| Date | 25 April 1996 |
|
|
| Judgment | Bowmer -v- Kirkland Ltd -v- Wilson Bowden Properties Ltd, 11 January 1996, 14 BLISS 3 |
|
|
| The Issue | Implied terms for fitness for purpose. |
|
|
| Implication |
To the extent that materials, products and workmanship are fully specified, a builder has performed his contract if he does what is specified. Accordingly, there will be no room for the implication of terms such as fitness for intended purpose. |
printDisputes concerning defects in building works, almost always require the court to investigate whether the defect arises as a result of some failure of workmanship on the part of the contractor, or deficiency in design. Put more simply the builder will say in respect of many of the defects, "it was not our fault, it was the fault of the architect". Often clients will choose to sue both builder and architect thereby avoiding the risk that one party may escape liability as a result of the failures of another. In the case of Bowmer and Kirkland Ltd -v- Wilson Bowden Properties Ltd the Employer sued their builders for their costs in excess of £1 million for the rectification of defects which had arisen from the construction of two, two-storey office buildings, the original contract value of which was of the order of £2.8 million. The architects were not engaged in the action, and therefore the judge was put in the difficult position of having to decide whether defects were the responsibility of the designers without having the advantage of hearing evidence on their behalf. The judgement in this case concerns the preliminary issue of liability arising on thirteen major areas of defective works and it would be inappropriate to report the various findings under each of these heads. However, in making this judgment, His Honour Judge Bowsher QC made some interesting comments concerning a builder's liability for defective work. Firstly the Employer contended that there should implied into the contract a series of terms which included that the builder would use materials of good quality and which were fit for their intended purposes, and that the builder would carry out and complete the works so that the works, when completed, would be fit for their intended purposes. Judge Bowsher decided that none of these terms were to be implied into the contract. He held that to the extent that materials, products and workmanship are fully specified, the builder has performed his contract if he does what is specified. He relied on the 1956 case of Lynch -v- Thorn to support this premise. This, he said, was however subject to the usual qualification that if the specification is unbuildable or contains an obvious error, the builder owes a duty to his Employer to point that matter out. In this contention he relied upon the 1992 case of Lindenberg -v- Canning where, even though complying with the surveyor's drawing, a builder was held liable for having demolished internal walls where a competent builder would have recognised the walls were load bearing. To the extent that the materials, products and workmanship are not fully specified, the Judge held that the builder's duties were to be found in a paragraph contained in the bills of quantities in which it was stated that the work was to be carried out in accordance with good building practice including the relevant provisions of current BSI documents. This, held the Judge, was sufficient and there was no need for the implication of any further terms. The second general point was the contractor's submission that if there were any defects of workmanship on their part, those defects must have been apparent to the architect. In effect, the builders appeared to be saying that the architects had a duty to supervise their work and maintain quality control and, if the architects failed to maintain quality control, the builders were to be excused from any defective performance of their duties under the contract. The Judge held that this submission was wholly misconceived. He held that the architects in this case were not under a duty to supervise; a matter which the JCT has continually been at pains to make clear within the drafting of their contract documents. Even if the architects were under such a duty, their duty to supervise would have been owed to the Employer and not to the builder, and if there had been a breach of that duty that would not have excused the builders from maintaining their own system of quality control. In re-stating these well known principles, Judge Bowsher quoted the passage from East Ham Corporation -v- Bernard Sunley and Sons in 1966, where it was said: "It seems to me most unlikely that the parties to the contract contemplated that the builder should be excused for faulty work at an early stage merely because the architect failed to carry out some examination which would have disclosed the defects." A further point of general interest in this judgment was the extent to which an architect should include detail in his drawings. Hearing evidence from expert architects, the Judge accepted that the level of detailing provided by the architects in this case was consistent with normal modern practice; that is to say that builders are expected to understand the essential practicalities of building. Whilst some architects go into much greater detail, the Judge recognised that that in itself may have its dangers by removing from the builder in some measure the application of his own useful skills and experience.
CJ-9615
|
|||
|
© Brewer Consulting |
|||
 |
|||