Cleightonhills v Bembridge Marine Ltd & Ors

In construction-related negligence, the contractual context is relevant to defining the scope of a tortious duty owed to persons outside the contract. A contractor or specialist may generally rely on an apparently competent designer or subcontractor, subject to a duty to identify and address obvious dangers within the contractor’s role. A duty to warn may arise where a party knows of a danger to people, and may sometimes arise where the party ought to have identified it because of its contractual function. Compliance with a British Standard is evidence relevant to reasonable care, but does not itself determine tortious liability. Where the design defect lies outside the contractor’s responsibility and was not reasonably apparent, failure to provide additional design measures does not establish negligence.

The claimant suffered severe brain injuries when a grating panel on a boatyard platform moved and collapsed while he was helping to manoeuvre a boat into a workshop. His employer, Bembridge Marine Ltd, had obtained judgment for substantial damages and brought contribution claims against parties involved in the platform’s design, fabrication and erection.

The principal claims remaining for determination were against the steel erector, the fabricator and the fabrication draughtsman. The issue was whether they had negligently installed or specified the grating and fixings, failed to warn of the need for edge protection, or otherwise failed to exercise reasonable care.

1. Claims dismissed. Bembridge failed to establish any material breach of duty by Mr Bennett, Allen Fabrications Ltd or Mr Martin. Judgment was entered for those parties. Mr Bennett’s consequential claim against Allen Fabrications Ltd was also dismissed.
2. In a construction context, the contractual setting must be considered when defining the scope of a tortious duty owed to a non-party. The scope is primarily determined by what the defendant was engaged to do. A party engaged to fabricate, supply or erect specified work is not generally required to investigate the adequacy of the overall structural design.
3. A party may discharge a tortious duty, at least to a significant extent, by delegating functions to an apparently competent and independent subcontractor. The delegator may retain a limited responsibility to identify obvious errors or to supervise where reasonable supervision would have prevented injury. The extent of checking depends on the function undertaken and the circumstances.
4. The platform’s defective design was attributable to the failure of the designer and design-and-build contractor to allow for foreseeable dynamic, point and horizontal loads. The remaining parties had no sufficiently detailed knowledge of the intended use, and the documents did not reasonably alert them to the need for positive edge restraint. Their provision and installation of the specified gratings and standard clips were not careless.
5. BS 4592 was principally concerned with the grating and did not make the remaining parties responsible for redesigning the platform. Its provisions concerning edge restraint were primarily a design matter for the structural engineer. Non-compliance with a British Standard may be evidence of negligence, but does not automatically establish it.
6. Obiter, a duty to warn may arise in tort where a party knows of a danger to people. In a contractual setting, the duty may extend to dangers of which the party ought to have been aware by reason of its role. Whether a warning is required remains fact-sensitive.