Contractors may build defective designs but must warn of danger
With the festivities over, one rifles through the debris of overindulgence and all manner of consumption and resolves to inject order and energy into one's life in the new year. Other columnists urge you to go to the gym, read Proust or to become a domestic goddess. (Not AJ columnists, I hasten to add, they are occupied with more aesthetic matters. ) Instead, I have a broader message and shall embrace 2001 under the slogan: 'Say No to Sloppiness.' This column is a good place to start and in future you will be treated to more learning and less chat. I shall, as it were, take the 'gal' out of 'legal'.
Before taking up his new appointment in the Court of Appeal, Mr Justice Dyson, the High Court judge who has headed up the Technology and Construction Court, gave two judgments on what can be described, seasonally enough, as two old chestnuts. One was whether contractors owe a duty to warn that the works they are so dutifully constructing are unsuitable. The other was whether architects are under a continuing duty to review their design during construction. In the sloppy days of 2000 I would have squeezed an analysis of both judgments into one column. But, in this new era of thoroughness, I can dedicate a column to each.
The notion that a contractor ought to warn of potential pitfalls in the proposed construction is relatively novel. On the one hand, it is said, contractors are used to doing as they are asked to do. It would be unfair, therefore, to impose upon contractors a duty to challenge their masters on the wisdom of their design. On the other hand, the argument goes, contractors are experts in construction. They ought to know whether something is going to work or not and be able to speak up if they have their doubts.
Generally the courts have fought shy of requiring a contractor to warn the employer that the architect's design is likely to prove defective.
They have, however, been much keener to find a contractor liable to warn that the proposed works are unsafe. These cases-to-warn judgments usually involve building collapse. In Plant Construction v Clive Adams and JMH (2000), the Court of Appeal found that subcontractor JMH ought to have warned that the temporary works used to prop part of the roof at the Ford Motor Company's research centre in Essex were obviously dangerous. JMH recognised that the propping was inadequate and discussed the problem with the main contractor. It said nothing to the client because the works had been instructed by Ford's own engineer. The roof collapsed during the new year holiday, six years ago. The Court of Appeal found that JMH owed a duty to perform its contract with the reasonable skill and care of competent contractors.
That included a duty to warn of danger. The fact that the design had been imposed upon it did not reduce that duty.
Subsequently, Mr Justice Dyson considered a similar point in Aurum Investments v Avonforce (2000). Avonforce was engaged by Aurum to carry out substantial works, including excavation of a basement and garage. Avonforce, in turn, engaged Advanced to underpin a flank wall.
Once Advanced had left site, Avonforce started the excavation works, which caused rotational failure of the underpinning and collapse. Avonforce blamed Advanced for the collapse. It said that Advanced ought to have warned it of the need to provide lateral support for the underpinning during excavation. The Judge held that the duty to warn applied only to the suitability and safety of works that contractors themselves were asked to do. Had the proposed underpinning been dangerous, Advanced would have been obliged to warn Avonforce, notwithstanding that Avonforce had its own engineers. In the event, however, Advanced did not know how Avonforce proposed to go about the excavation, so it would be unreasonable to have expected Advanced to give any warnings.
These cases clearly urge contractors to warn if their proposed works are dangerous, but equally remind the rest of the team of the limits to the contractor's duty.