Civil Engineering Reference
In-Depth Information
reasonable competence, but in my view only because there was no record of what [the partner
in PMI] had done, the absence of which he did regard as unsatisfactory. In my judgment there
is no record because [the partner in PMI] did not take those prudent steps to obtain for RBH
a reliable basis for advising it to proceed and that accordingly PMI also failed in its duty to
RBH as result of which RBH was misinformed on 16 February (and, of course, the misleading
statement was not corrected by PMI, as AA did not do so).
104. It would be kind to find that PMI thought that everybody else was aware of AA's actual
position (as opposed to AA's unreliability), but I cannot do so as there is no real evidence to
support it (although there can be no doubt that no one could have thought that the co-
ordination drawings were then ready). Such a finding would mean that PMI knew that its
advice to RBH was incorrect and unjustified as it did not tell the whole story. PMI had many
failings but not of that gravity. On the other hand AA obviously knew that the co-ordination
drawings would probably not be ready within four months. They certainly ought to have been
ready as AA had enough time to prepare them and, as [an expert witness for RBH] said they
could easily have been prepared much before they actually were (autumn 1987). However [the
expert witness for RBH], in a typically careful answer, did not say that AA ought to have
warned PMI and RBH of the likelihood that they would not be ready on time but only because
he had insufficient information about AA's staffing to justify such an opinion. (That does not
affect the time by which they ought to have been issued.) As already set out I think that AA
believed that it would in some way be delivered from its predicament. [A partner in AA] said
that it was AA's 'considered position' that there was no reason to suppose that M & E informa-
tion would not be available to the contractor as and when he needed it and: 'It was a difficult
task but we thought it could be achieved'. [An expert witness for AA] said that AA was confi-
dent that it could feed the information to the contractor on time. Perhaps AA thought that
there would be more changes which would excuse everybody. In his second witness statement
[a partner in AA] said:
Further, I took the view that if no more changes were made and a tight control over the
contractor was taken by PMI and the Supervising Officer then there was a chance that the
scheme could be completed in the manner required.
He certainly thought that the risk being run was not 'minimal'.
105. If PMI had known of AA's situation, I am sure that, unpalatable though it would have
been to RBH and the DHSS, either TW would not have been allowed to start on site when it
did, or measures would have been taken to ensure that the risk of delay was minimised. The
money allocated had been used up; the contingency figure was very low; I do not believe that
any project manager, even PMI, would have permitted its client to have courted such a danger
at that stage (see [an expert witness'] view). I am certain that had [an employee of RBH] and
[RBH's former general manager] been given the full picture they would not have been permit-
ted by the DHSS to go ahead. It is true that [the employee of RBH's] evidence was that only
'something very serious' or 'a disaster' would have caused RBH to pause, but in my view the
situation at that time, if known, would have been so regarded. In such circumstances the likeli-
hood of TW being able to make a claim for the late delivery of co-ordination drawings should
have been eliminated or reduced to an acceptable risk (i.e. in the context of this project, a
minimal one). In terms of 'loss of a chance' I would assess the chance of RBH going ahead,
had it been correctly advised by AA or PMI, as no higher than 5%.
106. RBH also pleaded that had AA advised it of the true state of affairs then RBH would
have contracted with TW to produce the co-ordination drawings. The case was not formally
