Independent Broadcasting Authority v BICC Construction Ltd
| Jurisdiction | England & Wales |
| Judge | Viscount Dilhorne,Lord Salmon,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Scarman |
| Judgment Date | 15 May 1980 |
| Judgment citation (vLex) | [1980] UKHL J0515-1 |
| Date | 15 May 1980 |
| Court | House of Lords |
[1980] UKHL J0515-1
House of Lords
Viscount Dilhorne
Lord Salmon
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Scarman
My Lords,
On the 19th March 1969 the television mast at Emley Moor in Yorkshire belonging to the Independent Television Authority ("I.T.A.") collapsed and fell to the ground, broken in many pieces with its base broken away from the concrete foundation on which it rested. It was a mast nearly a quarter of a mile height with a diameter at its base of only 9 feet. Its collapse was attributed to the mast breaking 1027 feet from the ground. I.T.A. sued their main contractors, Electrical and Musical Industries Ltd ("E.M.I.") for damages for breach of contract in respect of three contracts, one in relation to a mast at Winter Hill in Lancashire, one in relation to the Emley Moor mast and one in relation to a mast at Belmont in Lincolnshire.
Each mast had been designed and constructed by British Insulated Calender's Construction Co. Ltd. ("B.I.C."). In this appeal we are only concerned with liability in respect of the Emley Moor mast. It was not alleged that there was any defect in workmanship or in the materials used. It was said that the design was faulty and that under their contract with I.T.A., E.M.I. were liable for that. If they were liable to I.T.A., E.M.I. claimed to be indemnified against that liability by B.I.C. who had no contractual relationship with E.M.I.
I.T.A. also claimed damages from B.I.C. for negligence for breach of warranty and for a negligent statement which they say was made to them.
In 1958, E.M.I. tendered to I.T.A. for the erection of a television mast at Mendlesham in East Anglia and their tender was accepted on the understanding that though the mast would be designed and constructed by B.I.C., E.M.I. would accept overall responsibility for the project, including the mechanical design and performance of the mast. B.I.C. who were nominated sub-contractors, told E.M.I. that they would accept full responsibility for all aspects of the design, supply, installation and ultimate performance of the mast. It was to be a lattice mast and the highest then erected on this side of the Atlantic. The same pattern was followed in relation to nine more lattice masts erected for I.T.A., E.M.I. being the main contractors and B.I.C. nominated subcontractors for the design and construction of the masts, with B.I.C. accepting responsibility therefor to E.M.I. and E.M.I. accepting overall responsibility to I.T.A.
It was contended by the Independent Broadcasting Authority ("I.B.A.") formerly I.T.A. that the same pattern of responsibility was followed in relation to the contracts for the three masts at Emley Moor, Winter Hill and Belmont, a contention to which I will refer later.
On the 23rd March 1962 Mr. Robson, a senior engineer employed by I.T.A. wrote to B.I.C. saying that on a recent visit to Germany he had seen a 650 feet mast which was a steel cylinder and asking whether B.I.C. would consider such a design. On the 29th June 1962 B.I.C. replied comparing a lattice mast with a cylindrical one and saying that they thought that they could arrive at a firm price for one in 5 to 6 weeks if required.
On the 29th January 1963 B.I.C. wrote to Dr. Flint, who, we were told was a recognised world authority on masts and a consultant engineer, telling him that they had been asked by I.T.A. to prepare designs for two new masts, one of 1,000 feet and one of 1,250 feet in height. They told him that the masts would have an aerial section of about 500 feet which would be of their normal triangular construction and which would be enclosed in a fibreglass shell and that the masts below that section would be of cylindrical construction. As they said that this was the first time they had designed a structure of this type, they sought his expert advice as to the adequacy of the stiffeners they proposed to incorporate in the cylindrical section "with special regard to local buckling of the mast stick."
Although in this letter they only sought his advice on these matters, in a letter dated the 15th February 1963 B.I.C. stated that Dr. Flint had been asked to study their cylindrical mast design and to comment on its stability and aerodynamic behaviour. It may well be that he was asked to do so at a meeting.
B.I.C. representatives then went with Dr. Flint, their consultant engineer, to see some German cylindrical masts. The report on their visit states "Icing can be neglected on the cylindrical masts."
On the 4th April 1963 B.I.C. sent their line drawing SP5134/4 for a cylindrical mast to I.T.A.
On the 17th April 1963 B.I.C. wrote to Dr. Flint asking for his comments on calculations they had made for a 1,000 feet mast at Winter Hill. They said that they were "particularly concerned about the possibility of any vibrations occurring on this cylindrical structure and also about the unequal heating of the steel shell by the sun's rays."
On the 28th May 1963 Dr. Flint replied saying that the deflections and moments in the masts "under the condition of full wind with no ice on the cables, but with ice on the mast" had been analysed.
On the 1st August 1963 I.T.A. wrote to B.I.C. enclosing copies of their specification for the mast they would shortly be ordering for Emley Moor. They said that E.M.I. and the Marconi Wireless Telegraphy Co. had been invited to tender and that two similar specifications would be issued for a 1,000 feet mast at Winter Hill and a 1,250 feet one at Belmont. The invitation to tender for the 1,250 feet mast at Emley Moor was sent to E.M.I. the same day. No doubt these specifications accorded with the designs and specifications B.I.C. had prepared for I.T.A. It is not necessary to refer in any detail to the specification for the mast at Emley Moor. It stated that the mast was to be designed and supplied by B.I.C. and was to be made in three sections which were described and that:—
"The design to the complete structure shall be such that when fully loaded….it will withstand a wind pressure resulting from a wind velocity of 80 m.p.h. at 40' above ground level increasing with height in accordance with Table 6in the British Standard Code of Practice CP3 Chapter 5."
E.M.I. then on the 7th August 1963 invited B.I.C. to tender for the supply and erection of the mast and on the 13th September 1963 B.I.C. submitted their tender to E.M.I. Attached to their tender was a description and specification for the Emley Moor mast. The arrangement of the mast was to be as shown on their Drawing No. 3SP5134/4 which they had sent to I.T.A. on the 4th April 1963. The first 900 feet of it was to have a diameter of 9 feet; the top 350 feet was to consist of two spans, each triangular in section, the lower span having a face width of 6 ft 6 ins and the top span a face width of 4 ft 3 ins. Each span was to be covered by a fibreglass sheath of an external diameter of 12 feet on the lower span and 9 feet diameter on the upper. There were three lanes of stays for the mast, each lane having 6 stay lines fixed to different points on the mast, the top stay line being 1580 feet in length. The three stay lanes were 120 degrees apart. Under the heading "Design" it stated:—
"The effect of 1/2 in radial ice has been taken into account on the mast structure only above 460 ft level, no ice has been considered on the stays."
Before B.I.C. submitted their tender to E.M.I., they had asked on the 22nd August 1963 Dr. Flint to "calculate the probability of aerodynamic instability" of their design. They did not receive an answer from Dr. Flint until after they had submitted their tender.
The reason why they sought the advice of Dr. Flint was on account of a phenonemon called vortex shedding which affects cylindrical masts and chimneys but not lattice masts. It was well described by O'Connor J. as follows:
"As the air flows round the cylinder, vortices are formed on both sides, they detach alternately and induce forces upon the cylinder perpendicular to the direction of the flow. There is a direct relationship between the frequency at which the vortices come off (not to be confused with the frequency at which the mast oscillates), the speed of the wind and the diameter of the cylinder….When the frequency of vortex shedding approaches or coincides with a natural frequency of the mast, large forces may build up because the motion of the mast affects the pattern of vortex shedding and lock-on occurs, that is, the vortices on one side come off together over a certain length of the cylinder. Without lock-on the shedding is random. The length of cylinder affected by lock-on is known as the correlation length. The greater the correlation length the greater the forces induced."
On the 20th November 1963 Dr Flint sent to B.I.C. his preliminary report on the investigations he had been carrying out into the aerodynamic behaviour of the 1,000 feet mast it was proposed to erect at Winter Hill. That report is set out in full in the judgment of O'Connor J. and I need not therefore repeat it here. In that report Dr. Flint did not say whether he thought that the mast designed for Winter Hill would or would not be aerodynamically unstable. He gave the result of his calculations. For the circular section of the mast he said that the critical wind speeds were 8.5 and 13.5 m.p.h. and that the maximum flexural stresses at the lower sections of the mast had been calculated and were of the order of 7.5 to 8 tons per square inch to which the stresses due to axial compression of the mast had to be added giving...
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