The recent decision of the English courts in Hart Investments Limited –v- Fidler [2007] (Technology & Construction Court) reflects the potential for overlap between temporary and permanent works and in doing so adds an extra dimension to the “duty to warn”.

While in general an engineer does not owe a duty in respect of works for which he was not responsible for the design, nonetheless, a duty may be implied in circumstances where, during the course of routine inspection, he observes temporary works constructed in a manner which are inconsistent with his design of the permanent works.

Such deficiency in the temporary works may, ultimately, result in defects to the overall works and consequently a failure in the engineer’s duties to the employer. While custom and practice has largely dictated that the design of temporary works falls within the remit of the contractor, this case highlights that the distinction between temporary and permanent works is not always so clearly defined.

While contractual provisions can seek to define obligations of each party, arguably the greater the interface between temporary and permanent works, the greater the likelihood that contractors and engineers each become subject to a duty to warn.

In the Hart case, the interface between the temporary and permanent works and the adverse consequences for the employer highlighted the engineer’s “duty to warn”. The works in this case consisted of extensive excavations under the basement level of the building owned by the plaintiff employer.

In performing his duties, the defendant engineer attended the site regularly for the purpose of inspecting the works. While the contractor was undertaking excavation works, part of the building collapsed due to lack of underpinning.

The issues before the court were, firstly, whether prior to the collapse, the engineer had in fact designed temporary temporary supports for underpinning and secondly, if he had, whether the engineer was responsible to the employer for economic loss suffered as a result of the collapse.

This is an extract from an article featured in the March edition of the Irish Construction Industry Magazine - Click HERE to Subscribe