Greaves & Company (Contractors) Ltd v Baynham Meikle & Partners
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BROWNE,LORD JUSTICE GEOFFREY LANE |
| Judgment Date | 15 May 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0515-4 |
| Date | 15 May 1975 |
| Court | Court of Appeal (Civil Division) |
[1975] EWCA Civ J0515-4
The Master of The Rolls (Lord Denning),
Lord Justice Browne and
Lord Justice Geoffrey Lane.
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants from judgment of Mr. Justice Kllner Brown on 26th July 1974.
Revised
Mr. PATRICK GARLAND, Q.C., and Mr. MARK MYERS (instructed by Messrs Rowe and Maw) appeared on behalf of the Appellant Defendants.
Mr. BRIAN NEILL, Q.C., and Mr. ANDREW PUGH (instructed by Messrs. Kingsley Napley & Co. agents for Messrs. Putsman & Co. of Birmingham) appeared on behalf of the Respondent Plaintiffs.
This case arises out of a new kind of building contract called a "package deal". The building owners were Alexander Duckham & Co. Limited. They wanted a new factory, warehouse and offices to be constructed at Aldridge in Staffordshire. The ware house was needed as a store in which barrels of oil could be kept, until they were needed and despatched, and in which they could be moved safely from one point to another. The "package deal" meant that the building owners did not employ their own architects or engineers. They employed one firm of contractors to do everything for them, called Greaves & Co. (Contractors) Limited. It was the task of the contractors, not only to provide the labour and materials in the usual way, but also to employ the architects and engineers as sub-contractors. The contractors were to do everything as a "package deal" for Alexander Duckham & Co.
Now, as between the building owners and the contractors, it is plain that the owners made known to the contractors the purpose for which the building was required, so as to show that they relied on the contractors' skill and judgment. It was, therefore, the duty of the contractors to see that the finished work was reasonably fit for the purpose for which they knew it was required. It was not merely an obligation to use reasonable care. The contractors were obliged to ensure that the finished work was reasonably fit for the purpose. That appears from the recent cases in which a man employs a contractor to build a house — Miller v. Cannon Hill Estates Limited. (1931) 2 KB. 113; Hancock v. B. W. Brazier (Anerley) Limited. (1966) 1 W.L.R. 1317. It is a term implied by law that the builder will do his work in a food and workmanlike manner; that he will supply good and proper materials; and it will be reasonably fit for human habitation. Similarly in this case Greaves undertook an obligation towards Duckhamthat the warehouse should be reasonably fit for the purpose for which, they knew, it was required, that is, as a store in which to keep and move barrels of oil. In order to get the warehouse built, the contractors found they needed expert skilled assistance, particularly in regard to the structural steel work. The warehouse was to be built according to a new system which was just coming into use. It was a composite construction system in structural steel and concrete. First there would be a steel frame erected to carry the walls and floors. Next they would got planks made of pre-cast concrete and bring them on to the site. They would place these planks in position along the floors, etc. Then, in order to bind those planks firmly together, they would pour ready-mixed concrete in and above the planks, thus forming a solid floor. This method of construction had recently been introduced into use in England. It is governed by the British Standard Code of Practice, C.P. 117.
Greaves Limited. employed a firm of experts, Messrs. Baynham Meikle and Partners, structural engineers, to design the structure of the building and, in particular, the first floor of it. There were discussions with them about it. It was made known to them — and this is important — that the floors had to take the weight of stacker trucks — sometimes called fork-lift trucks. These were to run to and fro over the floors carrying the drums of oil. Bynham Meikle were given the task of designing the floors for that purpose.
Mr. Baynham made his designs; the warehouse was built and put into use. It was used for the transport of these oil drums with the stacker trucks. But, after a little time, there was a lot of trouble. The floors began to crack. The men took strong objection to working there. They thought it was dangerous. The cracks seemed to be getting worse. So much so that the experts were called in. Attemptswere made to cure the trouble, but without success. The position now is that the warehouse is of very limited use. It is anticipated that remedial works will have to take place at great expense. The damages are said to come to £100,000.
What was the cause of this cracking of the floors? Baynham Meikle, the structural engineers, said that it was due to the shrinkage of the concrete for which they were not responsible. There was nothing wrong, they said, with the design which they produced. But the Judge did not accept that view. He found that the majority of the cracks were caused by vibration and not by shrinkage. He held that the floors were not designed with sufficient strength to withstand the vibration which was produced by the stacker trucks.
On those findings the first question is: What was the duty of the structural engineers towards the contractors? The Judge found that there was an implied term that the design should be fit for the use of loaded stacker trucks: and that it was broken. Alternatively, that the structural engineers owed a duty of care in their design, which was a higher duty than the law in general imposes on a professional man: and that there was a breach of that duty.
To resolve this question, it is necessary to distinguish between a term which is implied by law and a term which is implied in fact. A term implied by law is said to rest on the presumed intention of both parties: whereas, a term implied in fact rests on their actual intention.
It has often been stated that the law will only imply a term when it is reasonable and necessary to do so in order to give business efficacy to the transaction; and, indeed, so obvious that both parties must have intended it. But those statements must be taken with considerable qualification. In the great majority of cases itis no use looking for the intention of both parties. If you asked the parties what they intended, they would say that they never gave it a thought: or, if they did, the one would say that he intended something different from the other. So the Courts imply — or, as I would say, impose — a term such as is just and reasonable in the circum-stances. Take some of the most familiar of implied terms in the authorities cited to us. Such as the implied condition of fitness on a sale of goods at first implied by the common law and afterwards embodied in the Sale of Goods Act 1893. Or the implied warranty of fitness on a contract for work and materials — Young & Marten Limited. v. McManus Childs Limited (1969) 1 A.C. 454. Or the implied warranty that a house should be reasonably fit for human habitiation, sec Hancock v. Brazier (B.W.) (1966) 1 W.L.R. 1317. And dozens of other implied terms. If you should read the discussions in the cases, you will find that the Judges are not looking for the intention of both parties: nor are they considering what the parties would answer to an officious by-stander. They are only seeking to do what is "in all the circumstances reasonable". That is how Lord Reid put it in Young & Marten Limited. v. McManus Childs Limited. (1969) 1 A.C. at page 465-6: and Lord Upjohn (at page 471) said quite clearly that the implied warranty is "imposed by law". Many years ago Lord Wright said that this was the truth about implied terms: "The Court decides this question in accordance with what seems to be just and reasonable in its eyes. The Judge finds in himself the criterion of what is reasonable. The Court is in this sense making a contract for the parties — though it is almost blasphemy to say so" — see his Legal Essays and Addresses, page 259.
Apply this to the employment of a professional man. The law does not usually imply a warranty that he will achieve the...
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