Construction - 1970- 1979

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This page lists 11 cases, and was prepared on 28 October 2012.

Blair -v- Osborne & Tomkins and Another [1971] 1 QB 78; [1971] 2 WLR 503; [1971] 1 All ER 468
12 Nov 1970 CA Lord Denning M.R., Widgery and Megaw L.JJ	Intellectual Property, Construction, Damages, Contract	Casemap 1 Cites 1 Citers
	Two neighbours engaged an architect to draw up plans for a building at the rear of their houses. He charged them the full RIBA rate for the plans. They did not ask the architect to build the house or supervise the project but handed the plans to a builder, who made minor amendments, then submitted them as his own design. The architect sued for infringement of the copyright in the plans. He appealed an award of only nominal damages. Held: The nominal award was correct. The contract included an implied term that the land owners would be free to use the plans to build the house, including necessary licences. The attribution was wrongful, but was not the source of damage.
	Link[s] omitted

Brickfield Properties Ltd -v- Newton [1971] 1 WLR 862; [1971] 3 All ER 328
1971 CA Sachs LJ, Edmund Davies LJ	Limitation, Construction	Casemap
	The court heard an application to amend pleadings to add a claim about negligent supervision of a construction. Sachs LJ said: "Where there are found in completed buildings serious defects of the type here under review the facts relating to design, execution and superintendence are inextricably entangled until such time as the court succeeds in elucidating the position through evidence. The design has inevitably to be closely examined even if the only claim relates to superintendence, and all the more so if the designs are, as is further alleged here, experimental or such as need amplification in the construction progresses. The architect is under a continuing duty to check that his design will work in practice and to correct any errors as they emerge. It savours of the ridiculous for the architect to be able to say, as it was here suggested to him that he could say: 'true, my design was faulty, but, of course, I saw to it that the contractors followed it faithfully' and be enabled on that ground to succeed in the action. The same, or substantially the same set of facts, falls to be investigated in relation to the design claim and the superintendence claim. The plans and specifications and ancillary documents are relevant to the superintendence claim as well as to the designer claim: hence the inability of the defendant to allege prejudice with regard to the preparation of his defence if this appeal is allowed. Accordingly, the "new cause of action" falls within the ambit of RSC Ord. 20 r. 5(5), and it is one which the court has jurisdiction to permit to be pursued".

Hounslow London Borough Council -v- Twickenham Gardens Development Limited [1971] Ch 233
1971 Megarry J	Construction, Arbitration, Landlord and Tenant	Casemap 1 Cites 1 Citers
	The defendant, a building contractor, had been allowed into occupation of a site owned by the plaintiff council under a building contract. The council had sought to determine the contract by notice under its terms. The contractor refused to vacate the site. The council brought proceedings for injunctions restraining the contractor from "entering, remaining or otherwise trespassing" on the site. Held: The court rejected a submission that a certifying architect was obliged to act in accordance with the principles of natural justice. He was obliged to retain his independence in exercising his judgment, but, unless the contract so provides, he need not go further and observe rules of natural justice. For the rules of natural justice to apply, there must be something in the nature of a judicial situation, and this was not the case with the architect. The court considered whether a licensee who is in actual occupation may have the protection of the law of trespass against intruders. Megarry J: “in recent years it has been established that a person who has no more than a licence may yet have possession of the land." and "The contractor is in de facto control of the site, and whether or not that control amounts in law to possession, the injunction would in effect expel the contractor from the site and enable the borough to re-assert its rights of ownership. " The court considered a submission that the contractor was in possession of the site - in which case the injunctions sought would, clearly, have been inappropriate: "I do not think that I have to decide these or a number of other matters relating to possession. First, I am not at all sure that the matter is determined by the language of the contract. It is in a standard form [containing R.I.B.A. conditions], and may be used in a wide variety of circumstances. In some the building owner may be in manifest possession of the site, and may remain so, despite the building operations. In others, the building owner may de facto, at all events, exercise no rights of possession or control, but leave the contractor in sole and undisputed control of the site. Second, in recent years it has become established that a person who has no more than a licence may yet have possession of the land. Though one of the badges of a tenancy or other interest in land, possession is not necessarily denied to a licensee."

Secretary of State for Employment -v- the Mitchell Construction Company Ltd [1971] EWCA Civ 3; [1972] ITR 24
26 Nov 1971 CA	Construction, Taxes - Other
	Whether particular works of construction gave entitlement to Selectve Employment tax.
	Link[s] omitted

Bolton -v- Mahadeva [1972] EWCA Civ 5; [1972] 2 All ER 1322; [1972] 1 WLR 1009
13 Apr 1972 CA	Construction
	Link[s] omitted

Evans Marshall & Co. Ltd. -v- Bertola SA [1973] 1 WLR 349
1973 CA Sachs, Edmund Davies and Cairns LJJ	Damages, Construction
	Lord Justice Sachs considered whether damages were an adequate remedy, and said: "The standard question in relation to the grant of an injunction, Are damages an adequate remedy?' might perhaps, in the light of the authorities of recent years, be re-written as, Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?'." and "The courts have repeatedly recognised there can be claims under contracts in which, as here, it is unjust to confine a plaintiff to his damages for their breach. Great difficulty in estimating these damages is one factor that can be and has been taken into account. Another factor is the creation of certain areas of damage which cannot be taken into monetary account in a common law action for breach of contract. Loss of goodwill and trade reputation are examples. Generally, indeed, the grant of injunctions in contract cases stems from such factors".

Sutcliffe -v- Thackrah [1974] AC 727
1974 HL Lord Reid, Lord Hodson, Lord Morris and Lord Salmon, Viscount Dilhorne	Construction	Casemap 1 Citers
	In acting under clause 66 of the ICE conditions, the Engineer was in the intermediate position of a quasi-arbitrator. The House described in terms of 'fairness' the duty of an architect when acting not as an arbitrator or quasi-arbitrator but in the role of valuer or certifier. Lord Reid spoke of a duty to act in a fair and unbiased manner or fairly and impartially. Viscount Dilhorne regarded an honest exercise of professional skill and judgment as enough.

Commonwealth Construction Co Ltd -v- Imperial Oil (1977) 69 DLR (3d) 558
1977 de Grandpre J	Commonwealth, Insurance, Construction	Casemap 1 Citers
	(Supreme Court of Canada) de Grandpre J: "On any construction site, and especially when the building being erected is a complex chemical plant, there is ever present the possibility of damage by one tradesman to the property of another and to the construction as a whole. Should this possibility become reality, the question of negligence in the absence of complete property coverage would have to be debated in Court. By recognising in all tradesmen an insurable interest based on that very real possibility, which itself has its source in the contractual arrangements opening the doors of the job site to the tradesmen, the Courts would apply to the construction field the principle expressed so long ago in the area of bailment. Thus all the parties whose joint efforts have one common goal, eg the completion of the construction, would be spared the necessity of fighting between themselves should an accident occur involving the possible responsibility of one of them."

Radford -v- De Froberville [1977] 1 WLR 1262
2 Jan 1977 Oliver J	Damages, Construction	Casemap 1 Cites 1 Citers
	A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a certain specification on the plot so as to separate it from the plaintiff's land. The plaintiff obtained judgment against the defendant for damages for breach of contract by reason of her failure to erect the dividing wall, but an issue arose as to the measure of the damages. The defendant having failed to build the dividing wall on the land purchased from the plaintiff, the plaintiff proposed to build a dividing wall on his own land, and claimed the cost of doing so from the defendant; whereas the defendant maintained that the appropriate measure of damages was the consequent diminution in the value of the plaintiff's property, which was nil. Held: The court described the distinction made in the Liesbosch between a plaintiff's capacity to mitigate his loss and his duty to do so: "No doubt the measure of damages and the plaintiff's duty and ability to mitigate are logically distinct concepts (see for instance, the speech of Lord Wright in Liesbosch (Dredger) v SS Edison (Owners) [1933] AC 449, 456-469). But to some extent, at least, they are mirror images …" A contracting party should not use the remedy of damages to recover "an uncovenanted profit." However: "If [the plaintiff] contracts for the supply of that which he thinks serves his interests - be they commercial, aesthetic or merely eccentric - then if that which is contracted for is not supplied by the other contracting party I do not see why, in principle, he should not be compensated by being provided with the cost of supplying it through someone else or in a different way, subject to the proviso, of course, that he is seeking compensation for a genuine loss and not merely using a technical breach to secure an uncovenanted profit."

Anns and Others -v- Merton London Borough Council [1978] AC 728; [1977] CLY 2030; [1977] 2 All ER 492; [1977] UKHL 4
12 May 1977 HL Lord Wilberforce, Lord Diplock, Lord Simon of Glaisdale, Lord Salmon and Lord Russell of Killowen	Construction, Negligence, Limitation, Local Government	Casemap 1 Cites 1 Citers
	The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority appealed a finding that it was liable, arguing that the claims were time barred and that it had owed no duty beyond its statutory duty. Held: As a public body, the defendant's powers and duties were defined in public not private law. Any distinction between the powers and duties of a local authority fell to be considered in that context. The authority should at least have considered whether to inspect the foundations, and if it did inspect, to do so with care. The authority could not protect itself entirely, simply by failing to carry out any inspection at all. A duty of care might exist at common law, and whether it did so did not depend upon whether the statute imposed a duty or a power to inspect. The cause of action arose at the time when the condition of the building suggested some fault, and time did not begin to run until this happened. The action was not statute barred.
	Public Health Act 1936
	Link[s] omitted

Canterbury Pipe Lines -v- The Christchurch Drainage Board (1979) 16 BLR 76
1979 Cooke J	Commonwealth, Construction	Casemap 1 Cites 1 Citers
	(New Zealand Court of Appeal) "In Hatrick the term "fairness" was avoided in the judgments, Richmond J saying that he resisted it partly because of its vagueness and partly because it might be regarded as equivalent to natural justice. . . . In our opinion it should be held in the light of these authorities that in certifying or acting under Clause 13 here the Engineer, though not bound to act judicially in the ordinary sense, was bound to act fairly and impartially. Duties expressed in terms of fairness are being recognised in other fields of law also, such as immigration. Fairness is a broad and even elastic concept, but it is not altogether the worse for that. In relation to persons bound to act judicially fairness requires compliance with the rules of natural justice. In other cases this is not necessarily so."