Morrison's Associated Companies Ltd v James Rome & Sons Ltd
| Jurisdiction | Scotland |
| Judgment Date | 19 February 1964 |
| Docket Number | No. 18. |
| Date | 19 February 1964 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Cameron.
Contract—Building contract—Construction—Standard of duty imposed—Building collapsing during course of alterations—No specific breach of contract proved against contractors—Whether duty to perform contract absolute—General Conditions of Contract for Building Works in Scotland (1954), condition 1.
Negligence—Standard of duty—Building contractor.
Process—Action of damages for breach of contract—Averment of two specific breaches—Pursuer failing to prove either—Whether entitled to succeed on general averment—Specification—Onus.
Condition 1 of the General Conditions of Contract for Building Works in Scotland, dated 1st September 1954, provides:—"The contractor shall provide and do everything which may be necessary for the due and proper completion of the work included in the contract in accordance with the true intent and meaning of the signed drawings, specifications, schedules of quantities, and these conditions, and the works shall be carried out in accordance with the drawings, specifications and General Conditions of Contract and any modification thereof and any further drawings, details and instructions in explanation of same, and such directions as may from time to time be given by the architect."
The General Conditions of Contract were incorporated into a contract between a company and a firm of builders for the carrying out of alterations to a building owned by the company. The alterations involved taking down the frontage of the building at street level and providing temporary supports for the building while a new frontage was erected. Shortly after the temporary supports had been put in place, a portion of the building collapsed, and subsequently the whole building had to be demolished. In an action of damages against the builders the company averred that in terms of condition 1 of the General Conditions of Contract the builders were under obligation to provide and do everything necessary for the due and proper completion of the work of alteration and that they had failed in this duty, in particular by failing to provide adequate shoring and by failing to see that the building was not over-jacked. Apart from these two matters there was no specific averment of breach of contract. The company also averred that the builders were guilty of negligence, in respect that they had not taken reasonable care in carrying out the work of shoring and jacking. After a proof the Lord Ordinary held that the pursuers had not proved their charges in regard to inadequate shoring and excessive jacking, but he nevertheless held that, in view of "the imperative and absolute terms of condition 1," the occurrence of the collapse when the building was in the sole control of the defenders, when work was in progress on the building in execution of the contract, and when a transference of the weight of the superstructure was taking place from its previous supports to the temporary ones, was sufficient, when no other cause was alleged or proved by the defenders, to establish that they had failed to do everything required for the completion of the work and were therefore in breach of contract. He further held that the defenders had not been guilty of negligence, as the methods they had adopted were in accordance with regular practice in the building trade and there was nothing in the particular circumstances of the case to suggest that any unusual risk would arise from following the normal practice, but in reaching this conclusion he rejected a submission by the defenders that the position of a builder was in law the same as that of a doctor, as laid down in Hunter v. Hanley, 1955 S. C. 200, and that to establish negligence it would be necessary for the pursuers to show that the defenders had acted in a way in which no builder of reasonable skill, exercising reasonable care, would have acted in the circumstances.
Held (1) that the Lord Ordinary had rightly rejected the pursuers' case based on negligence, and his reasoning on this branch of the case approved; but (rev. judgment of Lord Cameron) (2) that condition 1 of the General Conditions of Contract did not import any absolute obligation, but merely meant that the contractor must supply the labour and materials required to complete the contract work (including all things properly ancillary to the work, even if not specifically mentioned in the contract) in accordance with the drawings, specifications and schedules of quantities, and that he must adopt the usual and recognised standards and practices which a careful contractor would adopt in the trade concerned; and (3) that, having negatived the only two specific breaches of contract pled by the pursuers, the Lord Ordinary was not entitled to find in their favour on general grounds for which they had no record; and the defenders assoilzied.
Gunn v. M'Adam & Son, 1949 S.C. 31,distinguished.
Hook v. Brown and Others, 1963 S.L.T. (Notes) 52,approved.
Morrison's Associated Companies Limited brought an action against James Rome & Sons Limited, in which they concluded for damages in respect of the loss they suffered when a building owned by them in King Street, Kilmarnock, upon which the defenders were carrying out alterations for them, partially collapsed and subsequently had to be totally demolished. The following narrative of the facts is taken from the opinion of the Lord President:—"The building in question consisted of a basement below street level, shop premises on the ground floor, two upper floors and attics. Plans for the proposed reconstruction were prepared by the pursuers' architect, and a contract to do the work was completed with the defenders. The alteration which alone is material to the present case consisted in the removal of the entire shop front on the ground floor with a view to the insertion of a new front. This involved the temporary shoring up of the front wall at first floor level, as the whole of the support for that wall fronting the street had to be removed. This shoring up was part of the work which the defenders agreed under the contract to do. The method adopted was what is known as vertical stud shoring. This it is unnecessary to describe in detail, as will appear later. It is enough to say that it involved the erection of a row of vertical shores outside and parallel to the front of the building and another row of vertical shores inside. Directly above this inner row of vertical shores and on top of the first floor of the building there was a sleeper beam extending along the full frontage of the building. Steel beams, known as needles, were then inserted through the face of the building so that their inner ends rested on the sleeper beam and their outer ends on the outside vertical row of shores. These needles were designed to take the weight of the butts or piers between the windows on the first floor and additional needles were inserted beneath the centre of each window. These needles were then jacked up with jacks at their outer end, so as to take the weight of the outer wall above them. There were in addition bracings placed in all the upper storey windows. This work had all been completed a day or two before the accident, and the defenders were in process of removing the frontage of the ground floor of the building when a partial collapse of a section of the upper floor frontage took place. It fell down into the street." Subsequently the Burgh Surveyor ordered the remainder of the building to be demolished.
The parties averred, inter alia:—(Cond. 5) "The pursuers believe and aver that the said collapse and subsequent demolition of the said building was caused by breach of the said contract on the part of the defenders. They were under obligation to provide and do everything necessary for the due and proper completion of the said work of alteration and to protect and preserve entire and uninjured the work executed and the materials supplied by them. In their said obligations the defenders failed and by their failure caused the said collapse and subsequent demolition of the said building. They failed to provide and do everything which was necessary for the due and proper completion of the said work of alteration to the said building. In particular they failed to provide adequate shoring to maintain the building in position and to prevent its collapse. They failed to see that the building was not jacked excessively with the result that excessive strains were put upon the fabric, which contributed to the said collapse. They failed to protect and preserve entire and uninjured the work executed by them and materials supplied by them. In particular the shoring provided by them was not preserved entire and uninjured but gave way in a number of places. Had the defenders performed the said obligations incumbent upon them the said accident would not have occurred. The averment in answer is denied." (Ans. 5) "Denied that the defenders were in breach of said contract. Explained that the defenders carried out all their obligations under said contract. The said contract is referred to for its terms beyond which no admission is made." (Cond. 6) "Further, the collapse of the said building was caused by fault on the part of the defenders. In carrying out the work of the contract the defenders had to shore the floors of the building internally, brace out the windows and shore and jack the external wall of the building on King Street. It was their duty to carry out the said work of shoring, bracing and jacking with reasonable care so as to prevent the building collapsing. In this duty the defenders failed and by their failure caused the collapse of the building. They did not take reasonable care in the circumstances in carrying out the said work of shoring, bracing and jacking. The shoring used was old and of insufficient strength and was more openly spaced than was safe or proper in the...
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