Case No 9
Case Name PSC Freyssinet Ltd –v- Byrne Brothers (Formwork) Ltd
Year 1997
Subject matter – Fitness for Purpose
-Reasonable Skill and Care
This case arose out of the construction of the Lakeside Shopping Complex in Thurrock, Essex.
Byrne Brothers (Formwork) Ltd was the subcontractor for the design and construction of the car park superstructures. They engaged Ridge Wood Partnership as consulting engineer to design and co-ordinate the construction. The design involved a structure which incorporated a series of post tensioned concrete beams supported by reinforced concrete columns. PSC Freyssinet Ltd was employed by Byrne Brothers (Formwork) Ltd to design and install post tensioned reinforcement and grouting.
Shortly after construction had been carried out cracking was discovered in the beams and columns caused by early thermal movement (ETM) which results from hydration of the cement element.
It was agreed by Byrne Brothers (Formwork) Ltd that the faults were the result of breaches of contract by PSC Freyssinet Ltd in that proper allowance had not been made ion their design for ETM. PSC Freyssinet blamed Ridge Wood Partnership.
Byrne Brothers (Formwork) Ltd claimed that PSC Freyssinet Ltd had in reality designed the whole of the beam and therefore there was an implied obligation to design and install works which would be fit for their purpose. The Official Referee was influenced by the decision in BP Refinery (Western Point) Pty –v- Shire Hastings (1978) which laid down that for an obligation to be implied the following terms must be satisfied:
-It must be reasonable and equitable
-It must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it
-It must be so obvious that it “goes without saying”
-It must be capable of clear expression
-It must not contradict any express term of the contract
The Official Referee held that these conditions were not fulfilled. For PSC Freyssinet to take responsibility for the design of the whole of the beam would require it to have a consideration of it relation to the entire structure and not merely to the subframe. PSC Freyssinet had not designed the joints between beams and columns and many other technical parameters were set by others. The officious bystander, it was held, would say that it was absurd for Byrne Brothers (Formwork Ltd to hold PSC Freyssinet to a fitness for purpose term when their work might be affected by information supplied by a third party, namely Ridge Wood Partnership.
The Official Referee had also to decide whether PSC Freyssinet or Ridge Wood Partnership had failed to exercise reasonable skill and care, the case being that in failing to make provisions for the effects of ETM they had failed to exercise reasonable skill and care. It was the Official Referee’s duty to decide whether PSC Freyssinet and Ridge Wood Partnership had acted in accordance with practice accepted as proper by a responsible body of like professionals skilled in that particular role and expertise.
The Official Referee was influenced by the decision in Bolam –v- FriernHospital Management Committee (1957), where it was held that the fact that there might be a body of opinion which took a different view could not in itself render a defendant negligent. Therefore even though it was shown that there was some knowledge of the effects of ETM at the time the design was carried out, the Official Referee held that neither PSC Freyssinet nor Ridge Wood Partnership was guilty of failing to exercise reasonable skill and care.
The left Byrne Brothers (Formwork) Ltd, who probably through they had successfully offloaded the risk of the design of the structure, with a heavy financial liability.