Industrial premises — Maintenance work — Cleaning of corrugated asbestos cement roofs — Subcontractors — Formation of asbestos dust — Remedial work necessary — Fourth party proceedings between subcontractors — Judge finding that fourth party contractor not in breach of contract with third party contractor — Court of Appeal overturning that decision — Loss equally divided between parties — Appeal allowed
The appellant (“Carne”) was the third party and the respondent (“Trendleway”) the fourth party in proceedings brought by the bank against Fairclough. The bank occupied storage premises at Units 1 and 2, Dallimore Road, Millbrook Industrial Estate, Wythenshawe, Lancashire. The units were large warehouses and were in need of maintenance and repair. In March 1989 Fairclough agreed to carry out and complete maintenance work at the premises for the contract sum of £133,258. It included the cleaning of the corrugated asbestos cement roofs of the two units. The roof cleaning was included in work subcontracted by Fairclough to Carne, which in turn subcontracted it to Trendleway. A power hose was applied which created a slurry. Water containing the slurry penetrated the units and surrounding area. This caused asbestos dust, which had to be remedied.
The bank brought proceedings against Fairclough to recover the cost of remedial work, estimated at about £4,000,000. Carne and Trendleway were joined. Carne agreed to pay Fairclough £1,250,000. Judgment was subsequently given for the bank against Fairclough for damages to be assessed: see [1994] EGCS 141. In the fourth party proceedings the judge found for Trendleway, rejecting a claim by Carne that there had been a breach by Trendleway of a warranty that it would carry out the works with care and skill. Carne appealed against that finding.
Held The appeal was allowed.
1. A person undertaking to clean asbestos with a high-pressure hose undertook to carry out the work with the care and skill necessary to perform the task safely and without causing extensive contamination of the surrounding area.
2. A person who undertook skilled work and failed to exercise it with care and skill reasonably to be expected of one professing his calling could be held liable either in tort or contract. The existence and scope of a duty of care in tort must not be inconsistent with the relevant contractual relationship between the parties.
3. Trendleway had contracted to carry out work in a careful manner. It was aware that Carne had agreed to perform this work under its contract with Fairclough, thus providing a foundation for the existence of a duty to avoid causing economic loss.
4. A skilled contractor undertaking maintenance work to a building assumed a responsibility which invited reliance no less than the financial or other professional adviser did in undertaking its work. The nature of the responsibility was the same though it would differ in extent.
5. Trendleway, in performing the work Carne had subcontracted to it, owed a concurrent duty in tort to avoid causing economic loss by failing to exercise the care and skill of a competent contractor.
6. However, Trendleway had established a basis for its claim that the damage suffered by Carne was suffered partly as a result of its own fault. There was no basis for distinguishing the degree of Carne’s responsibility from that of Trendleway either on the ground that the fault of one was a greater cause of the damage than the fault of the other or on the ground that one was more blameworthy. Both ought to have appreciated the risk of asbestos dust. Therefore, the loss would be divided equally between them.
David Blunt QC and Richard Wilmot-Smith (instructed by Davies-Lavery, of Maidstone) appeared for the appellant; Giles Wingate-Saul QC and Michael Smith (instructed by Keogh Ritson, of Bolton) appeared for the respondent.
