Hart -v- Fidler is a decision of Mr Recorder Roger Stewart QC, in the Technology and Construction Court on the 30th March 2007.
It relates to the collapse of part of the front and side façades of a building at 53 - 55 Queens’ Avenue, Muswell Hill.
The judge was asked to decide whether Mr Fidler, the Structural Engineer, was liable to the Employer, Hart, for failing to point out to the Employer that the Contractor was carrying out excavation work in a dangerous manner and failing to require the Contractor to take precautions to support underpinning with propping, so as to prevent the collapse.
The judge said:
“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 temporary works in respect of which he is employed, he is obliged to take such steps as are open to him to obviate that danger. It seems to me that that follows, partly as a matter of common sense, but also because the Engineer is, after all, instructed in relation to the permanent works as a whole. It would appear strange if he is under a duty to take such steps as he can to see that they survive for say, the next 25 years, or whatever the design life for the building is, but is not obliged to take any steps to warn of an immediate danger to those works caused by an imperilling act by the Contractor”.
The judge also decided that not only was the Engineer in breach of a contractual duty to the Employer. He was also in breach of a concurrent duty in tort (i.e. in negligence outside of the contract) to the Employer. The judge went on to consider whether that duty in tort would have existed if there had not been a contractual duty and he decided that he would have found the existence of a duty in tort even if he had not found a contractual duty.
It is important to point out that the Engineer, Mr Fidler, had been employed both by the employer, Hart and by the Contractor, Larchpark. He was engaged by Larchpark to design the temporary works. The Employer and the Contractor agreed to share payment of the Engineer’s fees. However, that makes no real difference to the legal effect of the decision because the judge specifically said “It seems to me that it would be taking too fine a point to suppose that at that point (i.e. the point of plain and obvious danger) he (the Engineer) would only be under a duty to his other client, the Contractor. As I say, in my view that (i.e. the duty) occurs even if he had had no obligations at all to the Contractor”.
This case may come as a surprise to those dealing with the legal aspects of the duties of Architects and Engineers under their professional appointments, in relation to building works.
The decision seems to some extent to challenge a well established line of cases at common law, at least to the extent that it requires the architect or engineer to accept responsibility for temporary works.
However, nothing is as simple as that. Judicial opinion, as with everything else in life, has trends. So this case could represent a new trend in the law.
The Common Law, previously, had been characterised by a very disciplined, logical approach. This was quintessentially “the design of permanent works is the province of architects and engineers. Provided the building they have designed stands good and true at completion of the works, they are not responsible for how the building is built or the temporary works. Temporary works and the “how” of the building process are exclusively the province of the builder”.
Two cornerstone cases which support this view are Clayton -v- Woodman & Sons Builders Limited 1962 2Q.B.553 and AMF International -v- Magnet Bowling 1968 1WLR1028.
In the Clayton case the judge said that he agreed substantially with all the submissions of the barrister. The barrister had submitted that the Architect had no right to instruct the builders as to either the manner in which the work was to be done or the safety precautions to be taken. It was for the builders to decide what safety precautions were necessary and the law imposed no duty on the architect to advise builders about their safety. The key passage is “so far as the law is concerned (the architect) would be within his rights were he to stand by and without protest or warning, watch the (builder) doing something which the architect knew to be highly dangerous”. Although the case was concerned with the architect’s duty to the contractor and not with the architect’s duty to his employer, Hudson’s Building & Engineering Contracts, 11th Edition, comments “that in regard to working methods or temporary works his (the architect’s) power to intervene or give instructions may in any event be non-existent under many standard forms including the JCT forms, even should he wish to intervene”.
In the AMF International case the court said “that an architect has no right to instruct a builder how his work is to be done or the safety precautions to be taken. It is the function and right of the builder to carry out his own building operations as he thinks fit”.
The Common Law position was, therefore, strict but clear that the “how” of the building process was not the responsibility of the Engineer.
There were, however, circumstances and situations in which an Engineer might owe a duty of care to his Employer to resolve buildability issues where he had power to do so under the contract. In Hudson’s Building and Engineering Contracts (11th Edition), these circumstances are listed as follows:
a) where the contractor’s methods of working are contrary to what is specified - since there is breach of an express term of the contract;
b) where in the absence of express designation of the required working methods those being used by the contractor are likely to imperil the quality of the permanent work - usually a breach of the implied term of good workmanship;
c) the contractor’s methods are unsafe and an accident would delay the project to the serious prejudice of the owner or might damage adjoining property;
d) to assist a contractor who has got into difficulties by relaxing the specification where the owner’s interest in speedy completion is sufficiently important.
This guidance in Hudson perhaps explains the judge’s decision in Hart-v- Fidler.
A one-off Decision on a Particular Set of Facts?
One way of looking at the Hart -v- Fidler case is to simply say that it is neither wrongly decided nor an aberration. It is simply based on a particular set of facts - that the Engineer was on the one hand engaged by the Contractor to design the temporary works and, on the other hand, by the client to design the permanent works. That analysis would pour oil on troubled waters and would provide a neat solution and restore order by upholding the Common Law as it has been for some considerable time. However, it will, one suspects, require a senior judge in a subsequent case to resolve this point.
The Common Law and the CDM Regulations
Since the CDM Regulations came into force in March 1995, construction professionals have been aware of a tension, if not an anomaly, between the Common Law as stated above, placing no responsibility for the “how” of the building process on the Engineer, and the Statutory provisions under the regulations. Under the regulations a designer does of course have a duty, in carrying out his design of the permanent works, to have regard to the health and safety of those working on the site. In appropriate cases he may have to re-design a heavy, permanent object, to facilitate its lifting into position so as to avoid or reduce a health and safety risk. He may have to advise pre-drilling or pre-sawing off site, so as to avoid respiratory problems to builders caused by certain kinds of dust and debris.
These anomalies between CDM and the Common Law are not yet resolved, mainly because they are different regimes operated by different bodies. The HSE and the criminal courts will give effect to CDM, whereas the Civil Courts administer the Common Law. It is bad enough to have these tensions within the Common Law on the one hand and the Regulations on the other. We need uncertainty within the Common Law itself like a hole in the head! The sooner there is a big case which puts Hart -v- Fidler in perspective, the better.
For more information or advice, please contact Philip Harris.
