UK: Can Inadequacies in Drawings Provided by an Employer Mitigate Against a Contractor’s Failure to Take Reasonable Care and Skill?

The Facts

The case of CGA Brown Ltd v Carr & Anor was an appeal from the judgement of HHJ Armitage QC against one part of Carr’s counterclaim regarding the roof. CGA Brown Ltd ("CGA") were builders who carried out works for the defendants ("Carr") at their house in Rochdale in 2003. Carr was awarded an on-account balance judgement in their favour for £224.29 plus costs.

CGA agreed to do the work shown on the drawings of the roof prepared by Carr’s architect for the purposes of obtaining building regulation approval. The work included an extension to add two dormer windows to the existing dormer windows set into the sloping part of the roof, and a corresponding extension to the flat roof constructed above these windows. Expert opinion was that the drawings did not provided a very detailed level of information and the annotations provided left a lot of assumptions as to interpretation and decisions on the actual intention.

An annotation stated that the new flat roof was "to align through with the existing arrangement". Because the actual roof slopes were different to those shown on the drawings, following this instruction meant that the falls on the new roof were unsatisfactory. By the time CGA discovered this problem, they had completed work in accordance with the drawings, and had of their own initiative made a cold joint between the felt covering the existing roof and the felt which they laid to cover the new roof. This joint was later condemned by the expert.

After discovery of the problem, CGA had proposed a solution which involved constructing a slightly pitched roof above the flat roof. Although Carr accepted CGA’s quotation for this modification, it was not carried out. Whilst Carr was waiting for this work to be done, the roof began to leak very badly. Carr called another contractor who carried out an emergency repair and then later re-felted the whole of the flat roof.

The judge held that CGA were liable for the whole of the re-felting works as CGA should have spotted the problem with the drawings and advised Carr of it before they created a roof that was vulnerable to leakage because of the inadequacy of the joint that CGA decided to make.

The Issues

1. Should Carr be allowed to succeed in the claim that CGA should have spotted the problem with the drawings as this was not pleaded?

2. Should the costs of the re-felting should been awarded as CGA argued:

2.1. it was double recovery; and

2.2 it involved giving Carr a better roof than they had contracted for.

The Decision

Carr’s defence carried a general allegation of failure to carry out the works with reasonable care and skill. Necessarily involved in the carrying out of the work was an appreciation of what the plans provided and what they did not provide for as well as the actual work of construction which was involved in following them. Therefore, an allegation of a failure to carry out the work with reasonable care and skill comprehended an allegation that CGA had failed to realise that such an instruction as was given to them in the plans was inadequate. In addition this point was considered by the expert so the parties were aware that this was in issue at the trial.

There was no double recovery. There had been two breaches of contract: the failure to spot the problem with the drawings and constructing an inadequate joint. The combination of these two failures left Carr with a roof which was inadequate and leaked. Carr modified the roof in accordance with the second contractor’s recommendation which remedied the inadequate joint and left them with an acceptable roof, although one that still has unsatisfactory falls. The money was awarded to compensate Carr for the fact that they had been left with an inadequate roof and the original agreement required the builders at least to leave them with a roof that did not leak. There was no question of betterment in the work carried out by the second contractor.

Comment

Allegations of lack of reasonable care and skill are common in construction litigation. Section 13 of the Sale of Goods Act provides that, in a contract for the supply of a service, "there is an implied term that the supplier will carry out the service with reasonable care and skill". This implied duty to use reasonable care and skill is subject to the express terms of the contract. However, it was clear in this case that inadequacies in drawings provided by the employer did not serve to mitigate against the contractor’s failure to take reasonable care and skill.

This article is the latest Fenwick Elliott Legal Briefing which is a weekly on-line feature which appears on Building magazine’s website. The Legal Briefing provides comment on recent, sometimes controversial, legal issues. For further information please visit www.fenwickelliott.co.uk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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