Structural engineers are engaged by homeowners and small businesses in two common situations: to report on a property before it is bought, often because a survey has flagged cracking or movement; and to design or check the structure of an extension, loft conversion or the removal of a wall. This guide explains how a negligence claim against an engineer works in each case in England and Wales. Claims about surveys by surveyors are covered in the surveyor negligence series.
Who is an engineer?
"Engineer" is not a protected title. The Engineering Council says "anyone in the UK may describe themselves as an engineer", while its professional titles, such as Chartered Engineer (CEng), are "protected by law". Many structural engineers are also members of the Institution of Structural Engineers or the Institution of Civil Engineers. The legal standard is the same either way: reasonable skill and care. See what a claim involves.
The scope of the instruction
An engineer's duty is defined by what they were engaged to do, and engineers' reports usually say what was and was not inspected. A report on "cracking to the rear elevation" is not a structural survey of the whole house. A visual inspection is not an investigation of foundations or drains.
That does not mean everything outside the stated scope is irrelevant. A professional doing the job they were asked to do may be expected to mention a problem they noticed, or should have noticed, while doing it. Whether a competent engineer would have done so is a matter for expert evidence from another engineer.
A report before buying
Where an engineer's report on a property was negligent, the claim is usually by the buyer under the contract with the engineer, for reasonable care and skill (Consumer Rights Act 2015, s.49), and in negligence. The issues are much the same as in surveyor claims: what the instruction covered, what a competent engineer would have found or said, what the buyer would have done with a correct report (not buy, negotiate the price, or buy and repair), and what that difference is worth. The surveyor guide on diminution in value explains how the courts have approached loss in those claims.
Design for an extension or alteration
On domestic projects, engineers commonly produce calculations and details for beams, lintels, foundations and connections, which are then submitted for building control approval. If the design was wrong, the result may be deflection, cracking, movement or work that has to be redone.
Who engaged the engineer?
This question often decides how the claim can be brought.
- If you engaged the engineer, the claim is under that contract and, alongside it, in negligence. In Robinson v P E Jones (Contractors) Ltd [2011] EWCA Civ 9, Jackson LJ said that "the conceptual basis upon which the concurrent liability of professional persons in tort to their clients now rests is assumption of responsibility", giving engineers' liability to their clients as an example.
- If the builder engaged the engineer, the homeowner usually has no contract with the engineer. A claim in negligence for the cost of correcting a defect is a claim for pure economic loss, and in Murphy v Brentwood District Council [1991] UKHL 2, Lord Bridge said such losses "are recoverable if they flow from breach of a relevant contractual duty, but, here again, in the absence of a special relationship of proximity they are not recoverable in tort". Robinson quoted Lord Goff's statement in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 that "an assumption of responsibility coupled with the concomitant reliance may give rise to a tortious duty of care irrespective of whether there is a contractual relationship", so the facts of what the engineer said and did directly for the homeowner can matter.
Two other routes may be available. Under the Contracts (Rights of Third Parties) Act 1999, a person who is not a party to a contract may enforce a term if the contract "expressly provides that he may" or the term "purports to confer a benefit on him" and identifies them (s.1). For dwellings, section 1 of the Defective Premises Act 1972 imposes a duty on "a person taking on work for or in connection with the provision of a dwelling" that is owed to the person who ordered it and to later owners, and section 2A extends a similar duty to work on existing dwellings completed after 28 June 2022. See time limits for the periods that apply to those claims.
Building control approval
Approval by building control does not transfer responsibility for the design to the council. In Murphy, the council had approved foundation plans after taking advice from independent consulting engineers, and the House of Lords held that it owed the owner no duty in tort for the economic loss caused by the defects.
Which protocol applies
The Professional Negligence Pre-Action Protocol says it "is not intended to apply to claims ... against architects, engineers and quantity surveyors – parties should use the Construction and Engineering Disputes (CED) protocol" (para. 1.4(a)). The same protocol says that if there is an argument about whether someone is a "professional", the parties should act reasonably rather than "argue about the definition" (para. 1.2). See the construction pre-action protocol and the TCC.
What a solicitor will want from you
- The letter of instruction or terms, and who engaged and paid the engineer.
- The report, calculations, drawings and any covering emails, with dates.
- Building control submissions, approvals and completion certificate, if relevant.
- For a purchase: the survey that prompted the engineer's instruction, the purchase price and date, and what you would have done with different advice.
- Photographs and records of the problem as it developed, and any later engineer's report.
- Repair quotes or costs, and any valuation evidence.
This guide is general information about the law of England and Wales. It is not legal advice. Whether an engineer was negligent depends on the instruction, the facts and expert evidence, and claims by someone who did not engage the engineer raise difficult questions about whether any duty was owed.
Frequently asked
The engineer only looked at one crack. Can I claim for problems elsewhere?
The engineer's duty is defined by what they were asked to do. A report limited to one area or one issue does not usually carry a duty to inspect the rest of the building, although a competent engineer who notices, or ought to notice, a related problem while doing the job may be expected to mention it. The letter of instruction and the report's stated scope are the key documents.
My builder hired the engineer, not me. Can I still claim?
Possibly, but it is harder. Without a contract, a claim in negligence for the cost of putting right a defect is a claim for economic loss, which the courts allow only where there was an assumption of responsibility to you. For dwellings, the Defective Premises Act 1972 may help, and some contracts give third parties rights under the Contracts (Rights of Third Parties) Act 1999.
Building control approved the engineer's calculations. Doesn't that protect me?
Building control approval does not make the council responsible for a negligent design. In Murphy v Brentwood DC the House of Lords held that a council that approved defective foundation plans owed the owner no duty in tort for the economic loss.
Do engineer claims follow the professional negligence protocol?
The Professional Negligence Pre-Action Protocol says it is not intended to apply to claims against architects, engineers and quantity surveyors, and points to the Construction and Engineering Disputes protocol instead.