Posted By russell calderwood For information and discussion : - 1 -- Case summary of Plant Construction Plc v Clive Adam Associates (Court of Appeal, 20 December 1999). A sub-contractor was carrying out works, which it had not designed. It was instructed by the Employer to carry them out in a certain way. It was obvious to the subcontractor that this was dangerous, and it protested, although not very vocally. It was instructed to proceed and a collapse resulted. The subcontractor was sued for breach of contract. In giving judgement May LJ states that there appears to be no existing authority in the Court of Appeal 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 Court then turned to the express and implied duties of contractors and sub-contractors. There was normally at least an implied term that the contractor would perform his contract with the skill and care of an ordinarily competent contractor in the circumstances of that actual contractor. What this involved would depend on the different circumstances. Here the relevant works were to the knowledge of the sub-contractor obviously dangerous to the extent that a serious risk of personal injury or death existed. There was an overwhelming case on the 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. He then turned to what steps the sub-contractor should have taken. May LJ states "what more could [the sub-contractor] have done? Generally speaking, the answer is that they could have protested more vigorously. …….If [they] had protested more vigorously and sufficiently, steps would have been taken so that the roof collapse would have been avoided". There has already been debate over whether JCT 98 (standard form, not design and build) places an implied design liability on the contractor, or whether his duty is limited to carrying out the work in accordance with the contract. Some commentators have felt that the contractor faced with sketchy design should take the precaution of seeking as much detail as possible in the form of requests for an architect’s instruction, even at the risk of irritating architect and employer. Any choice the Contractor makes as (even to as much as the length of a nail) may render it liable for defective design. Presumably the contractor is similarly obliged to query methods of working, or choice of materials required by the client or his architect whom they believe may be dangerous. The Court of Appeal reserved its position as to what would happen if the subcontractor did not in fact know that the design was dangerous but should have known. However, it would seem from the Plant Construction case that the onus is increasingly on contractors and subcontractors to actively consider instructions, and raise queries where they may have any doubts, however unpopular this may make them. As to what the extent of JMH’s protests should have been, "they could and should have been progressively more formal and insistent if not met" e.g. by being put in writing or going to higher levels of management in main contractor and client possibly accompanied by the threat of report to regulatory authorities. The crucial question was whether JMH should, as a last resort have downed tools. HHJ Hicks concluded that they should. The conclusion of the case must therefore be that in cases of obvious danger a contractor must stand its ground and seek an alternative design solution rather than execute works, albeit under protest. However it is worth noting that the sub-contractor’s lowly position in the contractual chain received some recognition in that he was assessed as being only 20% liable as against the main contractor 2 -- Aurum Investments Limited -v- Avonforce Limited and others, TCC 6 December 2000 How far does a contractor have to go to warn its client against a defective and dangerous design, when the contractor is not itself responsible for that design? The recent case of Aurum Investments -v- Avonforce and others, gave further guidance in this area and the Court of Appeal's decision last year in the case of Plant Construction -v- JMH Construction. In that case, JMH had been sub-contracted to carry out the substructure works for engine inspection pits at the Ford Motor Company factory. The excavation for these pits required underpinning to a column supporting the roof. This column was propped, on the instruction of the client, by simple acroprops whilst the foundations to the column were exposed prior to underpinning. The roof collapsed, causing substantial damage. The Court of Appeal held that GMH had not done enough to discharge its duty of care. It had discussed the matter with the main contractor's engineer, and had suggested an alternative solution, which had been found unacceptable by the client. This was not, however, sufficient. The Court of Appeal was satisfied that JMH were aware that the propping was obviously dangerous, and that there was a risk of personal injury. JMH was not a mere bystander, and there was an overwhelming case that its obligation to carry out its works with skill and care of an ordinarily competent contractor, carried with it an obligation to warn of the dangers which it perceived. As a sub-contractor JMH should have protested more vigorously and pressed its objections on the grounds of safety. These objections should have been more progressively formal and insistent to higher levels of management in the client's organisation. As a last resort, JMH could and should have refused to continue to work until the safety of its workmen was addressed. Similar problems were encountered in the later case of Aurum Investments. The sub sub-contractor, Advanced Underpinning, was engaged to underpin a party wall to allow the construction of an adjacent basement. This involved underpinning the wall to a depth of 4 metres below existing ground level, using a mass concrete footing 0.9 metres wide. The underpinning work was completed and no criticism was made about the way in which this was done. It was carried out in small sections followed by immediate back-filling. Advanced were paid in full for the works. Shortly thereafter, Avonforce, the main contractor, started excavation to the basement in the area adjacent to the newly underpinned wall. No temporary support was provided for the wall, or for the new concrete base that had been installed by Advanced. Avonforce was apparently unaware that the base might not be capable of resisting the lateral load which would result from the excavation, and therefore did not take any steps to provide temporary support. Some days later, the wall collapsed as a result of the failure of the mass concrete underpinning, which had displaced into the excavation because of the lack of passive soil resistance. It was agreed that it would have been possible to have designed and installed some form of propping, which would have prevented the failure and which would have allowed the proposed basement to have been constructed safely. The client, Aurum, brought proceedings against Avonforce, who in turn sought an indemnity or contribution from its sub-contractor, Advanced, and from its engineers. Avonforce contended that Advanced was in breach of its duty to warn of the need to provide lateral support during the excavation for the basement. The circumstances were therefore similar to the previously mentioned Plant -v- JMH case, except in one crucial respect. JMH were found in breach of its duty to warn in respect of dangers concerning its own work. The aspect of the work on which it was alleged that Advanced was under a duty to warn, was work to be carried out by others after Advanced had satisfactorily completed and left site. His Honour Mr Justice Dyson QC noted that it had been held by the Court of Appeal in the Plant case that if the duty to warn arises, it is part of the duty to act with the skill and care of an ordinarily competent contractor. Thus, if Advanced had been instructed to carry out underpinning work which it knew to be unsuitable and dangerous, it would have been under a contractual duty to warn Avonforce, the main contractor. Justice Dyson was unwilling, however, to extend that duty to the present circumstances, where it was being suggested that the duty to warn could relate to the suitability of work to be done by others in the future. It could not be said that Advanced knew that the work that was to be done in the future would in fact be carried out in a dangerous manner. The excavation for the construction of the retaining wall to the basement could have been carried out in short strips, avoiding the exposure of the full length of the concrete underpinning at any one time. Other solutions could have been adopted. In conclusion, the sub-contractor was not to be under a duty to warn, unless it was reasonable to do so. In the circumstances of this case, the claim against Advanced fell to be dismissed. Comments please? -- Russell Calderwood [apologies , re 'brevity'!] Refs - Simmons & Simmons and Brewers Consulting. These documenst are provided for information purposes only and do not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of these documents.