Mouchel Ltd. v Van Oord (UK) Ltd.

In a contribution claim, contractual responsibility for design must be distinguished from an obligation that materials be suitable. An express exclusion of design responsibility prevents the same obligation being imposed through an implied term. A subcontractor responsible for placing scour protection must comply with a specified minimum thickness, even where practical difficulties make local placement difficult. Contribution under the Civil Liability (Contribution) Act 1978 requires liability for the same damage. The contribution must be just and equitable, assessed by reference to both fault and causal responsibility, with causative potency ordinarily an important consideration.

Mouchel had settled Kier’s claim arising from remedial works at the South Humber Power Station and sought a contribution from Van Oord under the Civil Liability (Contribution) Act 1978. Van Oord had supplied and placed Grimsby Middle Sand as trench backfill and had installed rock scour protection around intake structures. The principal questions were whether Van Oord was contractually responsible for the suitability of the sand, whether it had failed to place the required depth of scour protection, whether Mouchel and Van Oord were liable for the same damage, and what contribution was just and equitable.

1. Grimsby Middle Sand. Van Oord’s tender document excluded responsibility for design of the permanent and temporary offshore works, except for trench slopes. That exclusion removed responsibility for designing the backfill so as to prevent erosion and restore the seabed. The contractual distinction between design obligations and material-suitability obligations prevented the design obligation from being re-imposed as an implied fitness-for-purpose term. Van Oord was therefore not liable for the suitability of the sand against erosion.
2. Scour protection. The contractual and drawing requirements required at least 500mm of rock around the intake structures. The evidence indicated that Van Oord had failed to achieve that thickness locally. That workmanship failure contributed to the scour hole and the resulting remedial works. Van Oord was liable for that breach.
3. Same damage. Under section 1(4) of the Civil Liability (Contribution) Act 1978, Mouchel only had to show that it would have been liable to Kier on the pleaded factual basis. The relevant damage was the scour caused by the reduced level of protection at the intake. Mouchel’s failure to design a filter layer and Van Oord’s failure to place sufficient rock caused the same damage, although the court treated the design failure as the greater cause.
4. Contribution. Applying section 2(1), the just and equitable allocation was 65% to Mouchel and 35% to Van Oord. Van Oord’s contribution to the £24,360 of the settlement attributed to scour protection was therefore £8,546, together with interest calculated on the same basis. Costs were left for agreement or further submissions.