Florida Hotels Pty Ltd v Mayo

Florida Hotels Pty Ltd v Mayo - [1965] HCA 26 - HCA 1965 case summary — Zoe

[28]

The trial judge believed that the respondent Wark discussed with McCrystal and Gordon on the Friday morning the removal of the formwork. He was not prepared to think that he had obtained from the evidence of Gordon or that of the respondent Wark a sufficiently complete account of that conversation on which to make a finding that the respondent Wark had then agreed to a dangerously premature removal of the formwork. But I think that he did believe that so much as Gordon recollected of the conversation did take place. This included a reference to "that portion", that is, of the surrounding apron "we were about to pour". But, although I am unconvinced by the submission to the contrary, it is unnecessary to go so far in order to find evidence adequate to support the necessary findings. His Honour believed that the respondent Wark was in sight of the completed formwork on the Saturday morning. Let it be assumed, contrary to what his Honour appears to have thought, that no workmen, other than Gordon, were then present or in sight and that neither the knowledge nor suspicion of the commencement of work on the job of a kind which might include the pouring of concrete can be imputed to the respondent. None the less the "screeds" were in place in the formwork, a significant item which the respondent Wark said would ordinarily attract his attention; they are the last part of the formwork to be done and their presence there indicates its completion. At the very lowest, the state of the formwork, whether or not the respondent Wark could see the reinforcement in position, put the respondent Wark on notice of the possibility that concrete might be poured before he came next on his routine inspection. There was ample time in the intervening days, whether or not work took place on the Saturday, for this to happen. Yet the respondent Wark did nothing. He did not inspect: he asked no questions: he gave no instructions: and he had no standing arrangements of the kind of which I have spoken on which he might be entitled to rely.

[35]

But, in my opinion, the possibility of liability of the appellant to its workmen flowing from the consequences of lack of supervision of work of the kind in question must be taken to have been fairly within the contemplation of the parties. His Honour, the trial judge, found the lack of supervision to be the cause of the collapse of the slab and the removal of the formwork but the occasion for it; because of the inherent weakness for want of proper reinforcement, it would have fallen down whenever the formwork was removed; and with this conclusion I respectfully agree. Of course, vis-à-vis the plaintiff the premature removal of the formwork was negligent on the part of the appellant. But this would not prevent the appellant recovering from the respondents for their breach of contract simply because they are therefore joint tortfeasors with the appellant. It would be otherwise if the effect of the respondents' breach of their obligation to the appellant had become spent and no longer causally connected with the plaintiff's injury. But that is not this case. The intervention of the appellant's act in removing the timber, though it occasioned the injury to the plaintiff, will not avail the respondents. The respondents, in my opinion, are liable to the appellant for the amount which the appellant reasonably paid to the plaintiff in discharge of its liability to the plaintiff for the consequences of the collapse of the slab. The amount actually paid in this case to the plaintiff is agreed to have been reasonable. There is therefore no need to discuss the question whether judgment for the plaintiff by consent in proceedings in which the respondents had not participated, would have afforded any evidence as against the respondents of the amount of the liability of the appellant. No doubt a judgment after contest in such proceedings would. Accordingly, in my opinion, the amount payable by the appellant to the plaintiff was recoverable from the respondents as damages for their breach of their contractual obligation to supervise the work of construction of the swimming pool. The result that the respondents are liable to pay to the appellant by way of damages the full amount of the sum payable by the appellant to the plaintiff does not mean that the obligation of the respondents to the appellant as its architect was an obligation "to protect" the appellant against the possibility of liability to its workmen or that the protection of the workmen was in any relevant sense a purpose of the contractual duty of supervision. It merely means that there can be included in the damages for breach of the obligation to supervise the amount the building owner is called upon to pay to its workmen injured by the consequences of faulty supervision.

[41]

An architect employed to supervise the construction of a building must bring a proper degree of skill to his task and exercise reasonable care in its performance. Ordinarily the builder is an independent contractor employing his own workmen and engaging the sub-contractors. The architect supervises the work as a whole. His certificate that it was executed in conformity with the plans and specifications is necessary to entitle the builder to be paid. In the present case, however, the building owner, Florida Hotels Pty. Limited, was itself doing the work by its own workmen acting under its own foreman. The purpose of the architect's supervision was therefore not quite the same as in the ordinary case. His certificate was not required to enable the workmen and the foreman to be paid. They were paid wages. But whether he be engaged to supervise the work of an independent contractor or of the building owner's servants the obligation of a supervising architect is the same. He must exercise reasonable care in carrying out the duty he has undertaken. That duty has been formulated in a document issued by the Royal Australian Institute of Architects, which was made known by the respondents to the appellant: "The architect shall give such periodical supervision and inspection as may be necessary to ensure that the works are being executed in general accordance with the contract. Constant supervision does not form part of the duties undertaken ". There being no building contract, it is not disputed that in the present case the words "in general accordance with the contract" should be understood as meaning in general accordance with the plans and specifications. This statement of the contractual duties of a supervising architect seems to have been indirectly derived from the decision of the Scottish Court of Sessions in Jameson v. Simon [1] . Two passages may be quoted from the opinion of the Lord Ordinary, Lord Kyllachy, to whose interlocutor the Court adhered. He said: "I cannot assent to the suggestion that an architect undertaking and being handsomely paid for supervision, the limit of his duty is to pay occasional visits at longer or shorter intervals to the work, and paying those visits to assume that all is right which he does not observe to be wrong". And "Speaking generally, his obligation is, so far as reasonably possible, to see that the work is duly and properly executed, and whether he has failed in that duty in any particular case is a question of circumstances, and a question not for his professional brethren but for the Court".

[44]

Evidence as to the ordinary practice of architects may materially assist a court in deciding what in a particular case should have been done to meet the requirement of due care in supervision. It is for the court to decide whether or not in the circumstances there was a lack of reasonable care. The experts called were invited to express, perhaps too freely, their opinions on whether particular acts or omissions by an architect would or would not amount to a breach of his contractual duty to his employer. But no objection was made to the evidence, and the limits on expert evidence at this point are perhaps verbal rather than logical: see Cross, Evidence, 2nd ed. (1963) p. 360. What the witnesses, who were eminent in their profession, said was that the architect should be present when concrete is to be poured, and that before this is done he should satisfy himself that the formwork is properly erected for its reception and the reinforcing material properly laid. It would be wrong to make any pronouncement which could be construed as defining reasonable care in terms of rigid requirements. But that the pouring of concrete is an important phase in the construction of any building the stability of which is to depend upon concrete structures goes without saying. It was in respect of this that the respondent Wark was negligent. His negligence did not, it seems to me, lie in some specific act of omission but in cumulative conduct the consequence of which was that concrete was poured upon reinforcing mesh wrongly laid. He made no reasonably reliable arrangement that he should be told when the concrete for the aprons was to be poured. He gave no direction that this must await his inspection and approval of the reinforcing material. He did not avail himself of the opportunity he had on Saturday morning to notice what progress had been made in the work on the previous day, which in fact included the defective preparations for the concrete. The respondent Wark and his partner contracted to supervise the work with due care. They are liable to the appellant, the building owner, for the damages that it suffered by their failure to do so. Those damages include the appellant's liability to the injured workman.

[46]

The appellant's liability arises because in this case the persons who actually did the work negligently were the servants of the appellant, the building owner. When, as is more often the case, the builder is an independent contractor, the building owner would not ordinarily be liable to third persons for his negligence, whether or not the architect was at fault. The question whether in a case of that kind a supervising architect can be directly liable in tort to persons injured by errors of the builder which he, the architect, failed to notice and prevent is one of considerable importance. It is, no doubt, within the ordinary contemplation of an architect that builder's labourers, artisans, sub-contractors and others will be in and about a building in the course of construction. Whether or not he foresees, or should foresee, that an error such as was made in this case might be made by those carrying out the work, he is not absolved from his obligation to the building owner to exercise reasonable care. For the very purpose for which he was employed was to provide, so far as reasonable care can provide, against errors by the builders, whether such errors were probable or not. But any duty of care that an architect has to persons who are strangers to the arrangement between him and the building owner arises in an altogether different way. The architect can only incur a direct liability to them for harm they suffer as the result of the general principle expressed in Donoghue v. Stevenson [1] . The question cannot any longer be answered by talk of lack of privity. It depends rather upon what has become commonly called the doctrine of proximity. Two cases were relied upon as supporting the contention that in accordance with that principle an architect may become directly liable to an injured workman. They are Voli v. Inglewood Shire Council [1] and Clay v. A. J. Crump & Sons Ltd. [1] . But it does not seem to me to follow necessarily from either that all persons who are in or about a building in the course of construction are neighbours in the legal sense of the supervising architect. In Voli's Case an architect who designed a structure was held to have a duty of care to all persons who would later use it for the purpose for which it was designed. In such a case, if the design be defective as a result of the architect's negligence, and if, because of those defects, the structure collapses and persons using it (in the way it was contemplated it would be used) come to harm, then the architect is liable to them in damages. The facts in Clay v. A. J. Crump & Sons Ltd. were complicated, but the essential fact, for present purposes, was that a wall which was in fact in a dangerous condition was left standing, the architect having negligently stated that it might safely be so left. Where a person injured was someone who it might be contemplated would be within the area of a risk created by the architect, there is, it seems to me, no ground for excluding the architect from liability. Voli's Case and Clay's Case are decisive of that. But the situation is different in fact, and it may it seems to me have different consequences in law, when the risk is created by the negligence of a builder in departing from plans and specifications. Whether an architect is then liable to an injured person because he did not detect and correct the builder's error, as in the performance of his contractual duty to the building owner he should have done, is a question that I prefer to leave aside in this case. The answer to it would, it seems to me, be the same whether the builder be independent contractor or servant of the building owner.

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Court

Decision date

Before

Source

Judgment (48 paragraphs)

Parties

Cited By (13)