Defective bungalow — Appeals from decision of Woolf J awarding damages to owner against builder and local authority — Unusual contract between owner and builder under which the plans were drawn by owner’s architect, but work not supervised by him, and owner herself supplied materials and some plant, such as a cement mixer — Remedial work required in consequence of cracks appearing in structure — Replacement of internal ground-floor slab and underpinning of foundations to the external walls required — Floor of building as constructed had consisted of a central concrete slab strengthened in places with ‘cups’, not (as normal nowadays) supported on the external walls but simply resting on a hardcore base — Organic silt under the hardcore — In consequence the slab sank, causing the damage to the bungalow — The judge had held the builder liable in contract and negligence and the local authority liable in negligence in carrying out their inspection duties — Judge found, rejecting a submission by the local authority, that the slab was a ‘foundation’ for the purpose of the building regulations — He attributed 60% of the blame to the builder and 40% to the local authority — Court of Appeal upheld the judge’s decision on the issues of liability, but considered his apportionment of blame and order for contribution too favourable to the builder — Contributions varied to accord with ‘general trend’ of 75% responsibility on builder and 25% on local authority — View, said to be current in the building trade at the date of construction, that ‘foundations’ meant external foundations only, not a defence to the allegation of negligence against the local authority — Appeals dismissed subject to the variation in contributions
These were
appeals from decisions of Woolf J in an action by Mrs Dolores Mary Worlock
(brought by insurers in her name by virtue of subrogation) against SAWS, a firm
of builders, and Rushmoor Borough Council, as a result of defects which
appeared in her newly built bungalow at 2 Manor Road, Farnborough. The borough
council was sued as the successor of Farnborough Urban District Council, whose
inspectors carried out the inspection and supervision functions under the
building regulations. The letters ‘SAWS’ stand for ‘Specialists in all Woodwork
Structure’. The decision of Woolf J was reported at (1981) 260 EG 920, [1981] 2
EGLR 10.
Richard Dening
(instructed by Davies, Blunden & Evans, of Farnborough) appeared on behalf
of the appellant firm, SAWS; Robert Akenhead (instructed by White, Brooks &
Gilman, of Winchester) represented the appellant borough council; Mark Strachan
(instructed by Lawrence, Graham, Middleton Lewis) represented the respondent,
Mrs Worlock.
Giving the
first judgment at the invitation of Oliver LJ, ROBERT GOFF LJ said: There are
before the court appeals by both the first defendants, SAWS (a firm), and the
second defendant, Rushmoor Borough Council, against the judgment of Woolf J
delivered on June 19 1981. In the action the claim of the plaintiff, Mrs
Worlock (which was brought by her insurers in her name, by virtue of their
rights of subrogation), related to defects which appeared in her new bungalow
at 2 Manor Road, Farnborough. The first defendant was the builder of the house;
the second defendant is the successor to the local authority (Farnborough Urban
District Council) which at the relevant time carried out, through its building
inspectors, its statutory functions under the Building Regulations 1965 in
respect of the inspection of the bungalow during construction. I shall refer to
the first defendant as ‘the builder’ and to the second defendant as ‘the local
authority’.
The bungalow
was built by the builder under a contract entered into in somewhat unusual
circumstances. The plaintiff engaged an architect to draw up plans and prepare
a specification for the bungalow, but she did not engage him or indeed any
architect to supervise the construction of the bungalow, relying instead on the
help of a friend.
The builder is
called SAWS, these initials standing for ‘Specialists in all Woodwork
Structure’. The moving spirit in the firm was Mr D P Hicks, whose background
was described by the learned judge as follows:
He is a
person who for many years has worked on his own account. He spent his working
life in the building trade; his trade being that of a carpenter. There came a
stage shortly before 1972 when, to use his own words, he became ambitious and
he ceased to regard himself merely as a carpenter but decided to engage upon
building contracting work. In that capacity he carried out conversion work to
existing properties but never prior to this occasion, as I understand his
evidence, was involved in taking responsibility for building a new dwelling. He
was approached on behalf of the plaintiff to see whether he would take on responsibility
for the building of her bungalow on a basis whereby she provided materials and
he provided the labour.
As a result, a
contract was entered into. It is not in dispute that that contract was
comprised in four documents or sets of documents — first, the plans, and
second, the specification (both prepared by the architect); third, a quotation
submitted by Mr Hicks; and fourth, a letter from the plaintiff dated May 3 1972
in which she accepted the builder’s quotation. I shall refer to the relevant
parts of the plan and specification in a moment. In his quotation, Mr Hicks
wrote:
Re: —
Bungalow: — Sycamore Road, for Mrs D M Worlock
We have pleasure in quoting for work as follows:
|
Labour only: Plumbing |
Supply and Fix: Electrics |
|
Carpentry |
Roof Tiling |
|
Bricklaying |
Flooring |
|
Groundwork |
Painting |
|
Artexing |
|
|
Glazing |
The total value of supplying labour and material as stated above: —
£4,700
Then later in
the quotation were set out certain terms of the contract, as follows:
Terms of
Contract:
All material will
be supplied by you unless quoted for.
Insurance,
public and employers to be supplied by you. (To be shown before commencement of
work).
Scaffolding to
be supplied by you.
Cement mixer
to be supplied by you.
This quote
does not include building up site to any level except to bring in drive.
We have only
quoted for drains to join other house drains. If we have to tap main sewer this
will be extra.
We have
quoted for footing of 3 ft 3 in as indicated on Drawing. For excess of this it
will be £25 for 1,000 bricks.
. . .
The striking
feature of the contract so entered into is that, to a very substantial extent,
the plaintiff was herself to supply the materials for the work, and was also to
supply certain plant, viz scaffolding and a cement mixer.
The builder
then commenced work with commendable expedition. He gave notices in the
prescribed form to the local authority, then the Farnborough Urban District
Council, as a result of which building inspectors from the authority visited
the site on at least six occasions, the majority of visits being carried out by
Mr Kent, the authority’s senior inspector. The completion inspection occurred
on October 16 1972.
About three
years later in 1975, the plaintiff began to notice cracking in the bungalow
which caused her some concern. In 1977, this cracking worsened rapidly. The
plaintiff took professional advice and made a claim against her insurers. As a
result, they appointed a structural engineer, Mr Farquharson, to investigate
the matter: he later gave evidence on the plaintiff’s behalf at the trial. The
insurers accepted responsibility to the plaintiff, no doubt on Mr Farquharson’s
advice. Remedial work was carried out under his supervision, involving the
replacement of the internal ground-floor slab and underpinning of the
foundations to the external walls. While the work was being carried out, the
plaintiff had to move out of the bungalow and, as the judge found, suffered
what he called ‘an extremely distressing and upsetting episode’. At the trial
before the learned judge, it was accepted that it was reasonable for these
remedial works to be carried out; and the agreed damages in respect of these
matters (including the consequential loss suffered by the plaintiff in having to
move out while the work was done) amounted to £11,211.56. That sum has been
borne or paid by the insurers; but it was agreed at the trial that, subject to
establishing liability, the plaintiff was entitled to recover a further sum of
£300 in respect of damages for her distress.
At the trial,
there were four matters complained of. First, a small stretch of the
foundations for the external walls at the back of the building was not deep
enough: the judge held the builder and local authority both liable in respect
of this defect. Second, the foundations for a bay window were insufficient: for
that, the builder alone was held liable. Third, the foundations of the garage
and utility room were inadequate: for that, both defendants were held liable.
As to these three matters, there is no appeal by either defendant on the issue
of liability.
The appeal on
liability relates only, therefore, to the fourth matter of complaint, which led
to the most substantial head of claim. This concerned the central slab for the
building. The building was constructed with the usual external foundations —
the external walls resting on what is described in the relevant plan as a
‘concrete raft foundation’, the total depth of the brick wall and concrete raft
below ground level being 3 ft 3 in minimum. Between these external walls, the
floor of the building consisted of a central concrete slab, not (as nowadays)
supported on the external walls, but simply resting on a hardcore base, which
itself rested on the soil, between the external walls. The relevant plan
provided for 4-in minimum hardcore: above that, a damp-proof membrane: then
above that, 4-in minimum concrete: and finally a 2-in concrete screed. The
internal partitions of the bungalow rested directly on the concrete slab,
though at their base there was provision for thickening of the concrete slab,
called ‘cups’, to provide additional strengthening.
The learned
judge found that, by reason of the presence of organic silt in the soil under
the hardcore beneath the slab, the ground was inadequate to support the slab;
and that, to a depth of about a further 3 ft, the soil in that area should have
been removed and replaced with hardcore. As a consequence of this defect, the
slab sank, and this caused damage to the bungalow. The principal part of the
remedial work carried out under Mr Farquharson’s supervision consisted of
replacing the slab with a slab resting on a new brick and concrete foundation
within the perimeter of the external walls of the bungalow.
For the damage
resulting from this defect in the bungalow, the builder. was held liable by the
learned judge in contract and in negligence. The local authority were held
liable in negligence. So far as the builder is concerned, the judge held that
he was required to exercise generally in respect of the work on which he was
engaged ‘that standard of care which would be expected from a reasonably
competent building contractor’, and that the builder was in breach of that
duty. He said:
The
conclusion I have come to is that a builder exercising the standard of care and
having the required skill in order to do so should, by 1972, have appreciated
that it was bad practice to leave a material of that sort under hardcore. In my
view, Mr Hicks was in breach of duty in failing to appreciate the necessity of
removal of the strata of organic silt and because of that he is responsible to
the plaintiff for the consequence of his failure. I am afraid that the ambition
which Mr Hicks showed in taking on more substantial work than he had previously
undertaken caused him on this occasion to be involved with a problem with which
he was ill-equipped to deal.
The judge also
held that the builder was liable in tort, there being no difference between the
contractual and tortious duty.
So far as the
local authority were concerned, the learned judge approached the matter as
follows. First he held that they were under the duty of care described by Lord
Wilberforce in Anns v Merton London Borough Council [1978] AC
728, at p 758, as follows:
This must be
related closely to the purpose for which powers of inspection are granted,
namely, to secure compliance with the byelaws. The duty is to take reasonable
care, no more, no less, to secure that the builder does not cover in
foundations which do not comply with byelaw requirements.
The relevant
requirements are set out in the Building Regulations of 1965 (SI 1373 of 1965),
the most relevant part of the regulations being Part D, entitled ‘Structural
Stability’, and in particular the provisions of paragraph D3 relating to foundations.
I shall refer to the terms of the relevant regulations in a moment. The judge
held, first, rejecting a submission of the local authority, that the slab was a
foundation for the purposes of Part D of the regulations. He next held that Mr
Kent should have been aware that the soil would create dangers in respect of
the slab and therefore also held that, in relation to the performance of his
duty with regard to the slab, Mr Kent, having failed (as the judge found) to
require the builder to remove any of the soil under the slab, ‘fell down on the
standard required’.
Finally, the
learned judge held, on contribution, that the proper apportionment between the
two defendants was to attribute 60% of the blame to the builder, and 40% to the
local authority. Against that apportionment, the local authority now appeal to
this court, in addition to their appeal on the issue of liability in respect of
the slab.
I shall
consider first the appeal of the builder. For him, Mr Dening, while accepting
that a builder who undertook the whole work of construction of a bungalow,
whether or not with the supervision of an architect, would be subject to the
standard of care which the learned judge held in this case was imposed on the
builder, both in contract and in tort, nevertheless submitted that there were
special circumstances of the present case which made it inappropriate for the
builder to be judged by the standards suitable for a builder who was in overall
control of the works. In this connection, he relied on two particular features
of the contract — first, that the plaintiff as employer was responsible for
supplying most of the materials for the work, so that to a large extent the
builder was employed on a labour-only basis; and second, the provision in the
contract, set out in Mr Hicks’ quotation, that ‘insurance, public and
employers’ was to be supplied by the plaintiff.
Like the
learned judge, I feel considerable sympathy for Mr Hicks. It is indeed very sad
that he should now be in his present position. But I feel bound to say that, as
a matter of law, I entertain no doubt that the learned judge was right in the
conclusion which he reached as to the builder’s liability. I cannot see that
the two features of the contract, on which Mr Dening relies, affect the
builder’s responsibility in law for the work which he carried out under the
contract. It is true that the relevant part of the specification requires the
builder to ‘excavate and level over the site of all buildings, footpaths etc,
trenches for foundations and services, all as shown’; that ‘as shown’ must have
meant as shown on the plans: and that against the section on the relevant plan
it was simply stated, in respect of the slab (I omit the damp-proof membrane) —
‘Floor — 2-in concrete screed’, beneath that ‘4-in min concrete’, and beneath
that ‘4-in min hardcore’. Even so, provisions of the contract show that it was
contemplated that difficulties might be encountered in relation to the soil: I
refer not only to the words ‘4-in min hardcore’ on the plan, and the passage in
the quotation which contemplated that further brickwork might well be required,
but also to paragraph 2 of section 1 of the specification, which required
the contractor to visit the site before tendering and make himself thoroughly
acquainted with (inter alia) the general nature of the soil and
sub-soil. Furthermore if, as I am satisfied was the case, the builder was
required in law to exercise in relation to the work of laying the hardcore the
standard of care which was expected of a reasonably competent building
contractor, then in the exercise of that duty the builder should, on the
learned judge’s findings, have recognised the type of soil in the area where
the hardcore was to be laid, have considered whether it was good practice to
leave soil of that type under the hardcore, and have concluded that it was not.
The fact that the builder had contracted, in relation (inter alia) to
this part of the work, to provide labour only did not, in my judgment, detract
from the duty imposed upon him under the contract. It simply meant that the
plaintiff was to supply the materials, and that the builder was relieved from
that responsibility; with the materials supplied by the plaintiff, the builder
still had to carry out the work, and he must in law have been required to
exercise the ordinary standard of care in so doing. He was not a navvy employed
to dig foundations: he was a building contractor engaged to build a house,
albeit with materials to a large extent supplied by his employer. Nor, in my
judgment, did it make any difference that the plaintiff was to provide
‘insurance, public and employers’. That meant no more than that, under the
contract, the plaintiff had to obtain the relevant cover and pay the premium:
it could, in my judgment, have no impact upon the standard of care to be
imposed upon the builder in respect of the work he undertook under the
contract. I can find no fault with the reasoning or the conclusion of the
learned judge on this point. It follows that, in my judgment, the builder’s
appeal must be dismissed.
I turn then to
the appeal of the local authority. The first submission of Mr Akenhead, for the
local authority, was that, on a true construction of the Building Regulations,
the concrete slab was not a foundation within the meaning of that word as used
in Part D of the Building Regulations 1965, and for that reason there was no
breach by the local authority of the duty of care, described by Lord
Wilberforce in Anns, in relation to the slab. He first submitted that, in
considering whether the slab was a foundation, one must consider whether it was
something else in contradistinction to a foundation. His submission was that
the slab should be regarded as a floor rather than as a foundation. The mere
fact that partitions rested on the slab did not make the slab anything
different from a floor. Having reached that conclusion a priori, he then
submitted that the word ‘foundation’ as used in Part D of the regulations
should be read as not including a slab of this kind.
I have to say
that I find this approach entirely unacceptable as a matter of construction. It
cannot be right to construe a word in a regulation divorced from its context,
and then simply to impose that meaning on the word in the regulation
irrespective of its context. The propert approach is to construe the meaning of
the word in its context, here in the context of Part D of the regulations.
Paragraph D3 of the regulations provides as follows:
Foundations:
D3. The foundations of a building shall — (a) safely sustain and transmit to the
ground the combined dead load and imposed load in such a manner as not to cause
any settlement or other movement which would impair the stability of, or cause
damage to, the whole or any part of the building or of any adjoining building
or works; . . .
There follow
two further subparagraphs (b) and (c), which are not relevant in this case.
Furthermore, in paragraph D1 there is to be found a definition of the
expression ‘dead load’ as used in Part D, namely: ‘D1. In this Part — ‘dead
load’ means the weight of all roofs, floors, walls, partitions and other
similar permanent construction . . . .’
It follows
that, under paragraph D3, foundations of a building shall safely sustain and
transmit to the ground the combined dead load and imposed load in such a manner
as not to cause any settlement or movement of the kind specified; and that the
dead load includes the weight of all floors and partitions. If the foundations
of the building do not comply with this requirement, there must be a breach of
the regulation. Accordingly, if the foundations of this bungalow did not safely
sustain and transmit to the ground the weight of the floor and partitions, the
regulation was not complied with. It must, therefore, be appropriate to take
into account, in considering the foundation of the building, the means by which
the weight of floors and partitions is sustained and transmitted to the ground
and whether such means are effective for the purpose specified in paragraph D3.
It was no doubt on the basis of such reasoning that the learned judge concluded
that a foundation is, for the purposes of a case such as the present, ‘an
object which is placed in position on or in the ground in the course of
constructing a building, or for the purposes of a building which is to be
constructed, the function of which is to provide support for that building so
that it in fact transmits loads to the material beneath’.
That
definition (which the learned judge did not himself necessarily regard as
complete, since he reserved for further consideration one question not relevant
to the case) was accepted subsequently by Drake J in Lyons v F W
Booth (Contractors) Ltd and Maidstone Borough Council (1982) 262 ESTATES
GAZETTE 981, though he expanded it slightly by inserting, after the words ‘the
function of which is to provide support for that building’, the further words
‘or any part of that building’ — words no doubt culled from paragraph D3 of
Part D of the Building Regulations 1965. Once again, I can find no fault with
the reasoning of the learned judge. Furthermore, I entirely agree with his
conclusion that:
Where you
have, as here, a slab placed on the ground which has been specially thickened
in certain areas, so as to take the weight of the internal walls and that slab
is placed upon a reject or hardcore base, the slab and the hardcore form a
foundation for the purposes of the Building Regulations to which I have made
reference.
Mr Akenhead
submitted to us that a distinction ought to be drawn between the thickening of
the concrete, or cups, under the partitions, and the remainder of the slab; and
even if the former might be regarded as the foundations for the partitions, the
slab could not. I do not consider that this distinction is one that can
realistically be drawn. Furthermore, even if it can be drawn, and the remainder
of the slab is to be regarded simply as a floor, Mr Akenhead’s approach ignores
the need for adequate foundations for the slab itself if so regarded;
certainly, the hardcore as laid on soil containing organic silt did not
adequately fulfil that function. Be that as it may, I accept the approach of
the learned judge, who drew no distinction between the slab and the thickened
parts of it, but treated the slab with its specially thickened areas as one
unit; on that approach, in my judgment, the slab as a whole constituted a
foundation for the purposes of the regulations. I am therefore unable to accept
this submission of the local authority.
Mr Akenhead’s
second submission was, if I may say so with respect, more subtle. First, he
said, the obligation imposed upon the local authority, breach of which was
alleged by the plaintiff, was simply a duty at common law to exercise
reasonable care to secure compliance by the builder with the regulations. Next,
he said, all the evidence before the learned judge showed that the building
industry would not at the relevant time have regarded the floor slab as a
foundation for the purpose of the regulations. Third, he said that, by acting
on that understanding of the regulations, although it may now be said that at
the time the local authority were mistaken as to the construction of the
regulations, nevertheless, it could not be said that they were negligent. They
were simply acting on the same basis as any other local authority at the time,
in accordance with the then accepted understanding of the regulations.
I will assume
for the purposes of Mr Akenhead’s submission that he is correct in saying that,
in a case such as the present, the duty of care imposed on a local authority
under the principle stated by Lord Wilberforce in Anns is not broken
where the local authority, acting reasonably but on a mistaken construction of
the regulations, cause or permit an inspector to exclude from his inspection
part of the structure which is in law a foundation for the purpose of the
regulations. Even so there are, in my judgment, formidable difficulties in the
way of the submission, on the facts of the present case.
The reaction
of Mr Strachan, for the plaintiff, was to draw attention to certain passages in
the evidence which, he submitted, were in conflict with Mr Akenhead’s
proposition that all the evidence showed that the building industry would not
at the relevant time have regarded the floor slab as a foundation for the
purpose of the regulations. These included passages in the evidence of Mr
Farquharson (and, as I read the evidence, also Mr Akroyd, the local authority’s
expert witness) in which, while accepting that the slab as such would not have
been regarded as a foundation, they nevertheless expressed the opinion that the
thickening of the slab, or cups, at the base of the internal partititions would
have been
on certain evidence of Mr Kent that he would, when examining the trenches for
the foundations for the external walls, have had a good look, especially at the
sides of the trenches; and that, if he saw material which was obviously organic
silt material, he would ask for that material to be stripped off the oversite
because, since such material is compressible, it was the usual practice, if
this or any similar material was found on the oversite, to ask the builder to
remove it from the oversite before it was filled in. Mr Strachan’s submission
was that the evidence of Mr Farquharson and Mr Akroyd was inconsistent with the
view of the building regulations in the building industry which Mr Akenhead
said could be derived from the evidence; and that Mr Kent’s evidence
contradicted that view, since it showed that Mr Kent was not merely himself
treating the slab as a foundation, but was asserting that it was the usual
practice to do so.
To this, the
response of Mr Akenhead was that it was wrong so to read Mr Kent’s evidence. A
distinction must be drawn between matters which fall within the regulations, as
to which the local authority is able to secure compliance, and matters which,
while outside the regulations, may, if known to the inspector, properly be
drawn by him to the attention of the builder, with a request to remedy the
situation, though the local authority cannot enforce compliance with such a
request. In the present case, the local authority reasonably regarded the slab
as not being a foundation for the purpose of the regulations; but, if the
presence of organic silt had been actually discovered by Mr Kent in the course
of his inspection of the premises, he could and would (according to his
evidence) properly have drawn this to the attention of the builder, and have
requested him to remove it from the oversite before filling in with hardcore.
Even so, the
evidence of Mr Kent makes it plain that he regarded the removal of organic silt
from the oversite as desirable on account of its compressibility, which shows
that he was concerned, and regarded it as the usual practice for persons in his
position to be concerned, about the presence of organic silt on an oversite,
because it could give rise to the very danger which regulation D3 was designed
to avoid, viz settlement or other movement which would impair the stability of,
or cause damage to, the whole or any part of the building. With this in mind,
if those responsible for the local authority had considered regulation D3
(together with the relevant definition of ‘dead load’ in regulation D1) in
relation to a building such as the plaintiff’s bungalow, it is difficult to
believe that they would not have appreciated that the central slab and/or the
hardcore beneath it constituted a foundation for the purposes of regulation D3.
Mr Akenhead stressed that building inspectors were men who frequently had begun
their career as tradesmen in the building industry, for example, as carpenters:
they could not, he said, be expected to construe the regulations with the
minute accuracy of a lawyer, and could not therefore be criticised if they
acted on the basis of a general understanding in the industry. However (quite
apart from the difficulties in the way of Mr Akenhead’s submission that there
was any such general understanding, having regard to the passages in the
evidence of Mr Farquharson and Mr Akroyd on which Mr Strachan relied), the
difficulty about Mr Akenhead’s approach is that the duty of care is imposed,
not on the building inspectors, but on the local authority itself. There is no
reason why local authorities should not be capable of reviewing the nature of
their responsibilities in respect of their functions under regulations such as
the Building Regulations, normally with the aid of lawyers in their employment.
The impression I received from the evidence, which was reinforced by the
submissions made in the course of the appeal, was that the local authority left
the interpretation of regulation D3, in relation to what was to be regarded as
a foundation for the purposes of that regulation, to the good sense and
experience of their building inspectors. This may be a practical approach,
effective in the majority of circumstances: though it does not provide for the
possibility that a building inspector, however competent he may be on the
practical side, may misunderstand the meaning of the regulations. But the
matter does not stop there. The practice (if such it was) of regarding
foundations of houses as limited to the foundations of the external walls,
appears to have been a hangover from the time when wooden floors rested on
wooden joists, which in their turn rested on the external walls. But when, some
time after the war, a new method of construction was introduced, involving (as
in the case of the plaintiff’s bungalow) a central concrete floor slab,
unsupported by the external walls, and resting simply on hardcore placed
directly on the soil between the external walls, no consideration appears to
have been given by the local authority to the proper interpretation of the
regulations relating to foundations in the light of this development.
Furthermore, no such reconsideration appears to have been given, despite the
fact (as is clear from Mr Kent’s evidence) that it was recognised in the
building industry that central floor slabs of this kind might, if not properly
supported on consolidated hardcore reasonably free of such things as old tin
cans, rubber tyres etc, itself placed on soil free from refuse, vegetable
matter, organic silt and suchlike, give rise to the very problem which
regulation D3 was designed to avoid. Considerations such as these underline the
necessity, in certain circumstances, for reviewing the practice in relation to
the application of relevant regulations in the light of substantial changes in
building techniques. I am satisfied, on the evidence in the present case, that,
at least by the time the plaintiff’s bungalow came to be constructed, the local
authority should have reconsidered the application of Part D of the Building
Regulations in relation to such a structure. I do not consider that it was
enough merely to leave their building inspectors, however competent, to go on
just as before. Building inspectors, like many other people, are likely to be
creatures of habit, and the practices by which they govern their inspections
could well become outdated after the introduction of a substantial new
technique. By leaving it to their building inspectors to place their own
interpretation on the regulations, even allowing for the fact that they would
rely on their own experience and take account of practices widespread in the
building industry, meant, in relation to a form of construction for which these
practices might on consideration prove to be inapt, that the local authority
were taking a chance that their inspectors might take an erroneous view of the
regulations. If an inspector misconstrues the regulations in such
circumstances, I do not consider that the local authority, upon whom the duty
of care rests, can shelter behind their building inspector’s error, however
reasonable, and say that they themselves were not negligent. I would only add,
as a footnote, that there was no evidence that any conscious decision was taken
by the local authority, as a matter of administrative discretion, to proceed in
this way; and so no question arises in the present case whether, if that had
been done, responsibility in law could attach to the local authority for the
consequences of so acting.
For these
reasons, I am unable to accept Mr Akenhead’s second submission; and it follows
that the local authority’s appeal on the issue of liability must, in my
judgment, be dismissed.
I turn finally
to the local authority’s appeal on the question of contribution. The learned
judge dealt with this matter as follows:
There remains
the question of contribution between the first and second defendants. I was
referred to a case decided by Sir Douglas Frank, sitting as a deputy High Court
judge, in which he took the view that the proper approach was to attribute
three-quarters of the blame to an architect and 25% of the blame to a local
authority in a case which has got similarities to the case here. I consider
that in any case in which one is looking at the failure to provide proper
foundations, the primary responsibility must remain with the builder. However,
in this particular case, the supervisory role performed by the authority was,
as they must have been aware, of particular importance. There was no architect
and Mr Hicks, as I have already made clear, was very much in need of
assistance. Having considered all the circumstances, it seems to me that the
proper apportionment between the authority and Mr Hicks is to attribute 60% of
the blame to Mr Hicks and 40% to the local authority and I order a contribution
between the two defendants on that basis.
Mr Akenhead
accepted that there was a general trend in cases of this kind, subject always
to special circumstances, to order contribution on the basis of 75%
responsibility resting on the builder and 25% on the local authority. However,
Mr Akenhead’s complaint in the present case was that the learned judge, in
departing from that apportionment, took into account matters which he ought not
to have taken into account. Even assuming that the absence of an architect, and
the fact that Mr Hicks was very much in need of assistance, were facts that
could legitimately be taken into account by the judge, this could only be so if
those facts were known to the local authority and there was no evidence to
support the judge’s conclusion that the local authority must have been aware of
this. Having been shown the relevant passages of the evidence, I am satisfied
that this submission is well founded. It follows that this court is entitled to
interfere with the judge’s exercise of his discretion, and to substitute its
own view for his. In my judgment, the primary responsibility resting on the
builder, a proper apportionment in the present case would have been to accept
the
the local authority. I for my part would therefore allow the local authority’s
appeal on contribution to that extent.
I think it
only fair to the local authority to place it on record that they are appealing
on the issue of contribution as a matter of principle, being anxious about the
effect of the learned judge’s decision on other cases; and that they intend,
even if successful in their appeal as to contribution, to consider whether they
should require Mr Hicks to bear any greater proportion of the plaintiff’s claim
than the learned judge ordered. Speaking for myself, I respect, even sympathise
with, this attitude. Moreover, I consider that it would be only right, having
heard argument on the point, to express an opinion on the question whether, if
the evidence had shown that the local authority was aware that Mr Hicks was
very much in need of assistance, and that no architect was retained to
supervise the work, these would have been proper matters for the judge to have
taken into account. In my judgment, they would not. However inexperienced the
builder, the fact remains that the primary responsibility rests upon him. The
duties of the local authority remain the same, so far as their duties in
respect of the regulations are concerned. No doubt most local authorities, if
aware of the builder’s inexperience, would go out of their way to afford him
assistance; but in the event of there being a breach of duty by both, as in the
present case, I cannot see that the local authority’s awareness of the
builder’s inexperience should enhance their relative share of the
responsibility. Indeed, there must be something inherently wrong in the
proposition that the greater the incompetence of the builder, the less his
relative share of responsibility. So, even if the local authority in the
present case had, on the evidence, been aware of Mr Hicks’ inexperience, and of
the fact that there was no architect to supervise his work, I would still have
held that the learned judge had erred in taking those matters into account, and
I would still have ordered contribution on the basis of 75% to the builder, 25%
to the local authority. I cannot help suspecting that the learned judge, in
making the apportionment that he did, may have been moved to some extent by his
very understandable sympathy for Mr Hicks.
In the result,
in my judgment the builder’s and the local authority’s appeals on liability
should be dismissed; but the local authority’s appeal on contribution should be
allowed to the extent I have indicated.
Agreeing, FOX
LJ said: I add a comment on one aspect of the matter only. Mr Akenhead, for the
council, says that, on the evidence at any time relevant to this case,
‘foundations’ in the building trade and among building inspectors would be
understood as meaning external foundations only. He then proceeds to say, on
that basis, the council cannot have failed to act with reasonable care if their
inspectors acted upon a basis generally accepted in the industry.
The argument
was attractively put by Mr Akenhead but it is, in my view, wrong, even if it be
the case that the factual assertions upon which it is based were correct. The
duty of the local authority is to use reasonable care in the course of their
inspection to see that the relevant regulation is complied with. But before the
local authority can do that they must do something else. They must construe the
regulations. I am far from saying that, when one is construing regulations on
more or less technical matters like building standards, the practices and
understandings of the trade can be ignored. They may indeed be of value in
interpreting the regulations. But they are nothing more. They are an aid to
interpretation. They are in no way a substitute for it.
The question
in the end is what do the regulations mean as a matter of language and the
local authority have, in the first instance, to apply themselves to that. The
fact that the single word ‘foundations’ may have a particular meaning in the
building trade does not establish that it has the same meaning in the
collection of words that constitute the regulations. To take an extreme
example, the regulations might in fact contain a specific definition. But
without going anything like as far as that, the context, when carefully read,
may give it a quite different meaning to its normal acceptance in the trade.
Thus, if the regulations refer, as here, to the load which the things called in
the regulations ‘foundations’ are to be required to bear, the nature and extent
of those loads will throw light upon the meaning of the word ‘foundations’ in
the regulations and may show that the trade meaning cannot in the context be
right.
I would agree
with the order which my Lord has proposed in this case.
OLIVER LJ said:
I also agree with both judgments that have been delivered and I add a few words
of my own simply because this is clearly a case of some importance to local
authorities.
Assuming, as I
am prepared to do, that inspectors and builders regarded in 1972 the word
‘foundations’ as meaning only the foundations for the external walls, that is
said to have been the case because the normal mode of construction at the time
when the relevant Building Regulations were conceived was one where the whole
deadweight of the building, including its ground floor, rested on the external
walls. But, as appears from the learned judge’s judgment and from the passages
in the evidence to which we have been referred, it is clear, first, that by
1972 both inspectors and their employing authorities would have been aware of
the new and different method of construction by the incorporation of the
concrete slab within the external walls, the very considerable weight of which,
together with the internal partition walls resting on it, was not transmitted
to the ground through the external foundations; secondly, that they were aware
that the presence within the external walls of compressible material would
inevitably endanger the stability of a building so constructed. Mr Kent’s own
evidence was that if he had noticed such material he would have drawn the
builder’s attention to the danger of not removing it.
It does not
seem to me that it is any answer on the local authority’s part in these
circumstances to say that the ordinary meaning of ‘foundation’ commonly
accepted in the building trade at that time was restricted to the external
foundations, and that accordingly their duty of care to ensure that the
Building Regulations were enforced extended no further than providing someone
to inspect the foundations interpreted in that normally accepted sense.
Anyone reading
the regulations with reasonable care would, I think, appreciate that what they
are aimed at in the context of foundations is ensuring that the deadweight and
other imposed loads of the building are adequately sustained. Where, therefore,
the authority are aware, as it must be assumed they were here, that current
methods of construction involve a substantial part of the deadweight being
supported otherwise than conventionally by the external walls, then, in my
judgment, reasonable care would at least involve considering the impact of the
regulations upon such a method of construction and drawing the attention of
their inspector to the necessity of such consideration. It is not to my mind
sufficient to say simply: ‘Well, everybody thought the regulations meant all
you had to do was to inspect the external foundations.’ One has to ask also, was it itself reasonable
simply to accept that meaning in the light of the new-known method of
construction in which, if anyone had considered the matter for a moment, it
should have been obvious that the external walls were not in fact performing
the particular function which the Building Regulations required foundations to
perform?
In those
circumstances, I entirely agree with the order which my Lords have proposed.
The appeals of
both appellants were dismissed on the issue of liability. The appeal of the
local authority was allowed on the question of contribution as explained by the
judge. The respondent was awarded costs against both appellants and the
appellant local authority were allowed costs against the appellants, SAWS, on
the issue of contribution. Directions were given in regard to the Legal Aid
Fund.
