Workmanship v supervision - a review of the recent British Library case

Allison Smith reviews the recent British Library case

On 30th July 1998 His Honour Judge Bowsher QC gave his decision in the latest round of litigation involving the British Library project. The decision in Department of National Heritage -v- Steenson Varming Mulcahy & Ors has important implications for contractors entering into contracts to do work to a high standard and finish. It is also useful because it is one of the few cases on the supervision obligations of the design team on a project using Construction Management.

The facts
This was a subrogated claim by the insurers of the Department of National Heritage (DNH) against Steenson Varming Mulcahy (SVM), the M & E Consultants for the New British Library.

The claim related to damage done to low voltage cabling. The damage consisted mainly of friction burns, cuts and nicks to the cabling. Balfour Beatty Ltd (BB) began installing the cabling in 1988 and defects were first reported by SVM in 1989. DNH alleged that the damage was due to SVM's negligent design of the trunking, particularly the specification for lid down trunking. The amount claimed was limited to the actual amount paid by insurers, totalling £8.4 million.

SVM denied that the damage to the cabling was caused by bad design and joined as third parties to the action BB and Laing Management Ltd (LM), the construction manager. SVM said that damage was caused by bad workmanship by BB and bad supervision and lack of co-ordination by LM and DNH.

Design
DNH relied on two aspects of the duty to design:
1The duty to design a building which is "buildable" and "supervisable"
2The duty to review a design

"Buildability"
DNH alleged that given SVM's design, even if special or exceptional care had been taken in the installation, it would have been impossible to avoid substantial damage being caused to the cables. That being the case, the trunking system was "unbuildable". His Honour Judge Bowsher QC stated that generally a design must be such that those who are responsible for building it can do so by the exercise of ordinary skill and care. However, in this case BB's contract provided that a "high standard of workmanship and finish is required". The effect of that clause was to require a higher standard of workmanship of BB than just the ordinary or reasonable standard. His Honour also decided that the choice of lid-down trunking was a possible design option, it was "buildable" and SVM were not in breach of contract in specifying it. Furthermore, the appropriate time for DNH and BB to object to the design was at the tender stage.

"Supervisability"
The general rule is that a design will be defective if those who have to supervise the work will encounter great difficulty in doing so. There is one qualification to this which was all-important in the context of this case. That is that some work is by its nature difficult to supervise and such that no design can remove the difficulty of supervision. His Honour found that this trunking system was of such design and therefore did not breach SVM's obligations as to supervisability.

Review
SVM were under common law and contractual duties to keep their design under review. Such duty continues throughout the life of the construction process and will in some circumstances even extend beyond practical completion. Where the designer adopts an experimental or unusual approach, the duty on him to keep his design under review is particularly high. However the design of a lid-down trunking system was not regarded as experimental by His Honour and SVM was not found to have breached their design obligations regarding review.

SVM's duty to supervise and inspect
The extent of the duty to inspect depends upon the terms of the contract and the circumstances of the project. His Honour found that the terms of SVM's contract required it to make "such site visits as were reasonably likely to be required to ensure that the site was adequately supervised so that the electrical works would be properly executed in accordance with good engineering practice." SVM's duty did not extend to preventing BB doing bad work: that could only be done by such close supervision as would be expected from a foreman. SVM's duties were limited to taking steps which would discourage bad work and if possible discover it after it had been done.

LM's contract provided a table of responsibilities of LM and the Design Team which gave each the responsibility for supervising the whole of the works. His Honour stated that this could not have been intended to place upon every member of the Design Team a responsibility for 'workface' supervision of the work. Had it done so there would have been complete confusion.

His Honour also held that the inclusion of the word "ensure" in SVM's contract should not be interpreted to make SVM insurers of the quality of BB's work or LM's supervision. SVM could have done more by way of site visits in the sense that consultants can always do more. But if they had done more and found more faults, the evidence is that it would have made no difference. SVM had brought problems with BB's workmanship and LM's supervision to the attention of the Superintending Officer (DNH's representative on site) and it had made no difference.

The decision on liability
His Honour Judge Bowsher found that the SVM were not negligent and that BB were primarily to blame for the damage to the cabling, with DNH and LM secondarily to blame. While the case has some useful things to say on the design and supervision requirements of M&E Consultants, it is a decision based very much on its own facts.