Norris v Hanson (T/A a R & M Hanson Civil Const) No. Scgrg-98-901 Judgment No. S112

NORRIS v HANSON trading as AR & M HANSON CIVIL CONSTRUCTIONS
[1999] SASC 112

Full Court: Doyle CJ, Bleby and Martin JJ

DOYLE CJ: This is an appeal against a decision of a judge of this court. The judge dismissed an appeal against a decision of a Magistrate sitting in the civil jurisdiction of the Magistrates Court. For convenience, I will refer to the parties as plaintiff and defendant. The appellant before this court is the original defendant.
In the Magistrates Court, the plaintiff substantially succeeded in a claim against the defendant. The single judge dismissed the defendant’s appeal against that decision and the defendant now appeals to this court.
The plaintiff carries on business in partnership with his wife. His business is that of an earthmoving contractor. The work that he does is, broadly, in connection with the sub-division of land, constructing car parks, creating platforms on which buildings can be erected and other like work. The plaintiff uses graders, a scraper, a loader, bob cats, trucks and a roller. The plaintiff is reasonably experienced in his business, but there is no suggestion that he has any specialised or technical qualifications. The defendant is an experienced pilot.
Late in 1995, the plaintiff agreed with the defendant to construct a landing strip on a rural property owned by the defendant. This involved cutting and filling and levelling and rolling. The land in question was not level. The plaintiff agreed to carry out certain other works on the site, but that work is not material to this appeal.
The plaintiff did the work but then a dispute arose. There was a dispute as to the basis upon which the plaintiff was entitled to charge. The defendant contended that the agreement was for the work to be done for a fixed price subject to further negotiations if the plaintiff encountered rock. The plaintiff contended that although that was the initial arrangement, very early in the piece the parties changed to an hourly rate based upon the plant and labour actually used. At the trial before the Magistrate, which went for a number of days, this issue was resolved substantially in the plaintiff’s favour. There is now no appeal against that aspect of the Magistrate’s decision.
In the Magistrates Court, the defendant mounted a counterclaim. The defendant alleged that the plaintiff failed to construct the landing strip in a proper and workmanlike manner. The complaint was that the “runway profile”, which I take to mean the fall or slope of the runway, did not comply with “the original specifications”. There was a further complaint that the slope or fall of the runway was such that when an aircraft moved along the centre line, there were sections of the runway ahead that were not visible. In other words, the complaint was that a pilot using the landing strip would not, at all stages, be able to see from where the pilot was to the end of the landing strip.
There was also a complaint that at the northern and southern ends of the runway there had been inadequate rolling and compaction leading to erosion and thus rendering the landing strip unsuitable for use at each end.
The appeal to the single judge and to this court focused upon the question of whether the work had been done in a proper and workmanlike manner. However, the argument on appeal was put in a manner that departed from the pleadings. The submission is that the court should find that the contract contained an implied warranty that the work done by the plaintiff would result in the construction of an airfield which would be suitable for the purpose of enabling normal or ordinary light aircraft to safely take-off and land. It was further submitted that the plaintiff was in breach of that implied warranty.
The judge who heard the appeal took the view that the issue of implied warranty could not fairly be raised on appeal. As he said, the issue had been not raised in the trial before the Magistrate. In any event, the judge went on to consider the merits of the matter and found against the defendant on the issue. It is true this ground was not pleaded, argued or dealt with by the Magistrate. However, as the judge himself noted, somewhat similar arguments were advanced on the counterclaim under the complaint that the work was not done in a proper and workmanlike manner.
It is convenient initially to consider the defendant’s argument on its merits, but bearing in mind that because it was not pleaded one cannot expect to find that the Magistrate has dealt with the argument in terms.
The essence of the submission is this. First, that the defendant told the plaintiff that he wanted a landing strip suitable for light aircraft. There can be no argument about that.
The next step in the submission is that the defendant gave no instructions to the plaintiff about how that result was to be achieved. Again, I do not think there is much argument about that, in the sense that it is common ground that the defendant did not give to the plaintiff any detailed specifications, but the defendant did tell the plaintiff where he wanted the strip, and that was undulating ground and ground that rose at one end.
The third step in the argument is that because the plaintiff agreed to produce a landing strip and because the defendant did not give any detailed instructions about the requirements to be met, it follows that the defendant was relying upon the plaintiff’s skill and judgment to achieve what was needed in terms of levelling, in particular. In short, the plaintiff was obliged to produce a landing strip of the type described.
The defendant relied upon a statement of Lord Evershed in Lynch v Thorne [1956] 1 All ER 744 to the effect that if a skilled person promises to do a particular job and nothing is said as to the precise nature of what is to be done, the court can infer that the person in question undertakes to exercise the necessary skill and judgment to produce the end product, and the court can infer that the other party relies upon the exercise of that skill and judgment.
The general proposition can be accepted. If I ask a builder to build a stone wall, the obvious inference is that I rely upon him to exercise reasonable care and skill to produce a stone wall that is soundly built, stable and of a satisfactory appearance. The issue here to my mind is whether the plaintiff was or claimed to be a person with skills in the construction and design of airstrips, as distinct from an earth mover whose skills would be used in the construction of an airstrip. There is also a question of whether it is reasonable to infer that the defendant relied upon the plaintiff’s judgment and skill in achieving the result that the defendant now claims should be achieved.
The significance of this is, putting it broadly, that the defendant contends that it was essential that the air strip have a satisfactory gradient and that a pilot using it be able to see from end to end. What would be a satisfactory gradient and whether there was a need to be able to see at all times from end to end are not matters upon which one would expect an ordinary earth mover to be well informed. Putting it differently, an earth mover who agrees to cut and fill to create a grassed landing strip would not ordinarily be taken to warrant that he knew and would achieve what might be called technical requirements of such a landing strip.
With those preliminary comments, I turn to consider the argument advanced by the defendant. In my opinion, the findings of the Magistrate lead to the conclusion that the defendant’s argument cannot succeed. They lead to the conclusion that the plaintiff did not have any particular expertise in the design or construction of landing strips, as distinct from producing a reasonably level area for use by light aircraft. The findings also lead to the conclusion that the defendant placed no reliance upon the plaintiff having any particular expertise in the matter.
The Magistrate’s judgment is a long one, running to 123 pages. It is not always easy to locate the relevant findings. However, in the end they emerge clearly enough. The Magistrate identified two central issues as arising in the case. The first was the basis upon which the plaintiff could charge. I have already dealt with that. The second was:
“Whether or not the defendant told the plaintiff that he required the airstrip to have an even gradient from the point where the track crosses the airstrip to the northern end.”

That issue seems to me to go to the heart of the present argument, because it raises the requirement to achieve a gradient that makes the landing strip suitable for use by a range of light aircraft. It raises the issue of requirements that a pilot might have but that might not be understood by an earth mover.

I mention here that it seems odd that having run a case at trial, that there was a specific instruction to achieve an even gradient and having failed, the defendant’s case now seems to be that he left everything to the plaintiff and that it was for the plaintiff to realise the need for this and to achieve it without being told to do so.
On the second issue in the case, the plaintiff’s case was that he claimed no particular expertise; built the landing strip as and where instructed; was not told when he undertook the job that an even gradient had to be achieved; did not agree to do that, and had no particular expertise in relation to the gradient that had to be achieved if the landing strip was to be suitable for a range of light aircraft. In effect, the plaintiff said that he agreed to produce a roughly levelled landing strip in a position chosen by the defendant and of a length identified by the defendant, and that that was what he set out to do. It was also part of the plaintiff’s case that the defendant was the one with the expert knowledge and that, had the defendant wanted particular gradients to be achieved, the defendant could and should have identified them to the plaintiff.
In that context, it is clear that the Magistrate considered the issue of whether the plaintiff had any expertise, whether the defendant relied upon the plaintiff’s expertise and whether the defendant told the plaintiff the particular gradient must be achieved and that it was necessary for a pilot to be able to see from one end of the landing strip to the other. The Magistrate made clear findings in the plaintiff’s favour on all relevant issues.
At Appeal Book 114 the Magistrate found that the plaintiff was to be believed when the plaintiff said that the discussion with the defendant was about “Knocking the tops off hills and filling in valleys.” I take that to mean that what they were talking about was an ordinary sort of levelling job and not something in which particular gradients had to be achieved. At the same page the Magistrate noted that it was not even put to the plaintiff in cross-examination that he was told that a pilot using the strip would need to be able to see from one end of the strip to the other and, as I have already said, in my opinion there is no reason why, without evidence, the court should infer that a competent grader who had worked on a landing strip would know that.
At Appeal Book 115 the Magistrate accepted the plaintiff’s evidence that there was no reference to achieving an even gradient until the work was well advanced.
On the issue of expertise the Magistrate found at Appeal Book 116 that the defendant’s claim to have relied upon the plaintiff’s expertise in constructing airstrips
“...puts the plaintiff in a position which he knows he is unlikely ever to have assumed and which he did not, in fact, assume.”

That is a significant finding. The Magistrate referred to a number of aspects of the evidence that satisfied him that the defendant relied on the plaintiff only to achieve a grassed landing strip for a relatively low cost.

At Appeal Book 117 to 118 the Magistrate found that having regard to the amount of money that the defendant was prepared to spend, he could not reasonably have expected to achieve the sort of airstrip which he now claimed should have been achieved.
At Appeal Book 118 the Magistrate also found that the defendant gave no particular specifications to the plaintiff and that the work to be done was discussed in very general terms. That is something that might be in the defendant’s favour if the plaintiff professed or did possess relevant expertise and if it was reasonable to infer that the defendant was relying upon the plaintiff to achieve a particular result. However, the Magistrate’s findings all point the other way.
Again, at Appeal Book 129 the Magistrate found that the defendant’s suggestion that he relied upon the plaintiff’s expertise “simply does not ring true.”
The Magistrate made a number of important findings at Appeal Book 130. First, a finding to the effect that the defendant knew what he wanted and did not rely upon the plaintiff in the manner that the defendant claimed he did. Second, that the scope of the works was determined by discussion between the plaintiff and the defendant. Thirdly, that what was discussed was achieving a roughly level landing strip at a place identified by the defendant with no reference to the gradient and no reasonable basis upon which the defendant could claim that he was relying upon the plaintiff to achieve a particular gradient.
In the light of those findings made by the Magistrate, there is no room for the implied term which the defendant now contends. I am satisfied of this even though the Magistrate did not consider the point. It is not easy to describe in precise terms the obligation the plaintiff undertook. The Magistrate does not appear to have made specific findings about this. However, the Magistrate did find that the plaintiff claimed no particular expertise in relation to landing strips, that the defendant did not identify any particular requirement in relation to the gradient at the time the contract was made, and that the defendant did not rely upon any expertise on the part of the plaintiff in relation to the gradient or in relation to meeting what might be called technical requirements that would ensure that the landing strip was generally suitable for use by light aircraft. Putting it a little differently, in my opinion what the plaintiff agreed to do was to produce, as I said earlier, a roughly level area in a position identified by the defendant and suitable for grassing. The plaintiff knew that the defendant wanted to use this for a landing strip, but did not undertake an obligation to produce something that was more than roughly levelled and sufficiently compacted for use by light aircraft.
Much of the case for the defendant rested on the basis that the plaintiff, having agreed to produce a landing strip, then incurred the obligation to meet all elements of that, whether known to the plaintiff or not and unless the plaintiff made it clear that he would not meet those requirements, or unless the plaintiff made it clear that he did not know what the requirements were. In other words, the defendant’s argument was that, nothing having been said, the plaintiff assumed the obligation to meet all requirements inherent in the concept of a landing strip for light aircraft.
In my opinion, this argument also fails. The issue is, in agreeing to prepare a landing strip, what in the circumstances did the plaintiff agree to achieve? In the context, in my opinion, what that meant was that the plaintiff would achieve a roughly level landing strip in the position chosen by the defendant. Moreover, on the Magistrate’s findings, the defendant did not rely upon the plaintiff beyond asking him to achieve a roughly level landing strip.
Some reliance was placed by counsel for the defendant upon passages from Hudson’s “Building and Engineering Contracts” (10th ed) and in particular at pp280-281. At p280 the author refers to a passage from an Australian case in which it is said that in the case of a contract for the performance of work, a warranty that the work will answer the purpose for which it is intended is not implied in every contract for work. The passage goes on to the effect that the essential element of the implication of such a term is that the employer should be relying to the knowledge of the contractor, upon the contractor’s skill and judgment and not upon his own knowledge.
In the absence of evidence that a contractor who had graded some landing strips either would or should know the gradient requirements relied upon by the defendant in this case, I would not in the circumstances of the negotiations in the present case infer that the plaintiff should have known those requirements, and nor would I infer that the defendant was relying upon the plaintiff in relation to those requirements, nor would I be prepared to conclude that it was reasonable for the defendant to rely upon the plaintiff in that respect without, as I said, evidence to the effect that any reasonable competent contractor who had graded airstrips would know the relevant gradient requirements.
In view of that, the main argument advanced on appeal by the defendant cannot succeed. An implied term as sought by the defendant would not be consistent with the agreement between the parties. To the extent that the findings of the Magistrate do not precisely now cover the issues now raised by the defendant, any lack of certainty has to be resolved adversely to the defendant. The defendant did not fight the case on this ground.
On the issue of inadequate compaction and consequent erosion, the Magistrate found at Appeal Book 133 that the defendant did adequately roll and compact the landing strip. It seems that much of the problem was due to the work being completed too late for seeding to be carried out. That, in turn, was the result of the plaintiff encountering rock and that was something for which the plaintiff was not to be blamed. Accordingly, the Magistrate resolved that issue in favour of the plaintiff and, in my opinion, was right to do so.
Underlying what I have said so far is the premise that I can find no basis for interfering with the Magistrate’s findings. They are based in part on considerations of credit and also upon aspects of the evidence that came from other witnesses. Nothing was pointed to in the argument that causes me to doubt the reliability of the findings made, and once those findings are made conclusions adverse to the defendant follow.
It likewise follows that no error on the part of the judge has been identified. In the light of that, it is not necessary for me to decide whether the judge was right in finding that the argument based on an implied warranty was one that should not be allowed to be advanced on appeal. The judge may well have been right. Although I have been able to deal with the argument, I am conscious of the fact that had the matter been pleaded and raised at trial, it may well have led to evidence being adduced which was not, in fact, adduced at trial.
I tend to think that under the circumstances the best the defendant could have hoped for is an order that the matter be remitted to the Magistrate for further hearing, with the defendant having to meet an order for costs thrown away. If the matter were remitted for trial before another Magistrate, the defendant probably would have had to meet all of the costs of the first trial in any event. However, in my opinion, the matter should not be remitted to the Magistrate. I consider that the findings that the Magistrate has made are sufficient for me to conclude that the defendant’s argument cannot succeed.
Finally, I add that the appeal raises no issue of principle or a matter of general importance. On a second appeal, the court is always reluctant to intervene when it is asked essentially to perform the same task as that performed by the judge appealed from, and no issue of principle or of general importance arises. That is another reason why this court would be slow to interfere with the decision of the single judge but, as I have said, in any event I am satisfied the decision was correct.

Accordingly, in my opinion, the appeal should be dismissed.
BLEBY J. I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
MARTIN J. I also agree.
DOYLE CJ.       The orders of the Court are as follows:
1.        Appeal dismissed.
2.     That the appellant pay the respondent’s costs of the appeal to be taxed.

[1999] SASC 112

5 March 1999