It was not just the coincidence of finding myself on the same plane as one of my favourite partners – who had booked not only into the same hotel but into the immediately adjacent room. It was also to do with the limbo dancing and the fire-eating, which were the central attractions at a party on the island given for us by an eccentric English aristocrat. As the performers called for volunteers from the audience – and I found myself duly volunteered – I could not help but wonder what St Lucian law might say about my host’s duty to warn his unwilling conscripts about the potential risks of fire-eating.
Our hotel was more scrupulous about its duty to warn. “Beware of falling coconuts” read the sign prominently displayed on the beach. Sensible, since said coconuts were suspended at a very great height and undoubtedly had the potential to cause serious mayhem.
What of my friend’s duty to warn: he who watched me stride into the sea when he knew that in the pocket of my swimming trunks was all my worldly fortune in St Lucian dollars? Naturally, English reserve was the explanation for his failure to warn me, with the result that I was permanently parted from my money by the sea.
It’s just the same on a building site. When should members of a project team be subject to a legal, as opposed to a moral, duty to warn others about the construction equivalent of falling coconuts?
If a contractor is instructed to shore up a retaining wall in a manner it regards as dubious, if not downright risky, should it be obliged by the law to speak up? Commercial interests may suggest otherwise.
The law has not found this an easy issue and, astonishingly, it was only a few weeks ago that the Court of Appeal was asked to give a ruling on it for the very first time.
In Plant Construction vs Clive Adams and Another (December 1999) a subcontractor, JMH Construction, was retained to excavate pits at Ford’s Research Centre at Dunton in Essex, so that two huge engine-mount rigs could be installed there. Everything was done in a great hurry and there was no written subcontract. Temporary support was needed for the roof during the excavation works, which was provided by way of Acrow props, but these proved to be inadequate. The roof collapsed one night during the works, resulting in severe damage, but thankfully no personal injuries.
If a contractor is instructed to shore up a retaining wall in a downright risky manner, should it be obliged by the law to speak up? Commercial interests may suggest otherwise
Plant was the main contractor and brought the action against JMH Construction. It was seeking to recover the damages it agreed to pay to Ford plus its own substantial costs for the repair work. The total came to nearly £2m.
The basis of Plant’s claim was that JMH knew that the work it had been instructed to do was unsatisfactory. Accordingly, JMH had an obligation to Plant to warn it of the risks. This was notwithstanding that JMH had carried out the propping works in accordance with instructions it had received.
The Court of Appeal went back to first principles. This was an oral subcontract. Whether oral or written, however, the law would always oblige a contractor to perform its tasks “with the skill and care of an ordinary competent contractor in the circumstances of the contractor”. This sounds very similar to the obligation that the courts will impose upon professionals. On the facts before them, the Court of Appeal considered that there was an “overwhelming case” that the subcontractor had not discharged that obligation. JMH knew that the propping works were obviously dangerous, “to the extent that a risk of serious personal injury or death was apparent”. That nobody was actually hurt was irrelevant, as was that the losses actually suffered were economic in nature.
The court deliberately reserved for future consideration circumstances in which a contractor did not know, but arguably ought to have known, that the design was dangerous, and secondly, circumstances in which a design defect was not dangerous at all.
There are strong policy reasons for confining such a duty upon contractors to include only design defects that pose a potential danger to life and limb. As Judge Lewis said in an earlier case, whether a design is sound or not is very much a matter of skilled judgement, about which there is room for difference of opinion. It would be give rise to great practical difficulties if a builder were obliged to warn its employer about matters of design, where the employer has commissioned that design from an expert and the builder has no express contractual responsibility for it.
In Building (25 February,) Patrick Holmes argued (surely tongue-in-cheek) that professionals should be subject to strict liability in connection with their design work.
Postscript
Tony Blackler is a partner in solicitor Macfarlanes.
