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Legall Vs Lewis Concrete Mix

IN THE COMPLAINT OF:

MARIA LEGALL                                                COMPLAINANT

LEWIS CONCRETE MIX                                    RESPONDENT

The Tribunal:

 Mr. Jeff Cumberbatch, Chairman (Ag.)

 Ms. Fay Lucas and Mr. Antoine Williams

 Mr. Barry Carrington, Public Counsel                    for the Complainant

Mr. Sean A.M. Lewis                                            for the Respondent

Date of hearing: April 11, 2008

DECISION:

In this matter, Mrs. Maria Legall claims a refund of BDS$3730.80 and consequential damages against Lewis Concrete Mix for failure to comply with the guarantee of reasonable care and skill and fitness for purpose in a supply of services under the Consumer Guarantees Act, Cap. 320E. The services in question were the supply and pouring of concrete for the purpose of a concrete floor with a bull float finish at Mrs. Legall’s house which is situate at No. 132, Heywoods Park, St. Peter. In fact, the issue is further complicated by the use of the “floor” as a roof since, as seems clear from a site visit by the Tribunal, the floor was intended for the upper level of Mrs. Legall’s house of which construction has not yet begun, so that the “floor” is exposed to the elements and currently serves as the roof of the lower level which she occupies. Then there is the issue of a claimed debt of BDS$1100 by Lewis Concrete Mix against Mrs. Legall for the supply of an additional three (3) cubic metres of concrete for the purpose of laying the “floor” which complicates matters even further.

The Claim and Response

            Mrs. Legall claims that the work was not done with reasonable care and skill in contravention of section 29 of the Act. This provides in part; “… where a service is supplied to a consumer there is a guarantee that the service will be carried out with reasonable care and skill.” She alleges that this failure is evidenced by the product of the work, a structure with undulations and honeycombs, one that leaked when it rained and which had a rough finish instead of the bull float finish which was contracted for. In consequence, she also claims that there was a contravention of section 30 of the Act which provides in part; “… where a service is supplied to a consumer there is a guarantee that the service, and any product resulting from the service will be (a) reasonably fit for any particular purpose; and (b) of such a nature and quality that it can reasonably be expected to achieve any particular result, being the purpose that the consumer makes known to the supplier, before or at the time of the making of the contract for the supply of the service, as the particular purpose for which the service is required or the result that the consumer desires to achieve, as the case may be, except where the circumstances show that (A) the consumer does not rely on the supplier’s skill or judgment; or (B) it is unreasonable for the consumer to rely on the supplier’s skill or judgment.”

            In defence, the Respondent alleges that any defects in the work were due in whole or in part to the failure of the Claimant (or her agents) to carry out her duty under the agreement; that the failure to achieve a bull float finish was owed to an Act of God; and that having poured concrete to produce a floor of acceptable standard, the Claimant subsequently used it as a roof. The Respondent thus relies on section 34:

“Notwithstanding section 33, there is no right of redress against a supplier under this Act in respect of a service or any product resulting from a service which fails to comply with a guarantee set out in section 30 or section 31 (guarantee as to time of completion) of this Act only because of

  1. (a)an act of default or omission of, or any representation made by, any person other than the supplier or a servant or agent of the supplier; or
  2. (b)a course independent of human control

And the Respondent further contends that the structure is reasonably fit for the purpose made known to the supplier, that is a floor.

            The matter is, as we have said, further complicated by a claim by the Respondent that the Claimant owes a sum of BDS$1100 for additional services supplied at her request. The Claimant denies this liability, but states that even if the sum was owing (and there is no evidence of this), it does not preclude the Respondent from curing the defects of the work as it promised to do. The response of the Respondent to this is that its offer to cure the defects was a gratuitous offer, made without prejudice since it does not admit liability for the defects.

The tasks for the Tribunal are therefore:

  1. (i)to determine on the evidence whether the structure was defective;
  2. (ii)to determine who was responsible for these defects;
  3. (iii)to determine what was the purpose sought to be achieved by the structure;
  4. (iv)to determine whether it was used for a different purpose and whether this made a difference;
  5. (v)to determine whether there is a sum of $1100 outstanding from the Claimant to the Respondent;
  6. (vi)to determine whether this affords an excuse for the Respondent not to effect repairs to the structure; and
  7. (vii)to determine the most efficient solution to this dispute in accordance with the provisions of the Consumers Guarantees Act.

We propose to deal with each of these seriatim.

  1. (i)Was the work defective?

A view of the locus in quo by the Tribunal as well as the evidence of most of the witnesses confirm that the structure was defective with its undulations, honeycombs and rough finishes. There was also evidence that the structure leaked when it rained. Indeed, Mr. Vernon Lewis, the owner of Lewis Concrete Mix, the Respondent, testified:

“I look at that area and I said to her (Mrs. Legall, the claimant) that look bad. I looked at it and I said no this isn’t good enough, I said so, I said that to her.”

Mr. Dave Thorne, a witness called by the Respondent, attested:

“The underside was not truly flat. There were undulations.”

The Tribunal concludes therefore that the finished product was not of acceptable quality. This does not of course determine the issue as to who was responsible for the defects nor whether it was fit for its stated purpose; whether it was in fact used for a different purpose and whether this made a difference.

  1. (ii)Who was responsible for the defects?

The Claimant alleges that the defects were as a result of the Respondent not using reasonable care and skill in pouring the concrete. Mr. Tony Brathwaite for the Claimant firmly ascribed the honeycomb effect to the fault of the Respondent.

“Once you pouring and you get honeycomb, it aint vibrate properly.”

So too did Mr. Jeffrey Carrington of the National Housing Corporation. He has over 35 years experience in building wall houses. He asserted:

“In my opinion it was a poor job because there was too much (sic) stones in the concrete. It had more stones than it had cement and sand and it had a lot of honeycombs and the concrete [is] not settle(d) properly because the guys did not either vibrate enough or they did not pull up the steel to settle the concrete properly. This is (       ) my opinion.”

As to the exposed steel he stated:

“… it probably did not have enough props on that section.”

And as to the bulge:

“… the concrete was not settle(d) properly enough on the boxing because it was not vibrated.”

And as to the honeycombs:

“… the concrete was not grade concrete, it was too weak.”

He also commented on the surface of the structure:

“It was very poor workmanship because it was not floated or anything like that. When you casting a floor you should float it.”

He reiterated these views in cross-examination.

The Respondent, on the other hand, denied these charges. Mr. Dave Thorne, B.Sc. (Civil Engineering) gave evidence for the Respondent. In his view, the concrete was of good quality. He ascribed the undulations in the structure to the cheap type of plywood used for support.

“… the plywood cannot support the weight so it would tend to belly or buckle and then you have undulations in the torque.”

Mr. Michael Wood, an employee of the Respondent, who was responsible for the pouring of the concrete, was adamant that he had done a good job.

The argument of the Respondent was that the defective finish of the structure was entirely the fault of the Claimant and/or those for whom she was responsible. Mr. Thorne testified that according to industry practice the owner is always responsible for the quality of the supports, not the supplier:

“… the supplier all he does is supply the concrete and he pumps it and places and if the boxing collapses that is the responsibility of the … owner.”

and

“I pay my money for concrete so if the decking collapse, I lost my money because … the responsibility to make sure that the form work (decking) is sound, the reinforcement is where it is supposed to be and that the reinforcement touches and is exposed, that responsibility lies with me (the contractor).”

            Mr. Wood, the Respondent’s employee, gave evidence that during the pouring of the concrete he felt a shift, “like if a jack or prop move”. He stated that he then jumped off the structure and his co-worker “went down-stairs and help the guy that work there or some other guy, help prop it.”

Of course the Claimant’s employee, Mr. Tony Brathwaite, gave evidence concerning this episode. But he did not speak of assistance being rendered during the pour of the concrete nor that it was Mr. Woods’ co-worker who assisted him. In fact he testified that it was “the chap that was pouring” that made the props and it was not an emergent situation. He testified that it was “after the props were put in place” that the pouring started immediately after that and “everything was good”.

Mr. Carrington, on the other hand, was firmly of the view that it was the duty of the concrete pourer to make sure that that the concrete settled under the steel:

Well in my opinion it probably did not have enough props on that section. But if you have some person pouring concrete for some person [you] should check all of those kinds of things before you start to pour the concrete because you now become the engineer.”

And in cross-examination:

“…the person that is pouring the concrete is responsible for checking to see if there are enough jacks or props under the boxing. That is their(sic) job. He becomes the engineer.”

On a consideration of the totality of the evidence on this point, the Tribunal finds that the defects in the structure were owed primarily to the negligent preparation by the Claimant’s employee, Mr. Brathwaite. However, by his intervention, the Respondent’s employee, “Pork Chop”, assumed some responsibility for the decking support. The Tribunal affixes responsibility for the defective work at 65% for the Claimant and 35% for the Respondent.

            So far as the finish of the structure is considered, there was conflict in the evidence of Mr. Brathwaite who testified that no rain fell during the course of the pour nor immediately after and that of Mr. Wood who gave evidence to the effect that “when we were finished, the rain came down very hard”. We accept the evidence of Mr. Brathwaite in this regard, but even if we had taken Mr. Wood’s version of the events, no evidence was led to persuade us that the rain would have an effect on the failure to achieve a bull float finish as contracted for. Indeed, Mr. Thorne, the Respondent’s witness, confirms this. In response to a question during cross-examination by Public Counsel as to whether he had asked Mrs. Legall if rain had fallen, he stated:

“No Sir. You can see it but it doesn’t affect the quality of the concrete. As a matter of fact, it helps the concrete.”

            The Tribunal holds therefore that the defence of Act of God, even if rain in the northern part of this country could ever be considered as an act of God, has no application to this case.

Floor or Roof?

            The true issue here is not whether the structure was to be used as a roof or floor but whether this makes for a difference in construction. In other words, whether the construction of either one renders it unsuitable for use as the other. Mr. Brathwaite certainly regarded the structure as a floor, and in his view, there was a difference in construction:

“The floor right now could stand rain and stuff like that but if it was a roof it would be a different strength. Not that that strength weak, but it would be a stronger strength (sic).”

            Mr. Carrington, on the other hand, regarded it sometimes as a roof and sometimes as a floor but, for him, this did not matter since:

“The nature of the concrete got to be the same. When you mixing concrete for a roof and concrete for a floor you have to mix it the same way – the correct way … if you pour a floor and it is bull float and the floor is poured properly and you did not have a roof over it then no water should get down in there.”

            Mr. Thorne answered a direct question from Mr. Lewis, attorney-at-law for the Respondent as to whether there was a difference between pouring a concrete floor and pouring a concrete roof thusly:

“In terms of a floor … you try to achieve perfect flatness. If you concrete a first floor or second floor … it is always perfectly flat. Concrete roofs should always be poured to a fault because you don’t want any water to settle on the concrete roofs. The mixture for concrete roofs should also include fibre mesh because the concrete in some cases are (is) exposed to the sunlight at all times so if there is any shrinkage or anything, the fibre mesh would then hold the structure in place.”

And Mr. Lewis himself, when queried as to whether Mrs. Legall indicated whether she was ordering the concrete for a roof or a floor, replied that she did not.

            The Tribunal is therefore of the concluded view that there is no substantial difference between the pouring of concrete for a floor and for a roof. Indeed there is no evidence as to which the Respondent was contracted to pour and we cannot think that it would be any less diligent with regards to the one as opposed to the other. Nothing turns on this therefore.

The Outstanding $1100

            This sum is claimed in respect of three additional cubic metres of concrete which were allegedly supplied to Mrs. Legall by the Respondent to complete the job. Mr. Lewis’s evidence on this matter was not determinative of a contract to pay for this additional concrete. Even when he presented her with the receipt, he did not press for payment:

“… when I first visited her there the Sunday, the first thing I did was to put the receipt in her hand for the $1100. That is the first thing I did … And after when I was going through the door and I realized I was not getting a cheque, I said could you kindly give me back my receipt and she put it back in my hand.”

and later:

“I asked her for the money, she did not present it so I said can I kindly have back my receipt.”

He testified that he never called again to settle the money. Mrs. Legall, on the other hand, claimed that the first time she heard from Mr. Lewis about any charge for the three additional metres was the first day the matter was called. The receipt allegedly retained by Mr. Lewis was not tendered in evidence but what was tendered was Exhibit B which is a delivery note for three loads of concrete amounting to 11 metres which is signed by Tony Brathwaite, the Claimant’s worker. There is also further evidence that additional concrete was delivered. According to Mr. Brathwaite:

“… the chap came and say that they would want about, I can’ remember how much he say, to tell the truth. He say it would want some more and he asked me what I going to do. I said I can’t do anything because the lady is not here and then he called his boss and his boss said okay go ahead because he know the lady in Canada and it would not be a problem. And then they bring the next set of concrete.”

He also admitted to being present “when the other set of concrete was poured”. This version of events was also supported by Mr. Michael Wood, the employee of the Respondent.

            So in spite of the fact that the invoice was not produced in evidence, we have more than adequate confirmation that additional concrete was delivered to Mrs. Legall’s home. Mr. Carrington, Public Counsel, on behalf of Mrs. Legall, expressed dismay over the fact that computation of the quantity of concrete needed would be out by as much as three metres in eleven, and we members of the Tribunal have some sympathy with this view. But there is no evidence that less than the amount shown in the delivery note was in fact delivered and so we find that Mrs. Legall is liable for the cost of three metres of concrete, as claimed by the Respondent. However, the Tribunal’s jurisdiction is not to simply redress the Respondent for an alleged breach of contract. Our jurisdiction under section 46(1)(c) of the Act is to “… direct any party to the proceedings to pay to any other such party such sum as the Tribunal thinks just.” Taking into account matters such as the absence of the invoice, the quantity of additional cement required in relation to that estimated and the totality of the evidence on this matter, the Tribunal considers that the sum of $600 would be a just sum in the circumstances.

Excuse for Respondent?

            Mr. Lewis emphatically admitted that he did not fulfill his promise to fix the structure because Mrs. Legall did not settle her debt to him for the outstanding sum. In response to a question from Public Counsel in cross-examination he stated:

“… she refused to pay me that is the reason why I said I am not going to fix it, until she paid me because that money should have been paid first.”

and again

“ … I withdrew my services due to the fact that she did not pay that $1100.”

Counsel for the Respondent argued that the offer to repair the defects was an act of good faith, but without prejudice since the Respondent does not admit responsibility for these defects. However, this is antithetical to our finding that the Respondent did bear part responsibility for the defects so that his offer for “Pork Chop” to rectify them should properly be viewed as an attempt to comply with the provisions of section 33(a)(1) of the Act whereby a supplier can be required to remedy a remediable failure of a guarantee in the supply of the service. We find that Mrs. Legall’s alleged failure to pay the outstanding sums did not afford the Respondent any justification for its failure to remedy the defects and thus Mrs. Legall was entitled to cancel the supply of the service under section 33(a)(ii)(B). We note, en passant, that section 36 has no application to this case since the service to be supplied under the contract was not merely incidental, but in fact integral, to the supply of goods.

Cost of Putting the Defects Right

Mr. Carrington was of the view that the remedial work could cost more than $1000. Indeed, he did not object when Public Counsel suggested it might be as much as $2000;

Yes, you might have to pay a mason. Labourer, get material and a mason pay is $120 and a labourer is $70 or $80 [and] it is a costly experience.”

Mr. Thorne’s opinion differed:

For something like that, a hilty, a mason and labourer per day. We rent hilty at $100 per day, a mason is $100, a labourer is $60 per day and then a bag of cement is $20 and sand and stone is $20. That comes to $300.”

And as to the top side:

“The grinder and a man to work it is $50 and $60.”

He did not revise these estimates under cross-examination. Mr. Lewis himself did not mention a sum for the repairs, although he did state in his evidence that he told Mrs. Legall that it “is a minor problem, that it is just half an hour or so and that can be rectified…”

The Tribunal has decided to accept neither of the two suggested sums, though we offer the opinion that Mr. Carrington’s estimate is a bit excessive. To be on the safe side, we have assessed the sum necessary to effect repairs to the structure at $750 on the assumption that the work will be completed in two days.

The Efficient Solution

            Based on our assessment of the evidence led by both parties and after a careful consideration of the circumstances of the transaction, the Tribunal finds:

  1. (i)That the product of the supply of services was defective.
  2. (ii)That the defects were mainly, but not solely, owed to the bad preparation for the pour by the agents of the Claimant.
  3. (iii)That the defective work was the joint liability of both the Claimant’s agents (65%) and the Respondent (35%).
  4. (iv)That the cost of remedying the defects in workmanship amount to $750.00.

AND ORDERS AND DIRECTS

  1. (i)That the Respondent pays to the Claimant the sum of $262.50 or 35% of the assessed sum towards the cost of repairs.
  2. (ii)That the Claimant pays to the Respondent the sum of $600 for the additional concrete mix had and received to her use.

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J. Cumberbatch

(Chairman [ag]

I agree

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F. Lucas

I agree

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A. Williams