Civil Engineering Reference
In-Depth Information
house, so may the building contractor, subject to the terms of my contract with him, in turn
employ another to undertake part of the work. If the mere fact of employing a contractor to
undertake building work automatically involved the assumption by the employer of a duty of
care to any person who may be injured by a dangerous defect in the work caused by the neg-
ligence of the contractor, this would obviously lead to absurd results. If the fact of employing
a contractor does not involve the assumption of any such duty by the employer, then one who
has himself contracted to erect a building assumes no such liability when he employs an
apparently competent independent sub-contractor to carry out part of the work for him. The
main contractor may, in the interests of the proper discharge for his own contractual obliga-
tions, exercise a greater or lesser degree of supervision over the work done by the sub-
contractor. If in the course of supervision the main contractor in fact comes to know that the
sub-contractor's work is being done in a defective and foreseeably dangerous way and if he
condones that negligence on the part of the sub-contractor, he will no doubt make himself
potentially liable for the consequences as a joint tortfeasor. But the judge made no finding
against Wates of actual knowledge and his finding that they 'ought to have known' what the
manufacturer's instructions were depended on and was vitiated by his earlier misdirection
that Wates owed a duty of care to future lessees of [the] flats in relation to their sub-contractor's
work.
[He] relied on the decision of Judge Edgar Fay QC in
Queensway Discount Warehouses
v.
Graylaw Properties Ltd
(1982) and on the decision of Judge Sir William Stabb QC in
Cynat
Products Ltd
v.
Landbuild (Investment and Property) Ltd
(1984). In so far as the former decision
relied on any general principle of law that a main contractor is liable to a third party who
suffers damage from the negligently defective work done by his sub-contractor, I can only say,
as already indicated, that I can find no basis in law to support any such principle. The relevant
issue in the latter case, as in
Batty
v.
Metropolitan Property Realizations Ltd
(1978) in relation
to the liability of the developer defendants, was whether the defendants' admitted contractual
liability was matched by a parallel liability in tort. In both cases the issue was of importance
only as bearing upon the liability of insurers to indemnify the defendants. I do not find
authorities directed to that question of any assistance in determining the scope of the duty of
care which one person owes to another entirely independently of any contractual relationship
on the basis of the
Donoghue
v.
Stevenson
(1932) principle.
More important is the decision of the New Zealand Court of Appeal in
Mount Albert
Borough Council
v.
Johnson
(1979). This was another case of the purchaser of a flat suffering
damage due to the subsidence of a building erected on inadequate foundations. One of the
issues was whether the plaintiff was entitled to recover damages against the development
company which had employed independent contractors to erect the building. Delivering the
judgment of Somers J and himself Cooke J said:
In the instant type of case a development company acquires land, subdivides it and has
homes built on the lots for sale to members of the general public. The company's interest
is primarily a business one. For that purpose it has buildings put up which are intended
to house people for many years and it makes extensive and abiding changes in the land-
scape. It is not a case of a landowner having a house built for his own occupation initially
- as to which we would say nothing except that Lord Wilberforce's two-stage approach to
duties of care in
Anns
may prove of guidance on questions of non-delegable duty also.
There appears to be no authority directly in point on the duty of such a development
company. We would hold that it is a duty to see that proper care and skill are exercised
in the building of the houses and that it cannot be avoided by delegation to an independ-
ent contractor.
