At a recent hearing, the court rejected the submission that there was an implied term in a contract between an employer on a building project and a quantity surveyor that the QS' duty was 'to only value work that had been properly executed by the contractor and was not obviously defective'. Instead, the implied term was less onerous, that a QS should 'act with the reasonable skill and care of quantity surveyors of ordinary competence and experience when valuing the works properly executed for the purposes of the interim certificates'
Background
The claimant claimed damages from the contractor, architect and
QS arising out of alleged defects in the design and construction of
their property. McBains, the QS, sought to strike out the
claim against them on the basis that they did not owe the claimants
the alleged duty, namely only to value work that had been properly
executed by the contractor and was not obviously
defective.
Whilst McBains were named in the construction contract as the QS
and performed the usual function of a QS, there was no indication
that any contract had been formalised, nor evidence of any oral
contract or contract by conduct. McBains were to identify the
total value of work properly executed by the contractor, and did
this following discussions with the contractors and architects and
by inspecting the works where necessary. McBains denied,
however, that it was for them to ensure that the works had been
properly executed, or to identify any defects and draw them to the
attention of others.
Decision
On the basis that there were no express terms of contract, the terms alleged by the claimants had to be implied. The court found that there was an implied term, in order to give the contract business efficacy, that McBains would act with the reasonable skill and care of quantity surveyors of ordinary competence and experience when valuing the works properly executed for the purposes of the interim certificates. This differed from the claimant's alleged absolute obligation not to value work which was 'obviously defective', that defects obvious to McBains ought to have been reported. Such an obligation would put a positive duty on the part of McBains to inspect the works and not value work which was 'obviously defective'. This had not been expressly agreed, and the court found no legal foundation for implying such a term. The claim was not, however, struck out, as disclosure had yet to take place, although the court did express doubt at the claimant's ability to prove that McBains had fallen below the standard to be expected of an ordinarily competent quantity surveyor.
Comment
The position remains that architects are to inform quantity surveyors of defects in work which affect the valuation. A quantity surveyor is concerned with quantities, not the quality of work; these lines of responsibility remain well-defined. A QS should, however, review its contract to ensure awareness of the ambit of its responsibility and ultimate liability, and continue to communicate what they see on site to the architect, even if the latter is not a strict legal obligation.
Further reading: Dhamija v Sunningdale Joineries Ltd, Lewandowski Willcox Ltd, Mcbains Cooper Consulting Ltd [2010] EWHC 2396 (TCC)
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 23/11/2010.
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