| Date | 16 June 2004 |
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| Judgment | Independent Broadcasting Authority v EMI Electronics Ltd and BICC Construction Ltd, HL 15 May 1980 |
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| The Issue | Drawing a distinction between a duty to exercise reasonable skill and care in undertaking design works and an obligation of fitness for purpose. |
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| Implication |
Unless the contract dictates otherwise, a contractor who undertakes to design, supply and construct a facility will be taken to have warranted that the finished product will be fit for its intended purpose. |
printIn March 1969, a television mast at Emley Moor in Yorkshire, belonging to the Independent Television Authority (ITA), collapsed and fell to the ground broken in many pieces. It was a cylindrical mast nearly a quarter of a mile in height, with a diameter at its base of only nine feet. That occurrence led to a litigation, which by May 1980 had travelled all the way to the House of Lords. Although those proceedings are nearly a quarter of a century old, the legal guidance which was given remains current and relevant. ITA had engaged EMI Electronics as main contractor for the design, supply and erection of the mast. Although EMI contractually accepted responsibility for the design of the mast, it had taken no part in the actual design. That had been subcontracted to BICC, who were recognised specialists in the design and construction of latticed steel masts. It was decided however that this mast would be entirely different and novel and would be formed of a cylindrical steel construction tied back to the ground with steel cable stays. The British Standard at the time required that the mast should be capable of withstanding wind speeds of 80 miles per hour at 40 feet above the ground. In the event, the mast collapsed with wind speeds of no more than 20 miles per hour, although an enquiry into the collapse concluded that very cold weather conditions had played a part. There had been thick fog, snow and freezing rain which had produced a condition of glazed frost on the mast and its cable stays. This ice loading had been asymmetric. A steady breeze for over four days in very cold weather had caused cable stays on one side of the mast to be coated with ice, whilst the cables on the other side remained relatively free from ice. The result was that the mast was being pulled over towards the cables which were laden with ice, creating tension on the opposite side. More critical to the collapse however, was a phenomenon called 'vortex shedding'. Vortex shedding apparently occurs when vortices, or pockets of negative air pressure, are formed around cylindrical objects such as a mast or chimney, even in relatively light wind conditions. When the frequency of vortex shedding approaches the natural frequency of the mast, large forces may build up creating oscillation. BICC accepted at trial that it had not taken into account ice loading in its design of the mast, having assumed wrongly that ice would be blown off the cables long before critical wind speeds were reached. It had failed to recognise that the critical wind speeds for a cylindrical mast might be very much lower than would be the case with masts of other designs. Nevertheless, BICC argued that the duty it owed in carrying out design work for the mast was to exercise reasonable skill and care. This meant that it was not enough simply to show that the mast had failed. It would be necessary to show that BICC had not met the standard of the ordinarily competent structural engineer. No cylindrical steel masts had been designed or built by anyone in the United Kingdom. Accordingly, the design and building of such masts was work which was beyond the frontier of professional knowledge at the time. They had in effect been venturing into unknown territory and the failure of the mast was not something that an ordinarily competent engineer could have foreseen. The judge at the first instance disagreed with those arguments on the facts. By failing to consider the possible effects of asymmetric ice loading on the stays in conjunction with the effects of vortex shedding, BICC had been negligent. Although EMI had taken no part in the design of the mast, it had contractually accepted responsibility for the design. That clearly encompassed responsibility for the negligence of its subcontractor BICC. The Court of Appeal dismissed BICC's appeal on the finding of negligence, and went further. It held that it was unnecessary to consider whether EMI or BICC had been negligent in its design. Both EMI and BICC had undertaken to supply a mast which was reasonably fit for its purpose. Plainly, a mast lying in pieces on the moors of Yorkshire was not fit for its purpose. The House of Lords agreed with the reasoning of the Court of Appeal. In entering into a contract for the design, supply and erection of the mast, EMI had impliedly undertaken a duty towards its client that the mast would be reasonably fit for its intended purpose. Both Lord Fraser and Lord Scarman made it clear that in the absence of words to the contrary, contractors and subcontractors who undertake to design the whole or part of structures which they intend to erect will normally be taken to have accepted an unqualified liability in respect of design. This was quite different to a professional adviser who would be under a duty to exercise all proper professional care and skill, but with no guarantee of success.
CJ-0424
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