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Geotechnical News • September 2016
GEO-INTEREST
Mr. Smith seems to have viewed
his task on this occasion as that of
an observer. He does not seem to
have felt that it was his duty to make
enquiries. I must ask whether he was
justified in adopting this view.
It seems to me unlikely there could
be evidence of settlement at that
point on the plaintiffs site, even if
the foundation conditions there were
as defective as those next door.
Only a month had passed since the
sand had been spread out and the
pile-supported perimeter founda-
tions built. Since the floor slab was
not yet poured, no weight had yet
been imposed on the newly-created
grade. The next-door building, on the
other hand, had been completed and
in use for more than a year. The
preloaded soils there had long been
under sustained stress, while the plain-
tiff’s foundations had yet to be tested.
I have concluded that a visual
inspection could do little, in these
circumstances, to answer the question
which the inspector had posed and
which Mr. Brown had passed on to
Mr. Smith.
In the light of what he knew and did
not know about the preloading, and
of what he ought as a consequence to
have questioned, I think Mr. Smith
had a duty to make enquiries before he
could justifiably say that the plaintiffs
building would not suffer the same
fate as its neighbour. I think he had
to know what sort of preloading was
done in each case; certainly he had to
know what sort of preloading had been
done on the plaintiffs site. If he did
not wish to pursue the matter beyond a
visual inspection I think he was bound
to tell the contractor that he could not
answer the question put to him.
By his silence Mr. Smith implied that
there was no need for concern. In an
engineer having that special expertise
and with the knowledge which he did
have, to be silent in the circumstances
seems to me to fall short of the appro-
priate standard of care.
I find there was negligent conduct
also on the part of the contractor in
failing to communicate to Mr. Smith
information which it had and which
it ought to have realized Mr. Smith
would need in order to answer the
question it asked. Mr. Brown should
have disclosed the preloading instruc-
tions appearing on the foundation
plan; he should also have said that
the contractor had not inspected the
preload and did not know how it had
been done.
While there seems to me clearly
to have been negligence on the part
of the plaintiff in the conduct of the
preloading, I cannot say it contributed
to the defendant’s failure to discover
and warn of the danger following the
building inspector’s enquiry. That,
I conclude, was due in equal parts
to the negligence of the contrac-
tor and the defendant. But for their
negligence, I find that the plaintiff
would have been warned of the grave
danger in proceeding with the floor
slab, and would have taken remedial
action.
Corrective measures which would
have been instituted at that stage
would necessarily have been less
costly than those which had in the
end to be undertaken after settlement
occurred.
Conclusion
The only negligence of the defendant
which I find to have been proved is in
its misrepresentation by silence fol-
lowing the specific engagement by the
contractor in September to advise on
risk of settlement.
I have found the defendant was
responsible as a consequence for
50% of the damages suffered because
of the delay in remedial action
between September, and the time
when settlement took place. I have
reached that conclusion because
I find: (a) that at no time prior to
September, 1979, did the defendant
have reason to believe it was being
relied on for professional advice as
to the design, application, monitoring
or removal of the preload; (b) that
at no time prior to September, 1979,
did the defendant give any advice on
preloading which, properly consid-
ered, could have misled the person for
whom it was intended; and (c) that no
duty to warn rested on the defendant
prior to September, 1979, because
until that point it had not been
engaged to give preloading advice
and knew that another engineer was
in charge.
I cannot say that use of the “mixed’’
foundation design was in itself con-
trary to competent engineering prac-
tice, even though it is plain that some
engineers would have recommended
against it. The evidence suggests
that the system is one which, with
competent design and application,
could on this project have achieved a
satisfactory result.
The reason the floor failed in this
case was that the preload had been
improperly shaped, irregular in height,
not properly positioned over the
building envelope and only partly
removed, and perhaps also because
settlement had not been satisfactorily
completed.
It seems to me that the plaintiff and
the contractor may have wished to
avoid incurring the cost of obtaining
preloading advice formally from a
soils engineer. The enquiries made
of the defendant by the contractor
and Mr. Doe in June and July seem to
have been carefully calculated not to
assign responsibility to the defendant
for the preload. Those enquiries may
well have been cast in an informal
way in order to avoid such a com-
mitment as would justify a charge. I
do not think a professional man can
be made responsible for the work of
others by carefully limited enquiry,
or mere casual reference. Nor, I think,
can it be expected that he will always
hedge gratuitous responses to such
informal enquiries by disclaiming
responsibility.
The parties have agreed that the court
should deal with apportionment of
