| Date | 16 April 2008 |
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| Judgment | Plant Construction Plc -v- JMH Construction Services Ltd, ORB 9 March 1998 |
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| The Issue | Contractor's liability for temporary works. |
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| Implication |
The general rule is that a contractor is responsible for the design of temporary works unless that is displaced by express provisions of the contract, or an express requirement upon the contractor to comply with instructions of the employer in connection with temporary works. In any event a contractor will owe a general duty to advise and warn in connection with the adequacy of temporary works. |
printThe manner and extent to which a contractor or sub-contractor may become liable for a failure in the design of temporary works was examined in the recent case of Plant Construction Plc -v- JMH Construction Services Ltd. The issues date back to 1993 when the Ford Motor Company engaged Plant as main contractors to construct two engine mounting rigs at their Research and Engineering Centre at Laindon, Essex. As a consequence of pressures to complete the works rapidly to coincide with the delivery of plant from America, Ford met three prospective tendering contractors together, presented them with a hastily prepared specification and gave them two weeks in which to tender, recognising that they had no detailed drawings from which to price. In the event Plant were awarded the main contract and in turn sub-contracted the sub-structure works to JMH. These works included excavating the required pits, one of which was very close to a steel column supporting the roof. The excavation was so close to this column as to involve the removal of part of its concrete base which would otherwise have protruded into the excavated area. In order to make good the lack of adequate support which that would have entailed, the design provided for the underpinning of the column. Pending completion of the underpinning temporary support was required for the column and roof. Work began in November 1993. In early December JMH installed temporary support for the roof in the form of four standard acro-props some five metres long, installed vertically between the floor and the underside of the roof trusses. Excavation proceeded and when work ceased for the New Year holiday, JMH were ready to start underpinning the column. On the night of 1 January 1994 however, there was heavy rain and in the early hours of 2 January the whole of the roof in that area collapsed. Fortunately no one was killed or injured but the damage was very substantial as were the costs of repair and the disruption to Ford's operations. The whole affair became the matter of an investigation by the Health and Safety Executive during 1994, which led to a prosecution of both Ford and Plant. Ford claimed damages against Plant, and that claim was settled by the payment of £1.3m by Plant, who then commenced the present action against its sub-contractor JMH, claiming damages quantified by reference to the agreed payment to Ford plus its own costs of a further £615,000 for repair works. In Court, evidence was heard from two structural engineers that the size and location of the props to the roof were inadequate. The Court recognised, however, that that evidence was given with the benefit of hindsight, and accordingly should not prejudice the Court's view of what should have been apparent to persons exercising due care and skill at the relevant time, nor did it answer questions relating to the contractual duty owed between the parties. The main issue of liability was therefore whether the design of the temporary works was the responsibility of the sub-contractor JMH. This question required then to be broken down. Firstly the Court had to determine whether there was a rule of custom and practice or of law that in the absence of provisions to the contrary, a contractor is responsible to its employer for the design of temporary works. On this His Honour Judge Hicks QC was clear that such a rule did indeed apply. Next the Court had to examine whether there was an exception to that general rule for certain types of "temporary" works. For example, it is not difficult to envisage extremely elaborate temporary works requiring sophisticated design such as caissons for underwater bridge pier foundations. Counsel for JMH argued that underpinning work provided an exception to the general rule. He argued that temporary support of a structure being underpinned was a component part of the design for the underpinning, and not temporary works. Judge Hicks could not accept these propositions. He considered that it was not in dispute that in such cases there may well be express terms making design the responsibility of the employer's engineer. However, in the absence of such a term, the contractor remained responsible for any temporary works it elected to carry out. Finally the Court had to consider whether, notwithstanding the general duty owed by JMH with regard to its temporary works, it had been directed to prop the roof trusses with acro-props at the positions adopted, by a representative of Ford. This altered everything. The Court held that JMH were under a contractual duty to comply with any instructions issued by Ford, and upon the evidence held that Ford's representative had directed JMH to prop the roof trusses at the positions and by the methods in fact adopted. In conclusion JMH had merely complied with instructions given. However, they were to be held contributorily negligent in that they were under a duty to use due care and skill to appreciate the inadequacy of the propping and to advise and warn in that respect. Taking into account all these factors, the Court held that JMH were to be liable for only 20% of the damages agreed between the parties.
CJ-9814
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