The facts of Goldswain and Hale v Beltec and AIMS, a recent case heard in the Technology and Construction Court, are a simple and stark backdrop which highlight the importance of making sure that all high risk eventualities are suitably protected against by skill, experience and insurance.
The case involved a family home and works to extend into the basement. Mundane enough perhaps but the family home is as important to the family as the office is to a firm or the factory or warehouse to a business. To be fair to the owners, they had perhaps done more than most in terms of trying to ensure that their builder was insured in case anything went wrong, although few builders have any insurance that will step in where the builder’s work is deficient and causes damage to the property being worked on. Insurance held by builders tends to cover personal injury and/or damage to property belonging to others and sometimes losses caused by deficiencies in aspects of the contractor’s own design and/or losses caused by products supplied. By the time that the lack of cover for the works being carried out becomes clear, it is often already too late to do anything about it.
Indeed, things went very went wrong for the couple in this case as the works were underway. Hairline cracks, said to be normal, quickly turned to cracks that could be seen through and then bricks falling out within minutes. Fortunately everyone escaped but the flat and that above it were destroyed and neighbouring properties damaged. The stress was enough to put Miss Hale into early labour.
The two parties in the crosshairs for a financial recovery for the cost of rebuilding, consequential losses and indemnities against the liabilities to the neighbouring properties were Beltec, structural engineers appointed by the couple to design the excavation and underpinning of the basement works and AIMS, the building contractor.
The court found that although Beltec were the engineers who had designed the permanent works, their retainer did not extend to monitor, supervise or advise on the progress of any temporary works and it was the temporary works that were at fault. In the circumstances there was also no breach of any duty arising from anything that their engineers had seen when they were on site.
Mr Justice Akenhead determined that:
"..in general terms it cannot be said that Beltec was negligent in that it did what many other engineers would do; the permanent works design was one which was capable and indeed readily capable of being implemented safely by the contractor because, if what was specified was provided with care, following the sequence and using appropriate propping, there is little doubt that this basement could have been created without any significant damage to the structure above."
The engineers insurers were therefore safe.
The buck stopped with the contractor, who played no part in the proceedings and so had judgment in default entered against them, but they are believed to be insolvent so the homeowners really do appear to be left with no redress at all. Insolvency in particular does lead to some very ‘unfair’ situations so the moral has to be to choose your specialists carefully and protect your assets as comprehensively as you can.