| Date | 14 February 2001 |
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| Judgment | Aurum Investments Limited -v- Avonforce Limited and others, TCC 6 December 2000 |
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| The Issue | Contractor's duty to warn of potential dangers and inadequacies in the design of others. |
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| Implication |
Whilst a contractor will have a duty to warn of design deficiency, as an aspect of its requirement act with skill and care, that duty will not normally extend to warn in respect of works to be carried out by others, unless it is reasonable to impose such a duty. |
printHow 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.
CJ-0106
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