Trident Construction Ltd. v. Wardrop (W.L.) and Associates Ltd. et al., (1979) 1 Man.R.(2d) 268 (QB)

• Judge: Wilson, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: September 04, 1979
• Jurisdiction: Manitoba
• Citations: (1979), 1 Man.R.(2d) 268 (QB)

Trident Constr. Ltd. v. Wardrop (1979), 1 Man.R.(2d) 268 (QB)

MLB headnote and full text

Trident Construction Ltd. v. W.L. Wardrop and Associates Ltd., The Boxboro Company Limited, Western Caissons (Man.) Ltd. and Bencor International of Canada Contractors Ltd.; Western Caissons (Man.) Ltd. and Bencor International of Canada Contractors Ltd. v. Trident Construction Ltd.; The Foxboro Company Limited v. Trident Construction Ltd.

Indexed As: Trident Construction Ltd. v. Wardrop (W.L.) and Associates Ltd. et al.

Manitoba Court of Queen's Bench

Wilson, J.

September 4, 1979.

Summary:

This case arose out of the plaintiffs' actions against the defendants for damages arising out of a municipal construction project. The City of Winnipeg hired W.L. Wardrop and Associates Ltd. to be designers and engineers on the construction of a municipal sewage treatment plant. The contract required Wardrop to design the project, provide basic site data, including soil tests and borings, and supervise construction. Trident Construction Ltd. entered a contract with the City to be the general contractor on the job. A major part of the project was the sinking of a concrete foundation for the main plant building down to bedrock seventy feet below grade. The bottom 35-40 feet was below the water table. It was decided to use a special procedure for sinking the foundation, which was the construction of a "slurry wall". Bencor International of Canada Contractors Ltd. was selected as a firm competent to construct a slurry wall and entered a subcontract with Trident Construction Ltd. for that purpose. Wardrop misinformed Bencor that the water table would be located at a certain depth, neglecting to inform Bencor that the water table could fluctuate by several feet. Assuming that the water table would be located at a certain depth, Bencor with the express approval of Wardrop adopted a work method keyed to that depth. Severe construction problems in completing the slurry wall resulted when the water table proved to be higher than anticipated and great delay resulted. Further, the sealing device selected by Wardrop for the expansion joints in the huge holding tanks of the project were inadequate, causing further delays while repairs were carried out to make the joints function properly. Trident brought an action against Wardrop and Bencor, inter alia, for damages resulting from the delays in completing the project. All of the defendants except Wardrop counterclaimed for damages against Trident.

The Manitoba Court of Queen's Bench in a decision restricted to the issue of liability substantially allowed Trident's action. Wardrop was found 25% at fault for the problems in constructing the slurry wall, because of its failure to adequately inform Bencor of the likely location of the water table. Bencor was found 65% at fault in failing to appreciate the significance of various reports on soil structure and the water table, which it had, and in failing to take into account the sub-soil conditions actually encountered, which compounded the initial error. Trident was found 10% at fault for conditions under its control on the surface, which worsened the problems of slurry wall construction. Wardrop was found liable notwithstanding that there was no contractual relationship between it and Trident, because of Wardrop's contractual obligation to design and supervise the project and its close relationship with Trident on the project. The Court of Queen's Bench held Wardrop wholly liable for the delays resulting from the inadequate sealing device in tank expansion joints. The Court of Queen's Bench held that, as the project engineer and designer, Wardrop had a duty to provide workable plans and Trident had no duty to review the plans to determine whether they were adequate and in particular was not responsible for the delays resulting from the inadequate seal.

Building Contracts - Topic 3429

Liability of builder - Defective design - Duty respecting owner's plans and designs - An engineering firm designed a sewage plant including large concrete holding tanks - Incorporated into the tanks were expansion joints for which the engineering firm selected a sealing device, which was too small and proved inadequate - The project was considerably delayed, while the defective seals in the expansion joints were repaired - The Manitoba Court of Queen's Bench held that the engineering firm and not the contractor was responsible for the delay caused by the defective joints - The Court of Queen's Bench held that the contractor was not required to check the engineering firm's design and plans for defects or to determine whether they were workable - See paragraphs 167 to 223.

Building Contracts - Topic 5006

Architects and engineers - Standard or level of competence - The Manitoba Court of Queen's Bench held that in designing a project an engineer must show that degree of skill consistent with the measure of skill displayed by others reasonably competent in that profession touching matters of like kind - The Court of Queen's Bench held that the standard was directly related to the type and complexity of a project and the consequences of error - See paragraphs 189 to 191.

Building Contracts - Topic 5441

Architects and engineers - Liability to contractor - General - Where no contract between engineer and contractor - A city contracted with an engineering firm for the design and supervision of construction of a sewage treatment plant - The city contracted with a building contractor to construct the plant - The contract between the city and the contractor provided that the engineering firm would have complete supervisory control over the project and also was required to "provide guidance, assistance and supervision" - During construction the engineering firm approved an erroneous work method by a subcontractor, which the engineering firm negligently failed to correct - Delay resulted - The Manitoba Court of Queen's Bench held that the engineering firm was liable to the contractor for damages, notwithstanding that there was no privity of contract between them, because they were bound closely together on a common project - See paragraphs 120 to 141.

Building Contracts - Topic 5444

Architects and engineers - Liability to contractor - For faulty design - Duty respecting owner's plans and designs - An engineering firm designed a sewage plant including large concrete holding tanks - Incorporated into the tanks were expansion joints for which the engineering firm selected a sealing device, which was too small and proved inadequate - The project was considerably delayed, while the defective seals in the expansion joints were repaired - The Manitoba Court of Queen's Bench held that the engineering firm and not the contractor was responsible for the delay caused by the defective joints - The Court of Queen's Bench held that the engineer has a duty to provide the contractor with workable plans - See paragraphs 168 to 223.

Building Contracts - Topic 5446

Architects and engineers - Liability to contractor - Supervision of work - Scope of duty to supervise - A city contracted with an engineering firm for the design and supervision of construction of a sewage treatment plant - The city contracted with a building contractor to construct the plant - The contract between the city and the contractor provided that the engineering firm would have complete supervisory control over the project and also was required to "provide guidance, assistance and supervision" - The engineering firm provided a subcontractor with misleading information about the level of the water table, which caused the subcontractor to make a mistake in its construction methods with resulting problems and delay - The engineering firm sought to absolve itself from liability by claiming that as a general rule an engineer has no duty to instruct a contractor how to carry out his work or to warn or correct him when an error is being made - The Manitoba Court of Queen's Bench held that, given the engineering firm's contractual duty to supervise the project and the close relationship between the engineer and the contractor on a common project, the engineering firm was liable for damages resulting from its wrong advice to the subcontractor - The Court of Queen's Bench held that in the circumstances the engineering firm could not rely on any right it might ordinarily have to refrain from giving advice when it is aware that a contractor is going wrong - See paragraphs 116 to 140.

Contracts - Topic 2121

Terms - Express terms - Exclusionary clauses - Persons entitled to benefit of - A city entered a contract for the construction of a municipal sewage treatment plant with a building contractor - The contract excluded the liability of the city for any failure of the city or its agents to provide the contractor with work site data - Subsequently, the engineering firm hired by the city to design and supervise construction negligently gave misleading information about a characteristic of the work site - The engineering firm sought to rely on the city's exclusion of liability in the contract between the city and the contractor - The Manitoba Court of Queen's Bench held that the engineering firm could not rely upon the city's exclusion of liability - See paragraphs 120 to 122.

Fraud and Misrepresentation - Topic 2826

Misrepresentation - Negligent advice - Defences - Lack of reliance on skill or judgment of defendant - An engineering firm negligently misinformed a subcontractor about a work site condition - The contractor checked the condition itself, instead of relying only on the engineering firm's advice - The Manitoba Court of Queen's Bench held that the subcontractor could not hold the engineering firm responsible for its misinformation, where the subcontractor did not in fact rely upon it - See paragraphs 98 to 100.

Cases Noticed:

Hedley, Byrne v. Heller, [1963] 2 All E.R. 575, dist. [paras. 100, 179].

The Pas v. Porky Packers (1976), 7 N.R. 569; [1977] 1 S.C.R. 51, appld. [paras. 100, 179].

Clayton v. Woodman and Son Ltd. et al., [1962] 2 All E.R. 33, dist. [para. 116].

AMF International Ltd. v. Magnet Bowling, [1968] 1 W.W.R. 1028, dist. [para. 117].

Scuttons v. Midlands Silicones, [1962] 1 All E.R. 1, appld. [para. 122].

Demers v. Dufresne Engineering et al. (1978), 24 N.R. 91; [1979] 1 S.C.R. 146, appld. [para. 123].

Bilodeau v. Bergeron et al. (1974), 8 N.R. 513; [1975] 2 S.C.R. 345, dist. [para. 140].

Davie Shipbuilding et al. v. Cargill Grain et al. (1977), 17 N.R. 241; [1978] 1 S.C.R. 570, dist. [para. 140]; appld. [para. 176].

Joslyn et al. v. Bouey et al. (1976), 2 A.R. 18; 1 Alta. L.R.(2d) 174, refd to. [para. 143].

Nova Scotia Construction Co. v. Quebec Streams Commission et al., [1933] 2 D.L.R. 593, consd. [para. 170].

Midland Silicones Ltd. v. Scuttons Ltd., [1962] A.C. 446, appld. [para. 172].

Quinn v. Leathem, [1901] A.C. 495, appld. [para. 172].

Dutton v. Bognor Regis United Building Co. Ltd. et al., [1972] 1 All E.R. 462, appld. [para. 182].

Vermont Construction Inc. v. Beatson (1976), 8 N.R. 271, 519; [1977] 1 S.C.R. 758, consd. [para. 184].

Walter Cabott Construction Ltd. v. The Queen (1974), 44 D.L.R.(3d) 82, consd. [para. 185].

Monro v. Westville (1903), 36 N.S.R. 313, consd. [para. 186].

Townsend v. Cinema News, [1959] 1 W.L.R. 119, consd. [para. 188].

Authors and Works Noticed:

Charlesworth on Negligence (5th Ed.), p. 32 [para. 179].

Halsbury's Laws of England (2nd Ed.), vol. 3, para. 638 [para. 171].

Halsbury's Laws of England (4th Ed.), vol. 4, para. 1344 [para. 171].

Hudson's Building and Engineering Contracts (10th Ed. 1970), pp. 65 [para. 180]; 139 [para. 116]; 267 [para. 169].

McGraw-Hill's Definitions of Technical and Scientific Terms [para. 34].

Counsel:

W.C. Newman, Q.C. and G.W. Katelnikoff, for the plaintiff;

J.L. Bowles and D.W. Regelous, for W.L. Wardrop and Associates Ltd.;

H.D. Lloyd and A.L. Dyker, for The Foxboro Company Limited;

R.J. Scott, Q.C. and M.T. Green, for Bencor International of Canada.

This case was heard at Winnipeg, Manitoba, before WILSON, J., of the Manitoba Court of Queen's Bench, who delivered the following judgment on September 4, 1979: