Contractors' obligations to identify and warn of deficiencies in design
In the recent case of Cleightonhills v Bembridge Marine, Mr Justice Akenhead considered the circumstances in which a contractor may be liable for failing to spot deficiencies in design, and whether a contractor is obliged to warn of such deficiencies. The judgment also discusses whether the contractor may delegate duties he owes to third parties to sub-contractors.
The Defendant, a boatyard owner, employed the Claimant as a yard hand. The Claimant was assisting in moving a boat from an external grated first floor gantry platform into an adjacent workshop. Both the platform and the workshop had been designed and constructed recently. As the Claimant pushed the boat from the platform, the grating moved beneath him and he fell 12 feet to the floor below. The loose grating panel fell onto him and he suffered traumatic brain injuries as a result.
The Claimant brought proceedings against the Defendant (settled for £7 million) and the Defendant brought in six additional parties (E1, E2, R, P, F and M) who had all been involved in the design, construction or supply of the building. E1, E2 and R (the designers and the structural engineer) settled the Defendant’s claims against them for approximately £3.8 million.
The Court determined the Defendant’s claims against P, F and M, the steel erector, the steel fabricator and the draughtsman respectively. It was accepted by all of the parties that P, F and M owed a duty of care to the Claimant. The complaint against the parties was that each should have realised that, in light of the actual intended usage of the platform, he would need to do more than he was contractually specified to do in order to ensure the safety of those using the platform. P, F and M denied that they had breached their duty of care.
The Court found that P, F and M had not breached their duty of care. The cause of the accident was a failure of structural design, on the parts of E1, E2 and R, since the design had not provided for foreseeable movements to which the platform would be subjected.
P, F and M used reasonable care and skill in doing what they had been employed to do. The Court found that there could be “no criticism of these three parties for not warning people further up the line that there was a potential problem, because they can not on the facts be criticised for failing to appreciate that there was any need to warn at all”. Beyond spotting any obvious design errors (“a beam or column missing for example”), it would not be normal practice for steel fabricators, or draughtsmen, to question the structural design. Their job involved putting into effect what was required by the structural engineer’s design.
Mr Justice Akenhead discussed a number of obiter points, including the liability in tort of a party which delegates its contractual functions (in whole or in part) to a sub-contractor. The case law on this subject is fact sensitive but a contractor might discharge his duty of care to third parties (as opposed to his direct contractual principal/employer) in circumstances where he has sub-contracted particular functions to an apparently competent sub-contractor. If, however, reasonably careful supervision of the sub-contractor would have prevented injury to the third party, the contractor would be liable for any failure in supervision. The Judge’s discussion of the position in the context of a design and build contract where the contractor delegates the design to a qualified engineer or architect is well worth a review but is beyond the scope of this Law Now.
The decision in Cleightonhills is fact sensitive but it shows that where a design is not fit for purpose, liability for the failure of that design cannot necessarily be apportioned amongst the various parties involved with implementing the design. In Cleightonhills, none of the three parties (the steel erector, the steel fabricator and the draughtsman) were in breach of their duty of care to the Claimant.
In certain circumstances, a failure to warn in the context of potential danger to persons, may give rise to a breach of duty owed to third parties by the individual who is aware of the danger. This will depend upon the circumstances (as the circumstances may justify not warning of the danger). However, where there is a contract between the parties, the duty to warn may extend to dangers which the party in question ought to have been aware by reason of its involvement. The Court gave the example of the contractually appointed surveyor who will often be under an obligation to ascertain whether there is a danger in the structure being surveyed. He may be liable for a failure to warn even if he is, in fact, unaware of the danger.
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