Consultant Liability for Field Review: Roundup

Transcription

1 Consultant Liability for Field Review: Roundup

2 There is a misperception on behalf of owners and contractors that when a design consultant inspects the work at the site they are supervising construction an architect or engineer must properly supervise the works and inspect them with sufficient frequency to ensure that the materials and workmanship conform to the contractual requirements. Hudson s Building and Engineering Contracts

3 Cases establish that field review by a consultant involves periodic review of the construction to check whether it is in general conformity with the design Letters of Assurance - substantially comply, in all material respects, with the applicable requirements ofthecodeandtheplansandsupportingdocuments submitted in support of the application for the building permit

4 Coast Hotels v Bruskiewich 2001 BCSC P sues contractor and mechanical engineer in respect of plumbing system which failed prematurely. Court found that the bulk of liability was the result of the faulty workmanship of the contractor, but did assess the engineer with a portion of liability for failing to conduct adequate field reviews (80/20) 14 inspections but stupid timing Two duties owed by consultant: exercise professional engineering skills in preparing the design; not to supervise but to inspect work performed by the contractor

5 Homes by Jayman v. Kellam Berg Engineering, ALTA P sues contractor and engineer in relation to deficient septic system System complied with Code requirements but not in accordance with specs Court found contractor liable for failing to meet specs On appeal, Court found that compliance with the Code was not a complete defence to negligence must look to the expectations of parties and the contract Liability split 50/50 Privest Properties v. Foundation Co: Compliance with Code may be evidence of compliance with standard but not determinative

6 Auto Concrete Curb Ltd v South Nation River Conservation Authority, SCC P hires contractor to dredge a river Contractor unable to obtain the necessary permits to undertake the work = delays contractor sues engineering firm which had prepared the specifications duty to warn that permits required trial court and the CA found the engineering firm liable for the loss

7 SCC allowed the engineering firm s appeal: McLachlin J: [T]he courts below erred in holding that the standard of care imposed on an engineer preparing tender documents requires it to advise prospective contractors of the need to obtain permits to do the work by the particular method proposed It has long been established that, barring specific arrangements to the contrary, the method by which a contractor chooses to execute the work falls within its sphere of responsibility, and that neither the owner nor the design professional employed by the owner have a duty to advise the contractor as to what method to choose, or how to go about accomplishing the work.

8 Zimpro Inc v Fischbach & Moore of Canada Ltd., Ont HJC Flood during construction of sewage plant - supply valve was left on and a compressor turned off P sues contractor who TPs sub. P also sues engineer No duty on contractor to advise sub if within expertise Engineer is not responsible to teach every trade the knowledge that trade should possess so that hazards that should be known to them are in fact known to them Engineer entitled to assume that the subcontractor who installed the piping and valves knew how the system operated and the consequences of leaving a valve open when the compressor was off.

9 Willis, Cunliffe, Tait & Co v Harmony Estates (1977) Ltd, BCSC Developer sues engineer and mechanical installer. Claim against engineer is failure to supervise sprinkler install Court found that the testing was the obligation of the installer and not the obligation of the engineer The engineer had no authority to direct the contractor on testing, as there was no specific contractual requirement. The engineers obligation was to ensure that the testing [was] carried out in compliance with the by-law and to observe and witness the results, both with the view that the installation [was] in general conformance with the design

10 Roco Developments Ltd v Permasteel Engineering Ltd., (BC SC) Defendant engineers prepared a preliminary soil report feasibility Report was not intended to be used for the construction of specific project Court agrees that the engineer could not have been expected to foresee the possibility of another professional referring to this report as an instruction on preloading [Where] he knows that another member of his calling has been retained in a matter, it is difficult to conceive of such circumstances short, in any event, of those involving hazard to life in which he would be under a duty to involve himself without first receiving a formal request for his opinion 25 percent liable b/c they were silent on a question concerning potential for settlement

11 Nowlan v Brunswick Construction Ltd, (SCC) The plaintiffs retained architect to prepare the plans for the construction of a house. Architect recommends the contractor Leaky roof and water damage discovered SpecsfoundnottomeetCode. At trial, court dismissed claim against contractor as not responsible for implementation of the defective plans. Overturned on appeal liability shared equally Aff d SCC - The contractor carried out the work of building the house without the supervision of any engineer or the assistance of the architect and must therefore be taken to have accepted the fact that the plaintiffs were relying entirely on its skill and attention

12 Interex Project Corp. v Mellema, [1984] BCJ No 761 (BC SC) Engineer retained to review plans for four log buildings at a ski resort plans sealed log buildings were erected roofs on two failed under snow load Court confirmed an overall responsibility of the engineer to ensure a safe building which demands a greater degree of care than might apply to a conventional frame building at sea level Builder found to have completely disregarded design thereby severing the chain of causation Is the loss due to the original accident or to the intervention of a novus actus which breaks the chain of causation

13 Squamish Terminals Ltd v Swan Wooster Engineering Co., (BC SC) P sues mechanical engineer, contractor and sub concerning failed sprinkler system Contract required engineer to design the system in accordance with the NFPA Installation contract required installer/sub to install and ensure system in accordance with NFPA Fault was apportioned 65 percent to the engineer and 35 percent for the subcontractor Although the design was the root of the problem, the subcontractor was found to have know that the owner was placing reliance that would be placed on his work

14 Demers Estate v Dufresne Engineering Co., (SCC) Consultant found to have broad duty to oversee the construction and was liable to the builder for not detecting a glaring error in the method of performing the work Under a contract between the owner and the engineer, the latter had absolute authority as to the method of performing the work The engineer was to provide the contractor with information, advice and instructions as needed in carrying out the work The role of the engineer cannot be reduced to an essentially passive role and it cannot be concluded that he had an obligation toward the contractor only if the latter formally asked him for advice