17th July 2017
Willmott Dixon Construction Ltd v Robert West Consulting Ltd (2016)
Willmott Dixon appointed RWC to design some underpinning to a party wall, and then appointed Toureen Contractors Ltd to undertake the work. Toureen damaged the party wall, and Willmott Dixon alleged that this is because RWC’s design was defective.
RWC raised the defence of contributory negligence, dealt with the Request for Further Information from Willmott Dixon and then applied to amend two of the responses only a month before the trial date. One amendment was allowed as it was uncontroversial, however Willmott Dixon objected to one of these.
The general rule is that the main contractor (here Willmott Dixon) is not liable for negligence on the part of the subcontractor (note this is negligence not breach of contract). In RWC’s initial response they sought to rely on the exception to this, namely that if the main contractor knows about the work being done and allows it to proceed in a foreseeably dangerous manner, they can be vicariously liable. Initially RWC did however stress that they were not trying to argue that Willmott Dixon were vicariously liable.
However a month before the trial RWC sought to amend their response to state that they felt Willmott Dixon were vicariously liable based on party wall cases: the main contractor could be liable if the subcontractor is undertaking work that withdraws support from a neighbouring property. RWC argued that Willmott Dixon owed a non delegable duty in relation to the works carried out by the subcontractor and that RWC could rely on this in its argument towards contributory negligence.
In deciding whether or not to admit the amendments the court had to decide whether the new arguments could have a real chance of success, and whether there was a good reason for the delay that would justify the court exercising its discretion to allow this.
Mr Justice Coulson entirely dismissed the argument of vicarious liability on the basis that there is case law showing that there is no vicarious liability for acts and omissions of independent subcontractors.
In relation to the alleged non-delegable duty, Mr Justice Coulson assessed whether the underpinning works were exceptionally dangerous enough to warrant this and decided that this was not the case. As a result, RWC failed in their attempt to amend.
Mr Justice Coulson did however continue to consider the issue as to whether RWC could rely on the duty and found that they could not: Willmott Dixon only owed the duty to the neighbouring landowners and RWC was not a neighbouring landowner.
Finally, he concluded that he would not have exercised his discretion in any case as this would have undoubtedly held up trial. If RWC could amend their application Willmott Dixon would be required to entirely rebuild its case with new experts and new witness evidence which would not be acceptable.
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