Actions by purchasers of houses against builders and consulting engineers on account of cracking resulting in substantial and expensive repairs — Defective foundations due to ‘heave’ — Moisture causing London clay subsoil to swell — Felling of trees which had previously absorbed the moisture led to swelling of the clay — During the course of the trial the builders admitted liability in contract to the house-owners and agreed the quantum of damages — Consulting engineers also agreed the quantum of damages payable to the owners if they were liable — Question remaining for judge was whether, and if so to what extent, the engineers were liable to the owners or to the builders or both — In the event the judge found that the engineers were liable to the builders for breach of contract in failing to exercise professional skill and also liable to them in tort for breach of duty of care — The builders were not guilty of contributory negligence, so that the question of an apportionment did not arise — The judge also found that the engineers were liable to the house-owners in tort — Bolam v Friern Hospital Management Committee and Batty v Metropolitan Property Realisations Ltd applied
These were two
actions brought by purchasers of houses built on a site at Knights Hill, Hoo,
near Rochester, following extensive cracking of the fabric due to failure of
the foundations. The first defendants, Wards Construction (Medway) Ltd, were
the builders. The second defendants, were Hurst Peirce & Malcolm, a firm of
consulting engineers.
J E A Samuels
(instructed by Thomas Boyd Whyte, of Gillingham, Kent) appeared on behalf of
the plaintiffs; M L T Harvey (instructed by Hewitt Woollacott Chown)
represented the first defendants; W R H Crowther QC and A W Layton (instructed
by Berrymans) represented the second defendants.
Giving
judgment, SIR DOUGLAS FRANK said: The first defendants (I shall call them
‘Wards’) carry on the business of building houses on a large scale in Kent and
have done so for many years. The second defendants are a firm of consulting
engineers (and I shall call them ‘the engineers’). Early in 1971 Wards bought
two undeveloped sites about 100 metres apart at Knights Hill, Hoo, near
Rochester, at an auction. The sites were in a residential area although they
had not previously been developed.
Wards and the
engineers first met in connection with an office building which Wards were to
build for the Westminster Bank and for which the engineers had been retained as
consultants for the bank. As a result of this meeting they discussed the
possible employment of the engineers by Wards on other projects, and in
particular a multi-storey block which Wards had in mind to build, although in
the event it did not materialise. It was said in the course of those
discussions that Wards would not require site supervision. In the months that
followed Wards employed the engineers for their advice on four projects, one at
Sheppey, one at Conyer, another at Walderslade and the fourth at Main Road,
Hoo.
Mr D E Coumbe,
a qualified engineer, was the member of the engineers’ staff employed on Wards’
projects. Mr C M Creed, an architectural technician, was in charge of Wards’
architectural department and was responsible for the design of the buildings.
Wards did not employ anybody qualified to give engineering advice. On January
11 1971 Mr Creed wrote to the engineers asking for ‘your suggestions for
detailing the foundations of houses’ at Main Road, Hoo, and enclosed a copy of
the site plan and of the house type which was that called ‘G6’. Mr Coumbe and
Mr Creed met on the site. Mr Coumbe took a sample of the clay, which he
subsequently had analysed, and on January 29 he reported to Wards that he had
inspected two trial holes, carried out various tests, made certain calculations
and reached certain conclusions as to the foundations. In June Mr Coumbe made
an inspection of the foundation trenches for two of the houses because it had been
reported that they had filled with water and he reported this to Wards.
I turn now to
the site concerned in this case, that is at Knights Hill. When Mr Coumbe and Mr
Creed met at Main Road, Hoo, in May 1971, Mr Creed asked Mr Coumbe to have a
look at the Knights Hill sites. They went to the sites with the intention of
excavating and inspecting trial holes, but the excavator broke down. So Mr
Coumbe was unable to do more than inspect the site and the area and say where
he required the trial holes. On June 1 Mr Coumbe inspected the trial holes and
the following day by letter reported to Wards in these terms:
I inspected
three trial holes that I saw excavated on these two sites.
Tests carried
out on the clay indicated that this will be adequate to support a pressure of
3/4 ton per square foot, at a depth of about 3’6′. This should be adequate to
carry a typical house. Clay stones were found in one of the excavations at a
depth of about 4 feet.
A sample of
clay was taken which will be analysed for sulphate content.
On June 10
Wards wrote to the engineers a letter in these terms:
Thank you for
your letter of 2nd inst. We note the contents thereof.
We are at
present negotiating with the Strood Rural District Council for approval to
develop 44 houses on this site. Many of these houses will be terraced blocks
and in view of the nature of the ground the council have asked us to obtain
your comments as to the feasibility of long blocks as it may have a bearing on
their consideration of our application.
A site plan, as
submitted, is enclosed, together with the proposed house types. We would be
pleased if you could let us have your comments at an early date as we are
trying to arrange a meeting with the council in about 2 weeks’ time.
The engineers
replied on June 17 by letter in which they said:
We have
examined your proposals for the foundations for the semidetached houses G6 and
the terraces GT1/8 and find that the foundation pressure does not exceed 0.6
ton per square foot. The trial holes inspected by us on June 1 indicated that
the foundation was clay with a safe bearing capacity of 0.75 ton per square
foot at a depth of 3’6′ below the existing surface. Chemical analysis indicated
that sulphates were not present in sufficient strength to damage good Portland
cement concrete.
We would not
expect to find much variation in the ground conditions over these sites but it
is of course possible that there have in the past been borrow pits in the area
which might contain fill.
The two sites
are sloping and the foundation should be stepped up so as to be not closer to
the new or existing ground level, whichever is the lower than a minimum of
3’6′. This should prevent change of condition of the clay.
The houses
were built in 1972 and two of them were sold respectively to the plaintiffs in
these two actions. In both cases the parties entered into the form of agreement
prescribed by the National House Builders Registration Council (NHBRC). In the
following year the houses showed signs of cracking and in 1974 substantial
works of repair were carried out. However, the cracking continued and the state
of the houses is such that it is accepted, and this is common ground at least
for the purposes of these actions, that the cost of repairs exceeds their
value. It is further common ground that the cause of the damage is the failure
of the foundations, which in turn was caused by heave. I must here explain how
this arose. These sites had a number of trees on them before they were
purchased by Wards. The subsoil is London clay, which ordinarily can be
expected to swell upon becoming moist. However, the moisture content was
reduced by the absorption of water by the trees when they were standing. The
effect of the felling of trees is to cause the clay to absorb the moisture
which previously had been absorbed by the trees and so cause the clay to swell.
However, it takes many years for this process to be completed, so that what
happened in this case was that the foundations, which were ordinary strip
foundations, were laid on ground the subsoil of which swelled and thereby
caused the foundations to fail.
During the
course of the trial the first defendants admitted liability to the plaintiffs
in contract and agreed the quantum of damages. Agreement was also reached as to
the amount of damages, if any, payable by the engineers to the plaintiffs.
Accordingly, the question I have to determine is whether, and if so to what
extent, the engineers are liable either to the plaintiffs or to the first
defendants or to both.
Wards purport
to found their claim against the engineers on three grounds, namely, breach of
contract, breach of duty and, by late amendment, breach of warranty. I shall
deal with the alleged breach of warranty first. Mr Harvey said that a warranty
can be implied as a matter of fact and law and referred to Greaves & Co
(Contractors) Ltd v Baynham Meikle & Partners [1975] 1 WLR 1095
and also referred to a speech of Lord Scarman in an as yet unreported case, Independent
Broadcasting Authority v BICC Construction Ltd [House of Lords, May
15 1980]. However, I observe that Lord Scarman was at pains to draw a
distinction between the case where an article was to be delivered and the case
where the professional man is not the supplier of the article. Mr Harvey
referred particularly to the observations of Lord Denning MR in the Greaves case
at p 1110 and said that there was a common intention there in the same way as
here. However, in all cases it seems to me that the intention of the
professional man and of his client is similar and I do not think that this
takes the matter further. The court in the Greaves case stressed that
their decision depended on the special facts and circumstances and they
certainly did not purport to depart from the rule in Bolam v Friern
Hospital Management Committee [1957] 1 WLR 582. That rule was adopted by
Lord Denning in the Greaves case and it is as follows:
. . . where
you get a situation which involves the use of some special skill or competence,
then the test as to whether there has been negligence or not is not the test of
the man on the top of a Clapham omnibus, because he has not got that special
skill. The test is the standard of the ordinary skilled man exercising and
professing to have that special skill. A man need not possess the highest
expert skill; it is well-established law that it is sufficient if he exercises
the ordinary skill of an ordinary competent man exercising that particular art.
Whatever may
have been the contract between Wards and the engineers, it certainly did not
call for the making of the foundations, or even for the supervision of their
making, and in my judgment there is no room for an implied warranty.
I turn now to
the implied term which in the third party notice is expressed to have been
‘that you would carry out your work with the skill and care of experts and give
all necessary and proper advice to the defendants’. It is alleged that the
engineers were in breach of that term for failing to make enquiries about trees
on the sites and also for failing to warn Wards of the risk of swelling and
failing to advise Wards to construct adequate foundations. What is in dispute
is not the implied term but the nature of the contract. The engineers’ case is
that they were given an extremely casual instruction and that all they were
required to do was to look at the site to observe any obvious features and
inspect the three trial holes.
Mr Coumbe,
however, was in no doubt as to the extent of his instructions, namely to inform
Wards whether the widths and depths of the foundations were adequate, and that
the only limitation as to instructions was that he would not carry out the
supervision of the construction of the works. He argued it was within the ambit
of his instructions to take into account the previous use of the land and the
nature of the ground. However, he was under the impression that where a site
with clay subsoil had trees removed, as in this case, the recovery period would
take one year or perhaps rather longer for larger trees. However, it was published
knowledge and should have been known by a competent engineer in 1971 that clay
subsoil takes very much longer than that to recover. Mr Coumbe said that he
realised that in 1971 he should have appreciated that soil recovery could have
gone on for up to 10 years and had he done so he would have told Wards of the
danger.
I find the
conclusion inescapable that in 1971 a competent engineer encountering London
clay as in this case would have made enquiries whether there had been trees on
the site and, finding that there had been, would have caused moisture content
and plastic limit tests to be carried out. Had that course been taken it is not
disputed and there can be no doubt that Mr Coumbe would have advised that the
proposed foundations were inadequate. Accordingly, I find that the engineers
were in breach of their contract in failing to exercise professional skill as
explained in the Bolam case. I think it necessarily follows, applying Batty
v Metropolitan Property Realisations Ltd [1978] QB 554 that the
engineers were in breach of their duty of care and that accordingly they are
also liable in tort.
It was argued,
albeit faintly, that had Mr Coumbe advised that there was a risk of the
foundations being inadequate Wards would have disregarded the advice and taken
the risk. In my judgment there is no evidence to support that proposition and
all the evidence in fact is the other way.
It was
submitted by Mr Crowther that Wards had suffered little or no damage because of
the cost they would have incurred in carrying out additional site
investigations and in building deeper foundations. This was not pleaded in the
engineers’ defence nor was it put to Mr Ward in cross-examination. The estimate
given impromptu in cross-examination by Dr A G Weeks was that the site
investigation would have cost £1,100 and that the 10 houses would require deep
foundations at a cost of £800 per house. Thus the additional total cost, had Mr
Coumbe carried out his duties, would have been £9,800 in 1971. However, there
were 44 houses built on this estate, so that if the additional cost were spread
evenly, it would amount to about £350 per house. What was not put to Mr Ward
was his company’s pricing policy, that is to say whether they priced according
to what the houses could realise in the market or on the other hand whether
they looked for a percentage profit on the capital
cost had been spread over 44 houses it would amount to a very small percentage
increase in price. In my judgment it was incumbent on the third party at least
to plead this point and to have put it in cross-examination of Mr Ward, whereas
it was not raised until after the evidence had been given. Accordingly, I do
not propose to take it into account.
I now turn to
deal with the submissions concerning Wards’ negligence and the possibility of
an apportionment for contributory negligence. The argument is that if the
engineers were negligent in failing to discover the potential heave problem,
then so were Wards. It was said that Wards knew, or should have known, of the
problem of heave, particularly having regard to the contractual duty to comply
with the NHBRC requirements. Both defendants are deemed to start with the same
notional knowledge of heave, and the duty to investigate initially rested with
Wards, who made no attempt to discharge that duty either by making their own
enquiries of the history of the site or by instructing the engineers to make
such inquiries. They also had a duty to inspect the trenches before the
foundations were laid, and that would have shown the existence of roots. I do
not doubt the initial duty on Wards, but in my judgment Wards discharged that
duty by employing those who were qualified to advise them. Having regard to the
fact that Wards were not themselves qualified to carry out the investigations,
I find it impossible to think of any other way in which they could have
discharged their duty. There is no direct evidence that roots were discovered
in the foundation trenches, but even if they were they would have been only to
a depth of 3 ft 6 in, which could not have given Wards any reason for concern
having regard to the advice which they had received. Moreover, as Mr Coumbe had
discovered roots at that depth, if he had been told that roots had been found
at a similar depth, presumably his advice would have been unchanged.
Accordingly, I hold that there was no negligence on the part of Wards and
therefore the question of a contribution does not arise. In view of the foregoing
there will be judgment for the first defendants against the second defendants.
Finally, and
for completeness, I hold that the engineers are liable to the plaintiffs in
tort. That seems to follow from Dutton v Bognor Regis Urban District
Council [1972] 1 QB 373, and the judgments in Batty’s case.
