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Understanding professional consultant’s duty

The recent Goldswain v Beltec case gave the High Court the opportunity to summarise the case law relating to the extent of a consultant’s duty to warn their client in relation to the potential failings of other parties or of the client itself.

The claimants had bought the leasehold of a ground-floor flat and wished to convert the cellar into living accommodation by underpinning the outer walls to create more height. Beltec was engaged to design the structural works. Aims Plumbing and Building Services Limited was engaged to carry out the work.

Beltec’s design for the underpinning required that the basement excavation be carried out in a series of sections or “pins”, rather than one continuous excavation, to minimise the effects of horizontal earth pressures on the outside walls. It also required the reinforcement of a section of basement slab – a “kicker” – adjacent to and below each individual pin to provide essential lateral support to the vertical reinforcement of the concrete pin itself.

Beltec agreed with Aims, for a fixed fee, to visit the site to inspect the first pin going in. It was apparent to Beltec’s engineer that Aims had cast the first pin without first casting a kicker. Beltec advised that the first pin should be completely replaced.

The underpinning was completed without any part of the reinforced concrete slab or the kickers being cast. Cracks in the building became obvious and worrying. The building subsequently collapsed in on itself. Proceedings were brought against both Beltec and Aims.

The questions arose around whether Beltec’s contract imposed on it a continuing obligation, after providing the design, to visit the site and give appropriate advice, and whether Beltec had been negligent in failing to warn both Aims and the claimants about the shortcomings in Aims’ work.

The Court restated the clear test for professional negligence: if the consultant in question has done what other reasonable members of their profession would have done, they are not negligent. It went on to restate the law relating to the duty to warn:

  • the existence of a duty to warn flows from the contractual basis of the consultant’s appointment; and
  • the duty itself is simply an aspect of the duty of a professional to act with the skill and care of a reasonably competent person of that profession.

The Court found that Beltec’s contractual obligation was limited to providing the design, with no supervision role. It did not make any difference that Beltec had in fact visited the site and inspected the first pin under an arrangement with Aims.

The Court found that Beltec’s conduct during and after the visit could not be considered negligent. The first pin did not comply with its design, but there was no reason to conclude that the rest of the underpinning work would be noncompliant.

Beltec had not, by agreeing to visit the site once, assumed responsibility for a more extensive duty to inspect or to warn.

John Wevill is a partner at Clarkslegal LLP

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