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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Plant Construction Plc v. Clive Adams Associates, JMH Construction Services Limited [1998] EWHC QB 335 (9th March, 1998) URL: http://www.bailii.org/ew/cases/EWHC/QB/1998/335.html Cite as: [1998] EWHC QB 335 |
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IN THE HIGH COURT OF JUSTICE
1996 ORB 750
QUEEN'S BENCH DIVISION
OFFICIAL REFEREES' BUSINESS
HIS HONOUR JUDGE HICKS QC
BETWEEN
PLANT CONSTRUCTION PLC
Plaintiff
- and -
CLIVE ADAMS ASSOCIATES
First Defendants
- and -
JMH CONSTRUCTION SERVICES LIMITED
Second Defendant
JUDGMENT
Introduction
1. Ford Motor Company Ltd ("Ford") has a research and engineering centre called Dunton at Laindon, Essex. In 1993 a project was under consideration for the installation there of two engine mount rigs in pits, which would require to be excavated for that purpose. By the time the necessary funds were released to enable the project to go forward time for the civil works was very short to meet the delivery date of the rigs from America, so that Mr Michael Furley, Ford's senior civil engineer, was unable to prepare a full "in-house" design, as he would have wished, or even the detailed specification and brief which he considered necessary if the "design and build" contract which he was instructed to use was to work satisfactorily. He felt he had to cut a number of corners. He met the three prospective tendering contractors together instead of separately, presented them with a hastily prepared specification and gave them two weeks instead of the usual four in which to tender, recognising that they had no detailed drawings from which to price and would have to "glean as much information as they could from me". Meanwhile they had been asked to nominate sub-contractors for the sub-structure works, with whom also (at least in the case of the one involved in these proceedings) Mr Furley was in direct contact before a contract or sub-contract had been entered into.
2. In the event the contract was let to the Plaintiff, Plant Construction PLC ("Plant"), which sub-contracted the sub-structure works to the Second Defendant, JMH Construction Services Ltd ("JMH"). Plant also engaged the First Defendants, Clive Adams Associates ("Adams"), as consultant structural engineers to design and monitor the sub-structure works.
3. The sub-structure works included excavating the required pits, one of which was to the east of and very close to a steel column or stanchion, J11, supporting the roof. The excavation was so close to J11 as to involve the removal of part of its concrete base, which would otherwise have protruded into the excavated area. In order to make good the lack of adequate support which that would have entailed the design provided for the underpinning of J11. Pending completion of the underpinning temporary support was required for J11 and the roof.
4. Work began on 26 November 1993. On or about 8 December 1993 JMH installed temporary support for the roof in the form of four standard Acrow props some 5 metres long, installed vertically between the floor and the underside of the roof trusses. Excavation proceeded and when work ceased for the New Year holiday on 31 December JMH were ready to start underpinning J11. On the night of 1 January 1994, however, there was heavy rain and in the early hours of 2 January the whole of the roof in that area collapsed. Fortunately no-one was there to be killed or injured, but the damage was very substantial, as were the cost of repair and the disruption to Ford's operations.
Investigations and Proceedings
5. There was an investigation into the collapse by the Health and Safety Executive, during which witnesses were interviewed and statements taken under statutory powers between January and December 1994. A number of the 1994 statements or interview notes were before me as evidence admissible under the Civil Evidence Act. Ford and Plant were tried at Chelmsford Crown Court in September 1995 on a prosecution conducted by the Health and Safety Executive and there was some cross-examination and re-examination of witnesses before me by reference to passages in the transcript of the evidence given by them at that trial.
6. Ford claimed damages against Plant and that claim was settled by the payment by Plant to Ford of £1,313,031.
7. Plant then commenced the present action against Adams and JMH, claiming damages quantified by reference to the agreed payment to Ford plus its own pleaded costs of £615,000 for repair work. JMH joined Ford as a Third Party. On 31 July 1997 His Honour Judge Humphrey Lloyd QC struck out the Third Party Notice as disclosing no cause of action. On 9 January 1998 Plant, Adams and JMH all consented to an order disposing of Adams' further involvement as a party and providing for the terms and basis of the settlement to be disclosed at trial. They were, in summary, that Adams admitted liability, that Adams paid to Plant in full and final settlement the sum of £250,000, being the limit of Adams' liability insurance cover, that neither Adams nor JMH would pursue any claim for contribution or an indemnity against the other and that Adams' documentary and oral evidence would be available to Plant and JMH at trial.
8. The trial before me was therefore one between Plant and JMH alone.
The Structure
9. The roof structure, which supported both the roof covering and a number of ducts, pipes, cables and items of equipment such as one might expect to find in a building of this kind, consisted of a series of parallel primary steel trusses bearing on stanchions such as J11 and themselves supporting lighter secondary steel trusses crossing them at right angles. Each truss consisted of horizontal upper and lower members, or rails, joined by diagonal members in a zig-zag pattern and vertical members at each point where the diagonals met an upper or lower horizontal, the joints being welded. The points at which two diagonals and a vertical met and were welded to a horizontal were called "node points". The nearest node point to a stanchion on any truss was always in the lower rail.
10. There was some testing of the trusses after the collapse and some calculations were carried out. The results of the tests can be summarised as showing that the steel was sound but that the welding had many minor defects, although "it would not be unusual to find welds of this quality" and over the range of connections sampled it "would be considered fairly typical for this type of application". Calculations showed that under ordinary loading conditions some diagonals were overstressed, but not to the extent that there was any likelihood of failure, nor had there been any.
11. Two methods of temporary support were canvassed at the time and at trial. There may be other possibilities, but none was suggested. One - that adopted - was to prop the underside of the trusses bearing directly or indirectly on J11. The other was to support J11 itself by two parallel horizontal beams, passing each side and clamped, bolted or welded to it, with their ends resting on "stools". Both required adequate strength in the existing concrete floor to carry the loads imposed at the support points, but (with one qualification, to which I must return) it was not suggested by anyone that that was lacking. Both required adequate strength in the temporary supporting members, but it was common ground that that could have been procured.
12. In other respects there were important differences between the two methods. If J11 were directly supported there would be no significant difference in the level or distribution of stresses in the roof trusses and no reason to suppose that the roof structure would be at risk of failure. If the trusses were propped there would be two changes, one obvious and one perhaps not so obvious - it certainly did not occur to anyone at the time and even the experts' reports prepared for trial show signs of at least intermittent lack of attention to it. The obvious change was that since the trusses would be supported at points other than that (J11) at which they normally were the distribution of stresses would change, and the more remote from J11 the props the greater the changes. The less obvious one was that the props had to be able to support not only the weight normally borne by J11 (some 45 tons) but also that of J11 itself and its base, which Mr Pinfold (the engineering expert called by JMH) put at seven tons. Moreover (and this Mr Pinfold did point out in his report) it was not sufficient merely to place props tightly against the underside of the trusses; if that were all the trusses would settle on them when the weight transfer took place and then would be distorted further as they took the weight of J11 and it settled lower still. J11 would then be underpinned in its (incorrect) settled position, with a number of undesirable consequences. To counteract those effects props would have to be jacked up until the whole weight of the roof and J11 was transferred to them and J11 suspended at its correct level.
13. Although the extent of JMH's responsibility for the form taken by the temporary support is a major issue it is not in dispute that one design decision or constraint was imposed by Ford through Plant, namely that of the two methods described above only propping the trusses was acceptable. Apart from the obvious question of the strength of the props that left a decision to be taken as to where they should be placed. Both common sense and the expert evidence agree that the best position would have been at the first node from J11 in each of the four trusses meeting there. Here further constraints came into play by reason of the nature of the works. The primary trusses were treated as being aligned north-south and the secondaries east-west. The excavation immediately adjoined J11 on the east, making it impossible to prop the secondary truss on that side. Along the primary trusses to the north and south the excavation was too close to the line of the trusses at the positions of the first nodes to enable vertical props there to be safely footed on the concrete floor. They could have been taken down to secure foundations prepared for the purpose at the base of the excavation or inflatable jacks under the first nodes could have been "bridged" by a high-level beam, as suggested by Mr Sketchley (the engineering expert called by Plant) in a drawing prepared during the trial. There was no difficulty in the way of placing a prop under the first node of the secondary truss to the west, but the lighter structure of that truss and the absence of a matching prop to the east imposed severe limits on the amount of weight which could be taken there without failure or distortion - Mr Adams and, I believe, Mr Sketchley thought not more than 10% of the total load, and Mr Pinfold allowed only two tons, or some 4%.
14. The positions of the props actually installed by JMH were the subject of some dispute in detail, and although in the light of the agreed statement by the experts mentioned below the differences are of little or no consequence I shall record my findings. Along the primary truss to the north was one prop, beyond the second node in the lower rail, the exact position being put by JMH's evidence at the next vertical tie and by Plant's a little inside that. To the south the prop was beyond the first node in the lower rail, again according to JMH at the next vertical and according to Plant inside that. To the west there were two props, the nearer at (JMH) or inside (Plant) the first node and the other at (JMH) or inside (Plant) the next vertical. I find that the positions were as advanced by Plant.
15. The agreed joint statement by the structural engineering expert witnesses includes the following paragraph:
5.2 (i) The Acrow props provided to support the roof were inadequate. (ii) If stronger props had been used in the actual locations or the positions shown on Clive Adams drawing dated 2 December 1994 [sc. at the first vertical tie beyond the first node under each of the three relevant trusses] then the roof would definitely have failed.
(iii) If stronger props had been provided at first node points (on the main trusses this is the node between the column and the first secondary truss) then the roof may (sic) well have failed.
(I have added the sub-paragraph numbers for ease of reference, and the comment in square brackets is mine.)
16. It appeared in oral evidence that the apparent agreement on 5.2(iii) concealed some difference of emphasis. Mr Sketchley said that by "may well" he meant "a possibility, rather than a probability", and agreed that that implied a less than 50% chance. Mr Pinfold at first said in chief that he could not say whether the chance was 49% or 51%. Later he said that he "could give an opinion that there was a greater than 50% of trusses failing" but could not justify it by calculation. Moreover it appeared, and was confirmed in cross-examination, that that opinion predicated the omission of the "jacking up" process described at the end of paragraph 12 above, with resulting "impact" overloads on the primary trusses following an initial failure of a secondary truss. With proper jacking he accepted that the system would work "if you accept a higher degree of overstress", but he was then unable to say that the overstress under propping was worse than that in the pre-existing state. I find that on the balance of probabilities a properly jacked system of adequate strength supporting the three accessible trusses at the first node points would not have failed.
17. The above description and analysis are of course prepared with the advantage of hindsight and the assistance of two expert witnesses. In many respects they do not reflect what appeared to be the position to one or more of the parties at the time, nor are they intended to prejudge what should have been apparent then to persons exercising due care and skill, so far as that is a relevant question.
The Issues
18. It is common ground that the provision of support pending underpinning was within the scope of JMH's sub-contract and was properly to be described as "temporary works". The contract was entered into, so far as documentation was concerned, by a simple quotation by JMH accepted by an order by Plant dated 29 November 1993. Neither party relies on any written term allocating responsibility for the matters in issue.
19. It is not in dispute that the support actually provided was inadequate and, so far as that may be relevant, negligently so. The parties have been at one in categorising that as a defect of design and I am content to adopt that terminology, although it perhaps implies a more clear-cut distinction between design and working method than is of relevance or assistance in the field of responsibility for temporary works. The first and main issue of liability is therefore whether design, in that sense, of that element of the temporary works was and remained the responsibility of JMH.
20. That issue is conveniently addressed in the following stages, which I derive largely from those used in their opening and closing submissions by Mr Edwards-Sruart for Plant and Mr Stow for JMH:
(1) Is there a rule of custom and practice or of law that in the absence of provision to the contrary the contractor (including where appropriate the sub-contractor) is responsible to the employer (including in the case of sub-contracts the main contractor) for the design of temporary works, and if there is such a rule is it subject to any exception covering the facts of this case?
(2) If the answers to the two parts of (1) are respectively yes and no, was there at the inception of the contract between Plant and JMH any provision to the contrary deriving either from (i) a common understanding that in all contracts and sub-contracts where Ford was the ultimate employer and Mr Furley was Ford's engineer there was an overriding term that Mr Furley's instructions must be complied with, or (ii) an express oral term to similar effect, either generally or in relation to the type and location of temporary props in particular?
(3) If the answers so far are in Plant's favour, was the contract subsequently varied so as to include such a term?
(4) If the answers so far are in Plant's favour, is it estopped by convention from denying the existence of such a term?
(5) Was JMH directed to prop the roof trusses with Acrow props at the positions and by the methods in fact adopted, either by Mr Furley under such a term, or by Adams as Plant's engineer and agent, or both?
21. Mr Stow and Mr Edwards-Stuart agreed in closing submissions that there was an issue between the parties whether Mr Adams told JMH that the props were in the wrong position and inadequate. I accept that there was conflicting evidence as to whether that happened, which I must no doubt consider, but I am not at all clear how it raises any distinct pleaded issue. It is, however, relevant to issues which are undoubtedly pleaded. One of them is whether, if under no design obligation, JMH was nevertheless in breach of a duty of due care and skill in failing to advise Plant that the propping was inadequate and in continuing with the works when it was not safe to do so.
22. If JMH is liable its plea of contributory negligence falls to be decided, raising issues (i) whether its liability arises under one or more of the categories in which such a plea is available, (ii) if so, whether Plant was in fact contributorily negligent, and (iii) if so, how liability should be apportioned.
23. A counterclaim and set-off were pleaded but not, as I understand it, pursued in closing submissions, so I do not propose to treat them as live issues. That being so I need reach no decision, either, on Plant's opening submission that JMH is bound by Judge Lloyd's conclusions on the striking-out application and cannot reopen the same questions, since I understand it to be directed to those issues alone; certainly Judge Lloyd expressly contemplated that as between Plant and JMH it would be open to JMH to prove its pleaded allegations as to (inter alia) the part played, with Plant's agreement, by Mr Furley and that if all the facts on which JMH relied were established it might well (to put it no higher) not be liable to Plant.
24. Mr Stow made a submission that causation was not established, on the basis that adequate props at the first nodes, which on Plant's case were what JMH should have provided, would not on the balance of probabilities have prevented the collapse. On my finding at the end of paragraph 16 above that submission fails.
25. There are no outstanding issues as to quantum. JMH accepts that Plant reached and satisfied the settlement for £1,313,031 of Ford's claim described in paragraph 6 above and that it was a reasonable settlement, and also that Plant has itself properly incurred the remedial costs of £615,000 referred to in the first sentence of paragraph 7.
The Witnesses
26. For Plant evidence of fact was given by Mr Boraster, a director, Mr Smith, the responsible contracts engineer, and Mr Clive Adams, the principal of the Adams firm. The factual witnesses for JMH were Mr Reynolds, its managing director, and Mr Cleave, who was engaged as its site agent for this project. A recent statement by Mr Allen, Plant's general design consultant, and the 1994 statement of Mr Furley were also put in evidence.
27. The oral evidence and Mr Allen's statement were four years or more after the event. All the witnesses except Mr Allen had strong motives for self-exculpation from responsibility for a disastrous failure out of which none had emerged with credit. There were discrepancies between the evidence of different witnesses called by the same party and between that of the same witness at different dates. None was wholly exempt from these failings and although criticism could be levelled with different degrees of force at different witnesses in relation to their accounts of particular events this is not a case where I feel able to simplify the process of finding disputed facts on the basis of any general preference for the evidence of one or more witnesses over that of others.
28. Diaries and other records were kept by some of the witnesses. Where contemporaneous, as most of the entries were, they were a more reliable source of information than the maker's later recollection so far as they went, since it was not suggested that they were fabricated, but very often they were by their nature uninformative or ambiguous on crucial points.
29. The expert witnesses have already been mentioned. Both were well qualified and experienced and I have no general preference for the evidence of one rather than the other.
Temporary Works - a General Rule?
30. I find the general rule set out in paragraph 20(1) above established as a rule of custom and practice. It was supported by Plant's expert engineer's report, by Mr Sketchley in oral evidence and by citations from the literature. Mr Pinfold accepted its existence in cross-examination. The nearest approach to evidence to the contrary was, ironically, that of Mr Boraster in chief, who thought that responsibility should lie with the engineer, but his only relevant experience was of contracts for mechanical engineering, so I do not attach any weight to his expectation as to what the position is in construction contracts in general or was to be in this contract in particular.
31. The more arguable question is whether there is an exception covering the facts of this case. Mr Pinfold considered that there was, because of the nature of underpinning work and the usual procedures for dealing with it. He considered that a scheme for underpinning must be specified by the engineer. He accepted that that would not extend to temporary shuttering, which would be the contractor's responsibility, but the contractor would not, he said, design the temporary support of a roof because the position and design of props depends on the roof structure, of which the contractor has no knowledge. There was a necessary design input, which he distinguished from that required for such matters as shuttering and shoring on the basis that the latter were what he called "catalogue design".
32. In support of that proposition Mr Stow further relied on a publication called "Specification 91", to which both parties referred as evidence of practice. In Section 2, "General Requirements", paragraph 295 provides as a standard clause:
Temporary works and equipment
295 Generally: The choice, design and use of temporary works and equipment are the Contractor's responsibility entirely ....
That was part of the evidence relied upon by Plant for the general rule. The guidance notes to that item, however, read:
There should be no confusion between temporary works which are at the contractor's option and those which are designed by the specifier. This clause .... refers to the former. Any such works designed by the specifier must be specified in full detail .... .
In Section 7, "Underpinning", paragraph 130 provides as a standard clause:
Preliminary procedures
130 Before commencing: Ensure the structural stability by load reduction and/or temporarily propping as recommended by BS 8004 Section 9.8.
The guidance notes to that item, however, read:
This is a typical "cover" clause for a specifier who hopefully wishes to place all responsibility on a contractor. The correct procedure is a survey as recommended by 9.8.1 of BS 8004, enabling detailed procedures to be specified (9.8.4).
Paragraph 9.8.4 of BS 8004 includes the following:
9.8.4 Design
.... The designer has to be satisfied that the whole foundation including that part modified by underpinning will continue to perform satisfactorily. If the changed support conditions will inevitably give rise to excessive differential movement, jacks may be installed temporarily or permanently to correct this. ....
33. It is not difficult to envisage even more elaborate temporary works requiring sophisticated design, such as caissons for underwater bridge pier foundations and coffer dams for major impoundment schemes. It is not in dispute that in such cases there may well be express terms making design the responsibility of the employer's engineer, but Mr Sketchley remained adamant that in the absence of such a term, and even if the engineer provides a suggested design or construction sequence, the contractor remains responsible and may elect to do the works in a different way.
34. I accept the evidence of Mr Sketchley on this point. The passages in Specification 91 relied upon by JMH are, at best, directed to the desirability in certain circumstances of express allocation of design responsibility for certain temporary works to the specifier rather than to what the position will be in the absence of express provision. If, as I have found, there is a general rule, no clear principle or accepted body of practice has been adduced to justify or delimit the exception. Some temporary works may indeed be very elaborate and expensive and require commensurate design skills, but the contractors who tender for and are awarded contracts of that kind are likely to be ones with the necessary resources to deal with those demands.
35. Mr Edwards-Stuart also relied upon three authorities: Clayton v Woodman & Son Builders) Ltd [1962] 1 WLR 585, AMF International Ltd v Magnet Bowling Ltd [1968] 1 WLR 1028 and Oldschool v Gleeson (Construction) Ltd (1976) 4 BLR 103. The effect of those authorities is, I believe, best summarised by a passage in the judgment of Mocatta J in the AMF International case:
.... an architect has no right to instruct a builder how his work is to be done or the safety precautions to be taken. It is the function and right of the builder to carry out his own building operations as he thinks fit.
Since that does not directly address the question whether there is for this purpose some distinction between working method and design, and since Clayton, in particular, was concerned with duties owed to workmen and concerned with their safety from injury, I do not rely upon those authorities in support of my conclusion, although they are consistent with it.
The Situation at the Contract Date
36. I propose to take the questions posed in paragraph 20(2) in reverse order. As to (ii) JMH first relies on evidence by Mr Reynolds in chief that in the first telephone call from Plant (which was from Mr Boraster) he was told that JMH would be taking instructions from Mr Furley. That evidence was not in Mr Reynolds' witness statement or any earlier statements and had not been pleaded, opened or put to Mr Boraster in cross-examination. When reminded of it in cross-examination Mr Reynolds modified it by saying: "I asked where I could get the information from and was told that Ford would provide the information". There is nothing there to justify a finding of an express term such as is in issue.
37. Next it is said that Mr Furley and Mr Adams in early November 1993 agreed the design of the temporary support, namely that it should be by propping at the first node point in each direction on the primary trusses and on the western secondary truss. That is irrelevant for a number of reasons: it did not involve JMH, it did not specify the type or strength of the props, and it specified positions for the props other than those in fact used.
38. Then reliance is placed on the fact that Mr Adams produced an approximate estimate of quantities which included the words "temporary propping to existing trusses" and two drawings, one of which had a note reading "main trusses to be propped at node points ....", which were given to Mr Reynolds by Mr Allen. That goes, in fact, to point (5) in paragraph 20 rather than to (2)(ii), but is in any event of no assistance to JMH. JMH's own case is that Mr Reynolds did not look at the drawings before they were thrown away by Mr Furley; moreover these documents contained nothing beyond what has been dealt with in paragraph 37 above.
39. Finally JMH rely on Mr Reynolds' evidence that at a meeting at Mr Furley's house on 14 November 1993 Mr Furley told him that Acrow props should be used. There are indeed important issues of fact whether that was said, and if so whether in circumstances of contractual significance, but those are again "point (5)" questions and moreover arise only if Mr Furley's authority to give instructions which would bind Plant is established, which is the very issue under examination at point (2).
40. JMH has therefore failed to establish an express oral term that Mr Furley's instructions must be complied with, and I turn to the question whether that term was incorporated as a matter of common understanding between Plant and JMH, derived from their experience of previous Ford contracts. As to that Mr Boraster said in his statement that Plant had had an ongoing relationship with Ford since Plant was formed in 1974, that about 50% of Plant's work with Ford had been in the form of "blanket" orders, involving Ford's giving instructions directly to Plant's engineers or foremen on site and Ford's engineers' authorising sub-contract work, and that in his experience Ford generally provided only part instructions at the outset - "projects usually develop". He knew that at the time of the contract JMH also had previously undertaken work for Ford, both directly and as sub-contractors. He referred to that as Ford's "hands-on" method of working, which in cross-examination he described as Ford's having a day-to-day input into what was going on on site, which involved giving instructions directly to contractors and sub-contractors. He was present when at the pre-tender stage Mr Furley struck out side wall shuttering from the bill of quantities, clearly an explicit arrogation of authority to direct the form of temporary works, accepted and understood by Plant as being within his powers. Cross-examined as to his reference to "projects usually developing" Mr Boraster agreed that that would involve Ford, through Mr Furley or possibly somebody else, giving instructions as to what it wanted implemented. I accept all that evidence.
41. Mr Smith had himself been a project engineer for Ford in the 1960s and had worked for Plant for 16 years. He was not involved in pre-contract meetings. He was asked a number of questions about what happened about instructions from Mr Furley, but in my understanding they all related to events during the currency of the works in issue, not to past practice.
42. Mr Reynolds said in his witness statement that Ford was before this sub-contract a major client of JMH, which was one of only four or five approved building and civil engineering contractors on Ford's list and had been doing work for Ford for about twelve years. Most of his evidence about instructions from Mr Furley was, like Mr Smith's, concerned with post-contract events, but at the end of his cross-examination he was referred to Plant's contract with Ford, and in particular to a condition that all drawings had to be submitted to Mr Furley and no work done on the basis of a drawing until Mr Furley had approved it. He agreed that JMH had received similar Ford contracts in the past, that that condition was typical, that there was therefore no point in submitting a drawing unless Mr Furley would approve it, that everyone knew that, and that that was how Ford worked. There was also his evidence already referred to for a different purpose, which I accept, that when he received Mr Allen's drawings and Mr Adams' approximate quantities on 10 November 1993 and took them to Mr Furley the latter took one look at them, rejected the drawings out of hand and was also unhappy about the quantities. It was implicit in that account that he accepted Mr Furley's right to act in that way, and that must in my view be attributable to his past experience. Finally there was his Sunday visit to Mr Furley on 14 November, when the latter produced a bill of quantities including the item "Install 3 props under the existing trusses" and, Mr Reynolds says, told him they were to be Acrow props. I must later, for other purposes, return to the dispute whether that was said, but in my judgment that incident does not on any view help JMH to establish the term based on common understanding now in question, since Mr Reynolds accepted in cross-examination that on that occasion Mr Furley was helping him as a friend, in a personal capacity.
43. Although I strongly suspect that in truth there was the relevant common understanding I must conclude that on the evidence it is not established. On Plant's experience and expectations Mr Boraster's evidence was direct and comprehensive, did not distinguish between permanent and temorary works, and included knowledge of JMH's parallel involvement, but on JMH's side Mr Reynolds gave no direct evidence of practice except as to approval of drawings. Neither that evidence nor any inference properly to be drawn from his acquiescence in the rejection of Mr Allen's drawings was adequate to show a more general practice of complying with all instructions from Mr Furley, in whatever form and whether as to permanent or temporary works, nor to his knowledge of a shared experience to the same effect on the part of Plant.
44. I therefore conclude that JMH has not established that at the date of the sub-contract its responsibility under the general rule for design of temporary works had been displaced. The evidence summarised in this section, however, helps to set the scene for the next question and is proper to be taken into account in answering it.
Variation
45. I adopt the heading "variation" with a little unease because although it describes the issue as pleaded and argued, and in principle (as I accept) correctly so, it has associations in the context of standard form construction contracts which are of no relevance here. I am not concerned with formal instructions from Plant or Adams to depart from a contractual bill, specification or drawings in particular ways. The question is whether by words or conduct the parties agreed with contractual intent that in carrying out the sub-contract works JMH should comply with all instructions from Mr Furley, or with some category or categories of such instructions wide enough to include instructions as to the form of temporary support for the roof structure in general, and the type and location of props in particular. That involves an examination of what in fact happened and the drawing of any proper inferences as to how far concurrence or acquiescence in what happened had contractual effect. It is to be distinguished from the illicit use of post-contract events to deduce the position at the inception of the contract, which I have tried to avoid in my discussion of that subject in paragraphs 36 to 44 above.
46. I need not review the whole of the evidence on this issue, because the parties were at one about a number of matters. It was common ground among the witnesses, other than Mr Furley himself, that he had a dominating and domineering personality and involved himself closely in the day-to-day progress of work on site, giving instructions freely to engineers, main contractors and sub-contractors alike, which he expected to be obeyed without question and which were so obeyed because of his personality and his standing within Ford, and because no-one could afford to lose Ford's goodwill or, therefore, his. Mr Furley's natural predilection for by-passing orthodox lines of communication was the more readily accepted and adopted by everyone concerned because of the pressure of time and the resulting under-specification and need for frequent changes.
47. As to the legal effect of that situation it was accepted by Mr Edwards-Stuart in his closing submissions that where Mr Furley's instructions varied Ford's specification, with or without a resulting cost increase, that variation had to be implemented. I agree. He submitted, however, that that did not extend to instructions which varied Plant's design or JMH's method of working, without affecting Ford's specification. The issue therefore resolves itsef into the question whether that or some other relevant limitation on Mr Furley's authority can be made good.
48. The first evidence on which Mr Edwards-Stuart relied for this purpose was evidence given by Mr Boraster under cross-examination by Mr Stow, persisted in over my repeated protests, as to what Mr Boraster thought was the contractual position. That was inadmissible by its nature and moreover irrelevant to the present issue, because what Mr Borlaster (who was not on site) might, hypothetically, have thought or said is not evidence as to what was actually happening and being accepted by the parties. Nor does it become admissible or relevant because it happens to have been elicited by questions from the side opposite to that which now wants to rely on it.
49. Next Mr Edwards-Stuart relied on the evidence of Mr Smith, who was on site, but that in my understanding uniformly supported the existence of an overall acceptance of Mr Furley's authority to give direct instructions, without any claim to the exception for which Mr Edwards-Stuart contends. In fact, on the very point at issue in this case he was asked by Mr Stow:
Q. .... So if the case was .... that on 8 December Mr Furley on the site showed Mr Reynolds and Mr Cleave exactly where to put the props and told them that they should be Acrow props, and if they followed his instructions, you would not have objected to their following his instructions in those circumstances?
A. No, I would not. That had already been noted to me by Clive Adams, that they had agreed.
50. Finally there were some answers by Mr Reynolds in cross-examination:
Q. Would you be happy if when you were not on site Mr Furley told your sub-contractors to do work which was not in your contract and for which you would not be paid?
A. I would not regard that as acceptable.
Q. Also you would not expect Plant to think such a situation acceptable?
A. I would discuss it afterwards.
Q. Do you think Mr Furley had carte blanche to give instructions direct to you for which Plant would not be paid even if there was a cost implication to them?
A. I can't think of any occasion when that happened.
That does not assist Plant for a number of reasons. In the first place "work which was not in your contract" is within the general rule accepted by Mr Edwards-Stuart, not the disputed exception for which he contends. Secondly, the hypothetical example of an instruction to JMH's sub-sub-contractor behind Mr Reynolds' back bears no relation to any issue in this action or to any factual situation which was seriously canvassed - one can well envisage that small "labour-only" sub-sub-contractors, for example, might be in a different position from that of JMH and Plant in a number of ways, not least that it would be ludicrous to suppose that they had any design responsibilities to be displaced. Thirdly, no contractor is likely to find it acceptable to be told to do extra work without pay, but as Mr Reynolds said that did not happen and there was undisputed evidence of an arrangement by which instructions by Mr Furley with cost implications were implemented and then, in due course, discussed and priced.
51. I therefore find no support in the evidence for any exception of the kind contended for by Plant. On the contrary, the evidence is of a uniform course of conduct amounting to the adoption and acceptance of terms of the relevant contract and sub-contract that Mr Furley's instructions were to be complied with in all respects. I need not explore the question, canvassed in argument, whether that extended to such minutiae as telling an individual labourer where next to put his spade, since potential exceptions of that kind do not affect the outcome of this action. What is more germane is that no such term could, of course, override anyone's common-law or statutory duties to third parties, in particular Plant's and JMH's duties as employers to take due care for the safety of their employees; whether they perceived a conflict in any specific instance, and if so whether they considered the risk of mishap sufficient to justify defying Mr Furley, were questions which might or might not arise.
52. I need not review the evidence in detail; it was in truth substantially all one way. It included the unchallenged statement of Mr Allen, explicit acceptance by Mr Adams in cross-examination that if given instructions by Mr Furley as to the type and location of roof props JMH would have had to comply, and the following passage at the end of Mr Smith's further cross-examination:
Q. So if, for the sake of argument, Mr Furley said you want to use this type of props or you want to put them in this position, they might well discuss any doubt they have with Mr Furley. But if they were satisfied by Mr Furley, they would not raise those doubts with you because you did not have the relevant expertise. Is that correct?
A. That is right, yes.
Q. And this system of Ford giving instructions direct to JMH was something which was accepted by all three of you right from the start so far as this contract was concerned?
A. For myself certainly, yes, and I can only say that it appeared to both JMH and Mike Furley, yes.
53. As to specific examples of what happened in practice it suffices to refer to two in the very category at issue in this action, namely temporary works by JMH. The first concerns shoring of the sides of the excavations. There is, as I understand it, no dispute that that was required by good practice and by the applicable regulations but was omitted on Mr Furley's instructions.
54. The second example is more complex, but in some ways even closer, in that it concerned temporary support by propping. In addition to the roof, support was needed for what was described as the "ring main", which was a high-level pipe of which the route passed near the excavations and which contained oil at very high pressure. Mr Furley, as is not in dispute, instructed that it be supported by Acrow props, and that was done. There seems to have been no apprehension that the ring main would actually collapse but Mr Smith and Mr Reynolds at least, and Mr Reynolds acutely so, feared that even slight movement or vibration might result in a fracture which, however small, could result in the escape of a high-pressure jet of oil with potentially fatal consequences to a workman in its path. On a day when, exceptionally, Mr Furley was away there were discussions, in which Mr Adams and Mr Cleave also were involved and concurred in the view that the propping was inadequate. Mr Reynolds made it clear that he was not prepared to continue work unless something was done. Mr Smith decided that stronger steel posts were needed and specified what they should be. The consent of Mr Woods, Ford's Senior Plant Engineer, was obtained. It was agreed that JMH would provide foundations for such posts, which would be obtained, supplied and installed by Plant, and that was done. When Mr Furley returned he was displeased. He did not actually countermand the decision but he did require the new installation to be modified in detail. That incident illustrates the general rule of compliance with Mr Furley's instructions, the exception where aversion of danger to life or limb was perceived to be an overriding consideration, the making in such circumstances by Plant, in the person of Mr Smith, of the design decision as to the necessary improvement of the temporary works in question, and the fact that even then the consent of Ford, in the person of Mr Woods, was seen to be required to a change in Mr Furley's design of temporary works.
55. I accordingly answer question (3) in paragraph 20 above in JMH's favour. Question (4) does not, therefore, arise.
The Instructions
56. Under question (5) in paragraph 20 above the first instructions relied upon by JMH have already been dealt with and dismissed in paragraph 38 above. There was next the meeting at Mr Furley's house on 14 November 1993 mentioned in paragraph 39 above and more fully described at the end of paragraph 42. For reasons already given the words "Install 3 props under the existing trusses" in Mr Furley's bill do not materially advance JMH's case. There remains the disputed question whether Mr Furley told Mr Reynolds that they were to be Acrow props, and if so with what effect. Assuming in favour of JMH, without deciding, that the authority given to Mr Furley's instructions by later events related back to cover any given at this stage, and also that despite the nature of the occasion any such statement by Mr Furley would have been an instruction rather than merely friendly advice on a social occasion, there remains the factual question whether the words were said.
57. Mr Furley's 1994 statement (he was not called or cross-examined because of the state of his health) reads: "The comment was made [it does not appear by whom] he [Mr Reynolds] was not going to do the steel work. .... There was an amount in for temporary props but because he was not doing the steel work I did not expect anything more." Mr Reynolds' 1994 statement reads: "This basic information mentioned temporary propping by which I took to mean Ackrows - this was for the roof trusses." Each of those accounts suggests that although both, for different reasons (they seem to be using "temporary" in different senses), had Acrows in mind there was no communication on the subject. Mr Reynolds later recalled Mr Furley as having expressly told him that the props were to be Acrows, but I consider that his and Mr Furley's first recollections are more likely to have been accurate and find that there was no such express instruction.
58. The other instructions relied upon were allegedly given by Mr Furley, with Mr Adams' tacit concurrence or approval, on 8 December 1993. What is not in dispute is that on that date Mr Smith, Mr Reynolds and Mr Cleave had a meeting in the Dunton canteen, after which they went to Mr Furley's office, where they found him with Mr Adams. At that point Mr Smith left. It is then JMH's case that the remaining four went to the site. Plant does not seriously contest that so far as all except Mr Adams are concerned, but Mr Adams in evidence categorically denied being present. It is best to dispose of that issue before turning to what was said and done on site.
59. Mr Furley's 1994 statement deals with what transpired but contains nothing to suggest that anyone was present except himself and "JMH". Mr Reynolds' 1994 statement identifies "Des [Cleave], Mike [Furley] and I believe (though I can't be sure) Clive Adams" in addition to himself. Mr Cleave's 1994 statement refers to Mr Furley and Mr Reynolds only. His diary reads "Acrow props as instructed PCL [Plant] & FMC [Ford]", but his own evidence was that that was an advance note, not a record. Mr Reynolds and Mr Cleave did give evidence at the Crown Court in September 1995 that the instructions given to the former, on what must presumably have been this occasion, were given by Mr Furley and Mr Adams. In their evidence before me also Mr Reynolds and Mr Cleave were both sure that Mr Adams was present, although there were inconsistencies and vaguenesses in their evidence as to where on the site and with whom he was at various stages and what part he played.
60. I find that Mr Adams was not present. The most nearly contemporaneous evidence, although not conclusive, leans that way. As to the oral evidence before me, although Mr Adams was by no means immune from the weaknesses described in paragraph 27 above I found him more convincing on this point than Mr Reynolds and Mr Cleave. JMH cannot therefore rely on anything which transpired on that occasion as constituting instructions by Adams as agents for Plant, but in view of my decision on point (3) above that makes no difference to the substantive result if relevant instructions were given by Mr Furley. Nevertheless (and this is my reason for deciding the point at all and for doing so first) I need to take my assessment of the credibility of JMH's evidence on that issue into account in turning to the other.
61. On the issue what instructions, if any, Mr Furley gave, Plant has no positive evidence to set against JMH's, and Mr Edwards-Stuart indeed accepted that Mr Furley probably had some involvement in the positioning of the props (although not necessarily, he said, on 8 December 1993), and therefore did not object to the use of Acrows. Despite that concession I consider it important to make my own findings on the point.
62. Starting, again, with the earliest records and accounts, I have already referred to Mr Cleave's diary entry and to the fact that on his own evidence it is not a record of what transpired. After the words quoted in paragraph 59 above it ends: "- put where?" Mr Edwards-Stuart suggested in cross-examination that that showed that the location of the props was left open on 8 December 1993, but that would imply that the entry was indeed written after the event and that the reference to "PCL" was to the presence of Mr Adams or someone else representing Plant, which Plant denies and I have rejected. Although there are arguments the other way that and other pieces of evidence, internal and external, persuade me that on the balance of probabilities this was exceptionally a prior note.
63. Mr Reynolds, in his 1994 statement, after the identification of the persons present to which I have already referred says: "[we] agreed where to put Acrows to support .... [the] ring main .... and under the roof trusses around .... J11 .... . I wanted this clearly laid down so I physically marked the screening with a blue crayon where the props were to go." Mr Cleave, in his, says: "We were shown where to put them [Acrows to support the ring main and roof trusses]. Mr Furley showed Mr Reynolds who then marked the position on the boarding around the excavation." Mr Furley, in his, says: "I told JMH to put in some Acrows [for the ring main] because no-one from PCL was putting in anything. I showed JMH where to put them .... . I also suggested props under the roof trusses to the sub-contractor. He put these in in good faith, I assumed he was getting the main contractor to put in something more substantial, for as I've said JMH were not responsible for steel work. My comments were merely a suggestion to the sub-contractor with no responsibility for design." Discounting, as I do, Mr Furley's self-exculpatory references to expecting replacement of the Acrows by Plant in the form of "something more substantial" (which is belied by his adverse reaction when precisely that was done in the case of the ring main), and to his having "no responsibility for design" (which is nonsense), that essentially corroborated Mr Reynolds and Mr Cleave, as did the existence of blue crayon marks at the relevant points on the side panels of the site enclosure, which can be seen in contemporaneous photographs.
64. Mr Reynolds' and Mr Cleaves' similar evidence at trial, over four years after the event, was less impressive. As I have already indicated, its weight is lessened by their mistaken belief that Mr Adams was present. There were discrepancies between them. In particular Mr Cleave's account was that as Mr Furley identified where the props should go he (Mr Cleave) had them then and there installed by workmen. That does not appear in any of the 1994 statements or in Mr Reynolds' current evidence and invites the question why, in that event, the blue marks were necessary. Those weaknesses, however, are not altogether surprising, given the lapse of time and the other considerations rehearsed in paragraph 27 above, and despite them I have no doubt, on the whole of the evidence, that Mr Furley did on 8 December 1993 give instructions to JMH for the support of the roof trusses by Acrow props at the positions at which such props were in fact installed. It seems likely, but does not have to be decided for the purpose of resolving any material issue, that so far as the positions were concerned that replaced a previous instruction or understanding that they should be at the first node points, which was thought to have become impracticable in the case of the primary trusses for the reasons explained in paragraph 13 above.
65. In answer to question (5) in paragraph 20 above I accordingly find that JMH was directed by Mr Furley, in exercise of the contractual authority which I have previously found he possessed, to prop the roof trusses at the positions and by the methods in fact adopted.
Mr Adams' Role
66. There was a good deal of conflicting evidence about the dates on which either Mr Adams raised with Mr Cleave, or Mr Cleave with Mr Adams, or one or both of them with Mr Smith, the inadequacy of the roof props and the feasibility of some alternative, and the terms in which they did so. I am reluctant to give disproportionate attention to a subject where the details seem to me to be unimportant and the broad picture clear, namely that the propping directed by Mr Furley and installed should have been recognised as inadequate by any competent engineer or contractor and was so recognised by both Mr Adams and Mr Cleave, who discussed the problem with each other and with Mr Smith on more than one occasion, that the only solution suggested was advanced by JMH, namely the horizontal beams described in paragraph 11 above, that that was vetoed by Mr Adams as unacceptable to Mr Furley, and that none of the parties (Plant, Adams or JMH) was prepared to incur Mr Furley's wrath by taking matters further.
67. I shall, however, record in summary form my findings on some of the disputed details, without any extended review of the evidence. On the basis of Mr Smith's evidence recorded in paragraph 49 above, which I accept, I find that Mr Adams knew that Mr Furley had given JMH the propping details and did not initially demur. I find that on one occasion, probably 20 December 1993, Mr Adams gave to Mr Smith the fact that the roof had a design capacity to accept three feet of snow and that it had not snowed as a reason for not being worried, and that Mr Smith accepted that as an assurance that "at the end of the day everything was alright". I do not accept Mr Adams' evidence that he assumed that the support would be improved by using stronger props - which would in any event not have prevented the collapse in the light of the experts' agreement on 5.2(ii) in paragraph 15 above. On the contrary I accept Mr Smith's evidence that when rejecting JMH's solution of horizontal beams the general tenor of what Mr Adams was saying was that the existing arrangement for propping the roof was adequate. I find that one of the reasons given by Mr Cleave for accepting the position was that Mr Furley had said (as I find he had) that the props need not be strong enough to take the full weight of the roof, since half would still be taken by J11. I find that Mr Reynolds' attitude was that he had won one battle with Mr Furley, as to the ring main, and could not expect to win another, nor does he seem to have appreciated the safety risk in this instance, or at least seen it as being serious, as he had done in the case of the ring main.
Negligence and Contributory Negligence
68. There was little discussion of the law governing the pleaded claim in tort referred to in the last sentence of paragraph 21 above. Mr Stow was, I think, disposed to accept that on the authority of such cases as Lindenberg v Canning (1982) 62 BLR 147 and Barclays Bank v Fairclough Building Ltd (1995) 76 BLR 6 there was a duty on JMH to use due care and skill to appreciate the inadequacy of the propping and to advise and warn Plant in that respect, and I hold that there was. That being so the defence of contributory negligence is clearly open and I need not address the disputed question whether it would have run had JMH been in breach of a contractual design responsibility.
69. As to breach, I have set out the relevant facts in paragraphs 66 and 67 above. JMH did recognise the inadequacy of the propping and did warn Plant. The question is whether what it said and did was enough to discharge its responsibility. In my judgment it was not. Mr Cleave should never have allowed himself to be even half persuaded by, nor advanced to Plant as worthy of any credence, the manifestly irresponsible suggestion by Mr Furley that reliance should be placed on continued partial support of the roof by J11 itself. Mr Reynolds should have recognised and given due weight to the safety risk; the duty of JMH in that respect was no doubt primarily to the workmen and other individuals at risk, but they were not all its own employees or sub-sub-contractors and that duty was therefore owed to Plant also, which was potentially in the firing line too and was indeed prosecuted.
70. As to contributory negligence Plant was plainly at fault also. Mr Smith seems to have played a largely passive role, leaving things to Mr Adams and Mr Cleave and not suggesting or pressing anyone else for a satisfactory solution. That contrasted with his attitude to the ring main, where he made the decision that Mr Furley's directions should be overridden and chose the design solution. Mr Adams, who was Plant's agent for this purpose, was the qualified engineer who should have taken the lead in challenging Mr Furley. He gave an even more bizarre excuse at the time for not doing so than Mr Cleave, in his remark about the absence of snow.
71. That leaves the issue of apportionment; the damages recoverable are to be reduced "to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage." In my view Plant's share in the responsibility was the predominant one. It was the main contractor, in contractual relationship with Ford and entitled to direct access to that company on such an issue in a capacity not open to JMH. By allowing Mr Furley to issue direct instructions it had absolved JMH from contractual design responsibility for the consequences of those instructions. It had the services of a qualified engineer, Adams; JMH did not. JMH proposed the only practicable solution; neither Plant nor Adams proposed any and what Mr Adams said he assumed would happen (replacing the Acrows by stronger props) was no solution. Taking into account those matters and all the other relevant facts, as found above, I consider it just and equitable that the damages recoverable be reduced by 80%, leaving a net recovery of 20%.
9 March 1998 The above was handed down and it was directed that judgment be entered accordingly for the Plaintiff for 20% of the agreed damages, with interest thereon at rates and for periods agreed between the parties, the resulting sum to be notified to the court. It was ordered that JMH pay 70% of the Plaintiff's costs of the action, not to include those incurred against Adams, costs incurred against both Defendants being apportioned. It was directed that on taxation time spent in preparing written final submissions, up to two days, be treated as hearing days. Leave to JMH to appeal refused. Application for stay of execution refused.