No bargain in this basement
11 June 2015 | By Sarah Strange
Basement developments can often be a delicate and troublesome
procedure. But whos at fault if things start to go
wrong?
It is fair to say that basement conversions are controversial.
On the one hand, they can
cause mayhem and stress for neighbours but on the other, they
provide an excellent
solution to alleviating cramped living once completed.
Basements also raise particular design challenges which can lead
to numerous
problems if things go wrong, including if the insurers refuse to
pay and the question
arises: who is at fault? The recent case of Goldswain vs Beltec
Ltd (t/a BCS
Consulting) [2015] (TCC) provided welcome insight into these
knotty issues where the
remit of an engineers duty to warn, and extent of responsibility
for design, were
considered.
The facts of the case were as follows: Mr Goldswain and his
partner Ms Hale (the
claimants) owned a ground floor flat in a semi-detached house.
The flat had a cellar and the plan was to convert
the cellar into living accommodation by underpinning the outer
walls and lowering the floor to create more height.
The claimants appointed engineer Beltec Ltd to design the
essential structural works and AIMS Plumbing and
Building Services Limited to carry out the work.
AIMS started the work and installed the underpinning but
apparently not anything else of importance. AIMS
retained Beltec to visit the site to inspect the construction of
the initial pin and Beltec duly visited the site and
advised AIMS that the pin had not been constructed in accordance
with the design.
Engineers should expect that builders would understand and act
upon the construction method
indicated
The underpinning was completed but shortly afterwards, following
increasing amounts of cracking in the
superstructure, the house collapsed. The claimants insurer
refused to cover the claim on the grounds of
inadequate construction.
The claimants then issued proceedings against Beltec and AIMS
claiming that Beltec had failed to exercise the
appropriate level of skill and care when designing the basement
and failed to warn the claimants about the
contractors progress following the
initial site visit. Unfortunately, according to the judgment,
AIMS was, at that time, believed to be insolvent and so
did not take part in the proceedings.
The court ruled that Beltec was not liable and that there was an
overwhelming probability that AIMS had failed to
carry out its work with reasonable skill and care or complied
with the drawings with which it had been
provided. Therefore, AIMS breaches of contract had caused the
collapse.
The key points to note are as follows:
The court had close regard to the scope of Beltecs retainer and
held that Beltec had no ongoing obligation
to supervise the works. Beltecs obligation was limited to
providing the claimants with the structural designs
with reasonable care and skill.
Competent engineers should be entitled to expect that builders
would understand and act upon the
construction method indicated in the drawings.
The court explained that when and to what extent the duty will
apply will depend on all the circumstances,
but it will often arise when there is an obvious and significant
danger either to life and limb or to property.
In addition, the obligation can arise when a careful
professional ought to have known of such danger, having regard
to all the facts and circumstances.
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The court will be unlikely to conclude that a duty to warn
arises in situations where, at the time that the professional
inspects the work, there is a possibility that the contractor in
question may in future not do the works properly. Here,
Beltec did not owe the claimant a duty to warn. It was AIMS, and
not the claimants, who had retained Beltec to visit
the site to see what AIMS had done in relation to the initial
pin. Beltec advised that the pin should be redone and
resent AIMS the drawings; however, there was no danger at this
stage.
The court held that, while generally it is the responsibility of
the engineer or architect to design the permanent
works and the contractors responsibility to construct the
temporary works required to build the permanent works, it
will always be necessary to consider what services the
professional is engaged to provide.
Here, it was noted that Beltecs design provided a precise
sequence of work which, if followed, would have resulted
in the basement being created without any significant damage to
the structure above. The conclusion was that
nothing in Beltecs design should have prevented AIMS from
working in a reasonably safe way.
Sarah Strange is a senior associate in the construction and
engineering team at international law firm
Taylor Wessing
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