A recent case involving temporary works, and what happens when they fail to do their job, casts some light on the tricky inspection obligations of professionals
In recent editions of Building, Tony Bingham and Rachel Barnes have written about the McGlinn case and what Judge Coulson had to say about the duty of a professional in inspecting construction work. In the past this was referred to as supervision. Now it is usually called intermittent inspection.
The decision of Recorder Roger Stewart QC in Hart Investments vs Fidler highlights a particular aspect of the inspection duty that I suspect is somewhat overlooked.
A contractor’s works have traditionally been divided between the permanent and the temporary sort. The permanent works are what the contractor has contracted to produce: the house or the road or the extension.Temporary works are the methods used along the way, such as propping, shoring and scaffolding.
The classic example is the shoring that is used to support the structure of a building that is being renovated. Often planning conditions require that the external appearance has to be retained, so while the inside of the building is gutted and replaced the external envelope has to be kept in position.
Professionals are engaged by the client to design the permanent works and to inspect them during the construction process. It is possible that the professional’s duties will expressly include the design and inspection of temporary works but this seems to be the exception. On the whole the design and sufficiency of the temporary works is left to the contractor and its advisers.
Hart vs Fidler concerned the redevelopment of a building in Muswell Hill, north London. Part of the permanent works was the construction of a deep basement. This required temporary support to the front and side facades.
The contractor took inadequate steps to prop the walls and during the works parts of the side and front of the house collapsed. By the time the trial came on judgment in default had been entered against the contractor.
The remaining defendant was the engineer, Mr Fidler, who had been engaged by the client. He was being sued on the basis that he owed to his client, both in contract and in tort, a duty of care in respect of the temporary works, in this instance the propping methods used by the contractor.
The defendant was the engineer engaged by the client. He was sued on the basis that he owed a duty of care in respect of the temporary works
The facts of the case were not straightforward. However, the legal principles that were set out in the judgment are important.
The recorder held that, even though a professional was not engaged to inspect or oversee the contractor’s temporary works he could be liable to his client if those temporary works were deficient and caused his client loss – as in the case of a collapse.
He put it like this. “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 permanent works in respect of which he is employed, he is obliged to take such steps that are open to him to obviate that danger.”
He pointed out that it would be strange if the engineer was under a duty to see that the permanent works survived for their design life but was not obliged to warn of an immediate danger to them caused by the contractor’s temporary works.
The recorder referred to Oldschool vs Gleesons. The question there was a little different, namely whether the client’s engineer owed a duty to the contractor to warn of defects in the temporary works.
For the duty owed to the client he relied on Credit Lyonnais vs Russell, Jones and Walker.
There the judge was concerned with a solicitor. He held that if during the course of a defined retainer the solicitor saw an obvious danger he was obliged to point it out to his client, even if he was not employed in relation to that danger. Recorder Stewart said that the position of the engineer was analogous.
A statement of legal principle all too often causes problems of application in everyday life. What is the professional to do in such a situation? He cannot shut his eyes to what the contractor is doing. However, how involved does he have to get in temporary works to be safe from criticism or a claim? A difficult call.
Tim Elliott QC is a barrister and arbitrator specialising in construction at Keating Chambers