2022-04-25（222）Engineering law and the ICE Contracts

See also East Ham Borough Council v. Bernard Sunley & Sons Ltd. [1965] 3 All E.R. 619,636, 639. 640. H.L.

(iv) Responsibility to employees and to the public. The relevant grounds of liability, and the right of an injured party to sue all or any of the parties liable, are discussed in ch.4. The contractor clearly is liable to employees of his and to third parties if he breaks his duty of care in designing or constructing temporary works. He is probably also liable if he follows a design of the engineer when he knew or should as a competent and careful contractor have known it was faulty.

The liability of the engineer to third parties in respect of temporary works is the most difficult to define:

“That case, in both courts, further establishes that an architect has no right to instruct a builder how his work is to be done or the safety precautions to be taken. It is the function and right of the builder to carry out his own building operations as he thinks fit.” ll

In the case referred to in that quotation:

A wall in which a chase was being cut fell on and injured a bricklayer. The bricklayer had suggested to the architect that it would be better to pull down and rebuild the wall. The architect decided, correctly according to the court, that the wall was safe. The wall fell down because the builders did not support it properly.

Held: That the architect was not liable to the bricklayer. It was the builders’ and not the architect’s duty to see that proper precautions were taken when cutting the chase, and the architect had no reason to believe that they would not do so. mm

The result appears to be that as far as employees of the contractor and members of the public are concerned, the engineer is not bound to look for defects in temporary works. The fact that in some cases he may have a duty to his client to do so ((ii) above) cannot be relied on by these third parties to make the engineer liable to them. Nevertheless, the position is complicated if the engineer, from any inspection of drawings or of the physical temporary works he does make or from any other information that does come to his attention, recognises or should as a careful and competent engineer have recognised a danger of injury to the person or property of another. If he does not then take reasonable care to avoid the injury via some action which he has power to take, it may be that he will be liable:

The managing director of demolition contractors asked the architect whether a wall of a building which was being demolished could be left standing. The architect, without inspecting the wall, said that it could “if it is safe to do so” and the director said it was. The fact that the wall was dangerous would have been obvious on an inspection, which the architect had an opportunity to make.

Eventually the wall fell on a workman employed by building contractors who had come on to the site. It was held that the architect was 42 per cent liable for his injuries, because the workman was entitled to have relied on both the architect and demolition contractors to exercise reasonable care to leave the site safe for him. nn

It seems that the above case goes to the limit of the engineer’s liability, and as stated above it can hardly be that the engineer has a positive duty to take it on himself to inspect the drawings for or supervise the contractor’s oo temporary works purely for the protection of the contractor’s workmen.

In some cases the employer may be liable to third parties for the default of the engineer. The right of contribution between several parties sued for the same injury or damage, and the particular rights of indemnity as between employer and contractor, are discussed in ch. 4. Design of or interference by the engineer with the contractor’s temporary works may be an “act” of the engineer for liability arising from which the employer is bound to indemnify the contractor under cls. 22 and 24. Failure to inspect the contractor’s design or execution of temporary works is not a “default” or “neglect” within those clauses so as to involve such liability, because the engineer has no duty to the contractor to do so.