Warehouse to be built by the ‘composite’ system of construction–Designers who knew that building was required to bear loaded fork-lift trucks held liable for faults caused by vibration — Design found to have been impliedly warranted in negotiations — Court’s decision involves no extension of the principles of professional negligence
This was an
appeal by Baynham, Meikle & Partners, consultant structural engineers, of
Edgbaston, Birmingham, from a judgment of Kilner-Brown J on July 26 1974
declaring that the respondents, Greaves & Co (Contractors) Ltd, of West
Bromwich, W Midlands, were entitled to an indemnity against the cost of works
necessary to prevent and rectify damage to a building built under a ‘package
deal’ for Alexander Duckham & Co Ltd, of Aldridge, W Midlands.
Mr P Garland
QC and Mr M Myers (instructed by Beddington, Hughes & Hobart) appeared for
the appellants, and Mr B Neill QC and Mr A C Pugh (instructed by Kingsley,
Napley & Co, agents for Maurice Putsman & Co, of Birmingham)
represented the respondents.
Giving
judgment, LORD DENNING said that the matter arose out of a package deal now
frequently used by building owners. The owners, Alexander Duckham & Co Ltd,
wanted a big factory and a warehouse and offices constructed at Aldridge, W
Midlands. The warehouse was to be a place where oil could be put into drums and
barrels and stored until dispatch. Instead of employing their own architects
and engineers, Duckhams employed Greaves to do everything — buy the materials
and employ the labour, including the architects and engineers. In such a
situation it was the duty of the contractors to the building owners to see that
the end product was reasonably fit for the purpose for which it was required. That
was an absolute obligation, not merely the duty to use reasonable care. It was
the obligation stated in Hancock v B W Brazier (Anerley) Ltd
[1966] 1 WLR 1317, where a man wanted a house built for him and the implication
was that the builder would do his work in a good and workmanlike manner, use
good and proper materials and see that the house should be reasonably fit for
human habitation. But that was not the matter in question. Greaves found that
they needed expert assistance, in particular for the warehouse, because it was
to be built according to a system which was just coming into use in England, a
composite system of construction with steelwork for the frame, precast concrete
‘planks’ on the floors, and concrete poured in to bind everything together.
That composite construction system was governed by the British Standard Code of
Practice (CP 117: 1965). Greaves employed Baynham, Meikle & Partners,
structural engineers, to be responsible for and to design the structure, and in
particular the first floor. Discussions took place on how the work was to be
done, for it was of particular importance, since the floors had to take the
weight of stacker fork-lift trucks which would run to and fro carrying drums of
oil. This was made perfectly well known to Baynhams, who were given the task of
designing the floors by the composite construction.
The British
Standards Institution had issued a pamphlet about the new system, and this
contained a note to which Baynhams should certainly have adhered, stating that
the designer should satisfy himself that no undesirable vibrations could be
caused by the imposed loading, since serious vibrations might result when
dynamic forces were applied at a frequency near to one of the natural
frequencies of the members. That was a plain warning that if the use of the
warehouse set up vibrations the designer had to be specially careful about it.
The warehouse was built to Baynhams’ design and put into use. After a few
months’ use, however, the floors began to crack. The men working there took
strong objection, saying that the building was dangerous, and the cracks seemed
to be getting worse. The court had been told that the cost of putting things
right might run to £100,000. Greaves accepted that they would be liable to
Duckhams on the basis that the warehouse was not reasonably fit for the purpose
for which it was required, storage of oil drums, and they claimed an indemnity
from Baynhams. They said that in the circumstances Baynhams had impliedly
warranted that the design would be fit for use by loaded stacker trucks, and
alternatively, that Baynhams’ duty was to use reasonable care in all the
circumstances and that they had failed in that duty. At the trial, Baynhams
submitted that the cause of the cracking was shrinkage of the concrete and
other matters for which they were not responsible, and that there was nothing
wrong with their design, but the judge found against them. He (Kilner-Brown J)
found that there was an implied warranty of the kind contended for by Greaves,
and that in any event Baynhams were under a duty to use reasonable care.
Baynhams now submitted that the finding of an implied warranty was erroneous in
law, and that though they were under a duty to use reasonable care, there was,
having regard to the judge’s findings, no want of such care on their part.
The first
question was whether there was in contracts like this an implied warranty by
the designer that his design would be fit for the purpose. It was quite plain
that on a sale of goods, if the buyer made known to the seller the purpose for
which he required the goods so as to rely on the seller’s skill and judgment,
there was an implied term that the goods were reasonably fit for the purpose.
That this was also the case in a contract for work and materials had been established
in the House of Lords recently in Young & Marten Ltd v McManus
Childs Ltd [1969] 1 AC 454. Another example given in the books was where a
dentist agreed to make false teeth for a patient, and though he used reasonable
care they did not fit the patient’s gums, so that they were not reasonably fit
for the purpose: see Samuels v Davis [1943] KB 526. The question
that now arose was whether such an implication arose where there was a contract
simply for work. In the ordinary case of an engagement of a professional man to
do work there was no absolute warranty that the result would be achieved, but
only an undertaking to use reasonable care and skill. One had only to think of
a surgeon. He did not warrant that he would cure a patient. Nor did a solicitor
warrant that he would win a case. They only promised to use reasonable care in
the services which they rendered. No one would wish to doubt that that was the
burden of responsibility of every professional man. In the ordinary way, when
an architect or an engineer was employed to make a design for a house, or
anything of that kind, the duty in law was that of using such reasonable care
and skill in all the circumstances as a professional man of standing should
provide. But in this case the question was whether Baynhams did not assume in
the course of the negotiations, on the facts of the case, a higher obligation;
and the court’s attention had been drawn to answers which Mr Baynham himself
had given in cross-examination. In the light of that evidence it did seem that,
on the particular facts and in the special circumstances, it was implied that
the design should be fit for the use of stacker trucks. That was what the judge
said. In so saying, he did not depart in the least from the general view of the
duty of the professional man. And as Duckhams could come down on Greaves, who
had left everything on the design side to Baynhams, that would seem just as
between the parties.
The judge had
dealt with the alternative point, saying that ‘in the special circumstances, by
reason of their knowledge of the requirements and the warning about vibration,
it can be said that there was a higher duty imposed on Baynhams than the law in
general imposes on a medical or other professional man.’ He (Lord Denning) did not think that was
correct. The duty of any professional man was to use reasonable care and skill
in the course of employment. That was stated by McNair J in Bolan v Friern
Hospital Management Committee [1957] 1 WLR 582, and approved by the Privy
Council in Chin Keow v Government of Malaysia [1967] 1 WLR 813.
There were accordingly certain passages in Kilner-Brown J’s judgment which were
difficult to reconcile with the established principles of professional
negligence. Nevertheless, taking the facts as the judge stated them, it seemed
that there was, as he eventually said, a breach of a contractual duty to
provide and supply a design which would produce a building capable of taking
the stacker trucks without damage or danger, and as that contract was not
fulfilled Greaves had made out their case and were entitled to the declaration
of liability and indemnity.
Agreeing,
BROWNE LJ said that he would emphasise that the court’s present decision was
based on no general principles as to the obligations and liabilities of professional
men. On both the points raised, the decision depended on the special facts and
circumstances of the case. Had the judge sought to lay down any general
principles as to the liability of professional men going beyond the long series
of authorities from 1830 to 1957 cited to the court? He (his Lordship) did not think so.
Kilner-Brown J’s decision should not be regarded as laying down any general
principle any more than that of their Lordships’ court should.
Also agreeing,
GEOFFREY LANE LJ said that the suggestion that every professional man, or at
least every consultant engineer, would by implication of law guarantee a
correct result was totally unfounded. The warranty in this case was one implied
from the facts, not one necessarily implied by law.
The appeal
was dismissed.
