DOES A CONTRACTOR HAVE A DUTY TO INFORM THE EMPLOYER OR HIS AGENT OF DEFECTS IN DESIGN?
The answer to the question may well lie in the express terms of the contract. For example clause 4.1 of the JBCC Series 2000 Principal Building Agreement states that
"The Contractor shall not be responsible for the design of the works other than the Contractor's or his Subcontractor's temporary works."
However, where the contract is silent on the matter the position is not so clear.
In the following case strict compliance with drawings and the instructions of a professional consultant proved not to be a complete defence for the Contractor.
In Lindenberg v Canning and Others (1992), a property developer, Edward Lindenberg, entered into an oral agreement with Mr Canning, a builder with considerable experience of conversion work in old buildings. That agreement required Mr Canning to carry out some preparatory work for the conversion of the basement of a block of flats in Hyde Park Gate, Kensington. Mr Lindenberg employed a building surveyor who prepared a drawing describing the work to be carried out by Mr Canning which included the demolition or certain walls. The plan showed the external and some internal walls in continuous lines, but other internal 230mm brick walls and a chimney breast were marked with broken lines.
A note which was linked by a wavy line to one of the walls shown with a broken line, read "include for removing non-load-bearing walls where indicated and allow to make good all disturbed surfaces." Mr Canning interpreted the plan as meaning that the walls shown with broken lines were non-load-bearing and should be removed. Mr Canning's men began to demolish the 230mm walls using hand tools and manual labour. They did not provide any temporary propping for the ceiling because the plan had indicated that the walls were non-load-bearing and showed no permanent replacement for them. In fact the walls were load-bearing and their collapse caused damage to the floor.
Mr Lindenberg claimed damages in respect of sums he had paid out to the owners of the building under an indemnity agreement, together with fees paid to a consultant engineer and solicitors. He also claimed money he had already paid Mr Canning in advance of his carrying out the work. The basis of Mr Lindenberg's claim was that Mr Canning was in breach of an implied term in his contract to carry out his work with due care and skill.
His Honour Judge John Newey QC held that, in view of the inadequacy of the plan and the likelihood that walls which were 230mm thick were supporting the floor above,
Mr Canning should have proceeded with the greatest caution.
Although the judge found that the plan with which Mr Canning was supplied showed tha all of the walls marked with broken lines were non-load-bearing, this was such an obvious error, particularly in relation to the chimney breast wall, that Mr Canning should have had grave doubts about the plan. He should have realized that the 230mm walls had not been erected simply to separate stores, but to carry the weight of the floor above them. He should therefore have at least raised with the surveyor doubts as to his plan and asked whether the surveyor was sure that the walls were not load bearing. Even if assurances had been given, Mr Canning would have been prudent to put up temporary propping, but in the absence of such assurances, he should undoubtedly have done so. By failing to do so, he behaved with what the judge described as "much less care than was to be expected of the ordinarily competent builder" and he therefore acted in breach of contract.
As a result, Mr Lindenberg was entitled to recover damages from Mr Canning. However, the judge held that the surveyor should bear 75 per cent of the responsibility for the damages under the rules of contributory negligence, and so Mr Canning was liable to pay only 25 per cent of the damages suffered by Mr Lindenberg.
Commentary
It is particularly instructive that the judge in this case commented that, as no assurances had been received from the person who had prepared the plan that the walls were in fact not load-bearing as the note indicated, the Contractor should, on his own initiative (and presumably at his own cost), have taken his own precautions.
There is doubt that even a provision such as clause 4.1 of the JBCC Series 2000 Principal Building Agreement would have come to the aid of the Contractor in this case, since he would remain responsible for his own temporary works (propping), the absence of which caused the collapse.
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