In handling construction disputes and arbitrations, one of the common defences raised is that the works rendered or goods supplied were not “fit for purpose”. Another common defence is that the works were not carried out with “reasonable skill and care”. These would commonly be said to be implied terms in the contract.

The standard of “reasonable skill and care” in construction disputes may well be different from the ordinary standard in negligence cases. Whilst negligence cases commonly refer to the “reasonable man test”, the standard in construction disputes may well be higher, because an architect, engineer or specialist contractor may be subject to the standard of “ordinary skilled man exercising and professing to have that special skill” instead (per Bolam v Friern Hospital Management Committee).

The end result of the works must be a product that is “fit for purpose”. Thus, an engineer calculating the required strength of columns must calculate in such a way that his recommended strength would be sufficient in accordance with acceptable standards. In the same way, a specialist contractor would be expected to deliver works that are “fit for purpose”, consistent with his claim of specialty.

The issue is whether the employer relied upon the skill of the supplier to design or supply the end result that would be fit for purpose (Independent Broadcasting Authority v EMI Electronics Ltd). If a building owner made known to the contractors the purpose for which the building was required, then it is expected that the contractors would deliver a product “fit for purpose” (Greaves Contractors Ltd v Baynham Meikle & Partners).

However, there can be no liability for “fitness for purpose” if the supplier is not aware of the purpose for which the goods were supplied, or if the goods were used in a way that deviated from normal use (Slater v Finning).

Similarly, a party would not be held liable for “fitness for purpose” if they were only involved in a part of the works and the fitness of their part is affected by other works carried out by third parties (PSC Freyssinet Ltd v Bryne Brothers (Formwork) Ltd).

“Fitness for purpose” seems to be a more onerous burden than “reasonable skill and care”. So long as the supplier exercises the skill and care of ordinarily skilled men of the same trade, complying with the relevant standards, then he would have discharged his duty to exercise “reasonable skill and care”. But in doing so, his end-product must still be fit for purpose if the employer has relied on his skills to achieve the end-result.

 

Kheng Hoe Advocates
Building contract and construction contract dispute lawyers
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