Civil Engineering Reference
In-Depth Information
for hardcore. Yet it turns out to be a dangerous substance to use as hardcore. I say it is a 'dan-
gerous substance' because, when it is dry, it soaks up water whenever it gets the chance, and
then it expands with almost irresistible force. If it is already damp, it will soak up more water
and expand. If it gets into contact with concrete, it brings about a chemical reaction which
may cause the concrete to disintegrate. Hence the damage caused to these houses. It was the
sodium sulphate in the hardcore that caused the floors to break up. The purchasers have been
put to much expense to get it put right.
Let me say at once that all this trouble was in no way the fault of the builders. They had no
reason to suspect the hardcore. They bought it in good faith. The defects were not apparent.
No one could tell by looking at this hardcore that it had sodium sulphate mixed in with it.
The builders used all reasonable care, skill and judgment. Counsel for the builders says that
in these circumstances they were not guilty of any breach of contract. The entire obligation
of the builders, was contained in clause 9 of the contract. That was a clause whereby they had
to use only all reasonable care and skill and judgment in their work. It did not mean that they
warranted the suitability of the materials which they used. He relies on the principle that where
a matter is covered by express provision in a contract, it is not for the court to make an impli-
cation on the same matter.
It is quite clear from
Lawrence
v.
Cassell
(1930) and
Miller
v.
Cannon Hill Estates Ltd
(1931),
that when a purchaser buys a house from a builder who contracts to build it, there is a threefold
implication: that the builder will do his work in a good and workmanlike manner; that he will
supply good and proper materials; and that it will be reasonably it for human habitation.
Sometimes this implication, or some part of it, may be excluded by an express provision, as
for instance in
Lynch
v.
Thorne
(1956). The specification there expressly provided that the walls
were to be 9 in brick walls. The work was done with good materials and workmanship and
exactly in accordance with the specification; but the walls did not keep out the driving rain.
The builder was held not liable. The question in this case is whether the threefold implication
is excluded by clause 9. I think that it is not, for this simple reason: clause 9 deals only with
workmanship. It does not deal with materials. The quality of the materials is left to be implied;
and the necessary implication is that they should be good and suitable for the work. I am quite
clear that it is implied in the contract that the hardcore must be good and proper hardcore,
in the same way as the bricks must be good and proper bricks. I know that the builders were
not at fault themselves. Nevertheless this is a contract: it was their responsibility to see that
good and proper hardcore was put in. As it was not put in, they are in breach of their contract.
If it is any consolation to them, they can try and get hold of their suppliers and sue them if
they can prove it against them; but they have to take responsibility so far as the purchasers are
concerned.
In principle implied terms may be varied by agreement so as to impose a higher or lower duty
on the contractor. (Any reduction of the contractor's liability might now be subject to the
requirement of 'reasonableness' under the Unfair Contract Terms Act 1977 and Supply of
Goods and Services Act 1982.) Such an agreement may be arrived at either from express words
or as a necessary deduction from the circumstances.
Steel Company of Canada Ltd v. Willand Management Ltd
SUPREME COURT OF CANADA
(1966) 58 DLR(2d) 595
The respondent roofing contractor had bid for, and been awarded, a number of roofing
contracts on buildings being constructed for the appellants. The roofs of the buildings
