The case required analysis of the design responsibilities of the six parties to a construction contract. Sitting in the Technology and Construction Court, Mr Justice Akenhead agreed with the case put forward by Kennedys that the duty of care owed in tort by the contractors (to a third party injured by the building) is primarily determinable by what each contracting party was engaged to do.
Kennedys represented a steel erector who had contracted to supply and install a building. The Judge found that he owed a duty to do so with reasonable skill and care, so as to not to expose users to a foreseeable risk of personal injury. On the facts, this duty did not extend to warning about possible deficiencies in the design. The contractual obligation was only to supply and install, not to design.
This decision will be useful in other construction cases where an injured third party seeks to pass responsibility for an accident to a subcontractor, whose contractual obligations were limited.
The case is also interesting as the Judge provided guidance on various legal issues summarised below, which are relevant to construction claims generally. Finally, the case illustrates how limits of indemnity in liability policies of £2 million or even £5 million are insufficient in these days of ever increasing awards for catastrophic personal injury.
The Claimant was employed as a yard hand by the Defendant, Bembridge, a boatyard on the Isle of Wight. On 18 September 2006 he was asked by the managing director to assist in manhandling a boat from a first floor platform into the adjacent workshop. As he pushed the boat on its trolley, a floor grating moved beneath him and he fell onto the floor some 11 to 12 feet below, with the loose grating panel striking or landing on him. He suffered very severe traumatic brain injuries.
The platform and the workshop had recently been designed and constructed. Expert evidence established that the immediate cause of the accident was that the clips holding the panel had become loose or had detached and were no longer present.
The Defendant settled the action brought by the injured Claimant for around £7.2 million and brought third party proceedings against six parties who were involved in the design, supply and erection of the building and platform:
- TP1 and TP2 – Ely (trading as M&J Ely/Unit Projects/CDMC) – project manager
- TP3 - Martlet Engineering Design Ltd – designed building and prepared structural drawings
- TP4 – Bennett (trading as PB Structures) – steel erector who contracted to supply and erect the building as per drawings (represented by Kennedys)
- TP5 – Allen Fabrications Ltd – steel fabricator
- TP6 – Martin – prepared installation drawings.
The Defendant settled its claims against TP1 and TP2 (for £2 million plus costs) and TP3 (for £1.8 million plus costs), these sums representing the limits of indemnity available under the liability policies of these parties, who were in liquidation. The matter proceeded to trial against TP4, TP5 and TP6.
Mr Justice Akenhead dismissed the Defendant’s claim against TP4, TP5 and TP6:
- TP4, TP5 and TP6 exercised all the reasonable care and skill which might reasonably have been expected of them. They were aware that the site was a boatyard and that the platform was likely to be used for loading and unloading of boats. However, they did not have any more detailed knowledge. It would not have been obvious to them that there was any real risk that the clip fixings would be the subject of major mechanical damage or failure, which occurred with the use of large fork lift trucks.
- The real problem, and the cause of the accident, was the failure on the part of TP1, TP2 and TP3 to exercise all the reasonable care and skill which might reasonably be expected of them in connection with the provision of design and specification of materials for the platform. Specifically, TP3’s design did not allow for the foreseeable movements, loads or damage to which the platform would be subjected.
The Judge also considered various legal issues raised by the parties, albeit that in light of his factual findings his ruling on them was not required:
- The decision in Clay v AJ Crump & Sons and another  was not authority for the proposition that a contractor cannot discharge its duty of care at least to a significant extent by retaining apparently competent parties down the line to carry out some of the duties which it has contractually assumed.
- An obligation to warn may arise in the context of a tortious duty of care, certainly in the case of a danger to people, known to exist by the person whom it is said should be giving a warning. This will depend on all the facts and the circumstances.
- Consideration was also given to the application of the Civil Liability (Contribution) Act 1978 in cases, such as this, where the Defendant had already settled with some of the third parties. Had a finding been made against TP4, TP5 or TP6, it would have been necessary for the Court to determine the appropriate contributions of all the parties, including TP1, TP2 and TP3 who had settled.
- On the facts of this case, TP5 should be treated as vicariously liable for TP6, albeit that he had since 2002 been self employed. For example, most of TP6’s work was for TP5 and he presented himself as working for TP5.