Case notes

As Panesh Mistry walked along Belgrave Gate in Leicester two big pieces of concrete cladding fell off a building and injured him.

It was typical 1960s construction with concrete facing panels on the upper floors. These were each roughly 1000mm by 500mm and weighing 50kg. They had been fixed to the wall with metal brackets and seated on a steel angle shelf. Metal corrosion had caused the brackets to expand, pushing the cladding off the steel shelf.

Mr Mistry sued Mr and Mrs Thakor, the building’s owners. They employed a property manager, chartered surveyor Mr Michael Roberts, who was brought into the court action as co-defendant.

Mr Roberts’ duties included inspecting the building at least twice yearly. The Thakors argued that they had discharged their duty as the building’s owners by employing Roberts and as he did not know of the defects they could not be responsible to Mistry.

However, the court heard from experts that Roberts must have known about the state of the panels as their movement could be seen from ground level. It ought to have triggered closer inspection.

But for some reason Roberts had been unwilling to climb scaffolding for a closer look.

The judge was very critical. “Professional men are employed to do the things normally expected of them in their profession,” he said.

As Roberts had decided to not make a closer inspection, he took 80% of the share of the blame.

Moral: Not having a head for heights can lead to a nasty downfall.

Case: Panesh Mistry –v- Mr. And Mrs. Thakor and Roberts – Court of Appeal July 2005 - Bliss IB 40/12

Daffy ducts

Everyone agreed that Darren Strang had been acting daft when he caused the flood.

He was a young fitter’s mate helping to install ductwork at Viasystems’ factory at Eldon Street, South Shields. When the fitter, Mr Megson sent him to collect some fittings, instead of returning via the crawling boards, Darren foolishly attempted to crawl through sections of ductwork that had been fixed.

These moved, broke the fire sprinkler system pipework, causing a serious flood.

Viasystems sued.

Typically for construction nowadays, there were several subcontractors. Thermal Transfer was responsible for the A/C system but it had subbed out the ducting work to Darwell. In turn Darwell had subbed out the duct installation to CAT Metalwork. Darren was working for CAT.

Mr Megson and Darren were under the direct instructions of Darwell’s foreman, a Mr Horsley. The general rule is that an employer is vicariously liable for its employees.

In the first action the court held CAT Metalwork entirely responsible. But CAT appealed, saying the issue was more complex.

The Court of Appeal held that Darren was working under the instructions of both Mr Horsley and Mr Megson. Either of them would have prevented him from crawling back through the ducts if they had seen him try.

As a result both Darwell and CAT were equally liable.

MORAL: The buck has to stop somewhere – but it might be in more than one place.

Case: Viasystems (Tyneside) Ltd. - v- Thermal Transfer (Northern) Ltd.; S & P Darwell Ltd. and T. Hall and C. Day (t/a CAT Metalwork Services). Court of Appeal October 2005 - BLISS IB 39/10

Drawing different conclusions

Hospitals are complex buildings. As a result, preparing and approving coordinated drawings can be time-consuming and expensive.

So when Emcor Drake & Scull (EDS) took over the phase 2 electrical work at the new Royal Infirmary, it insisted on taking no design responsibility, and proceeded only on the guarantee that the vast majority of the tender drawings were fully coordinated and approved for construction. This was agreed.

So in its price, EDS allowed for just one cadsman. But during construction EDS found itself bogged down in working up details for the electrical wiring installation. Hang on, it thought, hadn’t all this been sorted out?

EDS sought a declaration from the court on a preliminary issue as to the meaning of “fully coordinated” and “approved for construction”.

The court found that although the tender drawings were design drawings, they were not the subcontractor’s detailed working drawings.

They were however, “fully coordinated” in the sense that they coordinated the electrical work with the positions of the duct trays in the buildings.

Similarly, as 347 out 352 drawings had been given CA status (that is, approved for construction), the vast majority, technically speaking, had been approved as EDS had wanted.

Cruel, maybe, but EDS was left paying for extra services because “done” means different things to different parties.

Moral: What’s done is done, except sometimes it isn’t.

Case: Emcor Drake and Scull Ltd.-v- Edinburgh Royal Joint Venture, Balfour Beatty Construction Ltd.; Haden Young Ltd. and Morrison Construction Ltd. October 28, 2005 – Outer House. Bliss IB 41/2.