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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Goldswain & Anor v Beltec Ltd (t/a BCS Consulting) & Anor [2015] EWHC 556 (TCC) (10 March 2015)
URL: http://www.bailii.org/ew/cases/EWHC/TCC/2015/556.html
Cite as: [2015] BLR 300, [2015] EWHC 556 (TCC), 159 Con LR 46
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QUEEN''S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| (1) EDWARD GOLDSWAIN (2) JACQUELINE HALE |
Claimant |
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| - and - |
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| (1) BELTEC LIMITED (t/a BCS CONSULTING) (2) AIMS PLUMBING AND BUILDING SERVICES LIMITED |
First Defendants Second Defendant |
____________________
Steven Walker QC (instructed by Bond Dickinson LLP) for the First Defendants
The Second Defendant did not appear and was not represented
Hearing dates: 17-20 and 24 February 2015
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Crown Copyright ©
- This is a sad case. In 2011, Mr Goldswain and his partner Ms Hale, the Claimants, acquired a leasehold interest in a ground floor flat at 4, Stanhope Avenue, London N3 3LX, part of a pair of semi-detached houses. The flat had a cellar which they decided to convert into living accommodation by underpinning the outer walls to create more height. They retained professional engineers, Beltec Ltd (“"Beltec”"), at least, to design the essential structural works and later AIMS Plumbing and Building Services Ltd (“"AIMS”") to carry out the work. AIMS started the work in September 2012 and it installed the underpinning but apparently not anything else of importance. Following increasing amounts of cracking in the superstructure in November 2012, and, following a hasty evacuation of the premises, No 4 collapsed save for a rear extension. Mr Goldswain and Ms Hale, now parents of two children (one of whom graced the hearing), have been living in a series of alternative properties since. They have brought proceedings against Beltec as well as AIMS but the latter has played no part in the proceedings and is believed to be insolvent.
- The freehold of No 4 Stanhope Avenue was and is owned by Ground Rent Trading 4SA Ltd. The first floor flat was owned on a long lease by Mr Krell and sublet to tenants, Mr and Mrs Selby. It was an Edwardian brick built semi-detached property, attached by a party wall to 2, Stanhope Avenue. It seems that a substantial ground and first floor extension had at some stage been built on to the rear of No. 4. The ground floor flat originally comprised two bedrooms, a sitting room, kitchen, bathroom and a single-storey extension behind the original extension, and as well as the cellar or basement area under the main part of the house. Mr Goldswain and Ms Hale bought the ground floor flat in about November 2011 and, it seems, even before they purchased the long lease, they sought permission from the freeholder to carry out the conversion work in the case. On 19 December 2011 they applied for planning permission to convert the existing basement to provide two bedrooms and a bathroom; the plans submitted indicated that, near the front of the house and the rear of the basement, light wells would be provided to bring in some natural light. They drew on the experience of a friend’'s father (Mr Hogan) who had converted a similar basement two doors down at No. 8 Stanhope Avenue, indeed broadly using the same plans. The planning permission was granted on 20 December 2011. They were to carry out other works in late 2011 going into 2012 and including the refitting of the existing bathroom and the installation and fitting out of a new kitchen in the rear single-storey extension.
- On Mr Hogan’'s recommendation, Ms Hale approached Beltec by telephone on 10 February 2012 with a view to Beltec providing structural engineering services. Mr Goldswain e-mailed Mr Smith of Beltec on the same day referring to that conversation and saying that the ""basement needed excavating a further 3 foot or so, tanking and a light well dug down at the front and back”" and that they would “"eventually like to house 2 bedrooms and a bathroom there""; he attached two plans and asked whether there was ""anything else you need from us at this stage?"". On 15 February 2012, Mr Smith, who was and is a chartered civil engineer, met Ms Hale and Mr Goldswain at the flat. Mr Smith carried out an inspection of the basement area and was advised that Ms Hale and Mr Goldswain required Beltec to design the conversion works for the basement. It is probable that Mr Smith either then or by telephone later recommended two possible contractors for the work (neither of whom was in fact ultimately employed to do the work); one of these contractors was a Zbigniew Kolacz.
- On 17 February 2012, Mr Smith wrote to them in the following terms:
- The enclosed letter of instruction was returned signed by Mr Goldswain on 18 February 2012. Nothing turns on the Terms and Conditions but the signed letter said:
- Mr Pistilli, an Italian registered structural engineer, who worked for Beltec, was given the job of doing the design work and on 24 February 2012 with a draughtsman he visited No 4 to take measurements and take notes. Thereafter, he carried out relatively detailed calculations and prepared five drawings referenced 12065 and numbered S001 to S005, sending them on to Mr Goldswain on 5 March 2012 by e-mail and on 6 March 2012 in hard copy. His immediate reaction was that this first set of drawings did not show the light wells and Mr Pistilli said by e-mail on 6 March 2012, when this was pointed out to him, that light wells were an architectural matter and that the client could decide along with his builder where to place them. However, within several weeks it was agreed that Beltec would revise the drawings to include for the light wells, these being prepared by Mr Pistilli and sent on to Mr Goldswain on 28 March 2012. These drawings and the calculations were submitted to the local authority for Building Regulations approval some months later.
- The drawings in particular showed what permanent work was to be done. In effect, from the interior of the basement the walls had to be underpinned and a reinforced concrete floor put in. In effect, new reinforced concrete foundations (the underpinning) were to be placed under the old foundations all the way round the basement and the existing floor, such as it was, lowered with the new reinforced concrete floor to be placed and tied in with the underpinning. One of the well understood problems with underpinning in these circumstances is that the earth pressures on the outside walls, here mainly the flank wall, are sufficiently large that steps had to be taken to ensure that the walls were supported against those horizontal forces at least until the whole of the reinforced concrete floor was in place so that the external walls were then, so to speak, braced to counteract the forces. It is generally recognised that it is therefore bad practice to have one continuous excavation; this is overcome usually by requiring the underpinning to be done in short (often one metre sections) at a time. These sections are and were often referred to as ""pins"".
- Drawing S0002A was entitled ""Basement Underpinning Plan"". It showed a plan of the basement with each individual ""pin"" shown with numbers, 1 to 5, the idea being that those numbered 1 would be excavated and cast first those numbered 2 next and so on. The sequence was broadly 1, 3, 5, 2 and 4. The floor was designated as follows on the plan: ""New 250 mm Thick RC Slab”". At the road side of the house, at ground floor there was a bay window, albeit below ground level; in the basement there were simply the walls going down on to the earth; a light well was to be placed in effect in the area between the outside wall of the bay window and the road. The rear light well involved in effect the creation of a rectangular external area and an extension in effect of the flank wall by about 2m to create this. There was a horizontal dividing wall between two areas in the basement with two openings shown, with one piece of wall coming off the flank wall at right angles (to be underpinned), two central pieces of wall also to be underpinned and a third segment of wall at right angles to the party wall also to be underpinned. There were Notes on this Drawing, the material ones being:
- It is common ground, rightly, that the reference in the Note 3 in the Underpinning Method Statement to “"basement slab section + kicker”" refers in all probability to the need to construct about 1m of basement slab adjacent to and below where an individual pin is to be placed. That was shown on Drawing S003 with the basement slab or kicker section of it actually being 350 mm thick with reinforcement running horizontally not only laterally towards the remainder of the basement slab but also towards the outside pin where it was to connect to the vertical reinforcement which was to be cast within the concrete forming the pin. This detail also shows the pin meeting the underside of the existing brick wall foundations with the joint between the top of the pin and the underside being filled with a concrete dry pack; the pin is to be the same width as the old brickwork above, about 350 mm thick. It is clear from the drawings that the pins were to contain horizontal reinforcement from one pin to another.
- From the disclosed documents, it seems that Mr Goldswain contacted Mr Kolacz to get a price for the basement works although the evidence did not reveal that he actually provided one. In April and May 2012, he and Ms Hale set about appointing party wall surveyors and agreeing schedules of condition, for instance in relation to the property above. On 19 April 2012 Mr Smith of Beltec gave three names as possible contractors including Mr Kolacz. It seems that Mr Goldswain and Ms Hale made contact with several builders but eventually, having visited the Federation of Master Builders website, they contacted AIMS (in respect of whom before entering into a contract with it they obtained an apparently satisfactory reference from a former client in respect of a similar basement underpinning project). On 5 May 2012, AIMS provided to them its quotation (albeit that this was subsequently revised). It was in the sum of £20,995 and included for ""Structural Report"" and ""Architectural Drawings"". The ""Scope of Works"" included excavating the existing basement ""to achieve a floor space of 2.4 m from the top of floor slab to ceiling rafters"". It offered to carry out underpinning ""as per drawing the Method Statement and notes included on drawing 12065/S002 Rev A”". The light wells were to be provided. It is clear that they had been sent the Beltec drawings and the calculations. On 14 May 2012 Mr Goldswain and Ms Hale accepted this quotation, albeit they were later to ask for various additions. They later secured from AIMS details of the insurance which it was prepared to provide.
- On 9 July 2012, Mr Pistilli at the request of Mr Goldswain amended a small detail on the drawing S0003; nothing in fact turns on the amendment.
- AIMS themselves wrote to Mr Pistilli of Beltec by e-mail on 29 August 2012 in the following terms:
- On 13 September 2012, Mr Goldswain applied to the building control department at Barnet Council for Building Regulations approval, sending in Beltec’'s drawings. On 18 September 2012, the Council indicated that under its Building Notice procedure formal approval was not issued; the details would be discussed and established on site during the building inspector’'s initial visit.
- On 18 September 2012 AIMS sent to Ms Hale a revised quotation in the total sum of £26,095 which, so far as ""Professional Services"" and structural works (including underpinning) were concerned, was as before. It is clear that on that day AIMS started some work at No 4, although that may have been preparatory. Ms Hale was to say by e-mail that AIMS began work on 24 September and that Barnet Council’'s first visit to site was on 25 September 2012. AIMS submitted yet further probably alternative quotations on 24 September 2012 in the total sums of £28,100 and £28,045 which, materially so far as this case is concerned, were the same. It referred to the start date being 18 September 2012.
- At some stage in between 10 and 26 September 2012, Mr James of AIMS spoke to Mr Pistilli at Beltec and it was agreed between them that Mr Pistilli would visit No. 4 to inspect the initial pin to be constructed; this was at an agreed price of £200 plus VAT. On 26 September 2012 he made that visit and met Mr James. It was apparent to him that Mr James did not have copies of the Beltec drawings on site, other than possibly S001; however, Mr Pistilli had his copies of the drawings which he handed over to Mr James. There was artificial light in the basement. What he had expected to find was the reinforcement already in place and the pin ready to be cast. However, what he found was that the pin had already been cast. What he saw was, simply, an excavation about 1m by 1.2m and about 1.2m deep and the cast concrete pin; no kicker had been constructed. He formed the view that AIMS either had not put in any reinforcement at all or had cast the pin without following the drawings. He concluded that the reinforcement for the pin had not been carried out in accordance with Beltec’'s design. He told Mr James that the pin should be completely replaced and spent some time with Mr James explaining the drawings to him so that he could understand how to rebuild the pin and proceed with the works; he explained the importance of placing the reinforcement as shown on the drawings, of first casting the section of basement slab (the ""kicker"") at the base and of following the underpinning sequence and recommended method statement.
- On the following day, he sent to Mr James further copies of the Beltec drawings and calculations and saying:
- AIMS paid Beltec the £200 plus VAT, which was invoiced on 28 September 2012.
- By about the end of September 2012, it is probable that Ms Hale and AIMS had reached agreement on their contract, at least in respect of the structural works for the basement (excavation, underpinning and concrete slab), although no formal contract was signed. On 4 October 2012, AIMS sent to them an invoice, based on the assumption that the agreed price was £22,890, and referring to the fact that £5,000 had been paid on account on 22 September 2012. It seems from e-mail evidence that Ms Hale and Mr Goldswain were away on holiday from 10 to 22 October 2012 and that a further £13,000 was paid on 9 October 2012.
- The underpinning was completed in October 2012 but it is clear that no part of the reinforced concrete slab or the thickened parts of the slab forming the kicker connected to the underpinning were ever cast.
- On their return from holiday, Ms Hale noticed a few cracks which she reported to Mr James on 24 October 2012 saying that they were ""nothing serious"" but she would like him to take a look at them. By 7 November 2012, they had paid AIMS some £23,000 including the full amounts for the structural works in the basement.
- On 12 November 2012 Mr Goldswain wrote to Barnet Council by e-mail saying that the underpinning stage was now complete but the floor slab had not yet been poured; he considered that this could not be done until the Council was ""happy and able to sign off the underpinning"".
- On 13 November 2012, Mr James telephoned Mr Pistilli saying that the Council’'s Building Control asked for a letter from Beltec confirming that the pins had been cast correctly. Mr Pistilli replied that he could provide no such letter as Beltec had not supervised the casting of the pins. He said however that he would talk to Building Control to understand their concerns. On the same day he spoke to a Mr Lees at Barnet who told him that Building Control had visited No. 4 and, finding that all the pins had been cast, was told by Mr James that all the pins had been supervised by Beltec; Mr Pistilli told Mr Lees this was not true and that Beltec had not supervised the casting of the pins, indeed saying that the one site visit which had taken place related only to the first pin.
- On the same day, Mr Pistilli sent to Barnet the original and revised drawings although TW001 was sent as 12065/S002B. Another drawing, 12065/S006, a new one, was entitled ""Suggested Basement Propping"" which showed in section both the “"Mabey”" propping as well as “"Trench support props and waling members for excavations below 1.2 m""; these were shown as supporting the flank and party wall as between the wall and the ""dumplings”" of earth left after the excavation for the pins and the kickers. Mr Pistilli in evidence could not absolutely recall why he sent these drawings to Barnet but he said that Drawing S006 just provided ""a graphic explanation of the steps"" set out in Drawing S002. The most likely explanation therefore is that he was seeking to represent in Drawing S006 the steps that he had assumed a contractor would have followed on the basis of Drawing S002.
- AIMS came back in the second or third week of November 2012 to look at such cracks as had appeared and to plane off the front doors to both the ground and first floor flats which were sticking. By 21 November 2012, the landlord’'s agents were saying that the cracks appearing in the first-floor flat were ""a lot more obvious"" and the tenants were ""now very worried"". Mr Goldswain’'s response was that a ""couple of cracks [which had] appeared [were] fairly par for the course with a basement excavation"". Mr James had visited the flat on 20 November and believed that some of the cracks had ""definitely appeared as a result of the build"", as Ms Hale reported to the long leaseholder of the upstairs flat, going on to say that ""…basically the structural engineers, Barnet building control and the builder all happy that the building is sound and the cracks are superficial"". She was to accept in evidence that reference to the ""structural engineers”" was not intended to imply that Beltec knew anything about the cracks.
- By 21 November 2012, it was being envisaged that the concrete floor would be laid on Monday 26 November. On 21 November 2012, a Barnet Council Inspector came to site, meeting Ms Hale; he inspected at least one pin on site looking at the reinforcement steel extending horizontally from the base of the pin, considering it satisfactory. He intended to visit on 23 November 2012 but due to rain affecting work on that day the visit was cancelled. There had been previous visits, as recorded on their notes, on 25, 26, and 27 September, and 14, 16 and 21 November 2012. Those notes record for 14 November 2012 that, although all pins had been completed and dry packed to the underside of the old foundations no reinforcement bars were visible as emanating from the base of the pins and no propping between the walls as called for by the engineer’'s method statement had been provided; the builder is recorded as claiming that the bars were buried below the spoil from the excavations.
- On 23 November 2012, Mr James of AIMS rang Ms Hale to tell her that due to heavy rain the night before the basement had ""got a lot of water in it"" and that the water would need to be removed before the reinforcement steel for the floor was laid.
- On Saturday, 24 November 2012, Mr Goldswain and Ms Hale noticed, about nine o''clock in the morning, that cracks in their bedroom, particularly around and above the window (itself above where the rear light well was to go) had significantly opened up and they could see daylight through a crack. They immediately contacted Mr James who came around at about 10 a.m. He fitted some sort of brace between No. 4 and No.6 and left. They had their father and a friend round for lunch about midday and 5 to 10 minutes later the upstairs tenants knocked on their door to say that there was serious cracking upstairs. Ms Hale went upstairs; it was serious and Mr Goldswain went up to have a look. They could actually hear the fabric of the house tearing apart. They decided that the house had to be evacuated and the tenants with their baby girl and Mr Goldswain and Ms Hale with little more than they were wearing and Mr Goldswain’'s laptop rushed outside. Several of the stones from the stone arch above the front porch came down and No. 4 started to tilt by about 5-10 degrees; a substantial V-shaped crack appeared between No.2 and No. 4 and the flank wall later ballooned out coming to rest against the flank wall of No. 6. No.4, as opposed to its back extension, had collapsed in upon itself. The Council treated the building as a dangerous structure, unsurprisingly, and later removed the remaining dangerous parts of the collapsed part of No 2, placed extensive steel bracing, largely as between the flank wall of No. 6 and the party wall between where No.4 had been and No. 2 and pumped substantial quantities of concrete into the basement area to provide some further stability.
- Unsurprisingly, Mr Goldswain and Ms Hale were deeply shocked. She was eight months pregnant and became highly stressed and had to be taken to hospital suffering from early contractions. Thankfully, the baby arrived somewhat later and was unharmed by the experience. They moved temporarily to a room in his sister''s house in East Barnet and into a hotel for several days; they were able to rent a house at 79, Dollis Park for about six months. They purchased a flat in Yarlington Court, moving in June 2013 but, following a second pregnancy, sold those premises moving to rented property in Harpenden in June 2014.
- No. 4 remains much the same as it has done since Barnet carried out its dangerous structure work, albeit, necessarily, the rear extension has deteriorated somewhat.
- The insurer of No. 4 declined cover on the basis that, as the cause of the failure was said to be inadequate construction and design, these factors were not insured contingencies. In so doing they proffered the report of a structural engineer Mr Gill who, essentially in February 2013 advised that the collapse mechanism was ""a combination of vertical movement down of the newly installed underpinning foundation due to bearing pressure failure together with lateral sliding of the basement retaining wall to the left flank"" whilst the cause was a combination of inadequate construction and inadequate design. The complaint about design was ""particularly the way in which it was communicated to the contractors and the employer”", whilst the inadequate construction was said to be the failure to ""provide any propping what so ever to resist the lateral loads imposed on the basement walls"" (see Conclusions). There is an interesting photograph taken during the work in the basement which shows “"large lengths of wall undermined from the start”" (as Mr Gill said) and shows no propping either.
- Mr Goldswain and Ms Hale issued proceedings against Beltec and AIMS on 31 January 2014 with the backing of a Conditional Fee Agreement and (subsequently) After the Event insurance. In relation to the claim against Beltec, a failure to exercise reasonable skill and care is relied upon both in contract and in tort. At Paragraph 40 of the Particulars of Claim, they plead that by mid-November 2012, whilst AIMS had excavated ""around all, or nearly all, of the perimeter of the basement and constructed the vertical reinforced concrete wall section beneath the existing walls"", it had not installed the adjacent ""kicker"" parts of the reinforced concrete slabs, it had not installed the reinforcement in the underpinning correctly and it had not installed temporary props or large lateral props or inclined props to the front and rear walls or across the opening to the rear light well or across the bay area to the front of the basement.
- There are in Paragraph 49 14 sub-paragraphs which spell out the complaints of breach of duty on the part of Beltec. Of these, sub-paragraphs (vi) to (xi) and (xiii) are no longer relied on as being causative of any material damage. The remaining complaints are allegedly negligent failures to show any propping to the inside of the rear light well (sub-paragraph (i)) or the inside of the bay window at the front of No. 4 (sub-paragraph (ii)), negligent failure in relation to an alleged conflict between Drawings S002 and S003 with the former showing a 250 mm thick slab and the latter a 350 mm thick slab below the pins (sub-paragraph (iii)), an alleged failure in the lack of clear indication in the drawings that the underpinning and the adjacent section of basement slab had to be carried out at the same time (sub-paragraph (iv)), the lack of guidance as to how the base slab sections to the corner pins were to be constructed (sub-paragraph (v)), the alleged failure to issue the documents which were issued to the Council on 13 November 2012 much earlier (sub-paragraph (xii)) and the failure to warn AIMS and the Claimants in the light of what Mr Pistilli had discovered on 26 September 2012 (sub-paragraph (xiv)). Of these, the complaints in sub-paragraphs (iii) to (v) were not pressed with any vigour.
- The complaints against AIMS are predicated upon there being a contract created by the Claimants’' acceptance of AIMS’' first quotation of 5 May 2012, albeit that it was said to have been amended thereafter by at least one later quotation. Primarily the complaint against it is of a failure to exercise reasonable care and skill. The breaches by AIMS pleaded in Paragraph 50 of the Particulars of Claims are to the effect that it as a ""reasonably skilled, experienced and competent contractor"" should have known that the thickened sections of the base slab needed to be cast at the same time as the wall sections in order to stabilise them and that temporary propping needed to be installed against the front and rear basement walls and between the flank and party walls and across the rear door way (into the rear light well) and the front bay area. As indicated earlier, AIMS did not file a Defence and judgment in default was entered against it on 21 February 2014 with damages in effect to be assessed.
- Beltec’'s Defence is a relatively detailed document running to 38 pages which challenges each of the allegations of breach of duty. Essentially, it asserts that it exercised the reasonable skill and care to be expected of competent engineers and that it discharged its retainer to provide the design. It relies to a large extent on the design documentation pointing clearly to the need for propping and the need for design of the temporary works to be a matter for the builder. As a matter of causation it asserts that the collapse was the result of downward and inward movement of the underpinning to the flank wall; this was said to have resulted from ""a bearing pressure failure"". The Defence asserts that the collapse was caused by the failures of AIMS properly to construct the underpinning, to provide the kickers and to provide any temporary propping. There were allegations of contributory negligence against the Claimants which were not pursued.
- As the trial proceeded the primary areas of issue have concentrated on the following:
- The witnesses of fact were palpably honest. Neither Mr Goldswain nor Ms Hale sought to exaggerate or embellish their evidence. Mr Smith was clear and comprehensible in his evidence. Mr Pistilli was, I am satisfied, honest but was not speaking in his mother tongue and it is clear that he did not always answer every question but that, in my assessment, was mostly attributable to his English, whilst serviceable, not being very good.
- As for the engineering experts, I have no doubt that Mr Tutt, called by Beltec was the more impressive and consistent; he is certainly a very experienced engineer and expert. Mr Train, whilst having all the relevant qualifications and experience and being extremely straightforward with the Court, unnecessarily overstated matters. For instance, his initial position on the significance of sliding or lateral forces was overstated when he stated that Acrow props should have been provided but conceded that reasonably decent timber props would have provided a sufficient factor of safety against the risk of sliding for the front wall. He overlooked the fact that horizontal reinforcement connecting the pins would have provided resistance against a sliding movement. He overstated the sliding force in the rear light well area. His theory on causation became more qualified as the trial went on, moving from a position initially of there being lateral or horizontal sliding to a position in which there was both a downward bearing pressure as well as a sliding pressure. He moved from a view that non-localised propping should have been installed before the cellar floor was excavated to the acceptability of installing such propping at a later stage. I found that Mr Train’'s position on what Beltec should have done in terms of propping compared with what he would have expected AIMS to have done confusing: while saying that there was a need on the part of the engineer to highlight the sequencing and height of the propping he accepted that the actual position and actual number of props as well as the loads to be accommodated would be the contractor’'s responsibility, going on to say however (Transcript Day 2 Page 108/120) that ""the sequencing of when they get installed and when they come out will be to work around the construction, will be the contractor[‘'s responsibility]”". Overall, I prefer the evidence of Mr Tutt, although that does not necessarily mean that I accept everything which he said.
- One somewhat unsatisfactory feature of the evidence, particularly on the Claimants’' side, is that there was no or virtually no expert evidence from Mr Train and little or none put to Mr Tutt about any failure to warn. Whilst that does not absolutely rule out a finding in negligence against Beltec, I do not have the benefit of the engineering experts’' considered views on this important topic.
- The quantity surveyor experts eventually agreed on a fair amount. They both tried to assist in a helpful and professional manner. I felt on balance that Mr Linnett for Beltec tended to underestimate the problems to be overcome, often seeking to revert to saying that he could not easily (if at all) price without some specification whilst Mr Ellis for the Claimants was much more pragmatic and helpful. On balance I preferred Mr Ellis’' approach.
- The basic standard of care in a case like this involves the exercise of the care to be expected of a reasonably competent engineer. The fact that the engineer ""gets it wrong"" does not mean that he or she is liable. If the engineer in question has done what other members of his or her profession would have done he or she will not be liable for professional negligence. That is, broadly, unexceptionable.
- The duty to warn, particularly in the case of professional persons, has been addressed in a number of authorities over the years. In Oldschool v Gleeson (Construction) Ltd (1976) 4 BLR 103, HHJ Stabb QC in third party proceedings between the Plaintiffs’' contractor and consulting engineer had to address the collapse of a party wall caused by the negligence of the builder, it being said that the engineer owed a duty of care to the contractor, that the engineer failed to design or instruct the contractor to provide underpinning, that the engineer failed to supervise the contractor properly and failed to provide the contractor with adequate instructions with regard to underpinning and shoring. The judge decided:
- In Plant Construction PLC v Clive Adams Associates [2000] BLR 137, the Court of Appeal had to consider a case where the main contractor employed sub-contractors to carry out work at Ford Motor premises and an engineer to design and monitor the works and roof trusses had to be temporarily supported. Both the sub-contractor and the engineer should have recognised that the propping in question was inadequate, as it proved to be when the roof collapsed. The appeal was primarily concerned with the sub-contractor’'s duty to warn in circumstances in which, although it had executed the temporary support works, it had done so to the design and instructions of the main contractor and Ford’'s engineer. May LJ said at Pages 147-8:
- Aurum Invetsments Ltd v Avonforce Ltd [2000] EWHC 184 (TCC) was a first instance decision of Dyson J (as he then was) involving the unsupported underpinning of a basement, leading to the collapse of a flank wall. The design and build defendant contractor (“"Avonforce”") sought indemnities and contributions from its specialist underpinning sub-contractor (“"Advanced”") and from the client’'s engineer (“"KHP”"). The judge said:
- Hart Investments Ltd v Fidler [2007] EWHC 1058 (TCC) was a case involving a claim by owners of a semi-detached house against its engineer in circumstances in which the building contractor (in liquidation) was retained to construct a deep double basement. Mr Fidler was contractually engaged by the owner to provide the permanent works design and, as the evidence revealed (see Paragraph 19), he attended site on at least 37 occasions; however, he was also retained by the contractor to design the temporary works. The recorder in his judgement said:
- Many of these cases were reviewed in Cleightonhills v Bembridge Marine Ltd [2012] EWHC 3449 (TCC) a case involving serious injuries to an employee as a result of the collapse of a grating on a newly constructed first-floor gantry platform and where a number of third parties were sued:
- In Stagecoach South Western Ltd v Hind [2014] EWHC (TCC), Coulson J was concerned with liability for the collapse of a tree onto a rail line, including that of a tree surgeon engaged by the land owner who, it was argued, should have appreciated that there was risk of the tree collapsing. In dealing with the duty to warn, the judge said:
- Drawing from the authorities, I can reach the following conclusions in relation to a duty to warn:
- There are a number of cases and textbooks in which it is said that, generally, the engineer or architect is, often, required to design the permanent works but that it is the contractor’'s responsibility to build those permanent works and the temporary works and how it constructs the permanent works is the responsibility of the contractor. In general terms, that is true but it will always be necessary to consider what services the professional is engaged to provide. There may well be contracts for professional services in which, for instance, the engineer is retained to consider and approve temporary works proposals and, if so, that must be done with reasonable care and skill. On other contracts the engineer may be retained to supervise or inspect the works and, again, that will have to be done with reasonable care and the scope of that duty may well involve a consideration of how safely the works are being carried out by the contractor.
- It is first necessary to consider what services Beltec was employed by the Claimants to provide. I have no doubt that it was employed (so far as is material) to provide the permanent works design for the excavation of the basement, the underpinning of the perimeter walls and the provision of support to the internal walls and structure as necessary; these words are taken from the Beltec letter of 17 February 2012. I am wholly satisfied that there was no supervision obligation and no requirement to visit the site once work was due to start. It is clear that in context the reference to ""a single initial visit"" is to the “"survey of the existing basement/ground floor"" offered in that letter. That the obligation related and was limited in scope to design is supported by the terms of the Letter of Instruction signed by Mr Goldswain:
- It is therefore in this contractual context that one needs to review what it is that the Claimants were entitled contractually to expect from Beltec. Beltec was required to provide the Claimants with the structural designs with reasonable care and skill.
- Addressing first the supposedly causative allegations of breach which were not pursued with any vigour or ultimately in the closing submissions at all by the Claimants’' Counsel. These allegations are set out in Paragraphs 49 (iii) to (v), summarised at Paragraph 32 above. I am satisfied that there were no breaches of duty in these specific regards. Any competent contractor could and would be expected to read Drawings S002 and S003 together and understand that, whilst the general thickness of the reinforced concrete floor slab was to be 250mm, the thickness under the underpinned walls and the adjacent area of slab was to be 350mm thick. Drawing S002 cross refers to the sectional drawings. Competent engineers, exercising reasonable care and skill, would have readily assumed that builders would read and understand the drawings in that way. Similarly, competent engineers would understand that builders would understand that the basement slab and ""kicker"" under and adjacent to the pins had to be constructed first; that is because Drawing S002, in the Underpinning Method Statement set out on that drawing, specifically said so; common sense would also come into play here because it would be virtually impossible, and certainly impracticable, as anyone involved would know, to construct the pins first and the subjacent slab and kicker later, given the need for there to be continuing reinforcement from the slab into the pins (or vice versa). Although there was no specific guidance on how the base slab sections to the pins in the various corners were to be constructed, that was something which could reasonably be left to the contractor to work out, the contractor having responsibility for how the works were done. Broadly, I accept the evidence of Mr Tutt in relation to these three allegations, as according with common sense, to the effect that there was no failure on the part of Beletc to exercise reasonable care.
- The primary area of complaint, other than in relation to the warning, revolves around whether more should have been spelt out by Beltec on its drawings about propping and the pleaded and pursued complaints relate to the alleged absence of sufficient detail or information relating to propping in the area of the rear light well and in the area of the front bay, in particular in the context of the flank wall. Indeed, given potential difficulties on the causation relating to the front bay, at trial there was a much greater concentration on the alleged deficiencies relating to the rear light well area.
- It is, rightly, common ground between the parties that the engineer has responsibility for the permanent works and the contractor for the temporary works, the temporary works in effect being the work necessary to achieve the permanent works design; usually, the temporary works are just that, temporary, and do not remain once the permanent works are completed. This division of responsibility is specifically recognised in a bulletin put out by the Health and Safety Executive: ""Domestic basement construction projects: What you need to know as a busy builder"" (March 2012):
- Appoint a competent temporary works engineer to design the propping, shuttering and other support needed to prevent collapse of any excavation or building.
- Devise a construction sequence that includes when and how you will install any temporary works required…
- Install the required temporary works and maintain them according to the temporary works engineer’'s instructions
- Support all sides of every excavation to prevent ground or building movement and collapse…”"
- There was some other information available. There was “"Industry Guidance for Designers”" in relation to the Construction (Design and Management) Regulations 2007; ""designers"" has a broad definition and could cover not only permanent but also temporary works designers. Some relevant provisions of this document were:
- not providing lateral stability requirements and vertical load limitations amongst outputs…”"
- The HSE issued a document entitled ""Managing health and safety in construction - Construction (Design and Management) Regulations 2007 - Approved Code of Practice"" first published in 2007. Material provisions were:
- The HSE also issued in 2010 a document entitled ""The management of temporary works in the construction industry"" with the ""Target Audience"" being specified as: ""Construction Division staff, Construction Inspectors and Specialist Inspectors (Construction Engineering)"". This does not obviously relate to consulting engineers retained only to carry out the permanent works design with no supervision or inspection responsibility. It does however suggest that in relation to “"temporary works management arrangements suitable for small contractors"", a specific procedure for ""ensuring a suitably competent temporary works designer/adviser is in place to supply an engineered solution"".
- There is no doubt that over the last 15 years or more, the creation of basements or cellar areas in domestic houses has become relatively commonplace. For instance, Mr Smith of Beltec indicated that his firm has done scores of them. Such developments are more or less elaborate, with the more elaborate ones involving double depth basements with swimming pools and cinemas and the simpler ones being of the type which the Claimants wished to have, namely the creation of several new rooms, below an existing house. The new basement at No. 4 was a relatively simple one, in that there already was a basement, albeit that it was not readily usable without it being expanded downwards. It only needed to be taken down by about 4 feet or so. Mr Tutt said that the creation of such a basement by underpinning was common practice and that is borne out by the HSE guidance for basement construction referred to above.
- As was, rightly accepted by Mr Train, there was nothing in the permanent works design documentation produced by Beltec which would prevent the contractor from doing its work in a reasonably safe way. Drawing S002 specifically provided a very precise sequence of work (see Paragraphs 2 to 9 of the Underpinning Method Statement); it specifically called for each pin to be propped at mid-height horizontally against either the internal earth ""dumpling"" or the opposite face and, although its wording is imperfect, Note 15 of the Underpinning General Notes called for underpinning to be horizontally propped at mid height and the corners to be propped with diagonals across adjacent pins. The Note made it clear that ""all propping and temporary works were to be to the contractor’'s design and method statement"". Mr Train specifically accepted in cross-examination that propping was an industry standard solution to issues such as interim stabilities and basement construction (Day 2 Transcript page 128/19). Mr Tutt said, and I accept, that Note 15 was the standard industry practice. I therefore consider 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.
- Mention should be made of the calculations prepared by Beltec running to some 20 pages. There is no particular complaint made about these calculations. Factor of safety calculations were made in relation to the party, front and flank walls to show what the position would be in the ""temporary case"", namely before the reinforced concrete floor slab was fully completed. In relation to the flank wall, forces on that wall, for instance by way of point loads and soil pressures, are identified together with what was called a ""sliding check"" and this identified a factor of safety of “"0.94 Fail*”". A factor of safety of 1 or more means that the structure is increasingly safe, the higher above unity the figure is; a factor of safety below 1 points to instability and an increasing risk of failure. The asterisked note at the bottom of the calculation sheet stated: ""Insignificant as the retaining wall is restrained by props in the temporary conditions"". Having provided the calculations along with the drawings to the Claimants, Beltec could reasonably have expected, as turned out to be the case, that they would all be passed on to the contractor. Whilst the evidence was, broadly, that competent engineers would not necessarily expect ordinary contractors to read or understand the calculations (unless they had the necessary in-house expertise), there would be a reasonable expectation that those in-house or external temporary works designers would have regard to the calculations. The note on the calculations emphasises the importance of the propping.
- The primary complaint of negligence comes down to a very narrow issue, which is whether Drawing S002A (which showed the light well at the rear with the doorway into the light well) created a weakness or risk such that no competent contractor would have appreciated it and, consequently, whether Beltec should have provided for some way of overcoming such weakness or risk. To understand this complaint, one needs to appreciate that the rear part of the existing flank wall was to be underpinned with a pin numbered 4 and that the original wall which returned at right angles to that part of flank wall was to be underpinned by a pin numbered 2 which was to be contiguous to but clearly tied in by reinforcement with the adjacent pin numbered 4; part of this return wall was to be taken out to form the opening into the rear light well. It is therefore suggested that there would be a weakness because the pin numbered 2 if propped horizontally would not be supported against the lateral forces bearing on to the flank wall, unless it was propped across the doorway into the light well. Mr Tutt’'s response to this was to say that there was no safety risk in this regard because the floor slab in the light well area would in effect and practice be cast, first of all in relation to the two new sections of wall to form the outside of the light well (numbered 5, 1 and 3) and they would in real life be cast along with the kicker slabs to be formed about 2m away on the existing wall under the bathroom in the rear extension. Thus, he says there would in practice be floor slab covering the opening from the basement into a new light well and that would provide the restraint against sliding from the flank wall. I accept this evidence. Another important factor is that the pin numbered 4 would be adequately propped, if the contractor followed the specification called for in the Underpinning Method Statement and, therefore, the end of the flank wall at the rear would be adequately propped in any event. Added to this is the fact that the design called for the pins all to be a homogenous whole because reinforcement was to run horizontally from one pin to the other and that would provide support also to enable it to be treated as one structural element.
- So far as the area below the front bay window at the road side of No. 4 is concerned, I have no doubt that the design, particularly on Drawings S0002A and S003, was a safe and prudent design. In effect, if the contractor had done what the Underpinning Method Statement had called for, the rectangular floor area encompassed by the bay would have had virtually the whole of the reinforced concrete floor slab placed before each pin had actually been excavated for and cast. This is because the basement slab section and kicker would have been projected inwards into the rectangular area by about 1m and that would have created its own brace against the pressures from the flank wall. Coupled with that, the flank walls and the contiguous return wall of the Bay Area would, if the Underpinning Method Statement had been followed, have been propped horizontally either against an available ""dumpling"" or the party wall. The arrangements for there to be horizontal reinforcement between pins would also add stability in this area, particularly where the underpinned flank wall met the return wall going at right angles into the bay area; this would effectively prop the flank wall supported as it would have been by the bay slab. The design and drawing requirements for that area therefore seem to me to be wholly satisfactory.
- In the light of this, I do not consider that any case for professional negligence in relation to the design and specification, specifically in relation to the rear light well or otherwise has been established on the evidence.
- One then moves on to the ramifications of the visit made by Mr Pistilli on 26 September 2012. One needs to see this visit in the context that it arose as a result of an informal contractual retainer made as between Beltec and AIMS. I have no reason to doubt the thrust of Mr Pistilli’'s evidence about this visit which was to the effect that it involved a request for him to consider the arrangements for the first pin to be constructed. He arrived and found that, instead of there being reinforcement set up for him to inspect, the first pin had simply been cast without the subjacent slab and kicker. There was clearly little to inspect, only a hole in the ground which was not very large. Mr Train accepted that there could be no criticism of him in relation to a lack of propping at that stage because it would not need to have been installed at or by the time of his visit (see Day 2 Transcript Page 149/1-7). Mr Pistilli had the impression that Mr James did not have the relevant drawings on site and that the pin had been cast without such drawings being followed. He handed over his own copies of the drawings and explained to Mr James how to go about the job, particularly emphasising the importance of getting the base slab and kicker in first and following the sequence set out on Drawing S002A. There is no evidence that at that stage there was any actual danger, which is unsurprising given that only one small hole had been excavated. In effect Mr Pistilli thought that the problem really was that the pin had been constructed without the relevant drawings being on the site and he sought to get over that deficiency by handing over his own and, later, sending another full version to AIMS, as well as explaining how AIMS should go about the job. He sent the next day his Drawing TW001 which showed two additional heavy duty mechanical props which he was clearly recommending should be installed to counteract lateral movements on the flank wall; it would be unlikely that he had not mentioned something about this proposal the day before to Mr James. He also invited Mr James to contact him as necessary.
- I find it very difficult to see how Mr Pistilli’'s or Beltec’'s conduct at or following this visit can be considered to be negligent. The 26 September 2012 visit was simply arranged to enable him to see what AIMS had done in relation to the first pin. He looked at it and formed the view that it should be re-done because it appeared to have been constructed in a way which was obviously non-compliant with Drawing S002A. There was no danger at that stage and it has not been established on any balance of probabilities that Mr Pistilli should have realised that AIMS was completely out of its depth or not competent to do the job which it had been employed to do. It was not an unreasonable response for him to consider that at least a major part of the problem had been that the pin had been cast without reference to any drawing available on site, to hand over his drawings to Mr James and to explain how AIMS should go about casting the subjacent floor slab and the pins; essentially, he was telling Mr James no more than was on Drawing S002A. He was not worried, he told the court, about the contractor’'s ability or arrangements. It was his belief that a company like AIMS would not necessarily need to have a temporary works designer if it had the experience in-house. It is a reasonable inference that he did not appreciate that AIMS did not have that experience; there actually is no evidence that it did not have the experience in-house, albeit that Mr James himself personally may not have had that experience.
- I have formed the view that professional negligence simply has not been established here on the facts with regard to any warning which it is said that Beltec should have given either to AIMS or the Claimants. I consider that a sizeable number of engineers in the position of Beltec or Mr Pistilli would have done no more and no less than he did which was, in essence, advising his client (AIMS at that stage) to follow the requirements set out on the Drawings which he made sure Mr James had, requirements which he explained to him orally on his visit.
- The final complaint in time relates to an assertion that Beltec should have advised both the Claimants and AIMS weeks earlier than the second week of November 2012 of the need to follow the recommendations spelt out on the new Drawing S006 sent at that stage to the Council. I do not consider that this complaint is made out because, as I have found, the probability is that Mr Pistilli merely intended to illustrate what he thought would or could well have been done by a contractor following the requirements set out on the other drawings, particularly in relation to propping. I have found earlier that there was no negligence, either by way of commission or omission, in relation to what was called for particularly on Drawings S002A and S003, and that there was no need, professionally, to spell out what was shown on the later Drawing S006.
- Although I have not had the benefit of any evidence from AIMS, the evidence which I have heard, in effect supported by both liability experts, establishes the overwhelming probability that AIMS failed to carry out their work with reasonable care and skill or in compliance with the Drawings which it was provided with. It is clear that from the start of the work up to the collapse that no or no effective propping was provided and that the specified sequence was, for no good reason, simply not followed, particularly in relation to the need to form the subjacent floor slab and kicker under and beside each of the pins; the reinforcement that was emanating from the pins was not the right size or shape.
- Given my findings in relation to there being no liability on the part of Beltec, it is unnecessary for me to decide issues of causation in relation to Beltec.
- I have formed the view however that the primary mechanism of failure here was in fact a horizontal or sliding movement of the base of the flank wall. There was, literally, no propping of the flank wall and no part of the floor slab had been constructed. Both experts have, to some extent, moved towards each other, with Mr Train moving from his position that it was all lateral movement to it being mainly lateral movement and some downward bearing pressure movement and Mr Tutt accepting that there must have been some lateral movement but saying that the main movement was from the vertical bearing pressure. I do consider that the introduction of rainwater over the day or two before the collapse is likely to have softened the underlying clay slightly. I also accept in logic that, if AIMS had followed what in particular Drawings S0002A and S003 called for in terms of the subjacent basement slab, the downward bearing pressure load would have been spread more widely. However, I have no doubt that the construction of the pins downward but with no propping support and no resistance being provided by any subjacent basement slab and there being no real resistance against what clearly must have been significant horizontal pressures from behind the flank wall, extended as it was downwards by the underpinning, the probable, and indeed the most probable, primary mechanism of failure was horizontal or lateral movement. That is supported by the thrust of Mr Train’'s evidence on the topic and by the relatively dramatic photographs and measurements taken which show that the basement wall moved laterally at the base by a substantial amount; the remaining piers are at a very obvious slope. The collapse as described by Mr Goldswain is consistent with the lateral movement theory. Both experts accept at least that there was also some downward movement but, in my judgment, the preponderant movement was horizontal.
- Either way, the breaches of contract on the part of AIMS have undoubtedly caused the collapse.
- There is another issue which, technically, I do not have to decide, which is whether or not AIMS would have followed more detailed advice or design specification in relation to propping and the like. There is unfortunately no direct evidence of this as no representative of AIMS was called as a witness. I would, however, if I had had to decide this issue, have decided that there is insufficient evidence to establish on the balance of probabilities that AIMS would have followed such advice or further specification. This is because the clear evidence is that AIMS ignored such advice as was given: it did not provide any propping, it did not construct the basement slab sections and kickers first as required or indeed at all and it did not install the Mabey props as specifically recommended in TW001. I have no evidence to suggest that there was any deliberate flouting of its contract but, having reviewed all the evidence available, it might well be said that AIMS (or at least the people allocated to do the job) did not seem to have the experience or expertise called for by such a project. If, therefore, I had found that there were material breaches of duty on the part of Beltec, it is unlikely that I would have found a sufficient causative link between such breaches and the collapse.
- Again, it is unnecessary to me to make any findings about quantum in relation to the case against Beltec. However, I will summarise broadly what my findings are and would have been in the Table below:
- Although I have the greatest sympathy with the Claimants, the Claimants’' case against Beltec is dismissed and there will be judgment for Beltec. AIMS is liable to the Claimants and damages against it are assessed at £287,754.55.
Mr Justice Akenhead:
The History
“"I was pleased to meet you at the above property to discuss your requirements, with a view to providing a quotation for the structural elements of the above scheme.
We estimate to prepare details and justifying calculations, based on our conversation which I understood to be carrying out a survey of the existing basement/ground floor, designs for excavating the basement, underpinning the perimeter walls, providing support to the internal walls and structure as necessary, providing details for damp proofing and drainage, in sufficient detail to satisfy the building regulations, our fee would be £1,350 + VAT and disbursements.
The above fee allows for a single initial visit.
We trust the above information is sufficient for your immediate needs and look forward to your further instructions.
If you wish for us to proceed, could you please sign and return the attached letter of instruction and sign the agreement to our Terms and Conditions. We are unable to proceed without this being returned. At present we are able to prepare calculations within approximately 2 weeks of any instruction, obviously this can vary depending upon workload from week to week…”"
“"This letter instructs [Beltec] to carry out structural designs in accordance with their estimate letter…
This cost being £1,350 + VAT and disbursements.
Any subsequent site visits will be charged at £200.00 + VAT per visit…”"
“"UNDERPINNING METHOD STATEMENT
1. Divide overall length of wall into 1m length as shown on drawing, work sequence to be such that the wall is adequately supported at all times.
2. Excavate pins in order shown.
3. Construct basement slab section + kicker.
4. Construct wall section. Leave 24 hours (600 mm reinforcement to be driven to the next section).
5. At mid-height prop pin horizontally against internal ‘'dumpling’' or opposite face.
6. Dry pack between wall & foundations leave for minimum of 48 hours before excavation of any adjacent pins.
7. Excavate next pin (in order shown).
8. Repeat 2.
9. Repeat 3.
UNDERPINNING GENERAL NOTES
…3. A soil investigation is to be carried out including trial pits and boreholes prior to confirmation of engineer’'s details…
6. Concrete pins to be constructed in the order as shown on the drawing…
12. The contractor is responsible for the stability of all excavation and the building during the course of the works and therefore shall have planking and strutting on site at all times to comply with current health and safety regulations…
15. New high level underpinning to be horizontally propped at mid height. Corners to be propped with diagonals across adjacent pins. All propping and temporary works to contractor’'s design and method statement…”"
“"After discussions with Jaquie Hale we understand that you produced the drawings and specifications for the above project.
We are going to be undertaking the 1st fix works inclusive of the underpinning. Could you confirm at this stage if you are going tohave any further input into this project. At present we are producing a method statement for the underpinning works and will require the input from a structural engineer to confirm the following:
1. Inspect the initial bays and advise of new foundation depth
2. Concrete specification and any reinforcement requirements
3. Temporary structural propping
If you have not allowed for these works please could you provide us with a quotation.
Please contact me to discuss further.""
It is likely that there was no response from Beltec to this letter. That is evidenced from an e-mail dated 3 September 2012 from Mr James of AIMS to Ms Hale. Another e-mail from her to Mr James on 10 September 2012 suggests that she spoke to someone at Beltec who said to her that it would not ""normally work with the builder as this duplicates what the local authority does""; she asked them to try again.
“"Regarding the underpinning method statement I have attached the drawing 12065-TW001 which contains the suggested method statement along with the horizontal props position.
For any question don''t hesitate to contact me.""
Mr Pistilli accepted in evidence that the ""TW"" reference meant ""Temporary Works"". This was essentially the same as Drawing S002A with the following (material) amendments:
(a) Notes to the ""Underpinning Method Statement”" became:
“"8. Repeat 2-6 until last pin is constructed.
9. Excavate and Cast Base Slab"".
` (b) Added to the Basement Underpinning Plan at two locations, there were shown two horizontal props from the flank wall back to the party wall described as:
“"”"Mabey”" S3/10 Mk3 soldiers (or equivalent ""Mabey”" tubular) horizontal props installed to manufacturer’'s specifications"".
These were located on the plan about 2m away from the rear side light well and from the front or road side wall. These types of prop are heavy duty props from a well-known manufacturer.
The Proceedings
(a) Whether in the original design documentation produced in March 2012 Beltec should have spelt out or explained any unusual risks not likely to be obvious to a competent contractor.
(b) Whether Beltec should have checked whether the contractor to be appointed had secured or had internally the appropriate expertise to carry out the job.
(c) Whether Beltec should have appreciated and provided for any particular weakness created towards the rear of the flank wall by the introduction of the rear light well and the doorway to be created in that area.
(d) Whether the contract between the Claimants and Beltec was such that Beltec had a continuing obligation after providing the design for the underpinning and floor slab to visit the site and give appropriate advice.
(e) Whether Beltec was negligent in failing to warn both AIMS and the Claimants about the shortcomings in AIMS’' activities.
(f) Whether AIMS would have done any better than it did do even if the risks had been spelt out more precisely than they were or if an appropriate warning had been given in late September 2012 to it by Beltec.
(g) What was the mechanism of failure: bearing pressure (that is primarily downward movement), not associated with an absence of propping or horizontal or lateral failure of the basement walls caused by an absence of propping.
The Witnesses
The Law
“"I do not think that the consulting engineer has any duty to tell the contractors how to do their work. He can and no doubt will offer advice to contractors as the various aspects of the work, but the ultimate responsibility for achieving the consulting engineer’'s design remains with the contractors…”" (Page 123)
“"…What is said, however, is that when the consulting engineer knows or ought to know that the contractors are heading into danger whereby damage to property is likely to result, then he owes the contractors a duty of care to prevent such damage occurring. If he sees the contractor is not taking special precautions without which a risk of damage to property is likely to arise, then he the consulting engineer cannot sit back and do nothing. I am not sure that the consulting engineer’'s duty extends quite that far but, even if it does, I do not believe that he is under a duty to do more than warn the contractors to take the precautions necessary, and in so far as those precautions consisted here of shoring and providing temporary support and immediate blinding in excavations in the vicinity of the party wall, I am satisfied that [he] gave [the contractor] ample warning"". (Page 124)
This case did not unequivocally therefore establish that there was a duty to warn because the judge said at Page 124 that he was not sure that the duty extended that far. In any event, it is predicated on the basis that the engineer knows or ought to know that the contractors are heading into danger.
“"The present appeal concerns (a) temporary works which were (b) designed and specifically instructed by the employer, so that (c) they became part of [the sub-contract] works, which (d) were obviously dangerous, and which (e) [the sub-contractor] knew to be dangerous….[The main contractor] had the services of the consulting civil engineer. [The main contractor and the sub-contractor] are each to be taken as experienced in their respective roles. In my judgment, of the elements which I have referred to, all are relevant but (d) and (e) are crucial. These temporary works were, to the knowledge of [the sub-contractor], obviously dangerous to the extent that the risk of serious personal injury or death was apparent. [The sub-contractor] were not mere bystanders and, in my judgment, there is an overwhelming case on the particular facts that their obligation to perform their contract with the skill and care of an ordinarily competent contractor carried with it an obligation to warn of the danger which they perceived…The question is, not whether [the sub-contractor] owed a duty of care to someone who was injured, but what was the scope of the implied contractual term in their subcontract with [the main contractor…[The sub-contractor], with others, had a duty to guard against the risk of personal injury to a potentially large number of people. That duty extended to giving proper warnings about the risk. It was not itself a contractual duty owed to the [main contractor], but it is a relevant circumstance in determining the extent of performance which [the sub-contractor’'s] implied duty of skill and care required…”"
May LJ (with whom the two other members of the Court agreed) at page 148 left over for “"future consideration circumstances where (a) the contractor did not know, but arguably ought to have known, that the design was dangerous, and (b) where there was a design defect, of which the contractor knew or ought to have known, which was not dangerous"".
“"16. I do not accept Mr Brown''s submission that it is sufficient to establish the duty to warn that it was possible that Avonforce would carry out the excavation in the way that it did. It seems to me that it is unreasonable to impose a duty to warn in such circumstances. It is common ground that Avonforce was negligent in excavating in the way that it chose to do. Why should Advanced assume that Avonforce would carry out the excavation negligently when it could have chosen a safe alternative way of doing it? The case for a duty to warn becomes even more difficult when there is added to the other elements of the case the fact that Avonforce was being advised by apparently competent engineers. It is true that Advanced did not know the scope of KHP''s retainer, but Mr Roberts was aware that KHP were involved, because they had written annotations on the drawing. It is true that on the facts of Plant, the fact that the instructions had been given by the clients'' engineer did not negative the duty to warn. But in that case, JMH was aware that what it was instructed to do was dangerous. Where, as here, the contractor is not aware of what is proposed, and at its highest, the case is that it ought to have known that what occurred might have been proposed, it seems to me that the position is quite different. In such a case, I consider that it is relevant to the question of whether there is a duty to warn that the client is being advised by an independent professional person. Why should the contractor assume that the client will act negligently, particularly when he is being independently advised by an engineer?
17. As I have said, in my view it is unreasonable to impose a duty to warn on Advanced in the circumstances of this case. The duty to warn is no more than an aspect of the duty of a contractor to act with the skill and care of a reasonably competent contractor. Reasonableness lies at the heart of the common law. As Lord Reid said in Lord Reid said in Young & Marten Ltd v McManus Childs Ltd [1969] 1 AC 454, 465 ""no warranty ought to be implied in a contact unless it is in all the circumstances reasonable"". Advanced was not asked to advise Avonforce what excavation techniques should be adopted, nor did Avonforce tell Advanced how it proposed to go about carrying out the excavation. It chose to employ a method that was negligent when suitable alternatives were available.”"
“"22. In my judgment 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 permanent 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.”"
He went on to find that an obviously dangerous state of affairs had arisen which was apparent when the engineer attended site (see Paragraph 54) and that Mr Fidler was in breach of duty for not warning the contractor of the risks of the site collapsing and in not taking immediate steps to prevent the danger (see Paragraph 56).
“"78. In my view, there can be little doubt that a failure to warn in the case of potential danger to human beings may give rise to a breach of any duty of care owed to a third party by a party who knows of the danger. I use the word ""may"" because it is necessary always to review all the circumstances and there might be circumstances which justify not warning. Where the parties are in contract, the duty to warn may extend to dangers of which the party in question should have been aware by reason of its involvement. Thus, a surveyor contractually appointed may owe his client a duty of care and will often be under an obligation carefully to ascertain whether there is a danger in the structure being surveyed; failure to advise or warn of the danger may well still give rise to liability even if the surveyor is in fact unaware of the danger. In purely tortious circumstances, any duty to warn may not in fact extend to warning the class of persons who might be affected by the danger; it may be limited to warning the party with whom the person required to warn is in contract or to warning the local authority.
79. In conclusion on this topic, I consider that an obligation to warn may arise in the context of a tortious duty of care, certainly in the case of a danger to people, known to exist by the person who it is said should be giving a warning. This will depend on all the facts and the circumstances including what function and role the person said to be required to warn is fulfilling. All other aspects of the law relating to whether duties of care exist at all and the scope of such duties apply to the issue of whether warnings should be given. It is at least possible that where someone is charged, contractually, with an obligation to ascertain or check whether designs or works are safe for human beings, his or her tortious duty of care may extend to warning or advising about inherent dangers of which he or she should have been aware.
80. In my judgement overall, Bembridge has simply failed to establish that Mr Bennett, AFL or Mr Martin were in breach of the duty of care which they owed to Mr Cleightonhills. In the case of Mr Bennett, there was nothing careless in his provision, location and fixing of the steel clips; he can not properly be criticised for failing to warn Bembridge of the inadequacy of the location and fixing of the platform gratings because there was nothing in itself wrong with such location and fixing because the gratings were put in exactly the position specified and the fixings of the relevant Panel 3 were in terms of numbers and locations consistent with the requirements of good practice and BS 4592. The installation and fixing of the grating complied with BS 4592; the problem was not with the installation and fixing but it was with the design for which Mr Bennett had no responsibility and which he neither knew nor could reasonably be expected to have known was deficient. He properly sub-contracted the supply and fabrication of the steel work, including the gratings, to AFL. He did not know the specific and precise purposes of the Platform (heavy loads, small wheeled trolleys, aggressive use of forklift truck, routine presence of people on the Platform). He was entitled to assume, and was certainly not careless in assuming, that Mr Ely and RMA between them would have spelt out precisely what they wanted and what was required in the drawings upon which they asked him to quote. He can not be criticised for failing to be aware of the need for an edging strip because neither was it clear or discernible from all the information provided to him and indeed to Mr Martin that there would be material horizontal loads which could or would foreseeably cause the gratings to move nor was it in practice or under his contract incumbent on him to question the design to which he was being required to work.”"
“"100. However, it does not seem to me that such a duty arises on the facts of this case. First, the ''duty to warn'' cases all arise in the context of a contractual relationship: there are no reported cases in which this kind of duty to warn is said to arise in tort, owed to a third party. There is no reason, either on the facts or as a matter of policy, to extend the duty in this case, particularly as Mr Steel was a contractor, not a professional. That conclusion may be another way of expressing the conclusion I have reached above about the absence of sufficient proximity.
101. But even assuming that such a duty was capable of being owed to a third party, all of the cases stress that a duty to warn is only triggered by a clear defect or something that is ''obviously dangerous'' (the expression used in Plant and Aurum). When applied to the facts of this case, it means that if (which I do not accept) Mr Steel was capable of owing a duty to warn to the claimant, that duty would only have been triggered by his discovery of something that was obviously dangerous. But there was no such thing. As set out in paragraphs 17-18 above, the Tree was apparently healthy. It was also covered in ivy. There was nothing which would have identified to Mr Steel that the Tree was ''obviously dangerous''. He would not have seen the fork because it was covered in ivy. And the mere fact of the fork would not have put even a trained arboriculturalist on notice that there was a problem, at least not without further investigation. He would only have noticed the decay behind the ivy if he had looked carefully for it and there was nothing in his contract workscope that required him to do any such thing.
102. The duty to warn cases are all designed to ensure that a defendant cannot escape liability by referring to and relying upon the narrow constraints of his contractual obligations, in circumstances where he knew (or perhaps ought to have known, although that is itself controversial) that there was a significant danger or problem which no one else had spotted. But it is wrong in principle, as Mr Meredith Hardy seeks to do, to say that there was an obligation to carry out a detailed inspection of the Tree, pursuant to which Mr Steel would have found out its condition, so he could then comply with a duty to warn of obvious defects. That is the wrong way round. A duty to warn starts with the existence of obvious problems which are either known (or perhaps which should have been known) to the professional man or contractor. It does not impose an obligation to carry out wide-ranging inspections and investigations so as to discover whether there is an obvious defect, which might then trigger a duty to warn.”"
(a) Where the professionals (engineers in this case) are contractually retained, the Court must initially determine what the scope of the contractual duties and services were. It is in the context of what the professional person is contractually engaged to do that the scope of the duty to warn and the circumstances in which it may in practice arise should be determined.
(b) It will, almost invariably, be incumbent upon the professional to exercise reasonable care and skill. That duty must be looked at in the context of what the professional person is engaged to do. The duty to warn is no more than an aspect of the duty of a professional to act with the skill and care of a reasonably competent person in that profession.
(c) Whether, when and to what extent the duty will arise will depend on all the circumstances.
(d) The duty to warn will often arise when there is an obvious and significant danger either to life and limb or to property. It can arise however when a careful professional ought to have known of such danger, having regard to all the facts and circumstances.
(e) In considering a case where it is alleged that the careful professional ought to have known of danger, the Court will be unlikely to find liability merely because at the time that the professional sees what is happening there was only a possibility in future of some danger (see Aurum); any duty to warn may well not be engaged if all there is is a possibility that the contractor in question may in future not do the works properly.
Liability (Beltec) - Discussion
“"This letter instructs [Beltec] to carry out structural designs in accordance with their estimate letter…”"
This points strongly also to the scope of the services not covering any supervision or inspection of the contractor. The fact that there is nothing in either letter referring to any involvement with the contractor underlines this as well. The reference to ""subsequent site visits"" to be charged at £200 plus VAT is comprehensible as advising the clients that if they require such visits this is what it would cost.
“"Constructing a basement underneath a domestic property is specialised high risk work that can catastrophically affect the stability of existing buildings.
The project architect and engineer must provide detailed plans of the finished basement.
The builder must use these plans, together with knowledge of the ground conditions on site, to make sure the construction work is planned and undertaken safely. This includes identifying any temporary works such as trench supports or propping arrangements that are required to ensure the stability of any excavation or existing buildings.
Temporary works are the responsibility of the builder and should be planned by a competent person, normally known as the temporary works engineer
Before work starts
When work starts
“" 1.7.1 Experience tells us that many projects have suffered from either a dearth of information - from client and designer (with the inevitable consequences) - or a surfeit of information transfer, with insufficient attention paid to considering what others really need. It is essential that the important messages do not get buried beneath irrelevances.
1.7.2 A designer is required to take all reasonable steps to provide information about the design to assist other duty holders in complying with their duties under CDM 2007, that is to identify and manage the remaining risks. There are several ways in which information may be transferred…
Is the project information you provide appropriate and targeted?
[There then follow examples of three categories of risk entitled ""Not likely to be obvious to a competent contractor or designer"" which talks about for instance ""less obvious risks such as interim stability"", ""Unusual"" risks and ""Difficult to manage"" risks; this concludes with a statement which says that: ""ultimately, the decision about what information to pass on is a matter of competent professional judgement. Designers are unlikely to be criticised if they have given considered thought to the matter, as outlined in this guidance.""]
1.12 What designers do not have to do
1.12.1 This is self explanatory. Of particular note is that designers do not have to: ‘'specify construction methods, except where the design assumes or requires a particular construction or erection sequence, or where a competent contractor might need such information’'..
1.12.2 Most designs assume a construction sequence; some require a specific sequence. It is important in all cases that this is clear to the contractor, and that the assumptions behind the erection phase are known, for example use of standard connection details, and means of attaining temporary stability…”"
Section 3
TEMPORARY WORKS
3.1 Introduction
3.1.1 This element of guidance has been provided for two reasons: firstly because temporary works are within the ambit of CDM 2007 as structures within their own right; and secondly because they are inextricably linked to, but distinctly different from, the permanent works.
3.1.2 Although the contractor is responsible for a safe system of work relating to temporary works, permanent works designers often have a major contributory role.
3.2 Permanent works design
3.2.1 The permanent works designer will need to be satisfied that the permanent works design allows for a reasonable safe system of work in respect of temporary works (having regard to hazard elimination and risk reduction to be implemented by the temporary works designer and subsequently the contractor).
3.2.2 Where the likely solution is an industry standard, that is based on codes of practice and established temporary systems, then there may be no need to take any further action. However, if the solution is not standard, or will result in risks which may not be obvious to the contractor, then this should be highlighted. Information should include details of the interaction with the permanent works, paying specific attention to interim instability issues…
3.3 Temporary works designer
3.3.1 The temporary works designer may be employed by the permanent works design organisation, principal contractor, contractor, supplier, manufacture, or be self-employed. Contractually, the temporary works designer may be remote from both the principal contractor and the permanent works designer. However, for the purposes of CDM 2007, the role is classified as a ‘'designer’' and this ‘'Guidance for designers’' is therefore relevant.
3.3.2 Typical shortfalls in temporary works design include:
“"125 Designers are required to avoid foreseeable risks ‘'so far as is reasonably practicable, taking due account of other relevant design considerations’'. The greater the risk, the greater the weight that must be given to eliminating or reducing it. Designers are not expected to consider or address risks which cannot be foreseen…However, designers must not produce designs that cannot be constructed, maintained, used or demolished in reasonable safety…
131 Designers must provide information that other project team members are likely to need to identify and manage the remaining risks. This should be project specific, and concentrate on significant risks which may not be obvious to those who use the design. For example, providing generic risk information about the prevention of falls is pointless, because competent contractors will already know what needs to be done, but if the design gives rise to a specific and unusual fall risk which may not be obvious to contractors, designers should provide information about this risk.
132 Designers also need to provide information about aspects of the design that could create significant risks during future construction work or maintenance. If in doubt about the level of information needed, the best way to find out is to ask those who will use it…""
Liability (AIMS) - Discussion
Causation
Quantum
Item
Amount claimed
Amount allowed and findings
1. Barnet Council Fees
£265
£265 - amount admitted
2. Planning Application Fee
£385
£385 - amount accepted
3. Demolish existing two-storey extension
£0
£0 - it was accepted that this was not required as it was sufficiently stable to remain.
4. Remove concrete and shoring left by Council
£18,230.88
£ 15,192 - This claim was broken down into four elements, breaking out of concrete (£2,240.40, disposal (£2,952), removal of shoring and earth work support (£10,000) and contingency (20%). I accept Mr Ellis
| Item | Amount claimed | Amount allowed and findings |
| 1. Barnet Council Fees | £265 | £265 - amount admitted |
| 2. Planning Application Fee | £385 | £385 - amount accepted |
| 3. Demolish existing two-storey extension | £0 | £0 - it was accepted that this was not required as it was sufficiently stable to remain. |
| 4. Remove concrete and shoring left by Council | £18,230.88 | £ 15,192 - This claim was broken down into four elements, breaking out of concrete (£2,240.40, disposal (£2,952), removal of shoring and earth work support (£10,000) and contingency (20%). I accept Mr Ellis’' evidence on the first item, based as it was on a rate which he had obtained locally; the work would be complicated and difficult. Similar considerations apply to the second element. I accept Mr Ellis’' evidence on the £10,000 item; the photographs show that the removal of the shoring and support works will be complex and fraught with difficulty given that, particularly the party wall will need support maintained for it and there will therefore need to be a number of return trips. However, I disallow the contingency because the other amounts are sufficient and there is to be an overall contingency. |
| 5. Rebuilding costs | £105,000 | £105,000 - amount now accepted by both experts |
| 6. Works to extension of | £45,500 | £9,211.55 - This was broken down in Mr Ellis’' first report; in evidence there was substantial agreement on many items: roof, brickwork windows and M&E repairs, plastering, decorations, new flooring finishes work, work to single-storey extension, tying of external crack and reform missing section of floor plates (totalling £6,211.55). Counsel were agreed that works to the first-floor kitchen and bathroom should sensibly be left to be dealt with by indemnity declarations. The two remaining matters relating to the ground floor kitchen and bathroom were, on any account substantially to be reduced. I accept Mr Ellis’' evidence allowing £1,500 for the kitchen and £1,500 for the bathroom which will require repair and reinstatement not only for damage caused but to allow for deterioration. |
| 7. Reinstate landscaping and decking | £5,250 | £0 - experts agreed in their second joint statement on this. |
| 8. Provisional sums | £21,800 | £14,885- These were the sums included within the rebuilding costs, excluded from the agreed figure above. The experts agreed on figures for work to party walls and tie in works (£2,500 and £2,000). I accept Mr Ellis’' evidence that £3,000 will probably need to be spent on work to the existing foundations, which from the photographs are clearly seriously disrupted. I accept his evidence that work to the division wall costing £2,500 will be required. There are likely to be charges for service connections (gas, water and electricity) but consider that an allowance of £2,000 is reasonable. Due to the congestion on the site, it is likely that the pavement and the road outside will be damaged during the remedial work and a reasonable allowance for repairs would be £1,000. There should be no additional allowance for preliminaries which are covered within the rebuilding costs. Professional fees on these should be allowed at the rate of 14.5%. |
| 9. Contingency | 10% | £14,429 - I accept that it is reasonable to allow 10%; the works have not been designed in any real detail and there are known difficulties such as stability problems on the party wall. The contingency should be allowed on items 3 to 8 above (amount allowed £144,288.55). |
| 10. Professional fees |
14.5% | £23,014 - I preferred the evidence of Mr Ellis. There will have to be input from architect, engineer and quantity surveyor and there is bound to be extensive professional involvement in view not only due to what has happened but because there will need to be a close involvement particularly from the architect and engineer. |
| House contents | £21,284 | £18,831 - Only 2 items are challenged. I accept Ms Hale’'s evidence that at least £12,000 of her clothing was lost and destroyed. No loss has been established in relation to the shed and contents (£2,453 claimed |
| 11. Alternative accommodation and additional expenses | £59,750 + £18,136 | £71,667 - Beltec’'s Counsel accepted that that this should be assessed on the cost of comparable alternative accommodation from November 2012 to November 2015 assessed at £1,800 pcm. In addition, there is acceptance of Items 26, 29 and 30 in the Additional Expenses. I agree that this is a reasonable approach. The Claimants’' assessment (totalling £77,916) seeks to claim all the costs related to the purchase of the Yarlington property without giving credit for the profit on its sale. |
| 12. General damages | £2,750 | £14,875 -- Counsel for Beltec has suggested a total of £12,500, based on 3 years at £2,000 p.a. for Ms Hale, £1,500 for Mr Goldswain and £500 each for the children during their lives to date. There is no claim as such for the children but the allowance should be based on 3.5 years allowing for the time realistically required before they can move back in to No. 4. The yearly rates should be £2,250 and £2,000 respectively for the Claimants. There very clearly has been very substantial distress and inconvenience in the past and there will be substantial inconvenience in the period leading up to the completion of the remedial works. |
| Total | £287,754.55 |
’ evidence on the first item, based as it was on a rate which he had obtained locally; the work would be complicated and difficult. Similar considerations apply to the second element. I accept Mr Ellis’ evidence on the £10,000 item; the photographs show that the removal of the shoring and support works will be complex and fraught with difficulty given that, particularly the party wall will need support maintained for it and there will therefore need to be a number of return trips. However, I disallow the contingency because the other amounts are sufficient and there is to be an overall contingency.
5. Rebuilding costs
£105,000
£105,000 - amount now accepted by both experts
6. Works to extension of
£45,500
£9,211.55 - This was broken down in Mr Ellis’ first report; in evidence there was substantial agreement on many items: roof, brickwork windows and M&E repairs, plastering, decorations, new flooring finishes work, work to single-storey extension, tying of external crack and reform missing section of floor plates (totalling £6,211.55). Counsel were agreed that works to the first-floor kitchen and bathroom should sensibly be left to be dealt with by indemnity declarations. The two remaining matters relating to the ground floor kitchen and bathroom were, on any account substantially to be reduced. I accept Mr Ellis’ evidence allowing £1,500 for the kitchen and £1,500 for the bathroom which will require repair and reinstatement not only for damage caused but to allow for deterioration.
7. Reinstate landscaping and decking
£5,250
£0 - experts agreed in their second joint statement on this.
8. Provisional sums
£21,800
£14,885- These were the sums included within the rebuilding costs, excluded from the agreed figure above. The experts agreed on figures for work to party walls and tie in works (£2,500 and £2,000). I accept Mr Ellis’ evidence that £3,000 will probably need to be spent on work to the existing foundations, which from the photographs are clearly seriously disrupted. I accept his evidence that work to the division wall costing £2,500 will be required. There are likely to be charges for service connections (gas, water and electricity) but consider that an allowance of £2,000 is reasonable. Due to the congestion on the site, it is likely that the pavement and the road outside will be damaged during the remedial work and a reasonable allowance for repairs would be £1,000. There should be no additional allowance for preliminaries which are covered within the rebuilding costs. Professional fees on these should be allowed at the rate of 14.5%.
9. Contingency
10%
£14,429 - I accept that it is reasonable to allow 10%; the works have not been designed in any real detail and there are known difficulties such as stability problems on the party wall. The contingency should be allowed on items 3 to 8 above (amount allowed £144,288.55).
10. Professional fees
14.5%
£23,014 - I preferred the evidence of Mr Ellis. There will have to be input from architect, engineer and quantity surveyor and there is bound to be extensive professional involvement in view not only due to what has happened but because there will need to be a close involvement particularly from the architect and engineer.
House contents
£21,284
£18,831 - Only 2 items are challenged. I accept Ms Hale’s evidence that at least £12,000 of her clothing was lost and destroyed. No loss has been established in relation to the shed and contents (£2,453 claimed
11. Alternative accommodation and additional expenses
£59,750 + £18,136
£71,667 - Beltec’s Counsel accepted that that this should be assessed on the cost of comparable alternative accommodation from November 2012 to November 2015 assessed at £1,800 pcm. In addition, there is acceptance of Items 26, 29 and 30 in the Additional Expenses. I agree that this is a reasonable approach. The Claimants’ assessment (totalling £77,916) seeks to claim all the costs related to the purchase of the Yarlington property without giving credit for the profit on its sale.
12. General damages
£2,750
£14,875 -- Counsel for Beltec has suggested a total of £12,500, based on 3 years at £2,000 p.a. for Ms Hale, £1,500 for Mr Goldswain and £500 each for the children during their lives to date. There is no claim as such for the children but the allowance should be based on 3.5 years allowing for the time realistically required before they can move back in to No. 4. The yearly rates should be £2,250 and £2,000 respectively for the Claimants. There very clearly has been very substantial distress and inconvenience in the past and there will be substantial inconvenience in the period leading up to the completion of the remedial works.
Total
£287,754.55
Decision