Case notes

The day the earth moved for Thames Water

Constructing the new Jubilee line for London Underground (LUL) involved extensive works below ground.

At London Bridge station, the tunnelling, shaft sinking and compensation grouting took place between October 1995 and the end of 1997.

On October 24, 1999, there was a burst in Thames Water’s 36-inch cast iron water main under St Thomas Street near Guys Hospital. This caused substantial damage. Remedial works and compensation claims ran into many millions of pounds.

The main had fractured at a spigot/socket joint with cracks nearly two metres long. There was no obvious cause.

LUL had liaised with Thames Water before its Jubilee Line works had started, locating the mains and taking precautions to protect them.

Nevertheless, Thames Water sued LUL alleging breach of statutory duty, negligence and nuisance.

The court applied the ‘but for’ test to examine and exclude causes of failure in a common-sense manner. The causes were many and the expert witnesses’ testimony extensive.

The pipe had been laid in 1925 approximately 1.4 metres deep. During the subsequent 75 years it had been subjected to a number of events increasing the strains locked into the cast iron. These included the day-to-day pounding of heavy traffic on the road above and unusual events such as the Blitz.

The judge decided that the Jubilee Line construction had caused a fatal differential settlement twisting the pipe. This was not just a nominal addition to a grossly overloaded main. Without LUL’s work, the main would have lasted for years.

Moral: Settlement causes settlement

Case: Thames Water Utilities Ltd versus London Regional Transport and Another. August 2004, TCC (Bliss IB/33)

Good fences, good neighbours

The Gimsons wanted to build their ideal six-bedroom family home with tennis courts and a swimming pool. They bought a plot for £248K. Next door, the Davies’s ran Gemma, a building company. The Gimsons hired Gemma as designer and builder for £1.2 million.

The funding bank wanted an architect to supervise and certify stage payments and completion, and so Gemma employed Mr. Dolan. Similarly, it was Gemma’s solicitors who drew up the bespoke contract. Although they paid the first nine stage payments on time, the Gimsons became concerned that Gemma was receiving payments ahead of actual progress.

In November 2001,Dolan issued a certificate of practical completion even though the swimming pool had not been commissioned. In March 2002, he issued another certificate for £111K. The Gimsons refused to pay, and Gemma locked them out of the house. The Gimsons only regained possession with the help of a security firm and the police. It took until June 2003 and £372K to complete the works, with another architect and builder.

When Gemma sued for £111K, the court held that unlike JCT contracts, this contract did not contain the concept of ‘practical completion’. As a result Dolan’s certificates were invalid. The Gimsons were awarded £330K.

Moral: Don’t employ your neighbours

Case: Gemma Ltd versus Gimson. August 2004, TCC (Bliss IB/32)

Counting the cost

When M&E contractor Murray won its adjudication over payment against main contractor Spree, it had to go to court to enforce the decision. But the judge disagreed.

Murray had originally submitted quotations to M&E consulting engineer JR Book which was employed by client Parsonage Chambers. Book didn’t supply Spree with the quotations or the M&E specifications, but Parsonage wanted to press on and told Spree to issue an order to to Murray immediately, threatening breach of contract if Spree did not comply. Murray was not a nominated subcontractor.

Spree sent out its order with a covering letter. The order defined the work and said it was to “complete the mechanical and electrical installation as per JR Book Consulting Engineer’s scheme”. It did not state the contract sum but said it was ”Electrical less 2½% main contractor’s discount; Mechanical less 2½% main contractor’s discount”.

In the covering letter Spree’s director wrote:

“I would be obliged if you would forward your costs once finalised and agreed with JR Book.”

The judge thought Spree’s letter was asking for a breakdown of the costs, not asking for the price agreed between Murray and Book. He also considered that Spree could challenge any computation of the costs. He pointed out that Spree had not written “we will agree to pay whatever you agree [with Book]”.

As a result, there was no contract in writing and the court would not enforce the adjudicator’s decision.

Moral: Agree your price with the right person

Case: Murray Building Services versus Spree Developments, July 2004 TCC (Bliss IB/33)

Foot the ladder or foot the bill

Martin King was too eager to start work at 7.40am on June 5, 2000. Instead of waiting for a colleague to foot an unfixed ladder for him, he climbed it on his own. The ladder slipped and he was seriously injured when he fell. He had to be airlifted to hospital.

King was a painter and decorator in partnership with his father. The job was the exterior decoration to Elm Tree Farm in Somerset for RW Farmer Builders, which provided the necessary access scaffolding. For security, there was no permanent access to the first lift of scaffold. A ladder had to be fixed at the start of each working day. It was this ladder that slipped and injured King.

King sued RW Farmer, alleging breach of Farmer’s statutory duty under the Construction (Health, Safety and Welfare) Regulations 1996.To win, King had to prove that either he was an employee of RW Farmer or that RW Farmer was the person controlling the way the work was carried out.

The court found that King fixed his own pay rates, provided his own tools and materials, controlled the way he worked, had other customers, employed a sub-contract carpenter and evidently regarded himself as RW Farmer’s subcontractor.

Clearly he was not an employee, nor did Farmer control his work. As a result the regulations did not apply to RW Farmer. (If the regulations had applied, RW Farmer would have been liable, with King having to contribute 75% due to his negligence.)

Moral: Responsibility is extensive

Case: Martin Roy King versus Richard Farmer (T/A RW Farmer (Builders) August 2004, QBD (Bliss IB/37)