Perdita Martell v Grzegorz Roszkowski & Ors

Where construction drawings and specifications are supplied before contracting and are plainly intended to define the work, they may be incorporated into the building contract even if not expressly identified in the quotation. A later specification binds the contractor once issued, unless it materially changes the agreed work or cost, in which case it may constitute a variation.

A structural engineer’s contractual duties depend on the parties’ agreement and the service undertaken. Where the engineer undertakes site monitoring, it must exercise reasonable skill and care in checking compliance with the agreed specification, including testing requirements and material quality. Remedial costs are recoverable where the claimant acted reasonably and mitigated loss. Frustration, criticism or occasional swearing will not ordinarily amount to repudiatory breach.

The claimant engaged builders trading as GS Building Services to refurbish and extend the ground floor and basement of her property. She engaged Martin Gustyn & Associates Ltd as structural engineer and for related professional services, without a formal engagement letter.

Defects emerged in the basement works. Testing indicated that site-mixed concrete failed to meet the specified RC35 strength, and significant water entered the basement. The claimant claimed the cost of remedial works and associated losses against the builders and the structural engineers. The builders counterclaimed for lost profit, alleging that the claimant had repudiated the building contract.

The issues included incorporation and effect of the structural drawings and specification, the parties’ respective duties concerning concrete and waterproofing, causation, mitigation and the alleged repudiatory breach.

1. GS Building Services’ contractual obligations. The detailed structural drawings were incorporated into the quotation and Building Contract. They required RC35 concrete. The later Structural Specification also formed part of the contractual requirements, but its additional provisions bound the builders only when issued on 15 April 2015. From that date, ready-mix concrete was required unless MGA gave written approval otherwise, and a concrete testing regime had to be agreed. Site mixing without approval and failure to agree testing were breaches.
2. Concrete. Expert evidence and testing established that much of the concrete failed to achieve RC35 and was not fit for purpose because it could not withstand the relevant lateral loads. Replacement was therefore required. The builders were responsible for that breach.
3. MGA’s duties and breach. MGA had agreed to monitor the works for compliance with the specification and to report progress and significant issues. Its duties included monitoring the concrete, agreeing testing, checking results and notifying the claimant of non-compliance. MGA failed to do so, failed to communicate the complete specification before work began, and failed to warn that site-mixed concrete was being used without approval or testing. Those breaches caused the claimant’s remedial loss because the defect would probably have been identified within two or three weeks and corrected before most of the work was completed.
4. Waterproofing. The builders were responsible for designing and constructing the waterproofing system. The system was inadequate because it relied on internal render and cavity drainage without sufficient protection at construction joints. MGA also breached its duty by failing to advise the claimant to obtain competent specialist advice on waterproofing when it did not undertake that design work. Both sets of breaches caused loss relating to the waterproofing problem.
5. Remedial losses and mitigation. Replacing the defective concrete and installing a properly designed waterproofing system was a reasonable remedial choice. The court allowed damages for reasonable professional assistance, project management, acoustic protection and rent to May 2017. Actual finance costs attributable to recoverable remedial expenditure were recoverable; thereafter interest fell to be considered under Supreme Court Act 1981, section 35A.
6. Counterclaim. The claimant’s conduct, even if rude or frustrated, was not repudiatory. She did not instruct the builders to leave or indicate an intention not to be bound. The builders brought the contract to an end. Their counterclaim was dismissed.