Hancock v B. W. Brazier (Anerley) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DANCKWERTS,LORD JUSTICE SALMON |
| Judgment Date | 05 May 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0505-2 |
| Date | 05 May 1966 |
| Court | Court of Appeal |
[1966] EWCA Civ J0505-2
The Master of the Rolls
(Lord Denning)
Lord Justice Danckwerts and
Lord Justice Salmon
In The Supreme Court of Judicature
Court of Appeal
From Lord Justice Diplock
MR IAN PERCIVAL, Q. C. and MR J. G. K. SHELDON (instructed by Messrs Bower Cotton & Bower, Agents fop Messrs R. E. Bishop & Co., Swanley) appeared as Counsel for the Appellants.
MR L. E. H. McCREERY, Q. C. and MR E. H. LAUGHTON SCOTT (instructed by Messrs Warren & Warren, Agents for Messrs Chancellor & Ridley, Dartford, Kent) appeared as Counsel for the First Respondent.
MR E. H. LAUGHTON SCOTT (instructed by Messrs Warren & Warren, Agents for Messrs Chancellor & Ridley. Dartford, Kent) appeared as Counsel for the second and Third Respondents.
We need not trouble you, Mr McCreary.
In the autumn of 1958 Messrs Brasier (Anerley) Ltd. were proposing to develop an estate of acme forty houses known as the Haven Close Estate in Swanley. They laid it out in plots. Each prospective purchaser could choose his own plot. The three plaintiffs did so. Each of them selected a plot end paid a cum down to get it allotted to him. But no contract was made at that time for the erection of the houses. In the next three months, between October 1958 sad January 1959, the defendants did a good deal of work on the foundations. They put in some hardcore and than put a layer of 4 inch concrete above it. They started to build the houses. All this before any contracts were signed.
After the work bad been done written contracts ware entered into by the purchasers with the builders. By Clause 1 the purchaser contracted to buy the house for £ 2,750. Clause 9 said: "The vendor", that is Braziers. "Will prior to completion at its own cost and charge and in a proper and workmanlike manner erect build and complete on the above freehold land a message or dwelling house in accordance with the plan and specification supplied to the purchaser subject only to such variations as may be ordered by the purchaser". The plan and specification were in the ordinary form providing for the brickwork, the rooms. and so forth. There was nothing in the specification about the foundations. except that the site concrete was to be four inches thick and laid to required levels. On the plan there was this: "4-inch site concrete on hardcore".
The builders went on with their work. By May 1959 the houses ware substantially finished. Completion took place on the 29th May. The purchasers went into occupation. All appeared well. But two years later there was trouble in one house. Three or four years later in another house. Then in other houses. The trouble was this: The floors ware or coking and breaking up. It was investigated. The cause was foundin the hardcore which had team put into the foundations. It was met just the ordinary kind of hardcore which comes out of demolished buildings, such awl bricks, flints, chalk and earth. There was quite a lot of sodium sulphate in this hardcore. We have been shown some of this sodium sulphate. The blocks of it look vary much like flints or chalk. Anyone might easily mistake it far ordinary hardcore. Somebody must have got it from acme old dump from a factory: and thought it was just stones and used it for hardcore. Yet it turns out to be a dangerous substance to use as hardcore. I say it is a dangerous substance because when it is dry, it soaks up water whenever it gets the chance, and then it expands with almost irresistible force. If it is already damp. it will soak up more water and expand. If it gets into contact with concrete. it brings about a chemical reaction which may cause the concrete to disintegrate. Hence the damage caused to these houses. It was the sodium sulphate in the hardcore that caused the floors to break up. The purchasers have been put to much expanse to get it pat right.
Let me say at once that all this trouble was in no way the fault of the builders. They had no reason to suspect the hardcore. They bought it in good faith. The defects ware not apparent. No one could tell by looking at this hardcore that it had sodium sulphate mixed in with it. The builders used all reasonable care, skill and judgment Mr. Percival says that in these circumstances they were not guilty of any breach of contract. The entire obligation of the builders was contained in Clause 9 of the contract. That was only a clause whereby they bad to use all reasonable care and skill and judgment in their work. It did not mean that they warranted the suitability of the materials they need. He relies on the principle that where a matter is covered by express provision in a contract. it is not for the Courts to make an implication on the same matter.
It is quite clear from Lawrance v. Cassel 1930, 2 King's Bench. p. 83, and Miller v. Cannon Hill Estates Ltd. 1931, 2 King's Bench, p. 113, that when a purchaser buys a house from a builder who contracts to build it, there is a threefold implication: that the builder will do his work in a good and workmanlike manner:...
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