| Date | 7 March 2001 |
|
|
| Judgment | Scott Wilson Kirkpatrick & Partners -v- Ministry of Defence |
|
|
| The Issue | Consequences of the failure of the Clerk of Works to prevent inadequacies in the contractor's workmanship. |
|
|
| Implication |
Where the failure of a Clerk of Works to prevent the contractor from carrying out defective work does not amount to a clear instruction or agreement to the contractor to carry out the work defectively, the contractor will remain liable under the terms of its contract. |
printThe Clerk of Works on building and engineering projects performs an important role in monitoring the standards of workmanship and materials for conformity with the specifications. The responsibility and authority of the Clerk of Works is often however uncertain. This can vary from project to project and may depend on the standard form of contract agreement in use. Occasionally, a Clerk of Works may be engaged directly by the architect and responsibility for the performance of his duties will carry directly through the architect's terms of engagement. Alternatively, the Clerk of Works may be directly engaged by the employer. This is often the case in contracts let under the GC Works family of contracts. The responsibility of the Clerk of Works was examined by the Court of Appeal in the case of Scott Wilson Kirkpatrick & Partners -v- Ministry of Defence. The project concerned the replacement of the roof of the number one slip dock yard in Plymouth in 1993. Scott Wilson were engaged by the Ministry of Defence as consulting engineers and superintending officer. The number one slip in Plymouth dock yard is an historic structure with a high roof, built in 1814 in the shape of, and apparently using the same constructional techniques as an inverted ship's hull of that era. Having withstood the intervening years of regularly gusty weather experienced in Plymouth harbour, the roof by the mid-1980's required some elements of refurbishment. The Ministry engaged Dean & Dyball Construction under a GC Works 1 - Edition 2 form of contract to carry out the required works. The contract expressly required the works to be carried out in a workmanlike manner and requiring the contractor to "ensure boarding rafters, purlins etc are well fixed as existing". Following completion of the works, all was well for some years. In December 1993 however, winds gusting up to 69 knots lifted off a 45 x 17 metre section of the new roof and deposited it on nearby playing fields. The litigation commenced soon after. The Ministry, through the PSA, had engaged a Clerk of Works to act under the terms of the GC Works contract. This Clerk of Works had been expressly delegated certain important functions by the Supervising Officer. These included the power to issue instructions to the contractor to vary or modify the design quality or quantity of the works (subject to an upper limit of value), and also to issue instructions for the opening up or inspection of any work and the amending and making good of any defects. When the matter had been heard in the High Court, the main issue was how and why the wind had been able to raise the roof. The judge had concluded in the light of the expert evidence that the roof came off because the fixings between the main frame rafters and the purlins were inadequate. The original purlins had extended across two bays and had been fixed at each joint with a single cut nail, mostly between 9" and 12" long. The replacement purlins extended across one bay only and instead of using 9" cut nails, had been fixed using galvanised nails of only 4" long. Since the purlins themselves were 5" thick, these nails had been nailed on the skew which, while providing greater penetration, proved nevertheless inadequate. In the original trial of the action, the contractor had made an allegation that any loss or damage suffered by the Ministry was caused in whole or in part by its own negligence, in particular by the Clerk of Works having failed to notice the inadequate connections, or if they were noticed, having failed to report the matter to the Supervising Officer. In the Court of Appeal this allegation was made in more strident terms, where it was alleged that the actions of the Clerk of Works had amounted to variation of the contract for the use of 4" nails. The evidence showed that both the contractor and the Clerk of Works believed that 4" nails might be sufficient. This may have been partly influenced by the fact that the contractor had informed the Clerk of Works, wrongly as it was later proved, that 9" cut nails were not obtainable. In the event, the judge held that there had been an 'informal consensus' rather than a formal agreement by the Clerk of Works, and certainly nothing amounting to an instruction from the Clerk of Works requiring the use of such nails. Nevertheless, this informal consensus led the judge to hold that the award of damages should be apportioned fifty-fifty between the contractor and the consultant who was vicariously liable for the Clerk of Works. The Court of Appeal refused to differ from the trial judge's appreciation of the evidence which had been put before him. Lord Justice Mance added that it is a contractor's responsibility to perform his contract and it is no response to say that a Supervising Officer or a Clerk of Works should, in the course of his supervision, have intervened to stop the contractor acting in a way which involves a breach of contract. The Clerk of Works supervision was intended as an additional security for the benefit of the employer, the Ministry of Defence, not to provide an excuse or justification for the contractor not performing its contractual obligations. In conclusion, the appeal against the decision of the trial judge was dismissed. Although there had been a supervisory failure of the Clerk of Works to observe and correct the inadequacy of the fixing method using 4" nails, nothing in his conduct relieved the contractor of its obligation to carry out and complete the works in accordance with the terms of its contract.
CJ-0109
|
|||
|
© Brewer Consulting |
|||
 |
|||