A warning to all

You may think that if a builder is provided with plans prepared by an architect, he will not be criticised for building to those plans. The Court of Appeal would not agree. In the case of CGA Brown v Carr and Another, the Court concluded that the builders were liable for the full cost of repairing a defective roof because they should have spotted a problem with the drawing and have warned the client of it before they continued with construction.

The facts in the case were as follows. In the latter part of 2003, the claimant builders were instructed by the defendants to add an extension to their property. The builders agreed to build the extension in accordance with drawings prepared by the defendant’s architect. The work included an extension to add two dormer windows to the existing dormer window set into the slope of the roof, with a flat roof section above them. Of the new flat roof, the drawings said only ‘to align through the existing arrangement’. However, because the actual roof slopes were different to those shown on the drawings, the falls on the new flat roof were unsatisfactory if built in accordance with the architect’s plans.

By the time the builders discovered this problem, they had built the roof in accordance with the drawings. In order to remedy the problem, they made a cold joint between the felt covering of the existing roof and the felt on the new roof. Unfortunately, this joint failed and was later condemned by the expert appointed by the court to advise on the roof problem.

The builders did suggest another way to resolve the problem with the roof fall and the defendants accepted a quote to put a slightly pitched roof over the flat roof. However, despite delivering materials to site, the builders failed to turn up to do the works and the roof then began to leak seriously. As winter was by now approaching, the defendants instructed another contractor to undertake emergency repair and then to re-felt the whole roof. The cost of re-felting was £1330 and the defendants claimed this sum from the builders.

At first instance, the judge concluded that the defendant should be entitled to recover the full £1330 from the builders, on the basis that they should have realised that the drawings were wrong before they built a roof that was vulnerable to leakage. On appeal, the Court concluded that this was the correct approach. It held that, even though the defendants had not specifically raised this point in their defence and counterclaim, it was incumbent upon the builders to exercise reasonable care and skill when building the roof. A necessary part of exercising that care and skill included checking the drawings and recognising that the instructions included in them were inadequate.

The builders had also acted negligently in failing to spot the problem and then building a cold joint that did not work

The builders also argued that they should not be responsible for the architect’s failure to prepare adequate drawings. That would certainly seem to be a logical argument, when clearly the drawings were flawed – had the architect prepared proper drawings, the defendants would not have had a problem with their roof. However, the court concluded that the builders had also acted negligently in failing to spot the problem with the plans and then building a cold joint that did not work. The defendants were therefore still entitled to claim the full cost of re-felting the roof from the builders.

Finally, the builders claimed that the court was not entitled to award the full cost of re-felting the roof, because that would effectively give the defendants a better roof than they had contracted for. The Court of Appeal disagreed. In the judge’s view, the defendants had contracted with the builders to build a roof that was fit for purpose and did not leak. If re-felting was necessary to make the roof waterproof, the builders would have to compensate the defendants for that cost.

This decision gives contractors a timely reminder that they are expected to use their professional expertise not only to build in accordance with plans prepared by others but also to comment on those plans, where there is clearly a problem with the proposed design. It is important to remember that a builder can only be criticised for missing an obvious problem or error and a court will take into account the builders’ experience and the nature and complexity of the building work to decide whether they should have seen any problems with the design.

Nevertheless, it is always important to consider whether the design to which the contractor is asked to build is adequate. If it is not, and they go ahead regardless, they could end up paying for clients to rebuild to a new design, potentially at a substantially higher cost.