Oliver Davis Trading as Davis Engineering Appellant v [1] Rona Henry [2] Eric Henry Respondents [ECSC]

JurisdictionAntigua and Barbuda
JudgeALLEYNE, C.J.[AG.],Chief Justice [Ag.],Justice of Appeal,Brian Alleyne, SC,Michael Gordon, QC,Denys Barrow, SC
Judgment Date04 December 2006
Judgment citation (vLex)[2006] ECSC J1204-1
CourtCourt of Appeal (Antigua and Barbuda)
Docket NumberCIVIL APPEAL NO.37 OF 2004
Date04 December 2006
[2006] ECSC J1204-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Brian Alleyne, SC Chief Justice [Ag.]

The Hon. Michael Gordon, QC Justice of Appeal

The Hon. Mr. Denys Barrow, SC Justice of Appeal

CIVIL APPEAL NO.37 OF 2004

Between:
Oliver Davis Trading as Davis Engineering
Appellant
and
[1] Rona Henry
[2] Eric Henry
Respondents
Appearances:

Mr. Jerry Watt QC, Dr. David Dorsette with him, for Appellant

Mrs. Stacy Richards-Anjo for the Respondents

ALLEYNE, C.J.[AG.]
1

This appeal arises out of a building contract between the respondents (hereinafter 'the respondents', 'the Henrys', or 'the owners') and Tropic Builders Limited, a construction company headed by Bengt Berntsson and his wife, for the construction by Tropic Builders Limited of a dwelling house for the Henrys, at a fixed contract price of $684,500.00. The contract is dated 12 th September 1994.

2

By letter dated 10 th June 1994, from the appellant Oliver Davis to Mrs. Berntsson of Tropic Builders Limited, Mr. Davis proposed to provide certain engineering services involving the designing of the foundations and substructure up to the main floor slab, design of cisterns, to provide three sets of drawings of all design work, and to supervise the construction of all work related to his design. For this work he proposed a fee of $9,500.00, and made it clear that this fee did not include soil tests, which did not appear to him at the time to be necessary.

3

Mr. Davis, in the said letter to Mrs. Berntsson, indicated that if soil tests were required, that would be at an extra charge. No reference is made to the Henrys in this letter, either as a party to the contract or otherwise.

4

Nevertheless, Mrs. Rona Henry claimed in evidence that there was a separate agreement between herself and her husband on the one hand and Oliver Davis on the other for engineering services in connection with the construction of the house, which, she claimed, was witnessed by a letter written by Mr. Davis to her and her husband. She was unable to locate or produce the letter, and the learned trial judge placed no reliance on that evidence.

5

The contract between the Henrys and Tropic Builders recited that they had 'caused drawings and specifications setting forth the work to be done to be prepared by the Builder', being Tropic Builders.

6

It is an agreed fact that the fee of $9,500.00 due to Davis was paid to him directly by Mrs. Henry, outside of and above and beyond the contract sum agreed to be paid to the builders. However, all invoices in respect of the said engineering works were directed to Tropic Builders Limited. Mr. Davis denies any contractual relationship with the Henrys.

7

Some time after completion of the construction, cracks appeared in the upper level floor slab and walls, and the cistern leaked. A number of deficiencies and defects in the construction were noted. The Henrys sued Tropic Builders and Oliver Davis.

8

In their statement of claim the Henrys claimed, as against Oliver Davis, that he was engaged to act in his professional capacity with regard to the construction and supervision of the house, and particularly the designing and construction of the foundation, cisterns and floor slab of the said house.

2

The Henrys went on to make reference to the letter of 10 th June 1994, referred to in paragraph 2 of this judgment, asserting, in effect, that this letter contained the terms of the contract between them and Mr. Davis. They claimed that Mr. Davis's services to them in relation to the said house were completed in or about February 1995, and that Mr. Davis has been paid for his services.

3

The Henrys set out particulars of the deficiencies in the construction, and claim that a Civil Engineer visited the house in 1999 and submitted a report dated 28 th October 1999, in which he describes "tremendous cracking" and "extremely severe cracks" observed at the house.

4

The statement of claim alleges negligence and breach of duty on the part of Tropic Builders, the first defendants, in terms of paragraphs 9, 10 and 11 of the Statement of Case, which I set out below;

9. "By the said agreement executed between the Plaintiffs and the Fist Defendant, the First defendant agrees therein to build and complete the dwelling house in a substantial and workmanlike manner in accordance with particular plans annexed to the said agreement. The Plaintiffs will refer to the said plans at trial.

10. The implied terms of the contract are as follows:-

  • (a) that the First Defendant would use materials of good quality

  • (b) that the First Defendant would use materials which were reasonably fit for the intended purposes.

  • (c) that the First Defendant would exercise reasonable skill and care in carrying out its duties.

  • (d) that the Defendant would carry out the works in a good and workmanlike manner.

11. The First Defendant owed a duty of care to the Plaintiffs in carrying out the works negligently and in breach of his contract the Defendant and or his servants or agents carried out defective works using inferior, inadequate, insufficient or unsuitable materials thereby causing loss and damage to the Plaintiffs."

5

In paragraph 12 of the Statement of Claim, the Henrys allege that

"The said faults and defects were caused by negligence and/or the breach of contract of the First Defendants their servants/agents or the Second Defendants their servants and/or agents.

PARTICULARS
  • (a) Failing to sufficiently reinforce the upper storey block work.

  • (b) Failing to construct the lower storey floor of the said house as specified in the drawings prepared by the Second Defendant.

  • (c) Failing to carry out the works in a good and workmanlike manner.

  • (d) Failing to exercise reasonable care and skill in carrying out its duties."

6

The only aspect of this pleading which could possibly relate to the appellant and attach liability to him in negligence is paragraph (d). The obligations under paragraphs (a), (b0 and (c) were exclusively obligations of the contractor.

7

In paragraphs 15 and 16 the Henrys further aver against the appellant Oliver Davis the following:

"15. The Plaintiffs further avers that the Second Defendant was also obligated in performing his services as professional civil engineer to supervise the preparation of the said land at Friars Hill for construction and to oversee the works as carried out by the First Defendant up to the level of the foundation of the said building. There was implied into the contract between the parties that the Second Defendant would exercise reasonable skill and care in carrying out his duties and particularly in supervising the construction of the foundation, cistern and floor slab of the building and advising the Plaintiffs.

16. In breach of his contract the Second Defendant and his servant/agents have carried out defective work and have failed to exercise due care and skill required under the Second Defendant's contract with the Plaintiffs. The Plaintiff's will rely on the report of Cedric Henry dated 1 st July, 2000 at trial.

PARTICULARS
  • (a) Failing to give adequate consideration to the history of the site prior to the decision as to the level of site investigation having regard to the fact that the property sits on the shoulder of Friars Hill Road in an area where the road was constructed by cutting into the side of the hill and the resulting material would have overlaid the natural soil.

  • (b) Failure to undertake and complete a proper investigation of the subsoil conditions of the property or to advise that the Plaintiffs seek the services of another professional who could give advice relating to the subsoil and who would carry our geotechnical investigations to supplement the geotechnical investigations already available.

  • (c) Failure to assess and analyse the presence of natural or manmade waterways in or around the site and to recognize that there was a natural manmade storm drainage path.

  • (d) Failure to implement precautions accepted with the Second Defendant's profession within the jurisdiction of Antigua and Barbuda to guard against the potential threat of water coming into contract with the foundation or to divert the water around the building.

  • (e) Failure to exercise due care and skill in the supervision of the progress of the construction of the lower floor slab, foundation and cistern.

  • (f) Failure to exercise due care and skill in carrying out the contract for the Plaintiffs."

8

A second report was prepared by Civil Engineer Cedric Henry in 2000, which, together with Cedric Henry's witness statement and testimony, was relied on by the Henrys. In his testimony the engineer offered the opinion that the cracks which he observed in the wall suggest a lack of reinforcement and excessive settlement which is pulling down the master bedroom wall. With regard to the crack in the master bedroom floor, it 'appears to split the east wing of the building in two, leave the building altogether and reappear in the driveway, splitting that slab in two.' He opines that this suggests a failure in the soil causing the building to slide down hill relative to the east wing. Finally he expressed the view that the problem stems from an incomplete investigation of the subsoil conditions, that such an investigation is costly and not usually applied to a dwelling house project, but in light of the history of that particular site, which he says is 'far from usual', such an investigation was warranted.

9

The appellant pleaded that he entered into contractual relations with the builders, not with the Henrys. I note here that the contract entered into by the appellant made it clear that his fee did not include soil tests, which did not appear to him at the time to be necessary. The document dated June 10 th 1994, being the contract between Davis Engineering and Tropic Builders, stated explicitly 'It must be understood that this engineering fee does...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT