Office development — Contractors engaged by council — Site preparation works — Provision of fill material — Cracks appearing following completion of development — High Court awarding damages against contractors — Court of Appeal holding that selection of fill was not left to skill and judgment of contractors — Whether stipulations responsibility of contractors — Contractors not holding themselves out as having special expertise — Appeals allowed
This dispute concerned site preparation and construction of a five storey office building, Norfolk House, Rotherham, to be used as civic offices for the council. The council, as employers, engaged the first defendant (“Haslam”) as contractors to carry out advance site preparation work in 1979. The second defendants (“Gleeson”) were employed as general building contractors by written contract under seal to construct the remaining foundations of the superstructure. The building was constructed over several cellars and after completion, cracks appeared in the ground-floor slab. The damage was caused by the unsuitability of the fill used around the foundations.
The council issued a writ claiming damages against the defendants basing their claims on the existence of implied warranties of fitness and merchantable quality. The official referee found in favour of the council but the defendants appealed. The crucial issue was whether it was left to the discretion and skill of the defendants to determine which sort of slag was to be used.
Held The appeals were allowed.
1. A person contracting to do work and supply materials warranted that the materials which he used would be of good quality and reasonably fit for the purpose for which he was using them, unless the circumstances of the contract were such as to exclude any such warranty: see GH Myers & Co v Brent Cross Service Co [1934] 1 KB 46.
2. As a general rule, where the efficacy of a building or other object depended upon a designer, it was the designer who might be expected to bear the responsibility for ensuring the suitability of the components incorporated into it. Where the designer himself relied on those who had specialist skills his reliance might show or suggest that he was abrogating that responsibility in relation to matters within the purview of the specialist.
3. Here the designers of the building were the council’s architect and engineer. The design made necessary the importation of hardcore as fill material. The types of hardcore that would be acceptable were specified, as was the grading and sulphate content of the fill material. All those stipulations were made in that the architect thought them necessary to ensure the provision of a suitable fill material. To the extent that there were no stipulations and the supplier was free to choose, the freedom was accorded not to enable the supplier to exercise some supposed skill and judgment but because the architect believed that no further stipulations were necessary.
4. The architect would have rightly regarded himself as more expert than the contractors. They did not profess any special expertise in the selection of fill material.
5. The extent of the contractors’ obligation was to provide hardcore answering to the description specified. The fill supplied came within the council’s specification, was commercially saleable and of merchantable quality. The terms of the contracts showed that the council comprehensively stipulated for hardcore which they believed would inevitably fulfil their requirements. Therefore, the circumstances showed that the council did not rely on the contractors’ skill or judgment.
Martin Bowdery (instructed by Howes Percival, of Milton Keynes) appeared for the first defendant; Rupert Jackson QC and Mark Cannon (instructed by Masons, of Manchester) appeared for the second defendant; John Uff QC and Alan Steynor (instructed by the solicitor to Rotherham Metropolitan Borough Council) appeared for the council.
