Scottish Court of Session Decisions

This was an action at the instance of Miss Mary Jameson, Rosefield Cottage, Cargill Terrace, Wardie, with consent and concurrence of her mother for her interest, against Frank Worthington Simon, architect, Edinburgh.

The defender had been employed by the pursuer to act as her architect in connection with the erection of a villa which she was building in the suburbs of Edinburgh. After the villa was finished and all the work had been certified by the defender, and paid for by the pursuer, dry-rot broke out in the woodwork. The pursuer alleged that this was due to the pursuer's failure to properly supervise the execution of the

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contracts, and she concluded for payment of £80, 10s. 1d. as damages for the expense and inconvenience caused to her as the consequence of this neglect of duty on his part. There was no written contract between the parties, and it was ultimately held by the Court that there was no special bargain between them, but that the defender was simply employed to act as architect upon the ordinary terms.

The usual fee of 5 per cent. on the cost of construction was charged by the defender, and as stated in the account rendered by him to the pursuer the services included under this charge were as follows:—“Preparing sketch-plans, preparing working—plans: Details, specifications, obtaining tenders, and supervising the work from commencement till completion.” Apparently about two-fifths of this fee was for supervision.

A proof was allowed. It appeared that the dry-rot was generated or developed in what is called the “bottoming,” which immediately underlay the cement floors of the scullery, coal-cellar, and w.-c., which formed part of the ground floor of the villa. This bottoming ought, as specified, to have consisted of about 2 1 2 feet of broken stone—the uppermost 3 inches being to be of small stones, and to the supplied by the plasteier, and the rest, which was described as “dry stone filling,” being to be supplied by the mason. In point of fact the material used, at least in the uppermost 3 or 4 inches was miscellaneous rubbish. It consisted, according to the evidence, partly of chips of stone, but to a huge extent (about 25 per cent.) of shavings, pieces of wood, Master, sacking, and general sweepings. The fungus of dry-rot appeared on the pieces of rotten wood wlhich formed a considerable part of the material, and thence spread to the doorposts of the kitchen and scullery which were embedded in the bottoming, and so passed into the woodwork of the house.

The mason and the plasterer both repudiated responsibility for the bottoming, and each of them threw the blame of it upon the workmen of the other. The mason, Mr Sutherland, deponed as follows:,—“I cannot say exactly how far the filling was done by our men but I should think it was about a foot. We had no more to put in at the time because it was a job where there was very little dressing. We had very little stone on the ground to put in, and wo intended to cart the rest afterwards. As the work proceeded our men filled in the debris from the dressed stone as they went along, in the specified places. (Q) Did your foreman inform you how much more filling required to be done to bring up the thing to the proper level?—(A) Me did not require to do so as I saw I he work myself daily, I think about 15 inches or so of the filling required still to be done under our contract, but I am speaking from memory. We intended to put in that when we got word either from the architect or the plasterer. (Q) Before the plasterer began his work of cement laying was it your intention to finish off your work whenever the plasterer was ready to begin his cement work?—(A) Whenever we got word to do so, but we never did get such word. I cannot say who finished off the fifteen inches of bottoming which we had not ourselves done. I have a note in my little diary to the effect that about the end of May I took occasion to go round there, simply to see what like the work was, and I was very much surprised to find the cement laid.” On the other hand the plasterer Mr Hunter deponed as follows:—“The doing of my part of the cement floor occupied about one day. (Q) Do you mean one day in laying down the broken metal packing, and also laying on the cement top?—(A) One day laying the cement, because they did not lay any stones at all. That includes the water-closet and coalcellar. I was down at the place the day before the cement floor was laid, but I was not down there on the day on which it was laid. The filling had been laid in previous to the day on which I was down. (Q) Was that in good order?—(A) I complained. My foreman spoke to me about it. He told me he had spoken to the foreman mason with regard to it. and that he was practically told to mind his own business. (Q) What had you to complain of?—(A) It was rubbish—small stones and lime, and little bits of wood that had been taken from an old building near by. (Q) Was it not the duty of your men to remove these before they laid on their cement?—(A) No, I don't think so. I did not draw the architect's attention to the matter. I did not consider it was my duty to do so, because I did not think I had any right to find fault with the work of a good builder like Mr Sutherland.”

With reference to this matter the defender deponed as follows:—“Mr Tweedie (who was then the defender's partner) went away for his holidays some time in May 1896. and was absent during that month. While he was away I was the only member of the firm present at the building. That is the month in which the cement floor in question was laid. On going down one day, and making my usual visit of inspection. I found the floor laid, finished, and cemented over. I had on previous occasions seen the filling gradually put in; it was put in as it came from the masons' sheds. It is the practice to put shivers and broken metal in places where bottoming is required. So far as I saw it, there was no occasion to take exception to the filling as it was being done. I do not think I saw it just when the filling was completed, and before the cement was laid on. In the way in which the work had been done, so far as I saw it, there was nothing to lead me to suspect that proper filling would not continue to be put in. Everything was going on smoothly about the house. I did not consider it as part of my duty to stop the laying of the cement, and make a special visit to inspect and pass the bottoming before the cement was laid. I have never done so, and have never known of any architect doing it. The laying of a cement floor is not a matter of more critical importance

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than any of the other things in connection with the building of a house; it is the most common operation in connection with the building. I do not know the date of my visit when I found that the plasterer had completed his work. I notified him to proceed with his work on the 27th May. When I found the cement floor completed, there was nothing to raise in my mind the slightest suspicion that there had been any scamping of the work; I could not possibly tell, because the top surface was perfectly right.… From what I now know, I should say that the bottoming which had been put in below the scullery floor was discou form to contract, and was not the properstulf that should have been used. If I had seen that stuff I would have condemned it at once. I did not as a matter of fact see the bottoming the time it was put in. I just saw the finished cement. I did not make any inquiry at the time as to what bottoming had been put in, or by whom. (Q) Did you know at the time who had filled in either the rough bottoming or the three inches above?—(A) I assumed that they were done by respectable tradesmen, although I did not watch the actual operation. I am not absolutely certain even now who tilled in the rough work. It is not the case that I ever expressed to Mr Hunter my satisfaction with and approval of the work that he had done. In surveying the work I assumed that he had done it accord ing to specification. I certified both Hunter's work and Sutherland's work at the time. I certified that work of the value so certified had been done by the tradesmen mentioned at that date. (Q) As a matter of fact your certificate as regards bottoming was not correct when it said that bottoming to that value had been done?—(A) No, it is not particularly certified. It covers that bottoming. (Q) Do you say now that the work as regards bottoming was done to the satisfaction of the architect?—(A) Not with my present knowledge. The final certificate in the case of each tradesman does not bear that the work has been done conform to contract.”

No clerk of works was employed to supervise the execution of the contracts, and it appeared that in such jobs as the present the employment of a clerk of works is unusual.

After the dry-rot made its appearance the pursuer, after sundry correspondence, sent the defender a letter on the subject Which he returned unopened, at the same time recommending her to her lawyers. On 3rd June 1898 the pursuer intimated to the defender through her law-agents that unless the necessary work was arranged for within three days by him she would herself give instructions for its being done, and would charge him with the expense thereof. The defender on 6th June 1898 replied saying that he repudiated all liability.

The pursuer's law-agents also wrote to the masons and the plasterer in imating that as the floors were not laid conform to specification, and as the dry-rot was due to this, she was having the whole re-done, and that she reserved all claims of damages which she might have against them. The masons replied that they had carried out their contract according to specification and to the satisfaction of the aichitect, and were in no way responsible for the dry-rot. The plasterers replied that the work complained of was done to the architect's instructions and under his direct supervision, and was a first-class job, and that any action which Miss Jameson might take would be entirely at her own risk.

The pursuer then ordered the work to be done, and thereafter raised the present action.

In these circumstances the question came to be what kind and amount of supervision was implied in the defender's employment as architect, and whether in view of the amount of supervision in fact given by him he could be held to have adequately discharged the duty incumbent upon him.

The defender deponed that either he or Mr Tweedie went down to the building on an average about once a-week.

The defender founded upon the following rule of the Royal Institute of British Architects as showing the terms of his employment:—“The following are the professional services included in the ordinary charge of 5 per cent.—the requisite preliminary sketches, drawings, and specifications sufficient for an estimate and contract; detailed drawings and instructions for execution; one set of tracings and duplicate spécification; general superintendence of works (exclusive of clerk of the works); examining and passing the accounts, exclusive of measuring and making out extras and omissions.”

The defender adduced several architects and others, who deponed generally that the architect's supervision was only a general supervision, and that detailed supervision, if required, must be provided for by the employment of a clerk of works.

Mr Carter, civil engineer, Edinburgh, deponed as follows:—According to my experience, both working myself and working along with architects, the architect is not expected to give supervision in detail of the different items of the work as it goes on; the architect's supervision is more a general supervision, to see that the design which he has put in is carried out. He is also called in whenever any question of difficulty occurs, and particularly when in the comse of the work any slight alteration is seen to be desirable. (Q) What number of visits is it usual for an architect to pay to a building such as a suburban villa? (A) One cannot draw any hard and fast line as to the number of visits, but in ordinary practice for a villa I should say that once in ten days or a fortnight should suffice, provided the architect has a respectable builder under Him. In addition to such irregular visits I would expect the architect to visit whenever any special occasion occurs requiring his direction, ., . The architect is entitled to assume that the work is properly done unless he has hap

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pened to notice something wrong with the mode of its execution when he made his visits to the ground.”

Mr Dick Peddie, architect, Edinburgh, deponed as follows:—“In my own case I consider that I have done very satisfactorily if I go to the building once in three weeks. … In the case of an architect in larger practice he would do by deputy to a certain extent what the other man would do by himself. … I think an architect's certificate means that to the best of his ability the work is done according to contract. (Q) Founded on occasional visits?—(A) Yes. (Q) Which may occur about once in a fortnight?—(A) I think that is perfectly sufficient for a small building like that.… My view is that, apart from special contract between the architect and the employer in regard to the carrying out of the specification, the employer takes his chance of the care and integrity of the contractor, and of what the architect may happen to observe on his occasional visits.”

Mr Robertson, principal surveyor for Scotland of Her Majesty's Board of Works, Mr Peddie, Mr Morham, and Mr Ross, architects, Edinburgh, deponed that they did not consider that it was incumbent upon the architect to examine the “bottoming” specially before the cement was laid on top of it, that the nature of the bottoming was very unlikely to cause any subsequent trouble, and that what happened in the present case was not a thing which any architect could be expected to anticipate as a reasonably possible result of improper bottoming being used. Mr Baird, plasterer, and Mr Slater, builder, also gave similar evidence.

On the other hand Mr Ormiston, ordained surveyor and Dean of Guild of the City of Edinburgh, and his son Mr W. M. Ormiston, architect and surveyor, deponed that it was usual to inspect the bottoming before allowing the cement to be laid.

On 1st June 1899 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“Decerns against the defender for payment to the pursuer of the sum of £40: Finds the pursuer entitled to expenses, &c.

Opinion.—“This case does not involve a large sum of money, but it raises questions of some importance, especially in view of the evidence given by some eminent architects as to what they consider to be the extent of their professional responsibility.— His Lordship then stated the facts].

The question, however, is whether the mischief having been thus caused, the defender ought, in the course of due supervision, to have observed and prevented it. The pursuer contends that supervision of the contractors was part of the defender's duty but that as regards this part of the work he gave no supervision at all, certifying the work as duly executed in reliance solely on the contractors' faithful observance of the specification. This, the pursuer says, constituted a breach of contract on the defender's part which entitles her to redress.

I may say at once that I do not think it proved that there was any special contract as to the kind or degree of supervision which the defender should exercise. The pursuer and Mr Bartholomew, her agent, both say that the defender undertook to give ‘special attention’ to the job, and I think it quite likely that something of that sort was promised. But I am not disposed to attach importance to general expressions of that sort. On the other hand, I do not hold it proved that the defender warned or informed the pursuer or her agent that to secure adequate supervision they must have a clerk of works, and that he (the architect) could only undertake to visit the building once a week or once a fortnight. That statement was first made by the defender in the course of his cross-examination towards the close of the proof, and while it is probably consistent with the view which the defender took or takes of his duty, it does not appear to me to be consistent with the weight of the evidence. That some mention was made of a clerk of works is I think possible, but it is common ground that in such jobs the employment of a clerk of works is unusual, and it must, I think, be taken to be the fact that the defender neither stipulated for nor advised the engagement of such a functionary.

The question therefore is, what kind and amount of supervision was implied in the defender's employment as architect on the job? It is quite certain that he undertook some supervision. He received the usual 5 per cent. commission, which to the extent of about 2 per cent is for supervision and nothing else. It is also certain that the supervision which he undertook was not confined to the mere matter of his design. He undertook, like other architects, to grant certificates to the contractors upon which the contractors should be paid, and by these certificates he certified, if not expressly, by the plainest implication, that the work done had been done according to contract. Prima facie therefore he must at least be held to warrant that in so far as he could ascertain by reasonable care and skill there had been no scamping of the work or serious deviation from the plans and specifications. That seems to be his prima facie undertaking, and I confess I am not prepared upon anything I have heard to put his responsibility lower. He was bound to supervise, and in doing so he was, I think, bound to use reasonable care and skill, the burden being upon him to show that with respect to any disconformity or default it was such as could not be discovered by reasonable care and skill. 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. It may well be that when he stipulates for and obtains the assistance of a clerk of works his implied undertaking is less stringent. He may in that case be entitled to accept the reports of the Clerk of Works as

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correct, and of course in no case can the architect be bound to that minute supervision which is only possible to a person continually on the ground. But, speaking generally, his (the architect's) 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.

Now, applying these principles, I am of opinion that the defender here has failed to show that as to this part of the work he gave due and reasonable supervision, or that the want of such supervision was not a materially contributing cause of what occurred. It is, I am afraid, impossible to assimilate the deliberate substitution of general rubbish for dry stones below the cement floors of a building to such things as the driving of a nail in the wrong place, or similar acts of casual negligence, which it was properly said might elude even the vigilance of a clerk of works. All that may be readily admitted. But, so far as I can see, there was no difficulty in the defender—without anything like constant attendance—doing all that was in the matter required. He might have arranged to go down or send down an assistant during the day or two when this particular work was going on. He might (as Mr Ormiston says is usual, and as is at all events, I think, quite reasonable) have asked that the bottoming should not be covered up until he had seen that it was in order. He might, in any case and at least, have looked to see whether there was sufficient stone dressing on the ground, and finding that there was not, have inquired as to the source from which the bottoming was proposed to be got. I am, afraid, however, the fact is that he did nothing at all. He simply trusted to the contractors—his view of his duty being, as he frankly enough says, that it was enough for him to pay occasional visits—once a week or once a fortnight—and that his employer took her chance of any scamping, however serious, which the contractor's might perpetrate in the interval. Now, that is a view of the defender's duty to which I cannot assent. It is quite true—and I regret to say it—that it has received the support of some eminent members of his profession. But it appears to me to be a view which reduces the architect's supervision to a farce. It is not the view of Mr Ormiston (the Lord Dean of Guild), who gives evidence for the pursuer, and it is not a view which is, I think, likely to commend itself to ordinary minds. At all events it does not commend itself to mine. And accordingly on the whole matter I find for the pursuer, and assess the damage at £40”

The defender reclaimed, and argued—The only way in which the Court could ascertain what was the extent and scope of the supervision which was implied in a contract to act as architect upon the ordinary terms was by taking the evidence of architects. Such evidence was competent and indeed essential— Chapman v. Walton (1833), 10 Bing. 57, 38 R.R. 396. All the evidence given by architects in this case was to the effect that while the architect was bound to supervise the work generally he was not bound to give special and detailed supervision. See also the rule of the Royal Institute of British Architects on the subject (quoted supra). From the nature of the architect's avocations, the possibilities of the case, and the amount of the remuneration, nothing more than general supervision could be expected from him. Such general supervision as was incumbent upon an architect had been given by the defender here, and he was not responsible for imperfection in the work which he had failed to detect in consequence of his not having maintained a special and detailed supervision over it. Nothing short of such a special and detailed supervision could have guarded against the possible occurrence of the scamping which took place here. What happened here was not a thing which the defender could have been reasonably expected to anticipate as at all likely to happen. The laying of the bottoming was not a matter of any special importance, and there was no special duty upon the architect to take means to ensure his seeing it before it was finally covered up.

Argued for the pursuer and respondent—The question here was one for the decision of the Court, and the opinion of the architects' profession on the subject was not conclusive. Apart from any wider question as to the amount of supervision incumbent upon an architect, he was at least bound to see that work which was to be finally covered up out of sight was properly done according to specification before he allowed it to be finally covered over.

At advising—