Contractors’ Obligations - Scottish Construction Contracts - page 120

considered the propping as designed to be inadequate. They advised the designer but
did not follow up their objections. The propping failed, causing the roof to collapse.
It was found that the sub-contractor ought to have pressed its objections on safety
grounds and made these progressively more formal and insistent, including putting
them into writing, approaching higher levels of management, threatening to or actu-
ally reporting the problem to the regulatory authorities and, ultimately, suspending
work, see Plant Construction plc v. Clive Adams Associates and Others (2000).
The courts have, however, refused to extend the duty to warn to cover a situation
where a design and build contractor who was being advised by structural engineers
claimed that specialist underpinning contractors ought to have advised them of the
need for temporary lateral support to be provided while the basement was being exca-
vated. This claim was made on the basis that it was said the underpinning contractor
knew and/or it was obvious that there was a significant danger that the design and
build contractor might excavate the basement without providing such support. Given
thedangeroftheexcavationproceedingwithoutthesupport,itwassaiditcouldnot
be assumed by the underpinning contractor that the excavation would be carried out
safely.hecourtacceptedthatiftheunderpinningcontractorhadbeeninstructedto
carry out work it knew to be unsuitable and dangerous, then it would have a duty
to warn the contractor, even though the contractor was itself receiving advice from a
structural engineer. However, in this case, the work was to be carried out by another
party in the future. The underpinning contractor did not know how the contractor
intendedtocarryoutthework.Itwasacceptedthatthemethodchosenbythecontrac-
tor was negligent. It was considered relevant that the contractor was receiving advice
from a structural engineer. In these circumstances it was considered unreasonable to
impose a duty to warn on the underpinning contractor, see Aurum Investments Ltd v.
Avonforce Ltd (In Liquidation) and Others (2000).
Where the contractor is not responsible for the design of a system or its integration
into the works or for the selection of a proprietary system, there is no implied warranty
bythecontractorthatthesystemwillwork,see Greater Glasgow Health Board v. Keppie
Henderson & Partners (1989).
The view of what constitutes normal practice may alter depending upon the nature
of the development. For example, where plumbing sub-contractors in a multi-storey
flat development took the normal steps which would be taken to drain pipes of water
in ordinary houses or small developments, they were found to be to blame for dam-
age caused by burst pipes where the burst was caused by water which had not been
drained from the pipes. he plumbing sub-contractors had failed to warn anyone that
the pipes could not be completely drained. The normal practice of draining pipes,
which resulted in some water remaining, did not apply in the face of the extent of the
damage which might be expected in a multi-storey development were this to be fol-
lowed, see Holland Hannen & Cubitts (Scotland) Ltd v. Alexander Macdougall & Co.
(Engineers) Ltd (1968).
Whereemployersmakeknownthepurposeofthebuildingandcircumstancesindi-
cate that they are relying upon the contractor's skill and judgement to provide it,
there is an implied term that the works will be fit for the purpose for which they
were intended. Where a contractor expressly undertakes to carry out work which