How far does a duty of care extend and what is required to mitigate loss?


September 29, 2004, but practical completion did not occur until April 4, 2005.

In the latter part of 2004, as a result of a late agreed departure from the original design, a room had been constructed on the basement level called the “technology room”.
This room was designed to house Vodafone’s core equipment that was essential to integrate its head office and wider communications and data networks (principally being two “Cisco switches”).

The technology room was constructed by W&H and was specifically designed to enable the equipment to function free of the risk of any contaminant. However, to ensure that Vodafone could commence business on time, Vodafone (by agreement) took possession of the technology room and installed the switches before practical completion.

By February 17, 2005, the switches had been installed and were operational. However, on February 22, 2005, two months prior to practical completion, the switches were found coated with fine concrete dust.

Vodafone had the switches cleaned at a cost of approximately $52,000. The switches proved functional and the network went live in March 2005. Subsequently in November 2005, after one of the switches ceased to briefly function properly over a weekend, Vodafone decided to replace both switches at a cost of approximately $316,000.

Vodafone placed an order for the new switches which were installed in March 2006. In the period during which the original switches were in use, with the exception of the brief November 2005 failure, the original switches functioned without incident.

Vodafone claimed that the dust had been generated by concrete cutting work carried out by W&H. Vodafone thus sought a complete indemnity for the cost of cleaning and replacing the switches from both M5 and W&H.

Vodafone’s claim against M5 failed primarily because the court was not prepared to imply a term into the design, build and lease agreement that Vodafone had with M5.
While this part of the decision provides a useful summary of when the court is willing to imply a term into a contract, it is the decision relating to the claim in negligence by Vodafone against W&H which makes interesting reading.

The claim and decision
Vodafone contended that W&H had been negligent by failing in its duty to carry out the work in such a way as to prevent dust migrating into the technology room. In response, W&H argued that its only duty, and its only consequent liability, lay in contract with M5.

Vodafone, it argued, sought to impose on it a parallel or even greater duty, and liability. W&H submitted that this was inconsistent with the allocation of risk made contractually.
The court held that W&H owed Vodafone a duty of care to avoid damaging Vodafone’s property.
At paragraph 112, Justice Keane held that the nexus between W&H and Vodafone resulting from their convergent contracts with M5, the vulnerability that Vodafone was under, underlined by the section completion regime, and W&H’s corresponding liability, and its duty to avoid causing damage to M5, all pointed towards W&H owing a duty of care. 

The nature of loss was also considered to be more than purely economical, also pointing in favour of the duty of care.
While the dust in the technology room was found to have been generated and caused by the remedial concrete cutting carried out by, or for W&H, it was argued by W&H that there had been no breach of the duty of care.

W&H argued that it was caught between conflicting duties in contract. On the one hand, it was required to hand over the technology room well before practical completion, but on the other, it was required to press on with construction to the point of practical completion, which included finishing work on the basement which would inevitably generate dust.

The court rejected that submission, concluding that W&H was under a duty of care calling for ordinary foresight and ordinary precautions. The remedial work was clearly going to generate a very large quantity of dust, and that was a risk which needed to be managed very carefully — which was not done.

Interestingly, when Justice Keane came to consider the issue of what loss Vodafone could actually recover, the court was quick to identify that Vodafone could only recover the loss associated with having the switches cleaned, not replacing the switches.

Justice Keane noted that while it was clear that the immediate physical detriment that Vodafone suffered was the dust coating on the switches which needed to be thoroughly cleaned, there was no evidence that the switches, as a result of the dust, would not have worked properly following the cleaning and, hence, needed to be replaced.

Concluding comments
The High Court decision is highly recommended reading. It again brings to the forefront not only the extent to which duties of care might be owed in completing construction contracts (including to those with whom there may be no contract), it also serves a useful reminder that when trying to mitigate losses, consideration needs to be given as to what is actually required to mitigate that loss.

Note: This article is not intended to be legal advice (nor a substitute for legal advice). No responsibility or liability is accepted by Legal Vision to anyone who relies on the information contained in this article.

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