| Date | 14 October 1998 |
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| Judgment | Q.V. Limited and Another -v- Frederick F. Smith and Others, ORB 7 April 1998 |
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| The Issue | Designer's duty of skill and care and implied terms of fitness for purpose and merchantable quality in construction contracts. |
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| Implication |
General discussion of design duties owed by a professional designer and to be implied by statute into construction agreements in the absence of express terms to the contrary. |
printSubject to express words in the contract to the contrary, the standard of care to be exercised by a professional designer to ensure that its design is free from fault, is widely different from the standard which would be implied if a contractor undertook the design. The professional designer's duty will be to exercise reasonable skill and care of the standard to be normally expected from an individual professing to have the necessary skills. Default on the part of the contractor, on the other hand, will be examined in the context of the law surrounding product liability unless the contract provides otherwise. These matters were examined in the recent case of Q.V. Ltd-v- Frederick F. Smith and Others. Q.V. required the construction of a cold store and entered into contract with Mr Smith, a chartered builder and project manager, for the design and management of the works. D.A. Green & Sons Ltd were engaged to construct the building. Mr Smith specified cladding by Eternit UK Ltd and required the contractor to apply a spray foam insulation to be used in combination with the cladding. This was contrary to Eternit's technical literature which recommended three systems, each of which allowed movement of the cladding. Such movement would be impeded by the application of a spray foam, and accordingly it was clear that the guarantee provided by the cladding manufacture would be nullified using Mr Smith's system. After completion in 1992, the roof cladding cracked and rain leaked into the store. Expert evidence was adduced to show that the cracking had been caused by the use of the spray foam insulation on one side only, which had caused differential carbonation of the fibre cement sheeting giving rise to cracking of the fibrous cement skin. Q.V. commenced proceedings against Mr Smith alleging that he had failed to provide the basic design of the building with reasonable skill and care. They also claimed against the contractor Green, on the basis that in breaching an implied warranty, Green had failed to supply cladding for the roof which was reasonably fit for the purpose of the construction of a cold store. These two strands of this action had to be examined in quite a different manner. In respect of the case against Mr Smith, the court had to decide what would be the standard of care required in carrying out the basic design of the building. Reference was made to the 1957 case of Bolam -v- Friern Hospital Committee in which it was confirmed that the test to be applied to Mr Smith would be the standard of the ordinary skilled building designer who has professed to have the necessary skills to design the cold store. His Honour Judge Toulmin noted that in order to meet the test it was not necessary that Mr Smith possessed the highest expert skill, but merely that he conformed to the standard of an ordinary competent building designer in providing the basic design of the building. On evidence, it was heard that a reasonably competent designer would have to acquaint himself not only with the relevant trade literature, but also with the relevant building regulations and British Standards. In the opinion of the expert called to give evidence on the design standard of care, a reasonably competent designer would have stayed within the package which would have qualified for the cladding manufacturer's guarantee. According to Judge Toulmin, Mr Smith fell below the standard of a reasonable competent building designer in disregarding the cladding manufacturer's literature and relevant British Standards. Turning to the allegations made against the contractor Green, it was necessary to look at sections 14(2) and 14(3) of the Sale of Goods Act 1979 as amended by the Supply of Goods and Services Act 1982. Section 14(2) provides "where the seller sells goods in the course of a business there is an implied condition that the goods supplied under contract are of merchantable quality". The term merchantable quality was further elaborated by section 4(9) of the 1982 Act "goods of any kind are of merchantable quality if they are fit for the purpose or purposes for which goods of that kind are commonly supplied having regard to any description applied to them and the price and all other circumstances". Section 14(3) of the 1979 Act provides "where the seller sells goods in the course of a business and the buyer expressly or by implication makes known (a) to the seller…….any particular purpose for which the goods are being bought, there is an implied condition that the goods supplied under the contract are reasonably fit for that purpose whether or not that is a purpose for which such goods are commonly supplied except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the skill and judgment of the seller". Thus it had to be accepted that in order for a term as to fitness for purpose to be implied into the contract with the contractor Green, the particular purpose for which the goods were being acquired must have been made known to the contractor in advance. Furthermore, the circumstances would have to show either that Q.V. did rely on its contractor or that it was reasonable for them so to rely. Considering all this, Judge Toulmin held that the evidence he had heard from the plaintiffs was all one way, namely that Q.V. had relied on the advice of Mr Smith for the basic design of the building and had not relied on Green, the contractor, in this regard to any material extent. Accordingly there could be no implied term in the contract between Q.V. and its contractor that the goods would be fit for the purpose of constructing a cold store.
CJ-9837
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