- Unreported Judgment
Appeal No. 40 of 1977
K. & R. FABRICATIONS (QLD) PTY LTD
RAMON ASHLEY FIELD
THE CHIEF JUSTICE
Reasons for judgment delivered by Douglas J. on the 22nd May, 1978 the Chief Justice and Matthews J. concurring.
“APPEAL ALLOWED WITH COSTS. JUDGMENT OF THE COURT BELOW SET ASIDE AND JUDGMENT ENTERED FOR THE APPELLANT WITH COSTS TO BE TAXED.”
IN THE SUPREME COURT OF QUEENSLAND
Appeal No. 40 of 1977
K. & R. FABRICATIONS (QLD) PTY LTD
RAMON ASHLEY FIELD
JUDGMENT - DOUGLAS J.
This is an appeal from an action in the District Court wherein damages were awarded to the respondent in a claim for a breach of contract in relation to the alleged failure of a draftsman to exercise all due care and skill in checking a set of engineering drawings.
The respondent is a company of steel fabricators of which company a Mr. Hurry who gave evidence is a director. The appellant is an engineer; but for relevant purposes is best described as an engineering draftsman.
The substance of the respondent's case in the court below, so far as it concerns this court, is contained in paragraphs 4 to 8 of the plaint.
“4. By a contract made in or about April 1974 the Plaintiff employed the Defendant, inter alia, to check the dimensions and details of certain drawings prepared for the Plaintiff which the Plaintiff as the Defendant well knew proposed to use in the fabrication of roof steelwork on a building being erected by Leighton Contractors Pty. Ltd. at 294 Adelaide Street, Brisbane, Queensland.
5. It was an implied term of the said Contract between the parties that the Defendant his servants or agents should exercise all due care and skill in checking the said drawings.
6.∗Thereafter the Defendant his servants or agents checked or purported to check the said drawings and intimated to the Plaintiff that he had checked the drawings and that where they had been overlayed in green crayon they were correct and where they had been overlayed in red crayon they were incorrect
7. During June and July 1974, and in reliance upon the said drawings, the Plaintiff proceeded to fabricate the aforesaid roof steel work in accordance with the said drawings checked or purportedly checked by the Defendant, his servants or agents.
8.∗During the course of erection of the aforesaid fabricated roof steel work the Plaintiff found that parts of the said drawings were incorrect and fabrications based upon them required rectification.”
At the end of the trial the respondent's allegations in paragraphs 4 and 5 of the Plaint being accepted judgment was given for the respondent (plaintiff) against the appellant (Defendant) for $1,459,40 and costs.
The primary ground of appeal is -
“1. (a) That the finding of the Trial Judge that the Contract was as set out in paragraphs 4 and 5 of the amended Plaint was against the evidence or the weight of evidence and wrong in law.
(b) Alternatively, that if the Contract was as set out in paragraphs 4 and 5 of the amended Plaint, then the finding that the Defendant was in breach thereof was against the evidence or the weight of evidence and wrong in law.”
Although there do not seem to be any vexed questions of law in this case, it is as well to set out, at the outset, a statement on the duties of an employed professional man. I refer to Greaves and Co. (Contractors Ltd. -v- Baynham Meikle and Partners (1975) 1 W.L.R. 1095, per Lord Denning M.R. at p. 1101.
“It seems to me that in the ordinary employment of a professional man, whether it is a medical man, a lawyer, or an accountant, an architect or an engineer, his duty is to use reasonable care and skill in the course of his employment. The extent of this duty was described by McNair J. in Bolam v. Friern Hospital Management Committee (1957) 1 W.L.R. 582, 586, approved by the Privy Council in Chin Keow v. Government of Malaysia (1967) 1 W.L.R. 813, 816:
‘....where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.’
In applying that test, it must be remembered that the measures to be taken by a professional man depend on the circumstances of the case.”
In the present case it is the last sentence of Lord Denning, I think, which has most relevance.
There was considerable conflict between Mr. Hurry and the appellant as to what the agreement was. They were the only two persons called who could give evidence as to the agreement. Mr. Hurry's allegations leading on to a claim of negligence appear in that part of the Plaint already quoted, Mr. Field's defence is pleaded basically as follows.
“3. ∗As be paragraph 4 of the Plaint the Defendant admits that by a contract made in or about April, 1974 the Plaintiff employed the Defendant to perform work with regard to certain drawings. The Defendant says he was employed to give an opinion on the quality of certain drawings and denies that he was employed to check all the dimensions and details thereof.
4. ∗It was an express term of the contract that the Defendant bear no responsibility for the accuracy of his opinion and of any work done by him.”
Unfortunately for the Court the appellant decided to argue his own case. He spoke at length and in much detail but, speaking for myself, I found him somewhat difficult to understand. Therefore I have looked at the matter myself, but taking into consideration his arguments.
In my opinion the learned trial judge has fallen into fundamental error in certain of his findings of fact. In his judgment he said this -
“Hurry's version is that he asked the defendant if he was interested in checking the workshop drawings to which the defendant replied that he was interested but he would have to have a look at the drawings to quote a price. He said he would be able to quote a price from viewing these shop drawings but would need the basic documents to do the checking. Hurry delivered the workshop drawings to Field's home that night and the next day Field quoted a price of $65 and said he would be able to do the job in three to four days. Hurry arranged for the architectural and engineering drawings to be sent to Field. After about four days Field advised that there were a fair few problems because errors he had detected had a sort of mushrooming effect on causing other errors. He said he would complete the task as soon as possible. One to two days later Field brought the drawings to Hurry and said he had gone about as far as he could. He had not checked everything on them because of the mushrooming effect of the errors. Field assured Hurry that he had checked as correct the details of the drawings which he, Field, had overlaid in green and what was overlaid in red was incorrect. Field was asked to agree to take all the plans and drawings back to Suburban Drafting Service and explain the errors and problems he had uncovered. Hurry rang Suburban Drafting Service to tell them Field was on his way over. There is some evidence that at least one new drawing was prepared by Suburban Drafting Service.”
It will be seen that he has made the finding that “Hurry arranged for the architectural and engineering drawings to be sent to Field.”
This was Field's evidence -
“You went through the plans after receipt? What was your next contact with Mr. Hurry?-- If I remember rightly - I do remember. On Monday - this was at the week-end, on Friday, which I call on the week-end, that these contracts were delivered to me. I rang Mr. Ken Hurry up and told him I had received his plans and I had looked over them. I said, ‘The quality of the work is not terribly good and if you want me to go through them a little bit further to compare them with the architects' and engineers' drawings, I would have to have these drawings in my office to make any sort of comparison or judgment of them.’
What did Mr. Hurry say?-- Ken Hurry agreed with me that this work was rough and that he would, in order for me to look at these drawings a little more closely, get the engineers' and architects' drawings sent over to my office, and later that day a set of architects' and engineers' drawings were delivered to my office.
Were you there when they were delivered?-- No.
What additional plans arrived on that day?-- The drawings that I had delivered to me were the engineers' drawings - the engineers' drawings and a set of plans, or a plan or two plans with Leighton Contractors. This could be done by architects or it could be done by Leightons themselves; I don't know.”
Later on he said:—
“BY MR. WARNICK: These plans arrived by means unknown to you on 11 March, is that so?-- Yes.
What did you then do in relation to the job?-- I went, after looking at the engineering drawings - the engineers' drawings, I briefly compared it with the Suburban Drafting drawings and made a rough sort of comparison, perused the drawings through to look for any big errors - any outstanding errors, but even with the information that we have on there - on those engineers' drawings, this job, if it was to be checked in any fashion, would not have been able to be checked at all because there is insufficient information on those drawings.
Can you give us an idea of the sort of drawing that would have enabled you to ---?-- Yes, we would have to have the engineers' drawings along with the architects' drawings, and that is all one needs.”
It shows from these two statements that he alleges he had the engineering drawings and not the architectural drawings. The drawings to which his evidence referred became Exhibits 10, 11 and 12, the first two of which are plainly engineering drawings not architectural, whilst Exhibit 12, which could be an architectural drawing, related only to an external walkway which does not appear to be in issue.
It is common ground that, in order to properly check workshop drawings, it is necessary to have recourse to both the engineering and the architectural drawings.
The finding of His Honour “Hurry arranged for the architectural and engineering drawings to be sent to Field” is open on the evidence as a finding of fact irrespective of the truth or falsity of whether Field got the drawings or not as Hurry did give such evidence. However in its setting the fact as to whether it was true or false that Field received the drawings is most important. It is clear that what His Honour means is that Field also received these drawings. There was no proof to negate Field's denial of having received the architectural drawings except in the limited sense he describes. The best evidence that Hurry gave was of a belief. That is not enough. It may be argued that Field brought the drawings to Hurry, and therefore it shows that Hurry had the architectural and engineering drawings. The evidence is clear that what is alleged to have been given by Field to Hurry is the workshop drawings as the learned trial judge found. It seems to me there is therefore a lacuna in the respondent's chain of proof so far as his allegations in relation to the carrying out of the agreement are concerned. There is no positive proof against the appellant's contention that he was never in a position professionally to carry out the check sought. On the other hand it seems to me evidence quite important to have been placed in the scales in the appellant's favour.
Returning to what was said by Lord Denning M.R. in the last sentence of the extract quoted from his judgment in Greaves & Co. (Contractors) Ltd. -v- Baynham Meikle & Partners (supra) it would seem that the respondent's evidence did not provide proper proof of the circumstances indicating the limits of the appellant's employment.
In relation to what plans were used for carrying out the fabrication, the learned trial judge found “There is some evidence that at least one new drawing was prepared by Suburban Drafting Service”.
The evidence in this respect is important to repeat.
“Are they the plans that Mr. Field brought back and you saw on that particular occasion in your workshop?-- Yes.
They have red and green markings on them?-- Yes.
From those plans then Suburban Drafting Service produced an amended set; is that the position?-- Yes.”
This is so having regard the allegations made in paragraphs 7 and 8 of the Amended Plaint to the effect that the respondent, in reliance upon the drawings proceeded to fabricate and that parts of the drawings were incorrect. The fact of the matter is that the respondent proceeded to fabricate on a new set of drawings provided by Suburban Drafting Service.
One would have expected evidence as to how and why any error made by the appellant was perpetuated by Suburban Drafting Services, and as to how it was the fault of the appellant that it was perpetuated.
The situation being as I have outlined above I do not think it was open to His Honour to find in favour of the respondent as he did.
The matter being at large it is open also to the Court to look at the evidence for itself. In my opinion on the evidence it was not open to His Honour to find negligence in the appellant.
There is no need to consider the second ground of appeal.
The appeal should be allowed with costs, the judgment of the court below set aside, and judgment entered for the appellant with costs.
- Published Case Name:
K. & R. Fabrications (Qld) Pty Ltd v Ramon Ashley Field
- Shortened Case Name:
K. & R. Fabrications (Qld) Pty Ltd v Ramon Ashley Field
 FC 14
Douglas J CJ, Matthews J.
22 May 1978
No Litigation History