Florida Hotels Pty Ltd v Mayo

[1965] HCA 26

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Menzies and Windeyer JJ.

FLORIDA HOTELS PTY. LTD. v. MAYO

(1965) 113 CLR 588

25 May 1965

Negligence

Negligence—Architect—Duty of supervision—Building work carried out by owner—Liability of architect to indemnify owner—Liability of architect to workman.

Decisions

May 25.
The following written judgments were delivered:-
BARWICK C.J. The appellant, the owner of an hotel at Terrigal, New South Wales, had undertaken during 1958 the construction of extensions to its hotel, which included the construction of a swimming pool at the rear of the hotel. It had retained the respondents as its architects by an oral arrangement, which incorporated a paragraph drawn from the literature of the Royal Australian Institute of Architects. The paragraph reads as follows: "The Architect shall give such periodical supervision and inspection as may be necessary to ensure that the works are being executed in general accordance with the contract; constant supervision does not form part of the duties undertaken by him." (at p590)

2. The appellant had not engaged a builder to perform any of the building work on which it had embarked but had itself engaged tradesmen and labourers to carry out the work with leading hands and a foreman to direct and control their activities according to plans, specifications and engineering drawings. (at p590)

3. By the time of the events which led to this litigation, the swimming pool was in the course of construction. The land at the rear of the hotel fell away from the hotel so that in order to have the surrounds of the pool at or about the same level as the ground floor of the hotel, the pool itself was being constructed above the ground with its surrounds or aprons formed by suspended concrete slabs. The surround or apron of the pool on its eastern side was to be eighty feet long and ten feet wide and to be formed by two concrete slabs each forty feet long and ten feet wide. The slabs were planned to be supported by the wall of the pool on the one side and by a wall built for the purpose at the outer edge of the apron, but otherwise to be unsupported. The slabs were to be reinforced by reinforcing steel mesh. The reinforcing mesh to be used was formed by wires of suitable gauge at 3" centres intersected by wires at 12" centres. The structural engineer's plan properly called for this mesh to be laid transversely across the width of the slab so that the rectangles formed by the intersecting rods had their narrowest dimension running across the width of the slab, that is, with wires at 3" centres all the way down the length of the slab. (at p590)

4. The work of preparing and placing the timber forms and the reinforcing mesh for the formation of the slabs of the eastern apron progressed during the working week which began on Monday, 13th November, and was in fact completed on the Friday evening of that week. (at p590)

5. The reinforcing mesh had been delivered to the site in rolls 7'6" in width. Instead of placing ten foot lengths of this mesh transversely as plainly directed by the structural drawings and as standard practice required, the appellant's employees carelessly placed one continuous length of the material along the side nearest to the pool of each completed form and, having cut the material down its midline lengthwise, placed another length of it 3'9" wide beside the length 7'6" wide, overlapping the two by some fifteen inches without tying the two together. The effect of this was to reduce the reinforcing strength of the mesh by 75% of what it would have been if properly laid in position. By the Friday evening, ready mixed concrete had been ordered for delivery on the Saturday morning by some person, other than the respondents, on behalf of the appellant. The concrete was poured into the forms during Saturday morning and the work of pouring the slabs was completed about "lunch time". A number of workmen in charge of two leading hands of whom one was named Gordon did the work of spreading and placing the concrete. (at p591)

6. The formwork of the southern-most slab, the one most distant from the hotel, was wholly removed on the following Tuesday and work was commenced on the removal of the formwork under the northern-most slab. A workman named Cook employed by the appellant and one of a team of men instructed to remove the formwork from beneath the slabs was under the southern-most slab when it fractured along the line of the overlap of the reinforcing mesh and collapsed ; in so doing it seriously injured him. (at p591)

7. Cook sued the appellant, in substance, on two counts, one, for breach of its duty to him as his employer and the other for breach of statutory duty imposed upon it under the Scaffolding and Lifts Act, 1912 (N.S.W.) and regulations made thereunder. The appellant compromised this action and agreed that a general verdict should be entered for the plaintiff for the sum of 21,000 pounds . Assuming that the appellant was liable to the plaintiff for the injuries he had sustained by the collapse of the concrete slab, it was conceded by the respondents that 21,000 pounds was a reasonable sum to be paid in discharge of such liability. (at p591)

8. The appellant, during the course of the plaintiff's action against it, commenced third party proceedings against the respondents claiming (i) contribution or indemnity on the footing that the respondents owed, and were in breach of, a duty of care to persons in the situation of Cook, and (ii) that the respondents were in breach of their contractual obligation to the appellant as its architects. The breach alleged in each case was a failure properly to supervise the formwork and the placement of the reinforcing steel mesh in the formwork for the slabs to form the eastern apron before the pouring of the concrete. (at p591)

9. At the trial of the third party proceedings in the Supreme Court, the trial judge found for the appellant on both counts, assessed contribution by the respondents on the first count at the sum of 4,200 pounds, being twenty per cent of the sum of 21,000 pounds, and damages on the second count at 21,000 pounds, whereupon he entered judgment for the latter amount. (at p592)

10. By majority the Full Court of the Supreme Court on an appeal by the respondents set aside the judgment for the appellant for 21,000 pounds and entered judgment for the respondents on the ground that there was no evidence upon which the trial judge could have found that the respondents had failed to supervise the work in question according to their obligations under their retainer as the appellant's architects. (at p592)

11. It is not clear whether the majority of the members of the Full Court in thus entering judgment for the respondents took the view that unless there was a breach of the contractual obligation to the appellant, there was no breach of any duty of care to the plaintiff : or that there was in any case no such duty. One or other of these views would have been necessary to justify entering judgment for the respondents on the first count. (at p592)

12. Before this Court there has not been, and there could not be any dispute that an architect with the obligation of supervising construction work is bound to supervise such an important step as the preparation of the formwork and the placement of reinforcement for the formation of such suspended concrete slabs as were intended in this case to form the eastern aprons of the swimming pool. (at p592)

13. But, because the supervision which the respondents were obliged to give was said by the paragraph I have quoted to be "periodical", the respondents in effect claimed that as on all former occasions during the construction of the extensions to the hotel, presumably including also the earlier construction in connexion with the swimming pool, the foreman had alerted them to the time for the pouring of concrete, they were entitled to assume, in default of notification to the contrary, that concrete would not be poured between the days on which they made their routine inspections of the work. These took place on Tuesdays and Fridays as a result of an arrangement the respondents had made with the managing director of the appellant for their mutual convenience, the managing director desiring to attend on the days on which the respondents inspected the work. But this arrangement, even if binding on the appellant, did not absolve the respondents of their obligation to attend to supervise the work whenever and so often as its progress required their supervision. (at p592)

14. The respondents' office was in Newcastle. One of them, Wark, attended to the work of the appellant. He attended on the job on the Friday morning, leaving about lunch time. At this time the formwork for the slabs to form the eastern apron, though obviously well advanced, was not actually completed; no reinforcement was in place. This respondent says he was not told, and there was no evidence, or available inference that he was told, that concrete had been or was about to be ordered for the Saturday morning, or for that matter for any time before the day for his next routine inspection. Saturday work was not the normal thing on the job at this time, though there was evidence that whilst it was to be avoided, if possible, it did at times occur. (at p593)

15. Evidence was led at the trial of the practice of architects where an obligation for periodic inspection or supervision is accepted. Useful and persuasive as this evidence may be, it is not of course decisive of the legal obligations which such a retainer as an architect imports. But, as I would have expected, that professional evidence lends no support whatever to the respondents' submission that they were entitled to rely on the appellant's foreman to tell them when concrete was to be poured and to assume that none would be poured, without such notice, between the days of their routine inspections. (at p593)

16. I am clearly of opinion that in law the respondents were not so entitled. They were bound to supervise the work, inspecting it with due skill and care. There can be no doubt that due skill and care in this case required them to supervise the work done in preparation for the pouring of concrete to form these slabs. The facts of this case bring out starkly the importance of the performance of this obligation. In my opinion, the respondents were bound to take reasonable steps to ensure that they inspected the formwork and the placed reinforcement before concrete was poured and the work covered up. They do not satisfy this by relying on the workmen whose work they were employed to supervise: in particular, they were not entitled to assume from past satisfactory performances of the foreman, that they would be notified of the readiness of the work for inspection and of the time for the pouring of the concrete. They were not engaged to supervise only such work as could be seen on the particular days of their routine inspections, or to attend to supervise only when advised that an occasion for supervision had arisen or was about to arise. They owed a duty to keep themselves informed of the progress of the work. They were bound, in my opinion, at least to have made reasonable arrangements of a reliable nature to be kept informed of the general progress of the work and, in particular, to be notified of the readiness of formwork and the placement of reinforcement for the pouring of concrete; these arrangements ought to have included clear and express instructions to the foreman that work of the kind in question must not be covered up till the respondents had inspected it or, at the very least, had an adequate opportunity for its inspection. Cf. Jameson v. Simon (1899) 1 F (Ct of Sess) 1211 . (at p594)

17. These obligations were no less applicable because the appellant had not contracted with a builder to do the work of extensions to the hotel. Apart from the consequences of the breach of such an obligation, in my opinion, there is no significant difference in the nature of the obligation of the architect to supervise in either case. Of course, in deciding what in a particular case that obligation required him to do, it may well be that the fact that the building owner directly employed tradesmen and labourers to carry out the work increases the area of what it would be reasonable for the architect to do in performance of his obligation. But, in my opinion, in neither case may the architect merely wait to be informed that the work is or will be ready for his inspection. (at p594)

18. Here, no arrangements had been made for the respondents to be notified of the completion of the formwork or of the placement of the reinforcement. No instructions had been given that concrete should not be poured before inspection or an opportunity to make an inspection of the formwork and the reinforcement in position. In a nutshell, on any view of the credible facts of the case, the respondent Wark took the risk that concrete might be poured between the days of his routine inspections and without his supervision of the preparatory work. (at p594)

19. To my mind, the recital of these facts amply demonstrates the respondents' breach of their obligation to the appellant to supervise the work with due skill and care and, for my part, I would have been prepared to dispose of this case so far as liability of the respondents on the second count is concerned, on the basis of them alone. (at p594)

20. However, that is not how the matter has proceeded hitherto, and it is perhaps advisable for me to deal with some of the matters which have been raised by the parties or by the judgments of the Supreme Court. This will necessitate me referring to the facts in some greater detail. (at p594)

21. Gordon, a leading hand, gave evidence of his presence during, and of his participation to some extent in, a conversation between the foreman in charge of the work generally, named McCrystal, and the respondent Wark on the Friday morning. In this conversation the time for the removal of the formwork from the slabs of the eastern apron was discussed. According to other evidence given by Gordon there was a shortage of timber for formwork, for which there would be a need in connexion with the slabs of the western apron. Some difference developed before the Full Court as to the extent to which the trial judge accepted the detail of this conversation as deposed to by Gordon. I shall return to this matter later. (at p595)

22. The respondent Wark, after attending to some other job in the area during Friday afternoon, returned to the hotel for overnight accommodation as a guest. Gordon gave evidence that on the Saturday morning "after breakfast" he spoke to the respondent and McCrystal whilst they were at a point which he described as "at the hotel end of that particular portion that was being poured" - meaning was later to be poured ". . . that is of the eastern slab". There was no express evidence that there were any other workmen in view at the time, and it does appear that the wagons delivering the ready mixed concrete had not arrived before the respondent and McCrystal withdrew from the scene. There was no evidence of the nature or text of the conversation which Gordon said took place on this occasion with the respondent Wark and McCrystal. The respondent Wark denied that any conversation had taken place on the Friday at which Gordon was present or at which the removal of formwork had been discussed, and he denied that he had been near the site of the eastern apron or indeed at the rear of the hotel at all on the Saturday morning. (at p595)

23. The trial judge accepted Gordon as a witness of truth and disbelieved the respondent Wark, at least whenever he was in conflict with Gordon. He found that "Wark was present, close to the slab, on the Saturday morning, in company with McCrystal and Gordon and that he failed in his duty to supervise in accordance with his engagement as an architect either to observe or to appreciate that the mesh had been laid in a manner 'transparently wrong'." He also found that the cause of the collapse of the southern-most slab of the eastern apron was the improper placement of the reinforcing mesh and that the premature removal of the timber formwork merely provided the occasion for its collapse. (at p595)

24. The majority of the members of the Full Court addressed themselves to the question whether or not there was evidence that the respondent Wark was aware that concrete would be poured into the forms on the Saturday morning and decided that there was no such evidence. They also decided that there was no evidence that the respondent Wark was in a position near the work on the Saturday morning which could have enabled him to observe the placement of the reinforcing mesh in the forms for the slabs of the eastern apron. Apparently they did not regard the respondents as under any duty to the appellant to enquire as to the proposed time for pouring the concrete. (at p596)

25. But, apart from my opinion that the case ought to have been decided upon more general and fundamental considerations, there was, in my opinion, ample evidence to support findings of fact which would demonstrate in particular the respondents' breach of their obligations to supervise the work. (at p596)

26. The trial judge believed that the respondent Wark discussed with McCrystal and Gordon on the Friday morning the removal of the formwork. He was not prepared to think that he had obtained from the evidence of Gordon or that of the respondent Wark a sufficiently complete account of that conversation on which to make a finding that the respondent Wark had then agreed to a dangerously premature removal of the formwork. But I think that he did believe that so much as Gordon recollected of the conversation did take place. This included a reference to "that portion", that is, of the surrounding apron "we were about to pour". But, although I am unconvinced by the submission to the contrary, it is unnecessary to go so far in order to find evidence adequate to support the necessary findings. His Honour believed that the respondent Wark was in sight of the completed formwork on the Saturday morning. Let it be assumed, contrary to what his Honour appears to have thought, that no workmen, other than Gordon, were then present or in sight and that neither the knowledge nor suspicion of the commencement of work on the job of a kind which might include the pouring of concrete can be imputed to the respondent. None the less the 'screeds' were in place in the formwork, a significant item which the respondent Wark said would ordinarily attract his attention; they are the last part of the formwork to be done and their presence there indicates its completion. At the very lowest, the state of the formwork, whether or not the respondent Wark could see the reinforcement in position, put the respondent Wark on notice of the possibility that concrete might be poured before he came next on his routine inspection. There was ample time in the intervening days, whether or not work took place on the Saturday, for this to happen. Yet the respondent Wark did nothing. He did not inspect: he asked no questions: he gave no instructions: and he had no standing arrangements of the kind of which I have spoken on which he might be entitled to rely. (at p597)

27. These seem to me to be the material considerations. That the respondent Wark did not know that concrete would be poured on the Saturday morning or that he could not actually see on the Saturday the mesh in position in the completed formwork to my mind, if these be the facts, had no countervailing significance. (at p597)

28. In my opinion, both on general considerations, and on the particular circumstances of the Friday and Saturday about which much time has been consumed in this case, the liability of the respondents on the second count was made out. (at p597)

29. The respondents submitted that no substantial damages could be awarded against them for the breach of their obligation to supervise the work because (1) there was no evidence before the trial judge in the third party proceedings that the appellant was under any liability to the plaintiff in respect of the injuries he had received, and (2) even if there was any such evidence, the liability of the appellant to the plaintiff was not damage for which the respondents could be made responsible because of their breach of contract. (at p597)

30. Undoubtedly, it was essential to the success of the appellant's cause of action against the respondents under the second count that its liability to the plaintiff should be established as against the respondents. The usual course of trying the issues between the plaintiff and the defendant, and those between the defendant and the third party at the same time, results, if the plaintiff succeeds, in a verdict which binds the third party, the issue of the defendant's liability to the plaintiff having been decided both against the defendant and the third party. But the separate trial of the issues between the appellant and the respondents in this case necessitated proof in those proceedings of the liability of the appellant to the plaintiff. A judgment by consent, or for that matter, a judgment after a contested trial between the plaintiff and the appellant, would not provide this proof. (at p597)

31. But, in my opinion, there was ample evidence given in the appellant's case to establish the liability of the appellant to the plaintiff for breach of the appellant's duty to the plaintiff as his employer. There was, in my opinion, no substance in the respondents' contentions to the contrary. There is no need to decide in this case whether or not the respondents could defeat the appellant's claim against them by establishing that want of care on the part of the plaintiff for his own safety contributed to the plaintiff's injury, for there was no evidence whatsoever of any such want of care. (at p597)

32. In amplification of their second submission on damages, the respondents denied that Hadley v. Baxendale (1854) 9 Ex 341 (156 ER 145) provided the basis for the damage recoverable for the breach of their obligation to supervise because the breach of contract could not be regarded as the sole cause of the plaintiff's injury. They also submitted in the alternative that the act of the appellant's servants in the premature removal of the timber formwork from beneath the slab was a new and independent cause of the plaintiff's injury interrupting, and, indeed preventing, any causal relationship there might otherwise have been between the respondents' breach of their contractual obligation and the injury to the plaintiff. (at p598)

33. But, in my opinion, the possibility of liability of the appellant to its workmen flowing from the consequences of lack of supervision of work of the kind in question must be taken to have been fairly within the contemplation of the parties. His Honour, the trial judge, found the lack of supervision to be the cause of the collapse of the slab and the removal of the formwork but the occasion for it; because of the inherent weakness for want of proper reinforcement, it would have fallen down whenever the formwork was removed; and with this conclusion I respectfully agree. Of course, vis-a-vis the plaintiff the premature removal of the formwork was negligent on the part of the appellant. But this would not prevent the appellant recovering from the respondents for their breach of contract simply because they are therefore joint tortfeasors with the appellant. It would be otherwise if the effect of the respondents' breach of their obligation to the appellant had become spent and no longer casually connected with the plaintiff's injury. But that is not this case. The intervention of the appellant's act in removing the timber, though it occasioned the injury to the plaintiff, will not avail the respondents. The respondents, in my opinion, are liable to the appellant for the amount which the appellant reasonably paid to the plaintiff in discharge of its liability to the plaintiff for the consequences of the collapse of the slab. The amount actually paid in this case to the plaintiff is agreed to have been reasonable. There is therefore no need to discuss the question whether judgment for the plaintiff by consent in proceedings in which the respondents had not participated, would have afforded any evidence as against the respondents of the amount of the liability of the appellant. No doubt a judgment after contest in such proceedings would. Accordingly, in my opinion, the amount payable by the appellant to the plaintiff was recoverable from the respondents as damages for their breach of their contractual obligation to supervise the work of construction of the swimming pool. The result that the respondents are liable to pay to the appellant by way of damages the full amount of the sum payable by the appellant to the plaintiff does not mean that the obligation of the respondents to the appellant as its architect was an obligation "to protect" the appellant against the possibility of liability to its workmen or that the protection of the workmen was in any relevant sense a purpose of the contractual duty of supervision. It merely means that there can be included in the damages for breach of the obligation to supervise the amount the building owner is called upon to pay to its workmen injured by the consequences of faulty supervision. (at p599)

34. The direct duty of the architect towards the workman is a separate question and I find no need to pursue it in any detail. Suffice it to say that, in my opinion, the decision of this Court in Voli v. Inglewood Shire Council (1963) 110 CLR 74 and of the Court of Appeal in Clay v. A.J. Crump and Sons Ltd. (1964) 1 QB 533 support the conclusion that the respondents did owe a duty to persons of whom the plaintiff was one. (at p599)

35. The appeal should be allowed and the judgment against the respondents restored. (at p599)

KITTO J. I agree in the judgment of the Chief Justice and have nothing to add. (at p599)

TAYLOR J. I agree that the appeal should be allowed for the reasons given by the Chief Justice. (at p599)

MENZIES J. I agree in the judgment of the Chief Justice. (at p599)

WINDEYER J. An architect employed to supervise the construction of a building must bring a proper degree of skill to his task and exercise reasonable care in its performance. Ordinarily the builder is an independent contractor employing his own workmen and engaging the sub-contractors. The architect supervises the work as a whole. His certificate that it was executed in conformity with the plans and specifications is necessary to entitle the builder to be paid. In the present case, however, the building owner, Florida Hotels Pty. Limited, was itself doing the work by its own workmen acting under its own foreman. The purpose of the architect's supervision was therefore not quite the same as in the ordinary case. His certificate was not required to enable the workmen and the foreman to be paid. They were paid wages. But whether he be engaged to supervise the work of an independent contractor or of the building owner's servants the obligation of a supervising architect is the same. He must exercise reasonable care in carrying out the duty he has undertaken. That duty has been formulated in a document issued by the Royal Australian Institute of Architects, which was made known by the respondents to the appellant: "The architect shall give such periodical supervision and inspection as may be necessary to ensure that the works are being executed in general accordance with the contract. Constant supervision does not form part of the duties undertaken. . . ". There being no building contract, it is not disputed that in the present case the words "in general accordance with the contract" should be understood as meaning in general accordance with the plans and specifications. This statement of the contractual duties of a supervising architect seems to have been indirectly derived from the decision of the Scottish Court of Sessions in Jameson v. Simon (1899) 1 F (Ct of Sess) 1211, at p 1216 . Two passages may be quoted from the opinion of the Lord Ordinary, Lord Kyllachy, to whose interlocutor the Court adhered. He said: "I cannot assent to the suggestion that an architect undertaking and being handsomely paid for supervision, the limit of his duty is to pay occasional visits at longer or shorter intervals to the work, and paying, those visits to assume that all is right which he does not observe to be wrong". And "Speaking generally, his obligation is, so far as reasonably possible, to see that the work is duly and properly executed, and whether he has failed in that duty in any particular case is a question of circumstances, and a question not for his professional brethren but for the Court". (at p600)

2. The facts of this case are fully set out in the judgment of the Chief Justice. They lead, it seems to me, convincingly to the conclusion that he has expressed. The much discussed events of the Saturday morning are I think no more than a part of the total circumstances in which the reasonableness of the actions of the respondent Wark must be judged. They are relevant but not critical. It may well be that Wark, although he was present in the hotel that morning, did not then look at the swimming pool under construction. His case seemed to be that he did not trouble to go near it, not being then at the hotel in the performance of his duties as an architect but simply as a guest who had had accommodation there for the night. His statement that he was not at the rear of the hotel at all was not accepted. Nevertheless it may be true that he did not see, or did not notice, the wrongly laid reinforcing mesh. (at p600)

3. The learned members of the majority in the Full Court apparently regarded the case as turning on whether or not Wark had "a contractual duty to inspect on that Saturday". But the question on which the case depends is a broader one, to be decided on the evidence as a whole: Did the respondents fail to take reasonable care in the performance of the task they had undertaken, the supervision of the work? There was, I consider, ample evidence on which the learned judge who tried the case, Collins J., could come to the conclusion that they did not. In so far as it is appropriate for us to review the decision of a trial judge on a question of fact, there being evidence to support it, I need say no more than that I see no reason to doubt the correctness of his Honour's decision. I agree generally in the analysis by Sugerman J. of the facts and the law. The case of Mowbray v. Merryweather (1895) 2 QB 640 , on which counsel for the building owner relied and to which his Honour referred, is apposite in the context in which he used it; but of course an obligation to use reasonable care is not the equivalent of a warranty that a thing is reasonably fit for a purpose. (at p601)

4. Evidence as to the ordinary practice of architects may materially assist a court in deciding what in a particular case should have been done to meet the requirement of due care in supervision. It is for the court to decide whether or not in the circumstances there was a lack of reasonable care. The experts called were invited to express, perhaps too freely, their opinions on whether particular acts or omissions by an architect would or would not amount to a breach of his contractual duty to his employer. But no objection was made to the evidence, and the limits on expert evidence at this point are perhaps verbal rather than logical: see Cross, Evidence, 2nd ed. (1963) p. 360. What the witnesses, who were eminent in their profession, said was that the architect should be present when concrete is to be poured, and that before this is done he should satisfy himself that the formwork is properly erected for its reception and the reinforcing material properly laid. It would be wrong to make any pronouncement which could be construed as defining reasonable care in terms of rigid requirements. But that the pouring of concrete is an important phase in the construction of any building the stability of which is to depend upon concrete structures goes without saying. It was in respect of this that the respondent Wark was negligent. His negligence did not, it seems to me, lie in some specific act of omission but in cumulative conduct the consequence of which was that concrete was poured upon reinforcing mesh wrongly laid. He made no reasonably reliable arrangement that he should be told when the concrete for the aprons was to be poured. He gave no direction that this must await his inspection and approval of the reinforcing material. He did not avail himself of the opportunity he had on Saturday morning to notice what progress had been made in the work on the previous day, which in fact included the defective preparations for the concrete. The respondent Wark and his partner contracted to supervise the work with due care. They are liable to the appellant, the building owner, for the damages that it suffered by their failure to do so. Those damages include the appellant's liability to the injured workman. (at p602)

5. It is not necessary for the decision of this case, as I see it, to decide whether the architects could be held directly liable to the injured man in an action for negligence. (at p602)

6. The appellant's liability arises because in this case the persons who actually did the work negligently were the servants of the appellant, the building owner. When, as is more often the case, the builder is an independent contractor, the building owner would not ordinarily be liable to third persons for his negligence, whether or not the architect was at fault. The question whether in a case of that kind a supervising architect can be directly liable in tort to persons injured by errors of the builder which he, the architect, failed to notice and prevent is one of considerable importance. It is, no doubt, within the ordinary contemplation of an architect that builder's labourers, artisans, sub-contractors and others will be in and about a building in the course of construction. Whether or not he foresees, or should foresee, that an error such as was made in this case might be made by those carrying out the work, he is not absolved from his obligation to the building owner to exercise reasonable care. For the very purpose for which he was employed was to provide, so far as reasonable care can provide, against errors by the builders, whether such errors were probable or not. But any duty of care that an architect has to persons who are strangers to the arrangement between him and the building owner arises in an altogether different way. The architect can only incur a direct liability to them for harm they suffer as the result of the general principle expressed in Donoghue v. Stevenson (1932) AC 562 . The question cannot any longer be answered by talk of lack of privity. It depends rather upon what has become commonly called the doctrine of proximity. Two cases were relied upon as supporting the contention that in accordance with that principle an architect may become directly liable to an injured workman. They are Voli v. Inglewood Shire Council (1963) 110 CLR 74 and Clay v. A. J. Crump &Sons Ltd. (1964) 1 QB 533 . But it does not seem to me to follow necessarily from either that all persons who are in or about a building in the course of construction are neighbours in the legal sense of the supervising architect. In Voli's Case an architect who designed a structure was held to have a duty of care to all persons who would later use it for the purpose for which it was designed. In such a case, if the design be defective as a result of the architect's negligence, and if, because of those defects, the structure collapses and persons using it (in the way it was contemplated it would be used) come to harm, then the architect is liable to them in damages. The facts in Clay v. A. J. Crump &Sons Ltd. were complicated, but the essential fact, for present purposes, was that a wall which was in fact in a dangerous condition was left standing, the architect having negligently stated that it might safely be so left. Where a person injured was someone who it might be contemplated would be within the area of a risk created by the architect, there is, it seems to me, no ground for excluding the architect from liability. Voli's Case and Clay's Case are decisive of that. But the situation is different in fact, and it may it seems to me have different consequences in law, when the risk is created by the negligence of a builder in departing from plans and specifications. Whether an architect is then liable to an injured person because he did not detect and correct the builder's error, as in the performance of his contractual duty to the building owner he should have done, is a question that I prefer to leave aside in this case. The answer to it would, it seems to me, be the same whether the builder be independent contractor or servant of the building owner. (at p603)

7. I would allow the appeal and restore the judgment in favour of the appellant for the sum of 21,000 pounds. (at p603)

Orders

Appeal allowed with costs.

Order of Supreme Court set aside and in lieu order that appeal be dismissed with costs.