Plant Construction plc v Clive Adams Associates and another (No 2)

COURT OF APPEAL (CIVIL DIVISION)

69 Con LR 106, [2000] Build LR 137

HEARING-DATES: 29 November, 20 December 1999

20 December 1999

CATCHWORDS:
Temporary works -- Design -- Responsibility -- Employer -- Contractor Sub-contractor -- Whether
contract to transfer responsibility from sub-contractor to contractor --
Consideration of responsibility for design of temporary works.

HEADNOTE:
Ford Motor Co (Ford) owned and operated a Research Engineering Centre at Dunton in Essex. In 1993
Ford wished to install two new engine mount rigs and a
suspension rig in the components laboratory at the centre. The work was to be done on a design and
build basis. On 15 December 1993 Ford issued to the plaintiff
(Plant) a purchase order which incorporated Ford's General Conditions for construction and equipment
contracts and its general conditions for lump sum design and
build construction contracts. This purchase order was accepted by Plant. Plant assumed the risk of any
damage to the works that might have been caused or
contributed to by negligence on the part of Ford or its servants and agreed to insure against this risk.
Similarly the contract declared Plant responsible for acts or
omissions of its sub-contractors.

On 2 January 1994 the roof of the building collapsed. In February 1996 Plant agreed to pay £1,313,031
to Ford in settlement of Ford's claims. Plant then commenced this
action to recover its total loss of about £2m against the first defendant, the consulting engineers, Clive
Adams Associates (Adams) and the second defendants,
sub-structure works sub-contractors, JMH Construction Services Ltd (JMH).

JMH issued a third party notice against Ford. Ford applied for the third party notice to be struck out
and the third party proceedings set aside.

JMH's primary claim was that Ford assumed responsibility and owed a duty of care to JMH by virtue
of the fact that directions were given to JMH by Mr Furley, Ford's
senior civil engineer as to how the work should be carried out. Ford argued that such assumption was
inconsistent with the contractual scheme that existed between
Ford and Plant. Plant was Ford's contractor and Ford gave instructions to JMH with its consent.

Held (by his Honour Judge Humphrey LLoyd QC ((1997) 55 ConLR 41)) -- (1) The facts pleaded did
not disclose any relationship which would give rise to a duty of care
of Ford towards Plant's sub-contractor JMH. Mr Furley was not doing more than expressing what
might satisfy Ford if properly implemented. The facts pleaded fell far
short of what was required to give rise to an assumption of risk and a displacement of the contractual
structure which had been created by Ford for its own protection.

(2) If all the facts relied upon by JMH were upheld JMH would not be liable to Plant. JMH could only
be liable to Plant for its own breaches of contract uninfluenced by any
acts or omissions by Mr Furley or Plant. If JMH was held liable it could only be on the basis that its
defences including those based on Mr Furley's proposals would have
been rejected.

On 9 January 1998, Plant, Adams and JMH all consented to an order disposing of Adams' further
involvement as a party. In effect, Adams paid Plant £250,000 (the limit
 of liability under its insurance cover) in full settlement. The trial proceeded therefore between Plant
and JMH.

The roof collapsed because of defects in the temporary support to the roof which were required
because of the need to remove part of the concrete base of the steel
column J11 which supported the roof. The agreed joint statement of the expert witnesses stated that the
temporary works were negligently inadequate. The parties
were agreed that the defects could be characterised as one of design of the temporary works but the
dispute between the parties was largely as to the responsibility for
this design as between them and the impact on such questions of the dominant role in fact taken by Mr
Furley, Ford's senior civil engineer.

Held (by his Honour Judge John Hicks QC ((1998) 58 ConLR 1)) -- (1) The general rule in the
absence of agreement to the contrary was that the contractor was
responsible for the design of the temporary works. There was no relevant exception to this rule in the
present circumstances arising out of the complexity of the
support work.

(2) Although it had been established that both Plant and JMH in general did what Mr Furley wanted
and that Mr Furley did not bother about conventional lines of
communication and had a dominant personality, there was no prior agreement between Plant and JMH
that they would do whatever Mr Furley said nor did the evidence
prove sufficient to establish a relevant common understanding to this effect at the date of the contract.

(3) However, the evidence did establish that during performance the contract had by agreement been
varied so as to include a term that Mr Furley's instructions would
be complied with.

(4) The evidence established that JMH was directed by Mr Furley to put the roof trusses at the
positions and by the methods in fact adopted. JMH recognised the
inadequacy of the propping and warned Plant. In the circumstances, the collapse of the roof should be
regarded as 80% the fault of Plant and 20% the fault of JMH.

JMH appealed.

Findings (1), (2) and (3) above were accepted. JMH raised on appeal questions as to any duty which
they might have had to warn that the system which Mr Furley had
instructed was inadequate and as to any steps which they should have taken.

Held (by the Court of Appeal (20 December 1999)) -- (1) JMH were under an implied contractual duty
to warn Plant about the risks in the proposed manner of
temporary works.

(2) The judge was entitled to conclude that JMH were in breach of that duty despite the warning they
did give.

(3) In the circumstances the case should be remitted to the judge for further express findings of fact as
to what would have happened if JMH had protested more
vigorously.

[The learned judge received further oral and written submissions.]

CASES-REF-TO:

Cases referred to in judgment

Banque Financiere de la Cite SA v Westgate Insurance Co Ltd [1990] 2 All ER 947, [1991] 2 AC 249,
[1990] 3 WLR 364, HL; affg [1989] 2 All ER 952, [1990] 1 QB 665,
[1989] 3 WLR 25, CA; rvsg sub nom Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd
[1987] 2 All ER 923, [1990] 1 QB 665, [1987] 2 WLR 1300.
Barclays Bank plc v Fairclough Building Ltd (No 3) (1995) 44 ConLR 35, CA.
Brunswick Construction Ltd v Nowlan (1974) 21 BLR 27, Can SC.
Duncan v Blundell (1820) 3 Stark 6, 171 ER 749.
Equitable Debenture Assets Corp Ltd v William Moss Group Ltd (1984) 2 ConLR 1.
Hancock v BW Brazier (Anerley) Ltd [1966] 2 All ER 901, [1966] 1 WLR 1317, CA.
Heskell v Continental Express Ltd [1950] 1 All ER 1033.
Lindenberg v Canning (1992) 29 ConLR 71.
Lynch v Thorne [1956] 1 All ER 744, [1956] 1 WLR 303, CA.
Oxford University Press v John Stedman Design Group (1990) 34 ConLR 1.
Page v Smith [1995] 2 All ER 736, [1996] AC 155, [1995] 2 WLR 644, HL; rvsg [1994] 4 All ER 522,
CA.
Reischer v Borwick [1894] 2 QB 548, [1891-4] All ER Rep 531, CA.
Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1985] 2 All ER 947, [1986] AC 80, [1985] 3
WLR 317, PC.
University of Glasgow v Whitfield John Laing Construction Ltd (1988) 19 ConLR 110.
Victoria University of Manchester v Hugh Wilson & Lewis Womersley (a firm) (1984) 2 ConLR 43.
Yorkshire Dale Steamship Co Ltd v Minister of War Transport [1942] 2 All ER 6, [1942] AC 691, HL.

COUNSEL:
Timothy Stow QC and Freya Newbery for the appellant; Antony Edwards-Stuart QC and John Snell
for the respondent.

PANEL: HENRY, CHADWICK, MAY LJJ

JUDGMENTBY-1: MAY LJ

JUDGMENT-1:
MAY LJ (giving the first judgment at the invitation of Henry LJ): Introduction

This is an appeal by the second defendants, JMH Construction Services Ltd, against the order of his
Honour Judge John Hicks QC, then conducting Official Referee's
Business, on 13 May 1998. They did not then need permission to appeal questions of law. They were
given permission to appeal against an implied finding of fact by
Hirst LJ on 18 June 1998.

Facts

In 1993, Ford Motor Co Ltd (Ford) wanted to install two engine mount rigs in pits at their research and
engineering centre called Dunton at Laindon in Essex. Time was
short because the rigs were soon to be delivered from America and Ford's senior civil engineer, Mr
Furley, was unable to prepare a full in-house design. The contract
went ahead in something of a hurry.

The contract was let to the plaintiffs, Plant Construction plc (Plant). They sub-contracted the sub-
structure works to the second defendants, JMH Construction Services
Ltd (JMH). Plant also engaged Clive Adams Associates (Adams) as consulting structural engineer to
design and monitor the substructure works.

The judge described the relevant works and what happened as follows (58 ConLR 1 at 3-4):

'3. The sub-structure works included excavating the required pits, one of which was to the cast of and
very close to a steel column or stanchion, J11, supporting the
roof. The excavation was so close to J11 as to involve the removal of part of its concrete base, which
would otherwise have protruded into the excavated area. In order
to make good the lack of adequate support which that would have entailed the design provided for the
underpinning of J11. Pending completion of the underpinning
temporary support was required for J11 and the roof.

4. Work began on 26 November 1993. On or about 8 December 1993 JMH Installed temporary
support for the roof in the form of four standard Acrow props some 5
 metres long, installed vertically between the floor and the underside of the roof trusses. Excavation
proceeded and when work ceased for the New Year holiday on 31
December JMH were ready to start underpinning J11. On the night of 1 January 1994, however, there
was heavy rain and in the early hours of 2 January the whole of
the roof in that area collapsed. Fortunately no one was there to be killed or injured, but the damage
was very substantial, as were the cost of repair and the disruption
to Ford's operations.'

The proceedings which followed were summarised by the judge as follows (at 4):

'6. Ford claimed damages against Plant and that claim was settled by the payment by Plant to Ford of
£1,313,031.

7. Plant then commenced the present action against Adams and JMH, claiming damages quantified by
reference to the agreed payment to Ford plus its own pleaded
costs of £615,000 for repair work. JMH joined Ford as a third party. On 31 July 1997 his Honour
Judge Humphrey Lloyd QC struck out the third party notice as disclosing
no cause of action. On 9 January 1998 Plant, Adams and JMH all consented to an order disposing of
Adams' further involvement as a party and providing for the terms
and basis of the settlement to be disclosed at trial. They were, in summary, that Adams admitted
liability, that Adams paid to Plant in full and final settlement the sum of
£250,000, being the limit of Adams' liability insurance cover, that neither Adams nor JMH would
pursue any claim for contribution or an indemnity against the other and
that Adams' documentary and oral evidence would be available to Plant and JMH at trial.

8. The trial before me was therefore one between Plant and JMH alone.'

By the time of the trial, there was no outstanding issue as to quantum. It was agreed that Plant had
satisfied the settlement with Ford of £1,313,031 and that they had
themselves incurred remedial costs of £615,000.

The people concerned with the sub-contract works and the disputes arising from it included Mr
Michael Furley, Ford's senior engineer; Mr Adams, of Clive Adams
Associates; Mr Boraster, a director of Plant; Mr Smith, Plant's contracts engineer; Mr Reynolds, JMH's
managing director and Mr Cleave, JMH's site agent. Mr Furley did
not give oral evidence as he was unwell, but a 1994 statement was admitted under the Civil Evidence
Acts. The other people I have mentioned did give evidence. Of all
these people, including Mr Furley, the judge said that they had strong motives for self-exculpation for
a disastrous failure out of which none had emerged with credit.

The roof structure was described by the judge as follows (at 4):

'9. The roof structure, which supported both the roof covering and a number of ducts, pipes, cables and
items of equipment such as one might expect to find in a
building of this kind, consisted of a series of parallel primary steel trusses bearing on stanchions such
as J11 and themselves supporting lighter secondary steel trusses
crossing them at right angles. Each truss consisted of horizontal upper and lower members, or rails,
joined by diagonal members in a zig-zag pattern and vertical
members at each point where the diagonals met an upper or lower horizontal, the joints being welded.
The points at which two diagonals and a vertical met and were
welded to a horizontal were called "node points". The nearest node point to a stanchion on any truss
was always in the lower rail.'

The Judge considered two possible means of temporary support. One was to prop the underside of the
trusses bearing directly or indirectly on J11. The other was to
support J11 itself by two parallel horizontal beams passing one each side of it and clamped, bolted or
welded to it. The ends of these horizontal beams would rest on
stools which themselves would have needed adequate support. There were important differences
between the two methods, described by the judge as follows (at 5):
 '12. In other respects there were important differences between the two methods. If J11 were directly
supported there would be no significant difference in the level or
distribution of stresses in the roof trusses and no reason to suppose that the roof structure would be at
risk of failure. If the trusses were propped there would be two
changes, one obvious and one perhaps not so obvious -- it certainly did not occur to anyone at the time
and even the experts' reports prepared for trial show signs of
at least intermittent lack of attention to it. The obvious change was that since the trusses would be
supported at points other than that (J11) at which they normally were
the distribution of stresses would change, and the more remote from J11 the props the greater the
changes. The less obvious one was that the props had to be able to
support not only the weight normally borne by J11 (some 45 tons) but also that of J11 itself and its
base, which Mr Pinfold (the engineering expert called by JMH) put at
seven tons. Moreover (and this Mr Pinfold did point out in his report) it was not sufficient merely to
place props tightly against the underside of the trusses; if that were
all the trusses would settle on them when the weight transfer took place and then would be distorted
further as they took the weight of J11 and it settled lower still. J11
would then be underpinned in its (incorrect) settled position, with a number of undesirable
consequences. To counteract those effects props would have to be lacked up
until the whole weight of the roof and J11 was transferred to them and J11 suspended at its correct
level.'

Of the two methods only the first, ie propping the trusses, was acceptable to Ford, although it is not
clear to me why Ford would not accept the other method. Ideally
the props should have been at each of the four first nodes away from J11 but the details of the
excavation made this impossible on what was taken to be the eastern
side and difficult on the north and south sides as well. The details of the propping actually adopted
were disputed. The judge made these detailed findings on this topic
(at 5):

'Along the primary truss to the north was one prop, beyond the second node in the lower rail, the exact
position being put by JMH's evidence at the next vertical tie and
by Plant's a little inside that. To the south the prop was beyond the first node in the lower rail, again
according to JMH at the next vertical and according to Plant inside
that. To the west there were two props, the nearer at (JMH) or inside (Plant) the first node and the
other at (JMH) or inside (Plant) the next vertical. I find that the
positions were as advanced by Plant.'

The parties' experts agreed that the acrow props provided to support the roof were inadequate. They
also agreed that if stronger props have been used in the actual
locations or positions shown on a drawing by Clive Adams dated 2 December 1994 (which the judge
took to show props at the first vertical tie beyond the first node
under each of the three relevant trusses) then the roof would definitely have failed. There was some
difference of emphasis between the experts as to whether other
possible propping systems would have been adequate or inadequate. The judge found on the balance of
probabilities that a properly jacked system of adequate
strength supporting the three accessible trusses at the first node points was possible and would not
have failed. He acknowledged that this and other findings were
made with the benefit of hindsight and the assistance of two expert witnesses. It seems that this issue
took up a substantial amount of time and energy during the trial.

It was common ground that the provision of temporary support pending the underpinning was within
the scope of JMH's sub-contract and that it was properly regarded
as temporary works. Their contract, in so far as it was in writing, consisted of a simple quotation by
JMH accepted by an order of Plant dated 29 November 1993.
Neither party relied on any written term allocating or affecting responsibility for the matters in issue.

It was not in dispute that the support actually provided was inadequate and, so far as might be relevant,
negligently so. That of course supposes a relationship giving
rise to a relevant duty of care, contractual or otherwise. The inadequacy in the support system was
regarded as a deficiency of design.
 In his detailed and, if I may say so, impressive judgment, the judge addressed a number of issues
leading to his eventual conclusion. Since only the last of these is
contentious in this appeal, I can deal with the others briefly.

The Judge held that, in the absence of provision to the contrary, a contractor is by custom, practice or
law responsible to his employer for the design of temporary
works which are part of his contract. A sub-contractor is likewise so responsible to the contractor.
There was no exception to this covering the facts of the present case.
In this sub-contract, there was no express oral term that Mr Furley's instructions must be complied
with. Nor was there a common understanding that, in all contracts
and sub-contracts where Ford was the employer and Mr Furley was Ford's engineer, there was an
overriding term that Mr Furley's instructions must be complied with.
There was, however, a contractually binding variation of the terms of this sub-contract after its
inception that Mr Furley's instructions must be complied with. The judge
further held that on 8 December 1993 Mr Furley gave instructions to JMH for the support of the roof
trusses by Acrow props at the positions at which the props were in
fact installed. He accordingly found that JMH were directed by Mr Furley, in the exercise of the
contractual authority which the judge had held to exist by the
contractually binding variation of the sub-contract, to prop the roof trusses at the positions and by the
methods in fact adopted. On these findings, therefore, JMH were
not contractually responsible to Plant for the design of the temporary works which failed.

None of this is questioned on this appeal. The issue concerns any duty which JMH may have had to
warn that the system which Mr Furley had instructed was inadequate
and any steps which they should have taken, notwithstanding Mr Furley's instructions to proceed with
an inadequate system.

The Judge found that the inadequacy of the system instructed by Mr Furley was discussed as follows
(at 19-20):

'66. There was a good deal of conflicting evidence about the dates on which either Mr Adams raised
with Mr Cleave, or Mr Cleave with Mr Adams, or one or both of
them with Mr Smith, the inadequacy of the roof props and the feasibility of some alternative, and the
terms in which they did so. I am reluctant to give disproportionate
attention to a subject where the details seem to me to be unimportant and the broad picture clear,
namely that the propping directed by Mr Furley and installed should
have been recognised as inadequate by any competent engineer or contractor and was so recognised by
both Mr Adams and Mr Cleave, who discussed the problem
with each other and with Mr Smith on more than one occasion, that the only solution suggested was
advanced by JMH, namely the horizontal beams described in para
11 above, that that was vetoed by Mr Adams as unacceptable to Mr Furley, and that none of the parties
(Plant, Adams or JMH) was prepared to incur Mr Furley's wrath
by taking matters further.

67. I shall, however, record in summary form my findings on some of the disputed details, without any
extended review of the evidence. On the basis of Mr Smith's
evidence recorded in para 49 above, which I accept, I find that Mr Adams knew that Mr Furley had
given JMH the propping details and did not initially demur. I find that
on one occasion, probably 20 December 1993, Mr Adams gave to Mr Smith the fact that the roof had a
design capacity to accept three feet of snow and that it had not
snowed as a reason for not being worried, and that Mr Smith accepted that as an assurance that "at the
end of the day everything was alright". I do not accept Mr
Adams' evidence that he assumed that the support would be improved by using stronger props -- which
would in any event not have prevented the collapse in the light
of the experts' agreement on 5.2(ii) in para 15 above. On the contrary I accept Mr Smith's evidence that
when rejecting JMH's solution of horizontal beams the general
tenor of what Mr Adams was saying was that the existing arrangement for propping the roof was
adequate. I find that one of the reasons given by Mr Cleave for
 accepting the position was that Mr Furley had said (as I find he had) that the props need not be strong
enough to take the full weight of the roof, since half would still be
taken by J11. I find that Mr Reynolds' attitude was that he had won one battle with Mr Furley, as to the
ring main, and could not expect to win another, nor does he
seem to have appreciated the safety risk in this instance, or at least seen it as being serious, as he had
done in the case of the ring main.'

The judge's reference to the ring main was to an earlier occasion during this sub-contract which the
judge referred to as an example of what happened in practice. He
said (at 16):

'54. The second example is more complex, but in some ways even closer, in that it concerned
temporary support by propping. In addition to the roof, support was
needed for what was described as the "ring main", which was a high-level pipe of which the route
passed near the excavations and which contained oil at very high
pressure. Mr Furley, as is not in dispute, instructed that it be supported by Acrow props, and that was
done. There seems to have been no apprehension that the ring
main would actually collapse but Mr Smith and Mr Reynolds at least, and Mr Reynolds acutely so,
feared that even slight movement or vibration might result in a
fracture which, however small, could result in the escape of a high-pressure jet of oil with potentially
fatal consequences to a workman in its path. On a day when,
exceptionally, Mr Furley was away there were discussions, in which Mr Adams and Mr Cleave also
were involved and concurred in the view that the propping was
inadequate. Mr Reynolds made it clear that he was not prepared to continue work unless something
was done. Mr Smith decided that stronger steel posts were needed
and specified what they should be. The consent of Mr Woods, Ford's senior plant engineer, was
obtained. It was agreed that JMH would provide foundations for such
posts, which would be obtained, supplied and installed by Plant, and that was done. When Mr Furley
returned he was displeased. He did not actually countermand the
decision but he did require the new installation to be modified in detail.'

The judge's decision which is challenged by JMH in this appeal is in paras 68 and 69 of his judgment
as follows (at 20-21):

'68. There was little discussion of the law governing the pleaded claim in tort referred to in the last
sentence of para 21 above. Mr Stow was, I think, disposed to accept
that on the authority of such cases as Lindenberg v Canning (1992) 29 ConLR 71 and Barclays Bank
plc v Fairclough Building Ltd (No 3) (1995) 44 ConLR 35 there was
a duty on JMH to use due care and skill to appreciate the inadequacy of the propping and to advise and
warn Plant in that respect, and I hold that there was. That being
so the defence of contributory negligence is clearly open and I need not address the disputed question
whether it would have run had JMH been in breach of a
contractual design responsibility.

69. As to breach, I have set out the relevant facts in paras 66 and 67 above. JMH did recognise the
inadequacy of the propping and did warn Plant. The question is
whether what it said and did was enough to discharge its responsibility. In my Judgment it was not. Mr
Cleave should never have allowed himself to be even half
persuaded by, nor advanced to Plant as worthy of any credence, the manifestly irresponsible
suggestion by Mr Furley that reliance should be placed on continued partial
support of the roof by J11 itself. Mr Reynolds should have recognised and given due weight to the
safety risk; the duty of JMH in that respect was no doubt primarily to
the workmen and other individuals at risk, but they were not all its own employees or sub-sub-
contractors and that duty was therefore owed to Plant also, which was
potentially in the firing line too and was indeed prosecuted.'

The judge then considered contributory negligence. He held that Plant and Mr Adams, who was Plant's
agent for this purpose, were plainly at fault and that for this
reason damages recoverable by Plant from JMH should be reduced by 80%, leaving a net recovery of
20%. There is no challenge to this apportionment if JMH are liable
 at all. In the result there was judgment for £385,606.20 with interest of £71,399.94. The judge refused
permission to appeal on the implied finding of fact that, had JMH
done more to warn Plant as to the inadequacy of the propping, this would have made a material
difference to what in fact occurred. But, as I have said, Hirst LJ gave
this limited permission.

Notice of appeal and respondents' notice

By their notice of appeal, JMH do not admit that they had a duty to warn, but contend that, if they did,
they discharged it and that the judge was wrong to find
otherwise. They say that the judge was wrong to criticise Mr Cleave, who was not an engineer. As to
the judge's criticisms of Mr Reynolds, JMH say that he confused
their duty to their own workmen to safeguard them from injury with a duty to Plant to prevent them
from suffering economic loss. In so far as the judge relied on the
first of these duties in support of the second, he was wrong to do so. JMH say that the judge should not
have reached the conclusion he did without finding what further
steps they should have taken. Any implied conclusion that they should have warned more vociferously
or threatened to stop work would have been unjustified. JMH had
proposed what they say was the only practicable solution, but this had been vetoed. They had received
reassurance from Mr Furley who had said that half the weight of
the roof would be taken by stanchion J11; and from Mr Adams who gave the impression that the
existing arrangement was adequate. JMH say that the problem with the
ring main was not comparable. Their concerns about the ring main were supported by Plant and Mr
Adams and the action taken was approved by Ford. JMH say that to
impose a duty to threaten to stop work to save Plant from economic loss would be unduly onerous. As
to the implied finding of fact as to causation, JMH contend that
they did not have the support of Mr Adams or Plant; that there was no evidence to suggest that more
vociferous warnings would have influenced Plant; and that Mr
Furley would have insisted on the work continuing with the props which he had himself instructed.
They point out that the modification to the ring main support was
achieved when Mr Furley happened to be away.

By respondents' notice, Plant say that it was not argued on behalf of JMH at trial that they had no duty
to advise and warn about the inadequacy of the propping and
that they should not be allowed to do so on this appeal. Plant say that the judge's conclusion that JMH
had not done enough to discharge their duty to warn was a
conclusion of fact which depended on his impression of the witnesses and which this court should not
interfere with. They say that the judge was entitled to have regard
to Plant's duty to their own workmen in considering whether they had discharged their duty to Plant.
The judge was entitled to consider what had happened with the ring
main. He should have expressly found that JMH should have made a formal protest and should not
have ceased objecting until a safe propping system was devised and
instructed. Plant say that the judge was wrong when he said that JMH had proposed the only
practicable safe solution for propping the roof, since he himself had
referred to another satisfactory possibility in paras 13 and 16 of his judgment, that is a properly jacked
system of adequate strength supporting the three accessible
trusses at the first node points. Plant say that the judge was correct to find by implication that, if JMH
had given sufficient further warning, the roof collapse would have
been prevented. The danger was as great as with the ring main. When the danger with the ring main
was made apparent, a safe solution acceptable to Ford was found.
There was a practicable solution which did not contravene Ford's instructions that nothing was to be
attached to stanchion J11. Once the danger of the instructed
propping was appreciated, Plant would probably have instructed Mr Adams to carry out the necessary
calculations and design a suitable and safe propping system. The
judge, they say, should have so found.

Parties' submissions

Mr Stow QC on behalf of JMH submits, first, that JMH were in law under no duty to warn of a design
defect for which another party was responsible. (Mr Edwards-Stuart
 QC on behalf of Plant did not maintain the submission advanced in the respondents' notice that this
submission was not open to JMH because of concessions made
before the judge.) JMH did not challenge the terms or effect of an agreement between the experts in
the present case that --

'a competent sub-contractor should have recognised the importance of adequate temporary propping of
the roof and raised it with the main contractor (or his
consultant) and Ford. They would not have proceeded without assurance that the scheme was
adequate.'

Mr Stow submitted that the underlying basis of legal authority in favour of imposing on a contractor a
contractual or tortious duty to warn was weak. He accepted that
there might be cases where such a duty would arise on the facts, but not in this case. Such a duty could
only arise from an implied contractual term. There could be no
separate duty in tort which was not co-terminous with any contractual duty (see Barclays Bank plc v
Fairclough Building Ltd (No 3) (1995) 44 ConLR 35). No term should
be implied in this case where JMH were not contractually responsible for the design of the propping;
the details of the required propping system had been given to them
by the employer's senior civil engineer; Plant themselves had a consulting civil engineer with
responsibility for the relevant works; and JMH had received an assurance
from Plant's consulting civil engineer that the instructed propping system was adequate. JMH may
have had obligations to their own workmen or to other individuals if
they had been injured. But no one was injured and there is no proper basis for imposing on JMH a duty
to protect Plant from economic loss.

Second, Mr Stow submitted that, if his first submission was wrong and there was in law a duty, JMH
discharged the duty and the judge was wrong to find otherwise. JMH
appreciated that the propping system was inadequate and gave a warning to that effect. Mr Cleave
discussed the matter with Mr Smith and Mr Adams and suggested an
alternative system. Mr Adams in effect assured them that the propping would be all right and told them
that Ford would not permit an alternative system which
interfered with the existing structure. What more could JMH have done? Mr Stow submitted that the
judge did not answer that question and that it was unfair to find that
JMH were in breach of duty for failing to do something which was unidentified. There was no proper
comparison with the ring main incident. That was a mechanical
engineering matter and was resolved when Mr Furley was away. In this instance, he was not away. Mr
Stow suggests that the only proper finding of fact would have
been that he would have insisted on his system being implemented. It would be wholly unrealistic to
say that a contractor owes a duty to an employer, who has ignored
his warning, to refuse to proceed to execute the instructed work.

Mr Stow submits, third, that, even if JMH were in breach of duty, Plant have not established that any
such breach caused the loss which they claim. The judge made no
express findings of fact as to what would have happened if JMH had protested more vigorously or
taken other steps to fulfil their duty. It was for Plant to establish
causation and they had not done so. There was no evidential basis for concluding that anything which
JMH might have done would have persuaded Mr Furley to change
his mind and allow a safe system. The incident with the ring main was not comparable. Mr Furley had,
as the judge found, a dominating and domineering personality
and it is probable that, if he had been asked to approve a different system, he would have refused. The
loss would therefore have occurred whatever JMH did.

Mr Edwards-Stuart QC submits on behalf of Plant that, as with all contractors, JMH had a duty to
carry out their work with reasonable skill and care. This was a
co-extensive duty in contract and in tort. But there is no need in the present case to look beyond the
contractual duty, which incidentally disposes of any difficulties that
might arise about a claim for pure economic loss. This was the duty which Plant pleaded and which,
Mr Edwards-Stuart submits, was admitted in JMH's amended
defence. The factual extremities of the duty may depend on the facts of each case. But the duty will
normally extend, as it does in this case, to a duty to warn of design
 defects of which the contractor is or ought to be aware. Mr Edwards-Stuart submits that this is the
effect of the decision of his Honour Judge Newey QC in Lindenberg v
Canning (1992) 29 ConLR 71, which was correctly decided.

As to discharge of the duty, Mr Edwards-Stuart submits that this was a pure question of fact upon
which JMH do not have permission to appeal. The judge found, as he
was entitled to find on the evidence, that Mr Cleave should never have allowed himself to be even half
persuaded by the 'manifestly irresponsible suggestion' by Mr
Furley that reliance should be placed on continued partial support of the roof by J11 itself. Mr
Reynolds should have recognised and given due weight to the safety risk.

As to causation, Mr Edwards-Stuart accepts that the judge did not deal with this in terms, as you would
have expected. But it was a question whose significance was
much smaller at the trial than it has been upon this appeal. There were large areas of dispute before the
judge which have not featured in this appeal at all. The appeal
concentrates on one paragraph in a judgment consisting of 71 paragraphs. Mr Edwards-Stuart submits
that the judge was entitled to infer that, if JMH had fulfilled their
duty, some safe solution would have emerged and that this finding is implicit in his judgment. The
instructed propping system was manifestly irresponsible. The ring
main incident was comparable. Once it was brought properly to the attention of Plant and Mr Furley
that the proposed system was inadequate, Mr Adams would have
been instructed to carry out proper calculations and a safe system would have emerged and been
instructed.

Discussion

There appears to be no authority in this court which considers whether and in what circumstances a
contractor or a sub-contractor has a duty to give a warning, if he
appreciates (or ought to appreciate) that work which he is contractually obliged to perform is
inadequate. The present appeal concerns a sub-contractor carrying out
temporary works which they had not relevantly designed. They were instructed by the employer to
carry these works out in the way in which, and to the design by
which, they were carried out. The employer's instruction is to be taken as an instruction from the
contractor so that, apart from danger and any contractual
consequences of the danger, the sub-contractor was contractually obliged to carry them out in this way.
The sub-contractor appreciated that the works were inadequate
and discussed the matter with the contractor's contracts engineer and consulting engineer. The sub-
contractor suggested a solution but this was vetoed by the
contractor's consulting engineer as being unacceptable to the employer. The consulting engineer gave
the impression that the works which had been instructed were
adequate. The employer had expressed a view about one aspect of the design of the work (that is that
half the weight of the roof would still be taken on J11) which was
manifestly irresponsible and should have been so appreciated by the sub-contractor.

In Lindenberg v Canning, a defendant builder was engaged orally to carry out preliminary demolition
works in a block of flats. He was given a plan prepared by the
plaintiff developer's surveyor which erroneously showed 9 inch internal walls including a chimney
breast as non-load bearing. The builder started to demolish these
walls without propping the ceiling but the work was stopped and litigation eventually ensued. The
developer contended that the builder was in breach of an implied
contractual term in the agreement that he would do the work with skill and care and in a good and
workmanlike manner, and that it was negligent to demolish obviously
load bearing walls without propping. His Honour Judge Newey QC held that it was an implied term of
the contract between the builder and the developer that in carrying
out his work the builder should exercise the care to be expected of an ordinary competent builder. The
fact that so obviously an important structural feature as the
chimney breast wall was indicated as non load-bearing should by itself have caused the builder to have
grave doubts about the plan. The builder should have realised
that the 9 inch walls were load bearing. He should have proceeded with the very greatest caution. At
the very least he should have raised doubts with the developer's
 surveyor. Even if the surveyor had given assurances, the builder would have been prudent to have put
up temporary propping, but in the absence of such assurance he
should undoubtedly have done so. The judge accordingly held that the builder behaved with much less
care than was to be expected of the ordinary competent builder
and was in breach of contract. The judge then held that the surveyor was 75% responsible and the
builder 25%.

In his judgment in Lindenberg v Canning, Judge Newey referred to a number of earlier cases, two of
which he had himself decided. In Equitable Debenture Assets Corp
Ltd v William Moss Group Ltd (1984) 2 ConLR 1, he held that a contractor engaged to construct a
new office block had a duty to warn the employer's architect of design
defects of which the contractor knew. The relevant defects were in curtain walling to the building
which was designed, supplied and fixed by a sub-contractor. The judge
referred to two earlier cases, one English and one Canadian. The English case was Duncan v Blundell
(1820) 3 Stark 6, 171 ER 749. The report of this case is very
short. It does not seem to me to be capable of having much influence on the law nearly 180 years later.
The Canadian case was Brunswick Construction Ltd v Nowlan
(1974) 21 BLR 27 where an owner employed an experienced contractor to build a house in accordance
with plans prepared by an engineer, but without supervision. The
contractor built the house in accordance with the plans, but dry rot developed in the roof because of
lack of ventilation. A majority of the Supreme Court of Canada
held that a contractor of this experience should have recognised defects in the plans which were so
obvious to the architect subsequently employed by the owner. The
owner, having no supervising architect, must be taken to have relied on the skill and attention of the
contractor. The contractor was under a duty to warn the owner of
the danger inherent in executing the works in accordance with the plans. In a dissenting judgment,
Dickson J held that there was no implied warranty of fitness for
purpose in a contract where the contractor had undertaken to build the house in accordance with the
employer's plans. In the Equitable Debenture Assets Corp Ltd
case, Judge Newey said (2 ConLR 1 at 31):

'I think that if on examining the drawings or as the result of experience on site Moss formed the
opinion that in some respects the design would not work, or would not
work satisfactorily, it would have been absurd for them to have carried on implementing it just the
same. In my view if the directors of EDAC and of Moss had been
asked at the time when the contract was made what Moss should do in those circumstances, they
would have agreed at once that Moss should communicate their
opinion to Morgan [the architect]. I think, therefore, that in order to give efficacy to the contract the
term requiring Moss to warn of design defects as soon as they
came to believe that they existed was to be implied in the contract.'

In Victoria University of Manchester v Hugh Wilson & Lewis Womersley (a firm) (1984) 2 ConLR 43,
Judge Newey applied his own decision in the Equitable Debenture
Assets Corp Ltd case in holding that there was an implied term in a main contract requiring the
contractors to warn the employer's architects of defects in design which
they believed to exist. The defects were in tiled cladding to the buildings which had been installed by
nominated sub-contractors.

Two other official referees have been less than enthusiastic about adopting Judge Newey's approach.
In University of Glasgow v Whitfield John Laing Construction Ltd
(1988) 19 ConLR 110, there were severe procedural complications. It was a case decided in 1988 and
it is necessary to be alert to the relevant state of the law of
negligence as it was then developing. In 1972, Glasgow University employed contractors to construct
an art gallery. From about 1978 there were problems with water
leaks and condensation. The University brought proceedings against the architect claiming damages
for negligence and breach of contract in the design of the gallery.
The architect in third party proceedings claimed contribution or damages from the contractor either for
their negligence in the construction of the gallery or their failure
to warn the University or the architect of defects in the design of which the contractors knew or ought
to have known. So far as is relevant for present consideration, his
 Honour Judge Bowsher QC had to decide whether the contractors owed the University a duty of care
to warn the University of defects in design. He held that they did
not. The decision is limited to the question of tortious duty. The architect was unable to claim
contribution from the contractor based upon any alleged breach by the
contractor of their contract with the University because any such claim was barred by limitation. The
judge accepted that there might be concurrent liability both in
contract and in tort. But he accepted a submission that duty in tort was limited to a duty of care to
avoid acts or omissions which are liable to cause damage to persons
or to some property other than the defective building being created. No such danger was alleged and
therefore the architect was not able to rely on any liability in tort
owed by the contractor to the University, whether concerning alleged bad workmanship or an alleged
duty to warn the plaintiff of bad design. If that broad conclusion
were wrong, the judge said that it followed from Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank
Ltd [1985] 2 All ER 947, [1986] AC 80 that where there is a detailed
contract, as there was in the case before him, there is no room for the implication of a duty to warn
about possible defects in design. He also referred to Lynch v Thorne
[1956] 1 All ER 744, [1956] 1 WLR 303 as being consistent with his decision. In that case where there
was an express contract as to the way in which a house was to be
constructed and the builder had complied with the express terms, it was held that there was no room
for any term that the walls would be waterproof. Accordingly,
Judge Bowsher took the position in the circumstances of the particular case before him to be that there
was no room for the implication into the contract of an implied
duty to warn the University of defects in the architect's design. He held that there could be no wider
duty in tort, which was the issue before him. He then considered the
unpromising case that the contractor owed a duty in tort to the architect personally and held that they
did not. He referred to Judge Newey's decisions in the Equitable
Debenture Assets Corp Ltd and Victoria University of Manchester cases. He pointed out that both
cases were concerned with a duty of a contractor to warn the
employer, not a duty to warn the architect. He said that it was plain from the citation from the
Brunswick Construction Ltd case that Judge Newey had in mind the
situation where the contractor knew that the owner placed reliance on him in the matter of design. He
considered that Judge Newey's decisions could stand with more
recent decisions if they were read as cases where there was a special relationship between the parties,
but not otherwise. He considered the relationships in the case
before him in the context of the claim by the architect personally against the contractor. He considered
on the facts that, if the contractor had owed the architect a duty
of care, the architect would have been guilty of contributory negligence to the extent of 100%. He then
said (19 ConLR 110 at 141):

'It is unnecessary for the purposes of this judgment to go further, but I wish to make it plain that I am
not suggesting that there are no circumstances in which a term
may be implied or a duty owed in tort requiring a contractor to warn a building owner of defects in the
design.'

He referred to the possibility of a special relationship or of circumstances where the builder by his
contract undertakes to achieve a particular purpose or function.

Lynch v Thorne is, in my view, a problematic case on its facts. It needs to be read in the light of
subsequent legislation and cases including (but by no means limited to)
Hancock v BW Brazier (Anerley) Ltd [1966] 2 All ER 901, [1966] 1 WLR 1317. The decision of the
Court of Appeal in Lynch v Thorne was that, where the express terms
of a contract to build a house precisely prescribed the way in which the work was to be done, there
was no implied term that the house, when it was completed, would
be fit for habitation. Nowadays, no one would think of building a new house with a 9 inch solid
external brick wall exposed to the elements, and it would almost certainly
be unlawful to do so. The decision, however, remains an example of the principle that terms are less
readily implied in a contract containing detailed express terms and
that you cannot normally imply a term which is inconsistent with an express term.
 In Oxford University Press v John Stedman Design Group (1990) 34 ConLR 1, his Honour Judge Esyr
Lewis QC was again faced with procedural complications. There
was a contract to construct a warehouse designed and built for the storage and distribution of books.
There were defects in a topping on the floors laid by a
sub-contractor. Another sub-contractor had designed the sub-structure and provided the steel
reinforcement for the floors. There was a series of interrelated claims,
some of which were settled. The action proceeded on the basis that the architects claimed contribution
from the main contractor towards sums which the architect had
agreed to pay the employer. In those proceedings, it was a question whether the main contractor was
under a duty to warn the employer that the floor design was
defective. The judge referred to Judge Newey's decision in the Equitable Debenture Assets Corp Ltd
case and to his citation from Duncan v Blundell. The judge then said
(at 69):

'In the present case, OUP had a design prepared by architects. They were not relying on the judgment
of NH as to the quality of the design. I cannot see any basis for
the implication of a duty in tort owed by NH to warn [of] design defects unless it was a defect which
might give rise to danger to the safety of persons or damage to
some property other than that which was the subject matter of the design defect. Equally, there was a
detailed building contract between OUP and NH. Again, I cannot
see any room in that contract for the implication of a term that NH would warn OUP of design defects
of which they became aware. I should add that, in matters of
design, whether a design is sound or otherwise is very much a matter of skilled judgment and there is
room for differences of opinion about the suitability of a design or
a particular aspect of it. In my view, it would be undesirable, as it would give rise to practical
difficulties, if builders were obliged to raise with their employer matters of
design for which they had no express contractual responsibility where the employer has commissioned
the design from an expert. I have dealt briefly with this matter,
as I respectfully adopt the reasoning of Judge Bowsher in [the University of Glasgow case]. I reject
therefore the allegation that NH was in breach of a duty to warn
OUP of design deficiencies.'

Judge Newey's decision in Lindenberg v Canning is the latest in time of those which I have considered.
It is the case whose facts are closest to those in the present
appeal. It is a case where the works as executed were dangerous. There is no mention in Judge
Newey's judgment of the University of Glasgow or Oxford University
Press cases. But it looks as if those cases did not concern defects which were dangerous.

The judgments of these three official referees and of the judge in the present case are to be given great
weight as expressing the opinions of those having great
experience in the law and practice of construction contracts. That they do not express an entirely
unanimous opinion throughout only underlines the difficulty of the
subject matter.

Any analysis of implied terms in a building contract must start with and take proper account of its
express terms. Subject to the express terms, there will normally be
an implied term that the contractor will perform his contract with the skill and care of an ordinarily
competent contractor in the circumstances of the actual contractor.
In my judgment, the factual extent of the performance which this term requires will depend on all
relevant circumstances, which may vary enormously. I shall not
attempt to make a comprehensive list of possible circumstances. But they may in particular cases
include the size, nature and details of the works; the experience and
perceived expertise of the contractor; relevant elements of the relationship between the contractor and
the employer and of their respective relationships with others,
for example, architects, engineers, surveyors, contracts managers, clerks of works, sub-contractors,
local authority building inspectors and so forth; and crucially
details of the particular parts of the works and other facts which give rise to the question whether the
contractor fulfilled the obligation which the implied term imports.
 The present appeal concerns (a) temporary works which were (b) designed and specifically instructed
by the employer, so that (c) they became part of JMH's
sub-contract works, which (d) were obviously dangerous, and which (e) JMH knew to be dangerous.
JMH were sub-contractors to Plant under a sub-contract whose
terms were, so far as is relevant, unsophisticated. Plant had the services of a consulting civil engineer.
Plant and JMH are each to be taken as experienced in their
respective roles. In my judgment, of the elements which I have referred to, all are relevant but (d) and
(e) are crucial. These temporary works were, to the knowledge
of JMH, obviously dangerous to the extent that a risk of serious personal injury or death was apparent.
JMH were not mere bystanders and, in my judgment, there is an
overwhelming case on the particular facts that their obligation to perform their contract with the skill
and care of an ordinarily competent contractor carried with it an
obligation to warn of the danger which they perceived. The fact that no one was injured is irrelevant.
The question is, not whether JMH owed a duty of care to some one
who was injured, but what was the scope of the implied contractual term in their subcontract with
Plant. Nor is it relevant whether the loss which Plant claim should be
categorised as economic loss, since economic loss is a problem which arises in the analysis of duties of
care in tort. The facts that the design and details of the
temporary works had been imposed by Ford and that Plant had Mr Adams as their consulting engineer
do not, in my view, negative or reduce the extent of performance
which the implied term required in this case. The fact that other people were responsible and at fault
does not mean, in my judgment, that on the facts of this case JMH
were not contractually obliged to warn of a danger. Nor in this case is the extent of performance
negated by the fact that JMH were expressly obliged by contract to do
what Mr Furley instructed. JMH, with others, had a duty to guard against the risk of personal injury to
a potentially large number of people. That duty extended to giving
proper warnings about the risk. It was not itself a contractual duty owed to Plant, but it is a relevant
circumstance in determining the extent of performance which JMH's
implied duty of skill and care required. In my judgment, the judge in this case came to the correct
conclusion about JMH's implied contractual duty and I would reject Mr
Stow's first submission.

This analysis and conclusion accords, with one gloss, with Judge Newey's decision in Lindenberg v
Canning. It also, I think, accords with Judge Lewis' analysis in the
Oxford University Press case, since he was obviously inclined to imply a duty in tort on the contractor
to warn of design defects which might give rise to danger to
personal safety. He would also, no doubt, have been similarly inclined to imply a duty in contract. I
have also noted that Judge Bowsher in the University of Glasgow
case did not suggest that there were no circumstances in which a term might be implied requiring a
contractor to warn a building owner of defects in the design. The
gloss relating to Lindenberg v Canning is that in the present case JMH knew that the design of the
temporary works was defective. This knowledge is not, in my view, to
be taken as having been displaced by what Mr Adams said about snow loading nor Mr Furley's
manifestly irresponsible suggestion about the continued support from J11.
In Lindenberg v Canning, the builder did not apparently know that the 9 inch wall was load bearing;
but he ought to have known. I would expressly reserve for future
consideration circumstances where (a) the contractor did not know, but arguably ought to have known,
that the design was dangerous, and (b) where there was a
design defect, of which the contractor knew or ought to have known, which was not dangerous.
Neither of these circumstances arises in the present appeal.

As to Mr Stow's second submission, the judge was in my view entitled on the evidence to conclude
that JMH were in breach of the obligation which I have identified
notwithstanding the warning which they did give. The finding in para 69 of the judge's judgment,
which I have set out in full, was in my view a justified finding of fact
which there is no basis for this court to disturb. It seems to me that there are a number of possible
answers to Mr Stow's question, What more could JMH have done?
Generally speaking, the answer is that they could have protested more vigorously. It is not, I think,
appropriate to be more specific in the light of my view about Mr
Stow's third submission.
 As to this third submission, Mr Edwards-Stuart accepts that the judge made no express finding about
what would have happened if JMH had protested more vigorously.
The question of causation was an issue on the pleadings. We are told that it was a live issue during the
trial, although my strong impression is that it was well down the
list of issues which featured as important. I do not think that the judge can in the circumstances
properly be criticised for a judgment which takes as implicitly obvious a
conclusion that, if JMH had protested more vigorously and sufficiently, steps would have been taken
so that the roof collapse would have been avoided. There is,
however, a properly arguable case to the contrary. In my view, this court is in no position to fill the
factual gap in the judge's judgment. He had heard extensive
evidence, most of it given orally, and we have not. Although we can read the transcripts, I consider
that this question is one that can only properly be determined by a
judge who has heard the evidence. It is a small omission from a judgment about which no other proper
criticism can be advanced. It seems to me that, in the unusual
circumstances of this case, the parties are entitled to have further findings of fact explicitly made. The
judge's implicit conclusion in his present judgment is perhaps
obvious. But, without further findings of fact, I would not assume that any particular conclusion is
obvious.

I would therefore allow this appeal to the limited extent only of remitting for further findings of fact
the question what would have happened if JMH had protested more
vigorously so as to fulfil their contractual obligation. I would hear further submissions about the
details of this, but my provisional inclination is that the matter should be
remitted to Judge Hicks himself. This appeal has raised no matter critical of him such as would suggest
that it ought to go to a different judge. It would save the parties
a great deal of money if the matter is dealt with by the same judge. I would leave it to the judge's
discretion to direct how the additional hearing should be managed
and conducted. He will no doubt wish to hear further submissions from the parties in the light of the
decision of this court. The additional findings of fact should,
however, in my view be made without additional evidence, except perhaps in the judge's discretion
any limited additional evidence which would be admissible upon the
hearing of an appeal to the Court of Appeal. The additional finding should determine the causation
issue explicitly. I would set aside the present implicit conclusion and
would not assume that the judge will upon reconsideration necessarily reach the same conclusion.

To this extent, I would allow this appeal.

JUDGMENTBY-2: CHADWICK LJ

JUDGMENT-2:
CHADWICK LJ: I agree.

JUDGMENTBY-3: HENRY LJ

JUDGMENT-3:
HENRY LJ: I agree.

DISPOSITION:
Appeal allowed to limited extent indicated in the judgment; single point to be remitted back to Judge
Hicks.

SOLICITORS:
Kennedys; Vizards Staples & Bannisters.

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