| Date | 31 January 2007 |
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| Judgment | inclair v Woods of Winchester Ltd (no 2), TCC 22 November 2006 |
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| The Issue | Questions of law concerning (1) whether defective design or defective workmanship was the operative cause of defects in a roof and (2) whether a main contractor can assume liability for design work carried out by a nominated sub-contractor. |
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| Implication |
(1) The defects in the design were such that the roof was ‘doomed to fail’ and accordingly the defective design was the first and operative cause of the loss arising from remedying the defects. (2) In circumstances where the main contractor has no design liability to the employer, it cannot mysteriously acquire that liability because it has been asked to enter into a nominated sub-contract that includes some design to be provided by the sub-contractor. |
printConstruction defects when they arise create considerable problems, usually for the employer or occupier. In contractual arrangements where the design is carried out by someone other than the contractor, it is common for there to be a dispute as to whether the defect arises from defective design or workmanship or a combination of both. The situation is made more complicated where, as often happens today, the architect relies on the skill of a specialist sub-contractor to design some element of the work. These issues were considered in the recent case of Sinclair v Woods of Winchester Ltd (no 2), (2006) which examined the main contractor’s liability for defects to a swimming pool complex constructed at the home of Mr and Mrs Sinclair (the Sinclairs). The Sinclairs had engaged an architect to design the complex and in February 1997, they entered into contract with Woods of Winchester Ltd (Woods) to construct the complex for a contract price of £307,334. Extensive defects manifested themselves at the complex in 2001-2002. The Sinclairs had the defects rectified in 2002 at a cost of about £225,000. Amongst the most significant problems appear to have been defects in the flat roofs over the pool and the fact that the boiler to heat the pool was undersized along with defects with the pipework. In accordance with the contract, the Sinclairs commenced arbitration against Woods claiming the cost of remedying the defective work. The Arbitrator’s award dated April 2005 concluded that Woods was not responsible for any design. Subsequently the Arbitrator issued his third award dated 6 July 2006 in which he found that the principal cause of the defects to the roof was defective design by the architect and that Woods was not responsible for the design of the boiler or pipework. In November of last year HHJ Coulson QC heard an application from the Sinclairs seeking leave to appeal two questions of law arising out of this award, in accordance with s. 69 of the Arbitration Act 1996. HHJ Coulson QC first considered the ingredients necessary to a successful application under s.69. These are:
The first alleged question of law related to the fact that the Arbitrator had found that the defects in the flat roofs arose from defective workmanship as well as the defective design of the architect and yet had only found Woods liable for £728 of the £82,868.71 claimed. The Sinclairs argued that the two causes were concurrent and if the correct principles of law were properly applied, then Woods would be liable for the whole cost of the remedial work. HHJ Coulson examined the Arbitrator’s award. The Arbitrator found that the design of the flat roofs was such that they were ‘doomed to fail’. He found that the design had to be undertaken before the work was carried out and applying the first in time rule, he found that the defects were the initial cause of the failure of the roofs. He also found that subsequent problems with workmanship compounded the speed of the failure. HHJ Coulson decided that this question was a question of causation and was not purely a question of law since the Arbitrator’s answer was a mixed finding of fact and law, thus he rejected the right to appeal on this ground. The Judge went on to confirm that since the Arbitrator had found that the design failure was the operative cause of the defects, the alleged question of law was misconceived because there was not a question of concurrency. It was inevitable that once the Arbitrator had found that Woods was not liable for design and that the operative cause of the failure was defective design, then Woods would not be found liable for the cost of the remedial works. HHJ Coulson found that the Arbitrator was not obviously wrong but was in fact plainly right to reach the decision he did. Thus leave to appeal the first question was rejected on this ground as well. The second alleged question of law challenged the Arbitrator’s finding that Woods was not responsible for the defects in the specialist design carried out by Woods’ nominated specialist sub-contractor Penguin Pools Ltd - who had designed and installed the boiler and associated pipework. HHJ Coulson said that the finding of the Arbitrator in his first award that Woods had no design liability to the Sinclairs under the main contract was a complete answer to the second question, since in his view the main contractor in such circumstances: “cannot mysteriously acquire that liability merely because he is instructed to enter into a sub-contract with a nominated sub-contractor who is going to do some design work on behalf of the employer . The design work performed by the sub-contractor should either be the subject of a direct warranty or remain part of the architect’s non‑delegable obligations. Either way it is emphatically not the responsibility of the main contractor. ”Leave to appeal the second question was also therefore rejected.
CJ-0704
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