K D Land Pty Ltd v Michael Ell & Associates Pty Ltd [2002] NSWCA 370

K D Land Pty Ltd v Michael Ell & Associates Pty Ltd [2002] NSWCA 370

In circumstances where the risk associated with inadequacy in the adjoining building was low, where the engineer advised a geotechnical report but the client refused, and where the engineer could reasonably assume a competent, licensed builder would carry out construction, the engineer did not owe a further duty to protect the client from the consequences of the builder's or owner's incompetence. The standard of care does not require the engineer to foresee or guard against every possible error by those implementing his drawings, especially where proper warnings according to industry standards are given and the engineer's contractual obligations were limited.

Parties
First Appellant: K D Land Pty Ltd; Second Appellant: Souris Holdings Pty Ltd; First Respondent: Michael Ell & Associates Pty Ltd; Second Respondent: Noel Pollard; Third Respondent: Michael Ell
Jurisdiction
Australia
Judgment Date
19 November 2002
Procedural Posture
Civil Appeal / Appeal From District Court Judgment
Outcome
Appeal dismissed
Legal Topics
Duty of Care of Engineers, Liability for Building Collapse, Responsibility for Supervision in Construction, Requirement for Geotechnical Survey
Tort Negligence Building and Construction Law Duty of Care of Engineers Liability for Building Collapse Responsibility for Supervision in Construction Requirement for Geotechnical Survey

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Parties

K D Land Pty Ltd

First Appellant

Souris Holdings Pty Ltd

Second Appellant

Michael Ell & Associates Pty Ltd

First Respondent

Noel Pollard

Second Respondent

Michael Ell

Third Respondent

Procedural Posture

Civil Appeal / Appeal From District Court Judgment

Legal Issues

  1. 1 Whether the engineer owed and breached a relevant duty of care to the plaintiffs in relation to the partial collapse of the building on the plaintiffs' land during construction activities on adjacent land.
  2. 2 Whether a duty arises to guard against improper performance of building works by the client's agents, particularly when engineer advised a geotechnical survey, client refused, and engineer assumed competent licensed builder would undertake construction.

Ratio Decidendi

In circumstances where the risk associated with inadequacy in the adjoining building was low, where the engineer advised a geotechnical report but the client refused, and where the engineer could reasonably assume a competent, licensed builder would carry out construction, the engineer did not owe a further duty to protect the client from the consequences of the builder's or owner's incompetence. The standard of care does not require the engineer to foresee or guard against every possible error by those implementing his drawings, especially where proper warnings according to industry standards are given and the engineer's contractual obligations were limited.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • The appellants are to pay the respondents' costs of the appeal.