Variations - Building Contract Claims - page 287

cumstances to carry out work not shown in documents provided at the time
of tender. An example is Williams v. Fitzmaurice 574 where the specification
did not mention floorboards. The specification did say:

'the whole of the materials mentioned or otherwise in the foregoing
particulars, necessary for the completion of the work, must be provided
by the contractor.'

It was held that the provision and laying of the floor boards was included in
the contract and the contractor was not entitled to recover for them as an
extra.
Most of these cases date from the eighteenth and early years of the
nineteenth centuries. The common law has moved rapidly since then, and
a number of those cases, including the Sharpe case, could well be decided
differently were they to come before the courts now. If a document is
provided to a contractor in the knowledge that he is bound to rely on it in
the preparation of his tender, the courts will require very strong wording
indeed to be used in a contract or in the document itself in order to be
persuaded that an employer should not be responsible for it 575 . In the
Williams case, the general clause noted above appears to have been the key
factor in the decision. Developments in the law of negligence over the past
30 years or so since Hedley Byrne & Co Ltd v. Heller & Partners Ltd 576 mean
that where, say, a contractor tenders on the basis of quantities provided to
him on the principle that errors will not be adjusted and they prove to be
negligently inaccurate so that he suffers loss, the contractor may be able to
directly sue the person who prepared the quantities 577 .
Indeed, bills of quantities enable the allocation of risk between the parties
to be very precisely defined, and it is by no means the case that all the risk of
unexpected eventualities is placed upon the employer in contracts on a bills
of quantities basis. On bills prepared in accordance with the Standard
Method of Measurement of Building Works (5th Edition), for instance, the
contractor was expected to take the risk of excavating in, and upholding the
sides of, any kind of soil encountered except rock and other similar hard
material. This has been substantially modified in the 6th and 7th Editions.
But bills prepared in accordance with the method of measurement applic-
able to civil engineering works require much greater degrees of risk to be
taken by the contractor.
In Bowmer & Kirkland Ltd v. Wlson Bowden Properties Ltd 578 the bills

contained the following paragraph:
'where and to the extent that materials, products and workmanship are
not fully specified they are to be:

574 (1858) 3 H & N 844.
575 Bacal Construction (Midlands) Ltd v. Northampton Development Corporation (1976) 8 BLR 88.
576 [1964] AC 465.
577 Auto Concrete Curb Ltd v. South Nation River Conservation Authority (1994) Const LJ 39; Henderson v.
Merritt Syndicates (1994) 64 BLR 26.
578

(1996) 80 BLR 131.