England and Wales High Court (Technology and Construction Court) Decisions

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Cite as: [2000] EWHC Technology 119

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Plant Construction Plc v. Clive Adams Associates, JMH Construction Services [2000] EWHC Technology 119 (31st March, 2000)

In The High Court Of Justice Technology and Construction Court
Before His Honour Judge Hicks QC

Between

	Plant Construction PLC	Claimant
	- and -
	Clive Adams Associates	First Defendants
	- and -
	JMH Construction Services Limited	Second Defendant

------------------------------------------

Case number: 1996 ORB 750

Date of Judgment: 31 March 2000

Antony Edwards-Stuart QC for the Claimant (Solicitors: Vizards Staples & Bannisters)
Timothy Stow QC and Freya Newbery for the Second Defendant (Solicitors: Kennedys)

Causation - No finding of causation in principal judgment - Whether causation established by findings and evidence

Causation - Concurrent causes - Damage contributed to by fault of both parties - Whether claimant must establish that due care and skill by defendant alone would have averted loss

The text of the judgment approved by His Honour John Hicks QC is as follows:

SUPPLEMENTARY JUDGMENT

Introduction

1. This judgment is supplementary to that which I handed down on 9 March 1998 following the trial of the action, which I shall call "the principal judgment". It is to be read in conjunction with the principal judgment and I shall where convenient assume familiarity with the latter or incorporate passages from it by reference or summary rather than by repetition or quotation. Where the context makes the meaning plain I shall refer to paragraph numbers in the principal judgment without identifying it by name.

2. The need for this judgment arises because the Court of Appeal has remitted the action to me for further findings of fact to "determine the issue of causation explicitly".

3. The Court of Appeal did not envisage that further evidence would be appropriate, and there was no application by either party to adduce any. Each party made written and oral submissions on the basis of the evidence given at the trial and the facts found in the principal judgment.

The issues and the law

4. The remitted question falls into two parts. The first concerns what JMH could and should have done. The second concerns the consequences.

5. As to the first part, although the discussion in the Court of Appeal and before me was often couched specifically in terms of "more vigorous protests" Mr Stow accepted, in my view rightly, that the issue which has been remitted to me and which I am required to decide is not limited by such phrases. As May LJ put it in paragraph 48 of his judgment it concerns the answer to the question what more could JMH have done, or as Mr Stow said at the outset of his oral submissions the first question is how far JMH had to go to discharge its duty to Plant. He accepted that that question was left by the Court of Appeal to me, and that the starting point is my undisturbed finding in the principal judgment that JMH ought to have done more.

6. As to the second part, concerning the consequences, Mr Stow submitted that Plant had to show that if JMH had performed its duty the roof would have been adequately propped. That, as I understood his argument, entailed establishing that what JMH could and should have done would have averted the collapse without any assistance from Plant or its agent Mr Adams, or with none beyond what might have been expected had they shown no more skill, diligence or fortitude than the deficient quantities of each which they displayed in the event.

7. The oddity of that approach, as it seemed to me, was that on the issue of contributory negligence I had in paragraph 71 found, as between Plant and JMH, Plant's share of responsibility for the damage to be the predominant one and had reduced the damages recoverable from JMH by 80%. It is true that "responsibility" in that context is not measured solely by reference to causation, but causation is nevertheless an important element in assessing responsibility. Plainly my conclusion, which was not challenged on appeal, was reached on the basis that Plant's negligence, and that of their agent Mr Adams, had been causative of the collapse as well as JMH's breach of duty, not the latter alone. Why should it be necessary now to find that JMH's breach made all the difference? There are, of course, cases (for example a head-on collision between overtaking cars in the centre lane of an old-style three-lane single-carriageway road) where the negligence of both parties contributes, but either could have avoided the incident even had the other still been negligent. There are others, however, and it then seemed to me that this might prove to be an example, in which both contribute and both would have had to act with due care and skill to avoid the damage. If that is the position, in an action between them does the one who happens to be the defendant then escape liability, because unless his fault is found to be causative in Mr Stow's "but for" sense the issue of contribution cannot even be reached? I do not see why he should.

8. I therefore invited submissions and references to any relevant authority on the implications of concurrent causes of the latter kind. Mr Stow referred me to Page v Smith and Mr Edwards-Stuart to Heskell v Continental Express Ltd, as approved in Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd (references below). There was no extended discussion at that stage, because none of those authorities was in court, but Mr Edwards-Stuart has since given me, with notice to Mr Stow, the references on which he relies, and I have looked at all three cases.

9. In Page v Smith [1996] 1 AC 155 in the House of Lords the speeches concern the foreseeability of physical injury in the form of nervous shock. The only reference to causation which I have found is to the fact that that issue was remitted to the Court of Appeal in circumstances described by Lord Lloyd as follows:

One of the grounds of appeal from Otton J's judgment was that his finding on causation was against the weight of the evidence. Ralph Gibson LJ upheld this ground of appeal, but it was left open by Farquharson LJ and Hoffmann LJ. Unless, therefore, the claim can now be settled, the case will have to go back to the Court of Appeal for a finding on this issue. (Page 198C)

10. In the Court of Appeal ([1994] 4 All ER 522), therefore, there had been no decision on the point. Ralph Gibson LJ held that the evidence was insufficient to justify the trial judge's finding that the relevant accident probably caused or materially contributed to the plaintiff's condition, having earlier considered and rejected the defendant's submission that the judge had misdirected himself as to the appropriate test. It is clearly only the misdirection point which could be of any materiality here. I have carefully considered the fairly lengthy passage in which Ralph Gibson LJ addresses it (page 535b - h) but do not find it necessary to set it out here, for three reasons. In the first place it did not form part of the court's reasons for a binding decision. Secondly that was a tort case. Thirdly the question under discussion was not whether the defendant's fault must be the sole cause, but the converse question whether the trial judge had wrongly taken it to be incumbent upon the defendant in that case to establish that there was some other sole cause or combination of causes. It suffices to note that Ralph Gibson LJ concluded that Otton J had rightly directed himself that the test was whether the accident (itself caused by the admitted negligence of the defendant) had materially contributed to the causing of the plaintiff's condition.

11. I need not, I think, rehearse the complex facts of Heskell v Continental Express Ltd [1950] 1 All ER 1033, since Devlin J's treatment of the issue of causation is intelligible in its own right. Having found that there were two operative causes he continued:

Where the wrong is a tort, it is clearly settled that the wrongdoer cannot excuse himself by pointing to another cause. It is enough that the tort should be a cause and it is unnecessary to evaluate competing causes and ascertain which of them is dominant .... . In the case of breach of contract the position is not so clear .... .

Whatever the true rule of causation may be I am satisfied that if a breach of contract is one of two causes, both co-operating and both of equal efficacy, as I find in this case, it is sufficient to carry judgment for damages. Reischer v Borwick [1894] 2 QB 548 establishes that for the purposes of a contract of insurance it is sufficient if an insured event is, in this sense, a co-operating cause of the loss. I do not think that Yorkshire Dale SS Co Ltd v Minister of War Transport [1942] AC 691, with its insistence on the ascertainment of "the cause", disapproved this principle. The case decided that the cause of a loss has to be ascertained by the standard of common sense of the ordinary man. Common sense is a blunt instrument not suited for probing into minute points, and I cannot believe that if the ordinary man thinks that two causes are of approximately equal efficacy, he cannot say so without being interrogated on fine distinctions. (Pages 1047C, 1048A)

12. Referring to those passages in Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd [1990] 1 QB 665 Steyn J said:

The correctness of this conclusion of Devlin J was not challenged. In my respectful judgment Devlin J's analysis is plainly correct, and I adopt it. (Page 717H)

The Court of Appeal also referred to them with apparent approval, but as I understand it in relation to the position in tort only (pages 813E and 814C).

13. In Heskell v Continental Express Ltd Devlin J had referred to the two causes as being equally operative "in that if either had ceased the damage would have ceased" (page 1047B), and it would seem that the same was true in the Banque Keyser Ullmann case. These were therefore cases like the "head-on collision" example in paragraph 7 above. Nevertheless the statements of principle, even if not explicitly directed to the question posed in paragraph 7 above, are wide enough to cover it, nor do I see any reason why they should not do so. Moreover, as I understand it, Devlin J's references to "equality" are not directed to any contribution issue but to the question whether both causes under consideration are "efficacious".

14. On the basis of principle, therefore, with such limited assistance as can be derived from the authorities, I conclude that Plant should not have to show that JMH's breach was the sole cause of the collapse, or that in the absence of that breach there would have been no collapse even if Plant's negligence (including that of Mr Adams as its agent) had remained. The true question, in my view, should be whether JMH's breach was causative, whether alone or as being one of concurrent causes with Plant's negligence, such that but for the concurrence of those causes the collapse would not have occurred.

What should JMH have done?

15. The following findings in the principal judgment are germane in considering the answer to this question:

(1) The term as to compliance with Mr Furley's instructions could not and did not override JMH's common law and statutory duties to third parties, in particular to take due care for the safety of its employees. (Paragraph 51)

(2) When Mr Reynolds of JMH was aware of a safety risk in the case of the propping of the ring main he made it clear that he was not prepared to continue work unless something was done. (Paragraph 54)

(3) Mr Reynolds' attitude in relation to the roof props was that he had won one battle with Mr Furley and could not expect to win another, and he did not seem to have appreciated the safety risk in this instance, or at least seen it as being serious. (Paragraph 67) He should have done so. (Paragraph 69)

16. In my judgment the safety element is central to any consideration of what JMH could and should have done. Mr Stow rightly accepted in argument that JMH should have raised the safety implications. They were plainly at least as serious as in the case of the ring main, and in one respect at least more serious, since a jet of oil was unlikely to kill or injure more than one or two workmen, at most, whereas a roof collapse endangered everyone beneath it.

17. JMH should therefore have pressed its objections on this ground. There is no need for detailed findings as to the course which those objections might have followed; they could and should have been progressively more formal and insistent if not met - for example by being put in writing if oral representations were ignored, by going to successively higher levels of management in Plant and Ford if lower levels did not respond - and they could have been accompanied by the threat or actuality of report to regulatory authorities. The crucial question is whether JMH could and should, in the last resort, have refused to continue to work if the safety of workmen was at risk, as it had done in the case of the ring main.

18. I am clear that it could and should have done so. Mr Edwards-Stuart accepted, and I agree, that in the case of the roof it could not justifiably have threatened to down tools immediately, as in the case of the ring main, since convincing Mr Furley of the risk and establishing what remedial design would be effective and feasible required calculation. There was equally, however, no need for any such precipitate action; the inadequacy of Mr Furley's propping scheme and the likelihood of danger were apparent to everyone, or should have been, by 8 December 1993, and the foundations of J11 were not undermined until Christmas. There was plenty of time before then either to have achieved an adequate response by raising the level of objection or in default to have given adequate notice of JMH's determination not to imperil the life and limb of its workforce.

The consequences

19. I have expressed my conclusion in paragraph 14 above on the test to be applied in addressing this aspect of the matter. In case I am wrong in law about that, however, I should deal with the factual issue both on that basis and on the basis contended for by Mr Stow, since no avoidable risk must be taken of there having to be any remission for yet further findings. It is convenient to address the second alternative first.

20. On that hypothesis Plant and Mr Adams would have been no more disposed to diligence or to the exercise of a sense of responsibility than in the event they were. It must be supposed, however, that they would have been susceptible, in their own interests, to such legitimate pressure as JMH could have exerted.

21. Again, it would be difficult and is unnecessary to make detailed findings as to the course which events would then have followed. It would be difficult because the contingencies are so varied. Plant might or might not have instructed Mr Adams to carry out the necessary calculations to demonstrate the inadequacy of Mr Furley's scheme or to design an adequate and safe one. If they had done so Mr Adams would, on his evidence, have required an additional fee, which Plant might or might not have been prepared to pay. If the calculations had been done they would have shown that the scheme was unsafe but might or might not have persuaded Mr Furley of his error. If so, and if Mr Adams had produced a safe design, Mr Furley might or might not have accepted it, and in the latter event might or might not have produced a new and safe scheme of his own.

22. It is unnecessary to make such findings because whatever the detail of the route there were, on my findings above as to what JMH should have done, only two possible destinations. Either there would have been a new design which JMH could consistently with its safety responsibilities accept or JMH would have declined to execute what it believed to be an unsafe scheme. I appreciate that those alternatives are expressed, as they have to be, in terms of JMH's perception rather than in terms of objective safety, determinable only by hindsight, but it is in my view a legitimate, and indeed inevitable, inference that on the balance of probabilities there would have been no collapse had there been a design which JMH, on the above basis, accepted.

23. That a safe design was possible is clear. Even without resort to the general consideration that it is inconceivable that a competent engineer could not have designed such a scheme, findings in the principal judgment and evidence identify specific possibilities. A properly jacked system of adequate strength supporting the three accessible trusses at the first node points would not have failed (paragraph 16). The difficulty of the absence of adequate footing for vertical props under the trusses to north and south could have been met in one of the ways described in paragraph 13. Alternatively, even if Mr Furley's prohibition of bolting or welding horizontal beams to J11 had been maintained Mr Adams' evidence, which I accept, was that that did not exclude clamping.

24. I conclude that even on the test of causation advanced by Mr Stow the consequence of fulfilment by JMH of its duty would have been that, on the balance of probabilities, the collapse would not have occurred.

25. That being so it is not necessary to develop at any length the consequences of the alternative, and as I believe correct, test set out in paragraph 14 above. Clearly, if Plant and Mr Adams had acted with due care and skill, it is more likely that the upshot would have been acceptance by Mr Furley of a safe design. Plant would, moreover, have supported JMH in its refusal to execute an unsafe one. I therefore reach the same conclusion as in paragraph 24 above, but with even greater conviction.

Conclusion

26. For these reasons I answer the question remitted to me by finding that JMH's breach caused the collapse of the roof.