Causation - Building Contract Claims - page 131

immediate
cause

architect
under-certifies

contractor walks
off site

architect issues
default notice
prior to
determination

contractor
refuses to
return to site

although under-certification is wrong, the contractor is not entitled to leave
site as a result. On receiving the default notice, the contractor should have
returned to site. Failure to do so renders him in default and the employer is
entitled to determine. The ending of the contractor's employment is,
therefore, the refusal to return to site, not the incorrect certificate.

contractor's
employment is
at an end

links without which the immediate cause
would not operate

Figure 7.1 The chain of causation.

'This choice of the real or efficient cause from out of the complex of facts
must be made by applying commonsense standards. Causation is to be
understood as the man in the street, and not as either the scientist or the
metaphysician, would understand it.' 384

In P & O Developments Ltd v. Guy's & St Thomas' National Health Service Trust ,
Judge Bowsher aptly summarised the position:

'The test is what an informed person in the building industry (not the
man in the street) would take to be the cause without too microscopic
analysis but on a broad view.' 385

Everything depends on the facts and circumstances. Some situations are
very complex and it will be important to identify the damage from which it
was intended to protect a party 386 . A graphic example of the concept of
causation is to be found in a case where negligent architects issued defective
interim certificates and the contractors withdrew from site 387 . The contract-
ors lost their claim against the negligent architects, because they broke the
chain of causation by persisting in suspension of the works despite the
service by the employer of a preliminary notice of default prior to determin-
ation. They alone, not the architects, were responsible for the termination of
the contract. Although the architect's negligence was the source of the
events, it was overtaken and overwhelmed by the contractor's serious
breach of contract.

384 Yorkshire Dale Steamship Co Ltd v. Minister of War Transport [1942] AC 691 at 706 per Lord Wright.
385 [1999] BLR 3 at 9 per Judge Bowsher.
386 Skandia Property (UK) Ltd v. Thames Water [1999] BLR 338.
387 Lubenham Fidelities & Investment Co v. South Pembrokeshire District Council and Wigley Fox Partner-
ship (1986) 6 Con LR 85.