People who care

Most of the luxury apartments beside the River Erne in Enniskillen, Northern Ireland, have been bought back by Rossorry Developments and demolished. The total loss is likely to be in the region of £15m. Big numbers. Big problem. And the big issue that just came to trial in Belfast is the extent to which consulting engineer Taylor & Boyd was responsible.

The question was, how responsible can a consulting engineer be when the cause of the problem – a load transfer platform – was not designed by it?

Let me tell you who the players are. Rossorry is part-owned by AWG Residential, previously known as Morrison Homes. AWG was the developer. The main contractor is Brendan Loughran & Sons. The designer of the load transfer platform was Tensor International, previously known as Netlon.

Taylor & Boyd entered into a standard consultancy agreement with AWG on the usual Association of Consulting Engineers conditions. Its services included the design of the foundations. But the design of that bit of the foundations where the load transfer platform was used was done by Tensor. And Tensor was, or became, a domestic subcontractor in the chain below Loughran. Can you see a difficulty or two?

When the proud owners and occupiers of their luxury flats got that sinking feeling, they left. Later, they were compensated. Then Rossorry cast an eye not only down the contractor chain towards Tensor, but also at the consulting engineer. Before they demanded £15m from the contractor chain they wanted to know how much, if any, was payable by under the professional services chain.

The ACE conditions include a neat little clause – it’s called clause 2.7 – and it says the consulting engineer may recommend to the client that a detailed design of any part of the works should be carried out by a contractor or subcontractor … and the consulting engineer shall integrate that detailed design into its own design … and will not be responsible for any detailed designs of any contractor or subcontractor. Unsurprisingly, Taylor & Boyd pointed to that clause.

The ground conditions on this site were well known. The consulting engineer described it as “mush on mush” and “like ice-cream down there”. The right specification was traditional piles and ground beams. But along came Tensor, with its load transfer platform. This is a type of soil embankment reinforced with horizontal layers of plastic geo-grid that transfers the weight of the overlying structures through the embankment and underlying soil to piles that are firmly anchored into the underlying bedrock. Tensor has considerable experience of all this and load transfer platforms work ever so well – usually. This time, Tensor had designed a triangular pattern of pile caps. It seems to be this that went so horribly wrong.

The engineer did not adequately inform the client of the novelty of the proposed solution or the risks that it might entail

The developer said it was not only owed a duty of proper design from the contractor’s design-and-build chain but also that it could claim from the consulting engineer. It argued that the engineer knew all about the ground conditions and had, on the developer’s behalf, decided to use the load transfer platform. That seemed to be accepted but the engineer said the decision was a consequence of constant pressure by the developer to reduce costs.

Won’t do, said the judge. Even though the design was by a subcontractor, the engineer’s duty of care meant it should not have advised acceptance until the solution was researched. There was a failure to adequately inform the client of the novelty of the proposed solution or the risks that it might entail. As for the pressure to save costs, the judge said that was not an excuse. A consulting engineer must comprehensively advise the client in relation to such a course of action – in writing.

Throughout the case, the consulting engineer had emphasised its lack of geotechnical expertise regarding this load transfer platform and its inability to evaluate the design.

If that were the case, however, a duty arose to tell the client all that. Instead the impression was given to the client that it did possess such ability and did not regard the load transfer platform as a specialist job.

So the court said clause 2.7 could not be relied upon. Had Taylor & Boyd “discharged an appropriate degree of healthy scepticism and carried out a reasonable amount of investigations, inquiries and research, its reaction to the subsequent failures might well have been different”.

Big lesson. The consulting engineer is responsible for 35% of the developer’s loss and Tensor for 65%. Big bill.