Cases - Try Build Ltd v Invicta Tennis Ltd

Record details

Name

Try Build Ltd v Invicta Tennis Ltd

Date

(2000)

Citation

71 Con LR 140

Keywords

Construction claim - loss and expense claim - management time loss - recoverability of management time loss - written documentation - hypothetical assessment - contract administration

Summary

Contractors undertook to construct a tennis hall under a JCT 1981 design and build contract. Engineers who had been initially engaged by the employer were subsequently novated to the employment of the contractors. The swimming pool roof was of a novel design and, following construction, it failed. It was agreed that the primary cause of the failure was an insecure edging strip which was vulnerable to tears because the foil used was too thin.

Under the novation agreement, the engineers undertook an express duty to the contractor to exercise reasonable skill and care in the performance of its professional duties, including those carried out prior to the novation.

The court held that the engineers bore responsibility for the failure of the roof. It was an important part of the structure and the engineers were structural as well as civil design engineers. Given its cutting-edge design and the obvious importance of water-proofing, the engineers should have taken special care in their design and supervision of its construction.

Accordingly, the engineers were liable to indemnify the contractors.

HHJ Bowsher QC hinted that management time losses would be recoverable, even if the assessment exercise is somewhat hypothetical:

'where the time of a senior manager has been taken up by extra duties made necessary by the wrongdoing of a defendant, the employer...has lost the benefit of that individual's time which ought to have been devoted to his ordinary duties even (or perhaps especially) if the time lost was time which might have been spent looking out of the window thinking. The value of that time lost to the company may be enormous or small, but it can only be assessed by reason of the cost of the employee to the company. Where I have felt that the claim for management time is inadequately proved, I have for the most part taken the defendants' estimate, appreciating that this may well be substantially less than the actual cost which might have been shown if records were kept. I am not criticising anyone for not keeping records of management time, but their absence leads to difficulties of proof.'