Hart v Fidler and the Party Wall Surveyor, why obvious risk of danger changes the pace of an Award being served.

Following the very interesting Faculty of Party Wall Surveyors Forum webinar on Hart v Fidler, presented by barrister Howard Smith of Radcliffe Chambers, Lincoln’s Inn. I have gone back to the case papers, the judgment extracts, and the commentary, and I have tried to set out why this case matters for us, practising party wall surveyors who are being asked to award work that depends on temporary works being carried out correctly.

The attraction of Hart v Fidler for those who practice the Party Wall etc. Act 1996 is not that it is a party wall case, as it is not, the attraction is that it is a very clear reminder of what courts expect of a competent professional when an obvious and immediate danger presents itself on site, even where the professional retainer is framed around permanent works rather than temporary works, and that reminder resonates uncomfortably well onto some of the recurring moments of pressure that party wall surveyors meet during the process of determination, namely the request to sign and serve an award quickly, the request to agree a method statement or draft award that is not strong enough on sequencing and temporary support or simply not professionally or competently prepared, which can also come with the request to treat missing, important and necessary engineering details as something that can be provided after work has started.

In Hart Investments Limited v Fidler the claimant sought to hold an engineer responsible for the collapse of parts of the front and side façades of a building at 53 to 55 Queens Avenue, Muswell Hill, where the collapse occurred during a redevelopment which contemplated, by at latest the summer of 2003, a deep double basement. The judgment records that the bottom of the basement was 5.3 metres below the existing foundations and that once excavation was dug out it would thus require support, and the pleaded complaints focused on a failure to design any or any appropriate temporary support works or scheme for underpinning around the deep excavation and or a failure to require precautions when the underpinning was said to be unsupported.

The court concluded that the risk was not remote, excavations had progressed to a point of danger before the engineer’s final site visit before collapse, and it held that the engineer was in breach of contract for not warning of the risk and not requiring immediate steps to prevent collapse. With the commentary also indicating that a concurrent duty of care in tort to prevent the relevant economic loss would have been found if needed, and the professional lesson drawn was that an engineer engaged on permanent works who observes a dangerous temporary works condition causing immediate peril, must take the steps open to him or her to prevent that danger, which in this case meant speaking up and insisting that emergency shoring measures or temporary works should be undertake and in place.

A further point worth holding onto in this case, because it helps define the boundary of the principle, is the distinction between what is obviously dangerous and what is merely defective, the CMS note on the case explains that the duty to speak up is most clearly engaged where the professional is involved in implementation and sees something plainly and obviously dangerous, whereas for non-dangerous defects in the work or design of others the existence and extent of any duty is far more sensitive to the terms of the retainer and whether the professional has a supervision role, thus that distinction matters for we party wall surveyors because it is guidance for deciding when a surveyor is entitled to say that a question is outside their competence, and when a surveyor should treat a question as a red flag that requires them to slow the process and insist on proper detail before notifiable work is awarded and proceeds.

The party wall surveyor is not the engineer in Hart v Fidler, and the statutory function under the Party Wall etc Act 1996 is different, but the Act does place surveyors inside the machinery that determines when and how notifiable work is to be carried out, the award is a determination that sets out what notifiable work will be undertaken and states when and how the manner and execution is to be carried out, also the Act itself gives surveyors jurisdiction to do just that, as an award may determine the right to execute any work, the time and manner of executing any work, and any other matter arising out of or incidental to the dispute including costs.

That jurisdiction is the statutory answer to the practical concern, how far can we go, the answer is that the Act expects surveyors to determine the manner and execution, not merely to determine a scope. It also explains why Hart v Fidler feels so relevant in our world of party wall surveying, because the acute risk in many of our cases arises from how the work is executed, in what order, with what temporary safeguards, and with what change control when conditions on site force revisions, so the award/act must address execution in a meaningful way if it is to do the job Parliament intended of it.

The Act also provides the safety hooks that sit behind manner and execution clauses, the building owner shall not exercise any right conferred by the Act in such a manner or at such time as to cause unnecessary inconvenience, the building owner must compensate for loss or damage resulting by reason of work executed in pursuance of the Act, the Act anticipates temporary protective measures such as hoarding and shoring where works lay open adjoining property, and it requires that works are executed in accordance with agreed or determined plans sections and particulars and that no deviation is made from those plans sections and particulars except by agreement or determination.

Those provisions together show that manner and execution is not an optional extra, it is the legal mechanism by which a surveyor can turn foreseeable risk into enforceable conditions, and the provision requiring works to be executed in accordance with agreed or determined plans sections and particulars, thus giving surveyors a clean legal basis for the concept of authorised documents, authorised sequencing, and controlled variation, because if the plans sections and particulars are what govern execution, the award can determine what those particulars are and how they may be changed if necessary.

So, how does this translate into award wording without going too far beyond our jurisdiction, the key is to award process and controls, not to award design, and to use the Act’s language, time and manner, plans sections and particulars, no deviation, unnecessary inconvenience, hoarding and shoring, and reasonable inspections.

In practice, this starts with a document register that is part of the award, it lists the drawings, specifications, and any engineering details that the award relies upon, with drawing numbers, revisions and dates, and the award states that the notifiable works may be executed only in accordance with those listed documents and the wording of the award itself. That is not the surveyor becoming a designer, it is the surveyor determining the plans, sections and particulars for the purposes of the Act, and it is also the surveyor creating the baseline that prevents a later argument that the contractor followed a different set of papers on site.

Once the document baseline is defined, manner and execution clauses can be drafted as a series of practical controls that are expressed in neutral terms and anchored to the awarded notifiable works. A simple example is changing control, the award can state that no material deviation is to be made from the authorised documents, including sequence and temporary safeguards, without the prior written agreement of the surveyors or a further award if in dispute, and that any revised proposal must be provided in sufficient well considered detail and in advance of the relevant stage to allow proper consideration, this then converts risk into enforceable procedure.

Then there is sequencing, the award does not need to specify calculations or sizes, it can instead require that sequencing is provided as a particular and then adhered to, which is important where temporary works are the controlling risk. If the authorised particulars include a sequence drawing or a method statement with defined stages, the award can require that the works proceed in that sequence, and it can prevent the contractor from advancing excavation or removing temporary supports out of sequence, that is a manner and execution control rather than a design instruction, and it is the practical counterpart to the Hart v Fidler lesson, because the danger in that case arose from works progressing to a point of danger in the temporary condition.

With respect to hold points, which can be a way of staying within jurisdiction while still being firm, as a hold point clause is not the surveyor telling the contractor how to build, it is the surveyor stating that a particular stage may not commence until specified prerequisites in the authorised particulars are satisfied, where the risk profile demands it, the award can include hold points such as no commencement of excavation below an identified level until the temporary works particulars relevant to that stage have been provided and confirmed by the responsible and competent engineer, no cutting into a party structure until the temporary protection and support measures set out in the authorised particulars are installed, and no removal of temporary supports until the permanent elements intended to replace their function are installed and have achieved the intended performance, these are execution controls and they sit comfortably within time and manner jurisdiction.

We should also consider temporary protection and making safe, the Act anticipates hoarding, shoring, fans and temporary construction for protection and security when adjoining property is laid open, the award can therefore specify that temporary protection is to be provided and maintained whenever the works expose, undermine, or otherwise put at risk the adjoining structure, and it can require prompt temporary weathering to prevent water ingress, secure hoarding where boundaries are opened, and protective measures for occupants, these are classic manner and execution matters that do not require the surveyor to design the details, but do require the surveyor to insist that protection exists and remains in place whilst it is needed.

Another good example is inspection and verification, the Act recognises reasonable inspections of work to which the award relates and provides surveyors with a right of entry during usual working hours for the purpose of carrying out the object for which they have been appointed, so an award can legitimately provide for reasonable inspections linked to risk, for example pre start verification of protective measures, staged inspections at hold points, and post works inspections for making good, the award should make clear that any inspections are for the purposes of the Act and are not supervision of the contractor.

This is how surveyors can bring manner and execution firmly within jurisdiction in the wording of the award without overreaching, you determine the authorised plans sections and particulars, you bind execution to them, you control deviation, you regulate sequencing, you use hold points to stop risk critical stages being jumped, you require temporary protection and making safe, you regulate access and notice, and you reserve reasonable inspection rights and costs, all of those are statutory tools expressly contemplated by the Act and are the practical means by which awards do more than record a scope.

The practical question is whether, and when, it is appropriate for the appointed party wall surveyors to award the manner and execution in the body of the award itself, rather than relying on a contractor or engineers method statement, which often on small residential projects is not adequately prepared. So, in practice, the answer is that surveyors can and often should award core manner and execution controls directly within the award wording, but only to the extent that those controls are capable of being stated clearly, enforced objectively, and kept within the surveyors jurisdiction, with method statements and engineering documents then used to supply the technical detail where the safety and scope of the works depends upon specialist design and sequencing that a surveyor should not be attempting to implement.

Where it is usually acceptable to award the manner and execution primarily in the award wording is on lower risk and well understood typical residential projects, such as extension and loft conversion and chimney breast removal, for example cutting into a party wall for bearing, padstones, or flashings, inserting beams with conventional temporary support to an opening, raising or repairing a party fence wall/party wall, weathering details, or shallow excavation for ordinary mass concrete trench foundations where the method is conventional and the protection measures and restrictions can be stated in a number of objective well considered clauses, such as permitted hours, vibration controls, dust controls, protection of finishes, temporary weathering, notice of access, and making good, and where any temporary support required is minor and can be described by requirements such as do not undermine without support and provide temporary support wording and previsions as necessary, this can be under the direction of the building owner’s engineer if considered appropriate.

Where a contractor or engineer method statement is usually the better route is on higher risk projects where safety and damage risk are governed by staged stability, ground conditions, and temporary works design, for example underpinning, deep excavation under or near party walls and neighbouring foundations, basement construction, façade retention, complex propping or needling, piled solutions close to party structures, or any project where the work sequence, the extent of open excavation, the temporary support strategy, and the trigger response to movement are critical to preventing collapse or significant damage, because in those cases the method statement and temporary works drawings are not generic housekeeping (not that they should ever be), they are the engineering description of the temporary condition, and the award should not try to reinvent them, it should instead define them as authorised particulars, require competent sign off, impose hold points and change control if reasonable and necessary to do so, and prohibit deviation without further agreement or award.

A helpful way to express the balance in an award is to include a core manner and execution clauses in the award itself which states the controlling principles and enforceable rules, and then to append the method statement and temporary works documents as the authorised technical particulars, with the award making clear that the surveyors are not supervising or designing, but are regulating time and manner, controlling deviation, and requiring evidence of competent engineering where the risk profile demands it.

In that context, Hart v Fidler becomes a useful professional guidance rather than an external warning. It reminds us that the most damaging failures often occur in the temporary condition, and it encourages a disciplined approach to awards, where we are not rushed into serving an award that does not competently determine the manner and execution. It is also worth drawing a clear line between design and execution, as the design is the engineered solution and the end state, the manner and execution is the how, the sequence, the safeguards, the access and protection, and the change control. Thus, surveyors regulating the manner and execution of a proposed design are not thereby redesigning it, provided they avoid prescribing engineered solutions and instead impose objective execution controls within the award, conditions precedent, and a requirement to build in accordance with the authorised plans sections and particulars without deviation. Where the risk profile does demand specialist temporary works and sequencing, the award should require those technical particulars to be produced and signed off by the responsible engineer or temporary works designer, and then determine how they are implemented, rather than relying on assumption or leaving the temporary condition to be improvised on site, so this case repays that attention because it reminds us that obvious danger is not a technicality, it is a call to act with appropriate firmness and professional know how, even when someone is telling you to hurry up, make a commercial decision and serve the award quickly!