleaned for the very purpose of saying why the foundations had failed. Further, having found that the ground was in situ, the judge was entitled to conclude that Ove Arup was in breach of the obligation in the design agreement to verify the design assumption. The judge's factual findings as to causation were therefore justified and not amenable to appeal.

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*Full case details
21 December 2005, Court of Appeal, Mummery LJ, May LJ, Richards LJ, [2005] EWCA Civ 1585

Postscript

In essence the Court of Appeal held that the first of Ove Arup's grounds of appeal, i.e. that the judge was wrong to hold that Ove Arup had a duty under the design agreement to verify the design assumption proceeded in part on a misunderstanding of what the judge held. The judge had not held that Ove Arup was under an obligation itself to carry out the necessary verification on site. Instead he had held that Ove Arup's obligation was to see that work to verify the design assumption was undertaken by someone.

Further, a lynch pin of Arup's appeal was that the judge's finding that the foundations which failed were founded to undisturbed in situ ground was, on a proper evaluation of the evidence wrong. The Court of Appeal disagreed, pointing out that challenging findings of fact made by a specialist judge of the Technology and Construction Court in complicated technical cases was an uphill task.