HT-2025-000282 - [2025] EWHC 850 (TCC)

SCOPE OF DUTY

The starting point for considering the Defendant’s scope of duty is its contract with the Claimant but it may also be necessary to consider the contracts of others retained by the Claimant. It was the Claimant who decided to go down the route of a Construction Manager with Trade Contractors.

The engagement of a construction manager is important. As noted in Keating on Construction Contracts, 12th edition, at 14-021, "Usually, the project construction manager will be seen as the "co-ordinator and guardian of the client's interests"." The quotation is taken from Royal Brompton Hospital NHS Trust v Hammond (No. 9) [2002] EWHC 2037 (TCC) at [23].

The Claimant retained JCA as construction manager pursuant to a Construction Manager's Appointment dated 4 October 2016. I find and so hold that JCA was obliged:

The Hess Trade Contract. The Claimant retained Hess as timber frame contractor pursuant to a letter from Hess to Claimant dated 21 March 2016 and an undated and unsigned Construction Trade Contract. I find and so hold that Hess was obliged to:

The Stoneleigh Trade Contract. The Claimant retained Stoneleigh as roofing contractor pursuant to a Construction Management Trade Contract dated 16 December 2016. I find and so hold that Stoneleigh was obliged to carry out the following:

The Defendant, particularly in its Closing Oral Submission reminded the Court of two recent decisions of the Court of Appeal

Lord Justice Coulson expressed the view at paragraph 74 of Rushbond and at paragraph 35 of URS that the six-stage checklist set out by the majority of the Supreme Court in Manchester Building Society v Grant Thornton UK LLP [2022] AC 783 being:-

“(1)

Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the actionability question)

(2)

What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question)

(3)

Did the defendant breach his or her duty by his or her act or omission? (the breach question)

(4)

Is the loss for which the claimant seeks damages the consequence of the defendant's act or omission? (the factual causation question)

(5)

Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant's duty of care as analysed at stage 2 above? (the duty nexus question)

(6)

Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question).”

was a helpful checklist.

Whilst the Claimant’s claim is contractual, I agree with Lord Justice Coulson that this checklist, whilst helpful, was primarily designed to analyse duties of care in novel situations or where the type of loss was unusual or stretched the boundaries imposed by the law. This is not the case here. The Claimant procured the work by way of a construction management contract with trade contractors and a construction manager. This I find and so hold is a fairly standard practice in the construction industry and is certainly not an unusual or a novel method of procuring construction work.

I agree with the Defendant and so find that the Defendant’s scope of duty was as follows:

“(a)

Design. Defendant was foremostly the designer and was under a duty to provide design information. It did so in the form of drawings and both outline and detailed specifications (clauses 1.5 and 3.2 of Schedule 1). However, Hess completed the detailed design of the timber frame and Stoneleigh completed the detailed design of the roof coverings.

(b)

Co-ordination. Defendant owed a duty to coordinate designs (clause 18.5 of Schedule 1 to the WTA Appointment), but not the programmes of other consultants. Hess and Stoneleigh were not only obliged to co-ordinate with JCA, as Construction Manager, they were also obliged to co-ordinate with other Trade Contractors, i.e. each other (Clause 30).

(c)

Protection. Defendant did not owe a duty to protect the Trade Works during their construction. Hess and Stoneleigh owed precisely these obligations. Further, both Hess and Stoneleigh were obliged to use reasonable skill and care to satisfy the performance requirements or specifications for the Trade Works, namely the requirements of Defendant's Timber Frame and Combined Specifications, which stipulated performance requirements for protection of works, adverse weather working and membrane work.”

When considering what the Defendant did or did not do it is necessary to have in mind the warning contained at paragraph 2-055 of Hudson Building and Engineering Contracts which states:

“The Architect's duty is normally confined to stipulating the final permanent result required and if this has already been done, the Architect is under no further duty to assist, and if inclined or requested to do so should normally be careful to adopt a permissive attitude rather than to give mandatory instructions."