Supreme Court of Canada
Demers et al. v. Dufresne Engineering Co. Ltd. et al.,
[1979] 1 S.C.R. 146
Date: 1978-10-03
Lucille B. Demers,
Claude Demers and Jacques Desnoyers, co-executors of the Estate of the late
Georges Demers (Defendants) Appellants;
and
Dufresne
Engineering Company Limited and McNamara (Quebec)
Limited (Plaintiffs) Respondents.
1977: November 9 and 10; 1978: October 3.
Present: Ritchie, Pigeon, Dickson, Beetz and
Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
QUEBEC
Contracts—Construction of bridge—Damage
resulting from an error in the method of performance—Fault of the
contractor—Liability of the engineer in charge of the work—Stipulation for the
benefit of a third person—Civil Code, art. 1029.
In 1962, the Corporation du pont de Trois-Rivières
(the owner) retained the services of the late Georges Demers (the engineer),
whose executors are the appellants, to prepare the plans and specifications for
and supervise the work on the bridge project. In 1965, the owner awarded
respondents (the contractor) a contract for the construction of the bridge
piers. In the course of the work, a caisson exploded under pressure of the
compressed air and the contractor had to rebuild it at a cost of $1,400,000.
This is the amount which the latter is claiming from the engineer. The Superior
Court dismissed the action, while the Court of Appeal held the engineer
one-third liable. Both parties are appealing against the decision.
The facts showed that the explosion of the
caisson was due to a glaring error in the contractor’s method of performing the
work. This method was not included in the plans but had been used by the
contractor in the performance of an “alternate project”.
Held (Pigeon
J. dissenting): The appeal should be dismissed and the cross-appeal allowed in
part.
Per Ritchie,
Dickson, Beetz and Pratte JJ.: Under a contract between the owner and the
engineer, the latter had absolute authority as to the method of performing the
work. The contract between the owner and the engineer contained a stipulation for
the benefit of a third person under which the engineer was to provide the
contractor with information, advice and instructions the latter needed in
carrying out the work. By being given complete authority over the work, the
engineer was expected to exercise his power of general control like a
[Page 147]
competent and diligent professional. The role
of the engineer cannot be reduced to an essentially passive role and it cannot
be concluded that he had an obligation toward the contractor only if the latter
formally asked him for advice.
In the case at bar, the explosion of the
caisson resulted from an erroneous method of performance which the engineer was
aware of. If he had not been aware of it, he ought to have been since this was
such an enormous error. By remaining silent, the engineer implicitly approved
the work method chosen by the contractor. Moreover, he also implicitly approved
the minor alteration suggested by his representative, which was obviously
inadequate. By committing these two errors, the engineer effectively allowed
the work to be performed incorrectly, and this caused the accident. By failing
to carry out his contractual obligation, resulting from the stipulation for the
benefit of a third person, the engineer became liable toward the contractor.
However, the fault of the engineer does not have the effect of relieving the
contractor of all liability. The fault of one is as great as the fault of the
other and liability should be shared equally between the two parties.
Per Pigeon J.,
dissenting: There can be no liability of the engineer under arts.
1053 or 1688 C.C. because the accident was not caused by faulty design
of the work but solely by a bad work method adopted by the contractor. The only
possible source of liability toward the latter is therefore the stipulation for
the benefit of third parties in the contract between the engineer and the
owner. This stipulation did not oblige the engineer to go to the contactor and
instruct him to avoid any error in his own area of responsibility: the method
of carrying out the work. If the contractor chose not to ask him for advice,
the engineer was not obliged to give any. The engineer’s representative on the
work site went beyond what the engineer was obliged to do and committed no
fault in giving correct information, even though he did not then see that his
observations were followed by orders designed to remedy the inadequacy of the
precautions that the contractor was taking. In respect of the professional
services contemplated therein, the stipulation for the benefit of third parties
obliged the engineer to “await orders” from the contractor not to issue any.
[Bélanger v. Montreal Water and Power Co. (1914),
50 S.C.R. 356; Vermont Construction Inc. v. Beatson, [1977] 1 S.C.R.
759, referred to; Bilodeau v. Bergeron et al., [1975] 2 S.C.R.
345; Davie Shipbuilding et al. v. Cargill Grain et al., [1978] 1 S.C.R.
570, distinguished.]
[Page 148]
APPEALS from a decision of the Court of
Appeal of Quebec reversing a
judgment of the Superior Court. Appeal dismissed, cross-appeal allowed in part,
Pigeon J. dissenting.
A.J. Campbell, Q.C., and John J. Pepper,
Q.C., for the appellants.
Guy Gilbert, Q.C., and Pierre Magnan, for
the respondents.
The judgment of Ritchie, Dickson, Beetz and
Pratte JJ. was delivered by
PRATTE J.—I have read the reasons of my brother
Pigeon J., but contrary to him I am of the view that the appeal should be
dismissed and the cross-appeal allowed.
The facts are set out clearly by Pigeon J., and
it is unnecessary for me to relate them again.
The main issue raised by this appeal is as to
the extent of the obligations of the engineer Demers (the engineer) toward
respondents (the contractor) under a stipulation for the benefit of a third
party contained in the contract between the engineer and the Corporation du
pont de Trois-Rivières (the owner); in brief, the question is whether there
existed such a stipulation for the benefit of a third party and if so, what was
its scope.
A stipulation for the benefit of a third person
does not require that the parties use a set formula, any more than it results
from the mere fact that a contract may benefit a third person; it exists when
the parties intended to confer a right on the third person. There can be no
stipulation for the benefit of another if the parties did not intend to
stipulate for another, but only for themselves. The existence of a stipulation
for the benefit of a third party thus depends essentially on the intent of the
parties. In some cases this intent is manifested clearly; this is the case
“where the parties formally stipulate that the debtor is obligating himself for
the benefit of a third person” (Mazeaud, Leçons de droit civil, Tome 2,
Vol. 1, No. 778, at p. 797). In other cases the stipulation is not
expressly stated in the contract and the intent to stipulate for the benefit of
[Page 149]
another is only implicit; it flows from the
interpretation given to the contract by the Court in the light of all the
circumstances. In such a case the existence of the stipulation for the benefit
of a third party is properly a matter of contract interpretation. Whether there
existed the necessary intent to make a stipulation for the benefit of a third
party must be determined in accordance with the ordinary rules governing the
interpretation of contracts (Weill, Droit civil, les obligations, 1971,
No. 532, at p. 561). In Bélanger v. Montreal Water and Power Co. Anglin J.,
as he then was, said at p. 366:
But every contractual stipulation for the
benefit of another (stipulation pour autrui) does not give to
that other a right of action to enforce it. Such a right arises only where it
was the intention of the parties to the contract to confer it—an intention the
existence or non‑existence of which must be determined by the
interpretation of the contract.
The scope of a stipulation for the benefit of
another must of course be determined in the same manner: it is a matter of
ascertaining the intent of the parties by resorting to the ordinary rules of
construction.
As regards the case at bar, two preliminary
observations should be made: first, although the engineer and the contractor
were third parties with respect to each other in the sense that they were not,
except for the stipulation for a third party, contractually bound to one
another, they were nevertheless not strangers (Vermont Construction Inc. v.
Beatson, per
Pigeon J., at p. 768); both were bound to the owner by two separate
contracts that obligated them to be constantly in contact with one another with
a view to a common purpose: the construction of the planned work (Soinne, La
responsabilité des architectes et entrepreneurs après la réception des travaux,
Vol. 2, at p. 635). These two contracts should therefore be given the
interpretation that is most likely to ensure the achievement of this goal. In
the absence of clear indications to the contrary, it must be assumed that the
parties intended to stipulate so as
[Page 150]
to facilitate rather than impede the carrying
out of the purpose that was common to the two contracts. In ascertaining whether
there was an intent to stipulate for the benefit of a third party it seems to
me quite legitimate to take these factors into account; the contractor was not
a third party like any other in relation to the engineer; the contractor and
the engineer were united in the pursuit of a common goal.
If we now examine the contract between the owner
and the engineer, it is clear that the latter had greater authority and
responsibility than that of an ordinary “maître d’œuvre”. He was not
only responsible for constructing and supervising the project, but he also had
absolute authority as to the method of performing the work. The following
specifications in the contract are worth noting:
[TRANSLATION]
1. Retention of the engineer’s services
(a) The corporation shall retain the
services of the engineer, who undertakes to provide them, for carrying out the
mandate and work of a professional engineer necessary for completion of the
project, more fully described in the following clauses.
…
5. Supervision of the work
As soon as the corporation informs the
engineer in writing that it has awarded one or more contracts respecting the
construction, the latter shall assume full and complete supervision of the work
on the project until it is completed; he shall be responsible for ensuring that
this work is in accordance with the plans and specifications approved by the
corporation.
…
11. Construction methods and schedules,
etc., of the contractors and subcontractors
The engineer shall examine the construction
methods and schedules proposed by the contractors and subcontractors; he shall
be responsible for verifying and approving their construction drawings and
their shop drawings.
…
14. Information, advice and instructions
He shall make himself, or his engineers and
technicians, available at all times to the corporation, the contractors and the
subcontractors in order to provide
[Page 151]
them with the information, advice and
instructions they need in carrying out the work.
…
16. Co-ordination of the work
He shall be responsible for co-ordinating
the work of the various contractors and subcontractors with a view to ensuring
that the construction progresses smoothly and rapidly.
…
18. Quality of the materials, etc.
He shall be responsible for controlling the
quality of all the materials and of the labour and ensuring that the
construction is in accordance with accepted practice.
…
20. Recommendations, concerning work and
materials; final revised plans
He shall make recommendations to the
corporation, contractors or subcontractors, as the case may be, for accepting
or rejecting the work and materials; when the work has been completed he shall
provide the corporation, where necessary, with the revised plans and
specifications for the project as carried out.
…
22. Presence in Trois-Rivières and on
the site
Throughout the duration of the construction
work the engineer shall maintain an office in Trois-Rivières or within a radius
of five (5) miles of the limits of that city; he himself or his representatives
shall be present on the site in order to more effectively ensure that his
obligations under this contract are fulfilled, especially with respect to
supervision of the work and of the material and machine testing on the site.
Concerning the contract between the owner and
the contractor, several provisions in the specifications that were prepared by
the engineer and that were part of this contract confirmed the contractor’s
complete subordination to the engineer with respect to the manner of performing
the work, an area normally reserved to the contractor:
[TRANSLATION]
3. PLANS AND SPECIFICATIONS
The work to be performed is set out in the
specifications and indicated on the plans prepared by Geo. Demers, Consulting
Engineer, Quebec City, and
numbered as follows:
[Page 152]
The plans and specifications for the
contract also include any additional plans or specifications that might be
issued as an addendum to those herein described in order to alter, increase or
decrease the construction method or the nature, quality or quantity of the
construction work to be performed.
…
The tenderers may, if they wish, submit an
alternate proposal for constructing the caissons, together with drawings and a
detailed description, but it is understood and agreed that they must submit a
price for the project set out in the present specifications and shown on the
plans in order for their tender to be considered. After the contract has been
awarded, if the alternate project is worthy of consideration the contractor
shall submit to the engineer for approval detailed plans with complete
calculations for this alternate project.
…
6. SCHEDULES AND CONSTRUCTION DRAWINGS
The contractor shall order the steel for
the caissons within ten (10) days following the date on which the contract is
signed. Before the work is begun, the contractor shall submit to the engineer,
for approval, a work schedule and the construction drawings required for
construction of the four (4) caissons and piers. The schedule and construction
drawings shall be accompanied by a permit from the Department of Transport
stating that the work can be carried out as planned without objection and in
accordance with the river navigation regulations.
7. WORK METHOD
The contractor shall submit in writing to
the engineer the work method he intends to use and indicate where he proposes
to construct the caisson parts that are to be built away from the bridge site.
The engineer alone shall be free to accept or reject this method. The
contractor alone shall be responsible for any delay or increase in cost that
may result from the rejection or the adoption of a particular work method for
carrying out any part or the whole of the project.
8. ALTERATIONS
No alteration to the project or to the
materials specified shall be accepted without written authorization from the
engineer and the Corporation. In the event the contractor carries out such work
altering the project or the materials specified without the authorization of
the engineer and the Corporation, he shall demolish it, remove it and redo it,
or replace it according to the plans and specifications, at his own expense,
and shall not be
[Page 153]
entitled to any compensation of any kind
whatsoever for having proceeded in this manner.
In addition, the original plans and
specifications prepared by the engineer set out in detail the way in which the
work was to be performed, from which the contractor could not deviate without
the engineer’s permission.
In light of these various contractual
provisions, can it be said that the engineer contracted obligations toward the
contractor, and if so, what was their extent?
It is, in my view, indisputable that the
contract between the owner and the engineer contained a stipulation for a third
party that is expressly set out in clause 14 which reads as follows:
[TRANSLATION]
14. Information, advice and instructions
He [the engineer] shall make himself, or
his engineers and technicians, available at all times to the corporation, [the
owner], the contractors and the subcontractors in order to provide them with
the information, advice and instructions they need in carrying out the work.
The scope of this provision must be determined
having regard to the terms it contains, the hierarchical and professional
situation of the parties as regards one another, and the common goal that was
pursued.
This stipulation, it should be noted, obliged
the engineer to provide the professional services the contractor needed, not
only those asked for by the contractor. The obligation to provide professional
services was not dependent upon the contractor’s discretion; the services were
due if they were objectively necessary to ensure that the work was performed in
a good and workmanlike manner. An objective rather than a subjective test must
be used to determine whether the engineer’s professional opinion was required;
the criterion is the need for guidance in order to ensure that the work be
completed successfully. The intent was to make sure that the contractor would
not perform the work incorrectly; the engineer was obligated to intervene
whenever he knew or ought to have known that the contractor was not carrying
out its
[Page 154]
work in a good and workmanlike manner. This
obligation was all the more imperative where the contractor’s error was
manifest. A contractor who adopts a clearly improper work method that will
necessarily lead to disaster is demonstrating an incompetence which the
hierarchical authority conferred upon the engineer is specifically designed to
remedy; he is showing beyond any doubt that he needs guidance from a
professional, namely the engineer.
This interpretation of clause 14 seems to me to
be the preferable one since, not only is it consistent with the wording of the
clause, but it is also perfectly in accord with the authority conferred upon
the engineer. The latter was not only responsible for designing the project and
supervising the work; he also had authority in an area that is ordinarily
reserved to the contractor, namely the performance of the work, over which he
had general control; the method of performance of the work was subject to the
engineer’s approval.
If the engineer’s authority was this complete,
it was obviously because it was felt that the complexity of the technical
problems, even at the level of the carrying out of the work, required the
professional ability of an engineer. This necessarily implied, in my view, that
the parties wanted the contractor to benefit from the engineer’s expertise,
since it was on account of this expertise that the latter was given such
extensive authority. This also implied, consequently, that the contractor was
entitled to rely on the engineer exercising his power of general control like a
competent and diligent professional so as to ensure that the construction of
the project would be carried out in a good and workmanlike manner.
It is not disputed that the engineer would have
been liable toward the contractor if he had given it erroneous advice; I do not
see how the situation can be any different where the engineer has approved a
similarly erroneous work method. In both cases there is professional fault on
the part of the engineer, and this fault, in view of the contractual provisions
as well as the engineer’s hierarchical authority and professional status, is
committed towards the person who asks him for the advice or approval; in both
cases the fault results in faulty
[Page 155]
performance of the work by the contractor. It
was precisely in order to avoid such an occurrence that the contractor was
placed under the authority of the engineer. In giving his approval the engineer
was accepting responsibility for the method proposed by the contractor; in so
doing, he was giving professional advice, he was expressing the opinion that
the proposed work method was sound. If he was wrong, he committed a fault
towards the person to whom he gave this advice, that is, the contractor. The
contrary view has the effect of depriving the engineer’s approval of any real
significance and of sanctioning the latter’s irresponsibility. If the
engineer’s erroneous approval does not make him liable toward the contractor,
it will always be the latter which will in the end have to bear the
consequences of the error, since the engineer who is sued by the owner as a
result of an erroneous approval he has given, will always have the right to be
indemnified by the contractor. Such a result is unacceptable to me. If the
engineer has agreed to have the last word concerning the choice of the work
method, it is normal that he should be liable to the person over whom he has
authority if he allows the latter to proceed in an incorrect manner.
I therefore cannot accept the restrictive
interpretation of clause 14 put forward by appellants, whereby the engineer had
an obligation toward the contractor only if he gave it advice which the latter
had formally requested. Such an interpretation does not seem to me to be
consistent with the wording; it disregards the context; it does not take into
account the complete subordination of the contractor to the engineer’s
authority in the carrying out of the work; it reduces the engineer to an essentially
passive role that is not in keeping with his professional status and that is
not likely to ensure that the work planned is carried out, although this is the
common goal of all the parties.
In support of their submissions, appellants have
cited the decisions of this Court in Bilodeau v.
[Page 156]
Bergeron et al. and Davie
Shipbuilding et al. v. Cargill Grain et al.. In Bilodeau the issue was
whether a supervisor whose services had been retained by the general contractor
to verify the quality of the concrete supplied by a subcontractor had assumed a
contractual obligation toward the latter. This Court came to the conclusion
that the obligation to supervise had been assumed only toward the general
contractor and not toward the subcontractor; it was held that the wording of
the agreement between the general contractor and the supervisor precluded a
finding that there was a stipulation for the benefit of a third party in favour
of the subcontractor, the supplier of concrete. The agreement between the general
contractor and the supervisor did not in fact contain any provision similar to
clause 16 which is found here in the contract between the owner and the
engineer. Furthermore, the supervisor did not have general control over the
work and was far from having an authority as broad as that of the engineer in
the case at bar. Bilodeau therefore cannot be relied upon in support of
appellants’ position.
As regards Cargill, I can see nothing in
this decision that can assist in determining whether a contract contains a
stipulation for the benefit of a third person, and what is the scope of the
stipulation. Further, in my opinion, this decision confirms the view that a
person who, because of his authority and expertise, is in the position to carry
his point on those with whom he is dealing must assume responsibility for his
actions.
I am therefore of the opinion that under this
stipulation for the benefit of a third person the engineer had a contractual
obligation toward the contractor not to approve, even implicitly, a method of
carrying out the work that was clearly erroneous and that could only end in a
tragedy.
The explosion of the caisson was due to a
glaring error in the method of performing the work that was selected by the
contractor; having failed to take the low resistance of concrete in tension
into account, the latter did not provide for the use
[Page 157]
of vertical reinforcing steel. The engineer was
aware of this incorrect method of doing the work; if he had not been aware of
it, I would have had no hesitation in saying that he ought to have been since
this was such an enormous error. By remaining silent, the engineer implicitly
approved the work method chosen by the contractor. Moreover, he also implicitly
approved the minor alteration which consisted in adding a small quantity of
vertical reinforcing steel and which, even having regard to the preliminary
calculations made by his representative, the engineer Forgues, was obviously
inadequate. By committing these two errors the engineer effectively allowed the
work to be performed incorrectly, and this caused the accident. The
contractor’s error indicates how much he was in need of the engineer’s guidance
in order to perform the work properly; this need for guidance gave rise to the
engineer’s obligation to give it to the contractor, to see, in short, that the
error be corrected. By failing to carry out this contractual obligation, the
engineer became liable toward the contractor. In view of this finding it is not
necessary for me to decide as to the engineer’s liability under arts. 1053 and
1688 C.C.
The fault of the engineer, however serious it
may be, does not however have the effect of relieving the contractor of all
liability. The latter made a first glaring error by failing to take into
account the low resistance of concrete in tension; he made a second one, just
as serious, by not paying sufficient attention to the remarks of the engineer’s
representative, who told him of his concern regarding the caisson’s ability to
resist the pressure of compressed air. Mayrand J.A. of the Court of Appeal
was correct in saying that the contractor was guilty of [TRANSLATION] “gross
negligence in questioning the validity of what Forgues had said and failing to
study carefully the engineering problem that had been brought to [his]
attention”.
I therefore find that the contractor is also at
fault and must share with the engineer the responsibility for the accident
which is the basis of the claim for damages.
I cannot accept that the engineer’s fault is
less serious than that of the contractor or contributed
[Page 158]
any less to the damage caused by the explosion
of the caisson. The engineer had the ultimate responsibility for choosing the
work method; he did not discharge his obligations in this regard. His fault is
as great as that of the contractor; the liability should therefore be shared
equally between them.
Accordingly I am of the opinion that the appeal
should be dismissed, the cross-appeal allowed, the decision of the Court of
Appeal varied so as to increase the amount of judgment to the sum of $700,000
with interest at 5 per cent from summons and an additional indemnity of 3 per
cent per annum from January 1st, 1972, with costs throughout against
appellants.
PIGEON J. (dissenting)—Appellants are the
executors of the late Georges Demers, an engineer. They are appealing a
decision of the Court of Appeal of Quebec, [1975] C.A. 653, which held him
one-third liable for the physical damage caused by the explosion of a caisson
which respondents (“the contractor”) were in the process of building for one of
the piers of a bridge over the St. Lawrence River at Trois-Rivières. At
trial Bélanger J., then a member of the Superior Court, dismissed the action in
which the contractor was claiming the sum of $1,400,000 it had to spend to
rebuild the caisson, a fact which is not contested. The Court of Appeal
differed from the trial judge on the legal consequences of the written
documents invoked and the facts found by him. Leave to appeal was granted on
the condition that the appellants challenge only these legal consequences.
Respondents cross-appeal.
It was the Corporation du pont de Trois-Rivières
which, with the authorization of the Lieutenant-Governor in Council, retained
the services of the engineer by a contract dated November 3, 1962. By this
contract the engineer undertook to prepare the plans and specifications for and
supervise the work on the bridge project. It contains, inter alia, the
following provisions:
[TRANSLATION]
11. Construction methods and schedules,
etc., of the contractors and subcontractors
The engineer shall examine the construction
methods and schedules proposed by the contractors and subcon-
[Page 159]
tractors; he shall be responsible for
verifying and approving their construction drawings and their shop drawings.
14. Information, advice and instructions
He shall make himself, or his engineers and
technicians, available at all times to the corporation, the contractors and the
subcontractors in order to provide them with the information, advice and
instructions they need in carrying out the work.
22. Presence in Trois-Rivières and on
the site
Throughout the duration of the construction
work the engineer shall maintain an office in Trois-Rivières or within a radius
of five (5) miles of the limits of that city; he himself or his representatives
shall be present on the site in order to more effectively ensure that his
obligations under this contract are fulfilled, especially with respect to
supervision of the work and of the material and machine testing on the site.
A fixed-price contract for the construction of
the piers was awarded to the contractor on February 25, 1965 by the Corporation
du pont de Trois-Rivières with the authorization of the Lieutenant-Governor in
Council and following a call for tenders. The plans and specifications prepared
by the engineer, which form part of this contract, include for each pier a
steel‑shelled caisson which also serves as a cofferdam. They do not
contemplate the use of compressed air for sinking. On this point the specifications
state as follows:
[TRANSLATION] In order to control sinking,
prevent the caisson from slipping when descending through layers of soil with a
very low resistance and keep the caisson sinking vertically to the exact
location without deviation, the closing of some cylindrical wells by means of
covers and the injection of compressed air into the wells shall be provided for
by the contractor. Only the wells in the corners marked with the letter “D” on
the drawings may be used for this purpose. It is expected that the pressure in
each corner shall be distributed equally in the two wells used or that the
difference in pressure shall allow for the weight distribution in the caisson.
Any use of other wells to contain compressed air shall be permitted by the engineer
only if the resistance of the framework has been found satisfactory for the new
pressure conditions.
The specifications also contain the following
clauses:
[TRANSLATION] The tenderers may, if they
wish, submit an alternate proposal for constructing the cais-
[Page 160]
sons, together with drawings and a detailed
description, but it is understood and agreed that they must submit a price for
the project set out in the present specifications and shown on the plans in
order for their tender to be considered. After the contract has been awarded,
if the alternate project is worthy of consideration the contractor shall submit
to the engineer for approval detailed plans with complete calculations for this
alternate project.
…
The contractor shall submit in writing to
the engineer the work method he intends to use and indicate where he proposes
to construct the caisson parts that are to be built away from the bridge site.
The engineer alone shall be free to accept or reject this method. The
contractor alone shall be responsible for any delay or increase in cost that
may result from the rejection or the adoption of a particular work method for
carrying out any part or the whole of the project.
With its tender the contractor sent the
Corporation du pont de Trois-Rivières a letter dated December 9, 1964, which
reads in part as follows:
We are enclosing with our tender on the
specified method for the above projects a separate tender using an alternate
method of arriving at the same end result.
We are enclosing several drawings showing
the various phases that the caissons would go through using our alternate
method, as well as a schedule for this alternate and a drawing showing method
of anchorage of caissons which would apply to either method. Further details of
this scheme are readily available, should we be the successful tenderer.
…
Generally, we would use structural steel
only in the bottom 13′ -
15′ of the caisson and in the cofferdams. The remainder of the caisson
would be formed concrete. If even the limited amount of steel in the bottom of
the caisson should appear to be difficult to get in time to maintain the
schedule, we could provide a dry dock and build the caissons entirely out of
reinforced concrete without additional charge to the Corporation. Also, all concrete,
except the trémie concrete in the working chamber of the caissons, would be
poured in the dry by standard methods. We would utilize false bottoms in the
caisson cells for added floatation and to seal the work chamber to allow for
excavation under compressed-air to a depth of approximately 88´ below water
level. We
[Page 161]
feel that this type of excavation is a much
more predictable method of sinking the caisson through the soft upper levels of
the river bottom. After this stage the false bottoms would be replaced in part
with domes on the top of the cells and excavation would then continue by the
open caisson method using a clamshell.
The drawings enclosed in this letter are mere
diagrams showing the various sinking phases under the alternate method; hardly
anything but the elevations at the various stages planned are shown, without
any construction detail. These stages include the use of a work chamber under
compressed air. Above a diagram marked [TRANSLATION] “End of compressed-air
method” one reads:
[TRANSLATION]
19. Erection of section XIII and put
water in the three wells and 8′0″ of the
excavation.
20. Erection of section XIV and remove
the false bottoms.
The contract price was for the reduced amount
which the tender submitted for the alternate method, the latter was therefore
accepted.
The caisson in question was in the shape of a
prism having a rectangular base 132 feet by 52 feet. In order to make it
possible to excavate the river bed down to sufficiently solid soil, there were
on the inside 24 cylindrical wells or cells 13 feet in diameter in three rows
of eight. The bottom and the shell of the caisson were made of steel plate and
the inside was filled with concrete around the cells, each being at the centre
of a 16-foot square, and the walls behind the outside shell all around being
approximately two feet thick. As indicated in its letter of December 9, the
contractor had eliminated the steel plate cylinders which the engineer had
specified for each cell from the bottom. It had instead used slipforms to pour
mass concrete in successive layers inside the caisson in the shape required for
the 24 cylindrical cells, to 56 feet in height. It was only then that it put in
place, over the cells, steel cylinders approximately forty feet high for the
purpose of completing the sinking of the caisson.
In order to excavate under compressed air under
the caisson the cells obviously had to be sealed.
[Page 162]
Steel domes were therefore bolted under each of
the 24 thirteen foot round holes, when the caisson was built. So that the
excavation could be carried out in a compressed air work chamber the side walls
projected 7 feet below the bottom, forming around the perimeter of the caisson
what was called the cutting edge.
In order to make the transition from the
compressed air excavation phase to the open excavation phase the domes had to
be removed from the bottom of the cells. If the work chamber had been flooded
it would have been necessary to have this work done under water. To avoid this
difficulty the contractor decided to remove the domes before, rather than
after, flooding the work chamber. For this it was necessary to equalize the air
pressure on either side of the domes. This pressure was about 33 pounds per
square inch, that is, over 300 tons per dome. The steel cylinders above the
concrete therefore also had to be topped with domes in order to keep the
compressed air inside each cell until after the last bottom dome had been
removed. It was while these domes were gradually being removed that the caisson
exploded on September 7, 1965: five bottom domes had been removed and one or
two other cells were under pressure. Twelve workmen died in the disaster.
Regarding the cause of the accident, the trial
judge flatly rejected defendant’s theory on the ground that it did not provide
an adequate explanation. He found that the explosion of the caisson was caused
in the manner explained by the contractor’s expert witnesses as to whom he
wrote:
[TRANSLATION] The expert witnesses
Hunziker, Newell and Lamarre are substantially in agreement in the conclusions
they draw from their structural analysis of the caisson regarding its limited
capacity to resist the internal stresses caused by the compressed air. In their
opinion, in the engineering design calculations for the caisson consideration
was not given to the upward pressure of the compressed air under the cell
domes, to the pressure of the said compressed air on all the cell walls at
33.35 pounds per square inch or to its penetration into the joints between the
different mass concrete pours, thereby adding uplift. Since the upper steel
sections of the cells and their anchors were strong enough to resist the
pressure, the upward thrust in a given cell went
[Page 163]
down as far as the bottom of the steel
cylinders and transferred itself to the mass concrete in which the steel was
anchored. This tractive force together with the uplift created in the concrete
by the infiltration of compressed air created a cleavage plane at the point of
least resistance.
The formal finding of the trial judge on this
point is as follows:
[TRANSLATION] The Court is convinced that
the cause of the accident is a structural defect or, in other words, the fact
that the caisson was used for an operation it was not able to support. As
designed, it could not be used for changing through cell pressurization from
sinking by means of a pressurized work chamber to open air sinking.
Regarding liability, he first made the following
observation:
[TRANSLATION] We are not concerned here
with defendant’s liability toward the owner of the undertaking or toward third
parties; the question must be decided by considering the legal relationships
which may have existed between the contractor and the defendant. What the
contractor is in fact claiming is the damage it suffered during the performance
of its obligation to deliver the final product. It is the contractor itself
which suffered the loss when the caisson exploded; it is not even a question of
damages which the owner may have suffered and the contractor reimbursed. The
contractor suffered the loss under its contract, and in rebuilding the caisson
the contractor was fulfilling its own contractual obligation to deliver the
caisson agreed upon.
Further on he said:
[TRANSLATION] The usual division of
functions between the engineer and the contractor was in general provided for
in the general and special specifications and in the contracts with the owner;
however, this division applied only if the work was performed wholly in
accordance with defendant’s plans and specifications. For the work in
connection with the alternate method, a radical change in the responsibilities
of each had been provided for: it was the contractor which in the case of the
alternate method it had developed was to “submit to the engineer for approval
detailed plans with complete calculations for this alternate project” …
It has not been proved to the Court’s
satisfaction that detailed plans and complete engineering calculations were
ever completed by the contractor for pressurizing the caisson cells, which had
become a crucial step in its alternate project. Even less has it been proved
that such plans and calculations were delivered to defendant for
[Page 164]
approval. The testimony of Stephen Revay,
then general manager of one of plaintiffs, who was responsible for the
management of the undertaking, of Jim Jennings, an engineer on the project, and
of Norman Both, chief engineer of the same plaintiff, indicates rather that
complete engineering calculations for pressurizing the cells were never made.
There is no doubt that the contractor
itself caused the loss it suffered, by going ahead with the pressurizing of the
cells using plans that were defective in this respect, plans it had itself
prepared without the appropriate engineering calculations. The sinking
procedure (Exhibit P-11), which it had prepared, indicates that it intended to
pressurize the cells as early as June 15, 1965. It is thus the contractor which
performed the acts that directly caused the accident by pressurizing a caisson
in accordance with its own plans, which contained a structural defect. The
question here is not whether defendant might have incurred some liability to
the owner for not having prevented the contractor from thus directly causing
the accident, but whether defendant incurred liability to the contractor for
the fault the latter itself committed.
Finally, the trial judge relieved the engineer
of any liability by stating, inter alia:
[TRANSLATION] The first document that could
reveal the contractor’s intention to pressurize the cells is a description of
the sinking procedure which the contractor intended to follow, filed as Exhibit
P-11 and entitled “caisson N-2—sinking”. There is no doubt that this document
does not constitute “the detailed plans with complete calculations” which the
contractor was to submit to the engineer for approval. As we have already seen,
the evidence does not allow us to conclude that such calculations were ever
made. Moreover, the said document was not sent to defendant but to someone who
did not have the authority to approve it, namely the resident engineer, Jean
Côté; in his opinion this document is a description and not a plan, it does not
provide any information on the quality of the work, and approved detailed plans
were needed. This sinking procedure was sent to Côté by letter dated June 15,
1965, receipt of which Côté acknowledged on August 6, 1965, stating that he had
forwarded it to the Quebec City office. The evidence reveals that this document
was interpreted not as a plan sent for approval but as the instructions
provided to employees, for use on the site, bearing no signature, copies of
which were sent to the resident engineer.
[Page 165]
…
The testimony of Forgues, a supervising
engineer in defendant’s employ, is that as the time for pressurization drew
near he made brief calculations and went to suggest to Eryaza that vertical
reinforcing steel be added; he told him about his brief calculations but
received the reply that he was being unduly anxious, that he should not worry
about this. Forgues then spoke to Jennings and pressed his opinion. Jennings
acted on the suggestion, but he testified that nothing indicated to him that
this steel was necessary and that in actual fact he put it in then to please
Forgues. Adequate engineering calculations would undoubtedly have indicated
that it was necessary.
Forgue’s suggestion was not made in the
performance of his duties which did not include the approval of the detailed
plans and calculations which the contractor should have submitted; defendant’s
own function was limited to the approval of calculations already made. In spite
of all this, Forgue’s intervention did not even succeed in drawing the
contractor’s attention to the fact that its calculations had not been submitted
and that it was going ahead without the benefit of calculations that had been
verified and approved; it did not become aware of the structural defect in its
caisson for pressurization purposes. Forgues’s recommendation was undoubtedly
inadequate but it is not the fault which caused the accident; his intervention
did not have the effect of making defendant assume the contractor’s obligation
to prepare detailed plans and make complete calculations. It has been
established to the Court’s satisfaction that neither defendant nor his
representatives Lemieux and Côté were notified by Forgues before the accident
of the recommendations he had made to Eryaza and Jennings.
The Court of Appeal rightly found some errors in
this last part of judgment at trial.
It is true that the contractor failed to “submit
to the engineer for approval detailed plans with complete calculations for this
alternate project”. However, as Mayrand J.A. said:
[TRANSLATION] … It is certain that the
drawings and the description of the alternate project were considered
satisfactory when they were proposed with the tender, since the project was
accepted by the Corporation on February 25, 1965…
It is true that the contractor did not make
complete calculations for the pressurization of the
[Page 166]
caisson cells. However, the engineer’s
representative responsible for supervising the work allowed the work to go
ahead without them.
It is true that the 37-page document entitled
“Caisson sinking Pier N-2” does not constitute detailed plans with complete
calculations. However, it must be noted that on June 15 three copies of it were
sent by the contractor together with a letter addressed to the engineer’s
representative in Trois-Rivières, the resident engineer Jean Côté, and marked
“Attention: Mr. Yvan Forgues”. A letter was sent in reply, on the
engineer’s letterhead, which read as follows:
[TRANSLATION] Trois-Rivières, August
6, 1965
Mr. J.O.
Jennings
Project Manager
Dufresne-McNamara
Trois-Rivières Work Site
P.O. Box 1224, Trois-Rivières
Que.
Re Trois-Rivières Bridge—PHASE III
Sinking procedure for caisson N-2
Dear Sir:
We acknowledge receipt of your letter of
June 15 last as well as three copies of your report describing to us the
procedure you intend to use for installing caisson N-2.
We have sent your report to our Quebec City
Office and will inform you of their comments if need be.
Yours truly,
Jean
Côté, p. eng.
Project Engineer
JC/ma
This letter was signed by the engineer’s
representative, who was in charge of the office he maintained in Trois-Rivières
as required by his contract. In the circumstances, the engineer cannot be heard
to say that what was sent to his representative should not be considered as
delivered to himself. Nor may he contend that this was not what the contract
required. If he was not satisfied with the document he should have said so or
had someone else say so to the contractor. However, his representative sent a
letter a month later that amounted to an approval subject to
[Page 167]
further comments. I see nothing in the evidence
that could be considered a comment on this document, except perhaps Forgues’s
visit to Eryasa and Jennings on August 19 or 20.
In my opinion the trial judge erred in finding
that Forgues was not doing this in the performance of his duties. He was not a
clerk, but the supervising engineer. He was there as the engineer’s
representative, in fulfillment of the latter’s obligation to be present on the
work site and to provide the contractor with the information, advice and
instructions he needed. As a rule it is the duty of the engineer in charge to
make all necessary calculations, and in the circumstances he could not evade
this obligation. In any event, the clause in the contractor’s contract could
not have the effect of limiting Forgues’s duties. Moreover, it would be a misconception
of the function of a supervising engineer to suggest that he may not do any
calculations himself and should merely verify those that are submitted to him;
this would be to condemn him to ineffectiveness. Making one’s own calculations
on the basis one feels is appropriate is a perfectly legitimate means of
verifying the calculations made by others and is much more reliable than mere
checking.
In finding the engineer liable, Mayrand J.A.
wrote:
[TRANSLATION] The engineer Demers did not
act with the necessary diligence in performing his contractual obligations. It
was his duty to examine the document filed as Exhibit P-11 (Caisson Sinking)
immediately, to warn the contractor of the defects in the proposed sinking
procedure, to require detailed plans and complete calculations, in short not to
let the contractor proceed with work for which he had not approved the plans.
Even though the contractor undertook to provide plans and make calculations
that are usually the responsibility of the engineer, it does not follow that
the contractor assumed the entire function and the entire responsibility of the
engineer to whom he was to submit plans for approval. The subordination of the
appellant contractor to the authority of the respondent engineer is reflected in
the contracts between each of them and the Corporation. Moreover, the
contractor submitted with good grace to the authority of the engineer when the
resident engineer Yvan Forgues, the representative of
[Page 168]
engineer Demers on the site, insisted on a
reinforcement of the caisson’s structure.
Let us examine what effect this
intervention by engineer Yvan Forgues may have on the liability of the parties.
This engineer, who was responsible on behalf of respondent Demers for
supervising the performance of the work, became concerned. He made brief
calculations and came to the conclusion that the structure of the caisson was
not strong enough to resist the forces it would be subjected to. On or about
August 19, 1965 he told two engineers employed by the contractor, Eryasa and
Jennings, about his concern. The latter tried to reassure him; owing to his
insistence, however, they agreed to reinforce the caisson structure by means of
380 steel bars; this was vertical reinforcing steel between the fifteenth and
sixteenth pours, near the top to provide greater resistance to the caisson
cells. Jennings needed a little convincing since the plans that had been
prepared did not provide for such reinforcement, but he agreed to add the
reinforcement recommended. This expedient proved to be too late, and
insufficient to prevent the disaster which occurred a few weeks later.
The suggestion made by Forgues, the
engineer representing respondent, to Eryasa and Jennings, representing
appellants, has a bearing on the responsibility of the parties. It was enough
to alert the contractor and invite him to take a second careful look at the
incomplete calculations that had already been made, or to make the calculations
that had been omitted. The strength of the caisson structure having been
questioned by the resident engineer, Eryasa and Jennings should have revised
the plans and calculations and had them approved by the engineer. Instead they
allayed Forgues’s apprehensions, merely looking at his brief calculations and
following his inadequate recommendations. The initial error made by the
contractor’s engineers, who had not provided detailed plans and complete
calculations from the outset, was then compounded by their gross negligence in
doubting the validity of what Forgues had said and failing to study carefully
the engineering problem that had been brought to their attention.
On the other hand, Forgues’s suggestion was
insufficient to relieve respondent engineer, whom he represented, from
responsibility. Since he was responsible for supervising the work, he should
not have allowed work which had not received the express approval of the
engineer to be carried out; moreover, having himself noted the structural
weakness of the caisson, he Should have given notice of it not only to the contractor’s
representatives but also to respondent engineer, whose supervisory obligation
he was carrying out. Once the
[Page 169]
engineer had been alerted he could have
studied the problem raised, halted the dangerous work and rectified the
structural weakness of the caisson more effectively. Finally, Forgues, the
engineer’s representative on the site, had an obligation to provide the
contractor, which was represented at the time by two engineers, with the advice
and instructions they needed in carrying out the work (J.R. Vol. 2,
p. 205). Instead of definite instructions, he gave them only adequate
advice. Even though he was not responsible for approving the plans, his site
supervision duties required more effective intervention with the contractor and
notification to the engineer of the dangerous situation that was being created.
Against this reasoning counsel for the engineer
argued that we are not dealing here with a defect in the plans but solely with
a bad work method adopted by the contractor. The caisson as constructed would
have been entirely satisfactory as a bridge pier, since the concrete would then
have been loaded only in compression. Furthermore, no difficulties would have
been encountered during construction if the first method proposed for changing
from the compressed air excavation phase had been followed. Moreover, the plans
for the caisson which were approved by the engineer on May 4 and June 18 do not
contain any defects and do not necessarily involve pressurizing the cells.
All this is true, but the fact remains that the
document sent on June 15, “Caisson sinking—Pier N-2”, constituted formal notice
to the engineer of the contractor’s intention to pressurize the cells instead
of flooding the work chamber before removing the bottom domes. As Rinfret J.A.
pointed out, a clause in the specifications which I quoted at the outset
obliges the contractor to “submit in writing to the engineer the work method he
intends to use” and the engineer “alone shall be free to accept or reject this
method”. The document sent on June 15 undoubtedly constitutes this request for
approval of the work method and, as we have seen, I think that it must be
concluded from the correspondence and attitude of the parties that the engineer
approved it as such.
[Page 170]
Near the beginning of the document one reads:
In acting as a cofferdam, the 18” outside
wall will extend as much as 20’ above the water and may be subjected to as much
as 18’ of water head. To resist this pressure it acts as a cantilever. In view
of this, the concrete has to be very well controlled in order to have a
definite knowledge of when the required strengths will occur. The alternative
is a delay in the sinking process and/or possible structural problems.
The inside concrete is less important as in
principle, it is a ballast. However, there are portions of it that act
structurally as in the case of the first 2’ thick slab over the work chamber
and at one phase of the operation, the dredging wells are covered and the
wells pressurized, thus creating tension in the concrete between the wells.
For these reasons, special care has to be taken to produce and place good,
uniform concrete in all phases of the work.
Special note should be taken of the sentence I
have underlined. It indicated to the engineer that the method which the
contractor intended to use would have the effect of putting the concrete around
the cells in tension. Concrete has a very low resistance in tension, which goes
down to zero between successive layers. This means that reinforcing steel had
to be provided in sufficient quantity to resist the heavy load due to
compressed air at 33 pounds per square inch, or over two tons per square
foot.
The reinforcing steel plan was never submitted
for the engineer’s approval; he was given only the plans for the steel
structure of the caisson to approve. This plan, which was prepared by the
contractor, is entitled “Caisson N-2. Reinforcing steel details in mass
concrete”. It is not dated. It is marked as follows: “Designed M.E. (Muzaffer
Eryasa) Drawn P.B.”. There is nothing in the blanks marked “Checked” and
“Approved”. We know, however, that reinforcing steel was placed in the concrete
in accordance with this plan or equivalent sketches. The plan was available to
Forgues, who, being the person who was to check the quantity of steel put in,
was aware of it.
This plan contained an extremely serious defect:
it provided for horizontal reinforcing steel only while the work method adopted
by the contractor and submitted to the engineer implied that the
[Page 171]
cells would be subjected to a great deal of
tension vertically as well as horizontally, since compressed air was to be put
in. It is a well-known fact, an elementary law of physics: a compressed gas
exerts equal pressure in all directions on the walls of the vessel in which it
is contained.
It was only as the time for pressurizing the
cells drew near that Forgues became concerned about this problem. Concrete had
been poured without vertical reinforcing steel to a height of about forty feet.
Rather than pausing to consider the problem in its entirety, Forgues concerned
himself with the anchoring of the steel cylinders to the concrete. He made the
following calculations:
[TRANSLATION] Anchor bars of 1″ ø @
12″ c/c
41 anchor bars required= 41 x.785 = 32.2II″
Maximum stress in tension permitted on the
cells:
32.2 x 18,000 = 580,000# 580
Kips
Air pressure capable of causing this
maximum stress:
580,000 = 30,5#II″
13211’ x 144
(13′ø)
Weight of concrete for anchor bars 4′
(3′-10″) in the concrete:
(16 x 16) – µ_____2 = 124II′
6.5
Volume: 124x4 = 18.4 c.y.
27
That is a weight of 73.6 Kips
As indicated by a diagram beside his
calculations, Forgues calculated the weight of the concrete per cell starting
with the 16-foot square within which each lies. He accordingly subtracted from
the area of a 16-foot square that of a 13-foot circle. Next, in order to
compute the volume of concrete for the net area of 124 square feet thus
obtained, he multiplied it by the height, 4 feet, and divided by 27 to obtain
this volume in cubic yards. Finally, he noted as the weight of this volume of
concrete: 73.6 Kips.
It can be seen that, according to his
calculations, the pressure exerted by the compressed air on each of the steel
cylinders over the concrete cells was, at 30½ pounds per square inch, 580,000
pounds, or
[Page 172]
290 tons. On the
other hand the weight of the concrete to which each cylinder was to be anchored
was only 73,600 pounds, that is slightly less than 37 tons. The deficiency was
enormous.
However, Forgues calculated the weight of the
concrete per cell only for the 16-foot square within which each was located. In
actual fact these squares were not physically separate from one another, the
concrete was poured in monolithic layers and the horizontal reinforcing steel
was uninterrupted. This is why, despite the inadequacy of the anchoring of the
steel cylinders, the explosion did not occur when the first was pressurized,
but only when a sufficient number had been pressurized for the total vertical
tension to exceed the weight of the concrete effectively tied to them.
When Forgues conveyed his apprehensions to
Eryasa, an engineer employed by the contractor, the designer of the reinforcing
steel plan, the latter would not listen to him. Forgues went to see Jennings,
who was the engineer in charge of the site for the contractor and who had
authority over Eryasa. It was then decided to add vertical reinforcing steel.
According to Jennings this vertical reinforcement was inserted in the 6-foot
layer preceding the 4-foot layer to which the steel cylinders we later
anchored. A further 3-foot layer of concrete was then poured on top. There was
thus a total thickness of about 13 feet of concrete, more or less well tied to
the steel cylinders. The calculations made by Forgues show how insufficient
this was. In all, this made only about 120 tons of weight per cell as against
290 tons of tension. Even with the addition of the vertical reinforcing steel,
barely one‑quarter of the concrete was pretty well tied to the cylinders
filled with compressed air, without taking into account the possible effect of
infiltrations of compressed air between concrete layers.
I have considered it necessary to reproduce
Forgues’s calculations and to indicate what deductions are to be made from them
in order to show fully the enormity of the faults which caused the disaster.
[Page 173]
There has been complete unanimity so far
regarding the fault of the contractor, and I see no reason to discuss it
further. The contractor cannot claim to have relied on the engineer and on an
approval he had given it. As we have just seen, it did not even submit him the
reinforcing steel plan for the caisson concrete. In fact, far from relying on
the engineer’s approval, it relied exclusively on its own engineers on this
crucial point. In effect, it bypassed the engineer’s formal approval and
counted instead on a tacit approval, if not a mere tolerance. This is why in my
view the majority in the Court of Appeal was entirely justified in finding that
the contractor’s fault was twice as serious as the engineer’s. The cross-appeal
must therefore be dismissed.
The principal question remains: was the Court of
Appeal correct in holding the engineer liable for a fault for which he was
answerable to the contractor? Mayrand J.A. said on this point:
[TRANSLATION] The trial judge declined to
hold the engineer liable for the damage suffered by the contractor because his
obligations are contractual and exist only toward the Corporation, which owns
the undertaking. To hold the engineer liable toward the contractor, he would
have to be found in breach of a duty toward the contractor; however, the
engineer had contractual duties or obligations toward the Corporation only
(J.R. Vol. 18, p. 3656). With respect, I think that the contract between
the Corporation and respondent engineer created obligations on the part of the
latter toward the contractor (J.R. Vol. 2, p. 205):
“He shall make himself, or his engineers
and technicians, available at all times to the … contractors … in order to
provide them with the information, advice and instructions they need in
carrying out the work”.
This undertaking by the engineer contained
in the contract of November 3, 1962 came prior to the contract concluded on
February 25, 1965 between the Corporation and the contractors. The latter were
therefore entitled to rely on the assistance and co-operation promised by the
engineer. The clause cited above is the condition of a contract which the
Corporation made for itself and which contained a stipulation for the benefit
of the contractors, as permitted by art. 1029 of the Civil Code. By
their contract with the Corporation, which placed them under the authority of
the engineer, by
[Page 174]
their attitude during the work, and finally
by the action brought, appellants indicated their intention to take advantage
of this stipulation. The engineer expressly assumed an obligation toward the
contractors, and the latter have a right of action to compel its performance or
to claim damages in the event that it is not performed.
Rinfret J.A., now Chief Justice of Quebec,
added:
[TRANSLATION] I shall consider Forgues’s
intervention from a different angle.
I attach a great deal of importance to
Forgues’s apprehensions and to the conclusion he reached after brief
calculations.
They do show, in my view, that the danger
was foreseeable, since he foresaw it.
If such brief calculations could prompt in
Forgues the fears he expressed before the accident, more extensive calculations
by Côté in Trois-Rivières or by Demers or Lemieux in Quebec City would
certainly have been even more decisive.
Consideration could then have been given to
the steps to be taken, whether vertical reinforcing steel or something else to
avert an accident such as occurred.
The accident was foreseeable if only the
resistance of the materials and the pressure they would have to bear had been
verified and calculated.
The liability of respondent Demers is
therefore clearly established.
These observations are correct, but are they not
relevant solely to the liability of the engineer toward the owner of the
undertaking? In Bilodeau v. Bergeron et al., Fauteux C.J., speaking for a
unanimous Court, said:
… This is an action for contractual
damages, brought by plaintiff A. Bergeron & Fils Ltée against two
defendants for failure to perform distinct, different and mutually exclusive
obligations which each, by a separate agreement with the plaintiff, had assumed
towards the latter: Ready Mix having undertaken, inter alia, to deliver
to the site concrete having a resistance of 5,000 lbs. per square inch 28 days
after pouring, and Bilodeau having undertaken, inter alia, to accept on
the site only concrete of this type. By failure to perform the obligation
relevant to him, each party caused the whole damage, and must compensate
Bergeron, by whom it was sustained, for all the loss. The fact that the co-
[Page 175]
authors of the damage are each held liable
for the whole does not necessarily mean that a real joint and several bond exists
between them. Their respective obligations were undoubtedly intended to concur,
though in totally different ways, to delivery of a concrete with the required
properties. But joint and several liability is not presumed. Ready Mix and
Bilodeau were not jointly and severally bound, whether by contract, expressly
or implicitly, or by the law, to provide what each had separately contracted
for with the contractor. It was properly held by the Superior Court, and
subsequently by the Court of Appeal, that with respect to Ready Mix, Bilodeau
was a third party, bound by no obligation to the latter, and that the contract
for supervision, concluded between Bilodeau and the contractor,—which had been
required by the Department as an additional precaution to ensure that the
concrete used by the contractor in making the girders had the required
properties—in no way relieved Ready Mix of the obligation it had undertaken
toward him to make and deliver such concrete. Thus, I do not see how Ready Mix
could validly require that, as between itself and Bilodeau, the burden of
compensating for the damage be shared, or in other words, how it could fairly
be heard to say to Bilodeau: “Because you failed to supervise me properly, and
you were bound to do so by your undertaking to the contractor, you must share
with me the burden of making compensation and, to that extent, relieve me of
it”.
Is the situation different in the case at bar,
on account of the clause cited by Mayrand J.A.? Assuming that this clause is in
fact a stipulation for the benefit of third parties, can the contractor claim
that the engineer failed in his duty to the contractor to comply with it? For
the reasons already stated it does not appear to me that the contractor can say
that it relied on the engineer in adopting the work method it used. This method
was in principle its responsibility. Without the special stipulation in his
contract with the owner, the engineer would not have been obliged to give
advice on this subject, and I see nothing to indicate that in fact the
contractor asked him for any; on the contrary, it seems to have acted precisely
as if this special stipulation did not exist, and to have behaved toward the
engineer as if the latter were only responsible for preparing the plans for the
work and for supervising it. I have seen nothing to suggest that the contractor
knew before the acci-
[Page 176]
dent that, pursuant to a special stipulation in
his contract with the owner, the engineer was obliged to make himself available
to give advice. Assuming that it was not necessary for the contractor to have
been aware of this stipulation, it must now, in order to take advantage of it,
be able to show that the engineer failed to comply with it and that this
failure is a cause of the damage it suffered. This is what I cannot find.
I see no evidence that the engineer failed to
make his engineers available to the contractor to provide it with the
information and instructions it needed. That he failed to supervise the
contractor adequately is clear; he implicitly approved the work method without
sufficient verification, he allowed the cells to be pressurized without making
sure that they had the required resistance, and so on. What weighs most heavily
against him is undoubtedly the error of his employee Forgues who, having made
calculations which revealed the danger, allowed the work to proceed with
obviously inadequate reinforcement. He did not take the trouble to examine or
have someone else examine such a serious problem in depth. But, is the
contractor whose employees, two engineers, did not pay proper heed to the
serious danger which the brief calculations revealed to them, in any position
to blame Forgues and his employer for anything except for not having performed
proper supervision? Can it say that it was not given the advice it needed when
accurate, albeit brief, calculations indicated the danger, and it was the one
that, through its representatives, did not give the danger sufficient
consideration? This was essentially its own responsibility, the work method.
There was, I repeat, no defect in the work in itself, only in the work method
adopted by the contractor: the latter is not a workman, but a consortium of two
construction companies with extensive experience in this kind of work, and it
had engineers in charge of the operation.
I have already quoted the correspondence between
the contractor and the engineer regarding the document entitled “Caisson
sinking Pier N-2”.
[Page 177]
It shows, in my view, that the contractor did
not ask the engineer for professional advice but merely complied with the
obligations imposed on it. It would be different if the contractor had sent the
engineer a letter along the following lines:
In order to avoid having to remove the
domes from the bottom of the wells under water, we are thinking of putting in
compressed air so that we can carry out this removal before flooding the work
chamber rather than afterwards. Would you please study the method proposed for
this purpose and tell us if this can be done.
If after receiving such a request the engineer
had in any way, directly or through an engineer in his employ, given the
contractor a professional opinion approving the proposed method, then the
contractor might claim that it had relied on him and be entitled to maintain
that, in view of the stipulation for the benefit of third parties, the engineer
must bear the same responsibility as if the contractor had retained his
professional services. This is not what happened. The contractor considered
that this was a problem not pertaining to the structure of the project but to
the method of carrying out the work, and that reinforcing steel in the concrete
was required only in connection with the work method it had adopted. It relied
only on its own engineers.
The document entitled “Caisson sinking Pier N-2”
was prepared before the caisson began to be built. The sentence I have
underlined in the extract I have quoted shows clearly that the contractor’s
engineers responsible for the calculations, the design, did not overlook the
stress that would be caused by the compressed air when the bottom domes would
be removed. Their error was in taking this into account only in the horizontal
direction. Surprising though this may seem, it was not because they did not
think of it, but because they wrongly concluded that there was no need to be
concerned about it. Testifying for the plaintiff at trial, Stephen
Revay, who had been one of the engineers employed by the contractor on the
building of the caisson, told the Court:
Based on my recollection, we anticipated
the need of horizontal reinforcing steel and we concluded that no vertical
steel was needed.
[Page 178]
This may explain, though not justify, how it may
have happened that Eryasa simply refused to consider Forgues’s observations.
When Forgues subsequently went to tell Jennings about his misgivings, it was
the latter who calculated the vertical reinforcing steel he was going to add.
Forgues, called as a witness for the plaintiff, stated that the
calculations which appear following his own on the document were the work of
Jennings, as was the diagram accompanying them. Jennings seemed to have
forgotten this, but he did not deny it, and what he said about the interview
tends to confirm it: “… the result of the conversation was that I instructed
our people to place these bars…”
I do not think it can be said that in these
circumstances Forgues committed a fault. There is no error in his calculations
and they clearly indicate the danger. It is Jennings who then made an error by
taking steps that were not sufficient to correct the situation. Forgues was not
an engineer responsible for the calculations, the design, of the work. He was
not the person who would have given advice if the contractor had asked for any.
He was only a supervisor, who nevertheless became aware of the danger and
pointed it out to the contractor’s engineers. He felt professionally outclassed
by them and accepted their decision:
[TRANSLATION] … Since Mr. Jennings had
experience with pressurized pneumatic caissons and was more familiar with the
problems, being a caisson expert, he was in a better position than I was to
know what the concrete could bear …
In Davie Shipbuilding et al v. Cargill
Grain et al., this
Court had to rule on the responsibility for the collapse of a warehouse that had
caused major damage. The plaintiff was the owner of the warehouse, a large
American company in the grain business which had its own engineering department.
A large Canadian engineering company had been given the contract for the plans
and the supervision of the work, which was carried out by some large Canadian
construction companies which also had engineers of their own. On the facts, the
conclusion reached by the Court was (at
[Page 179]
p. 580) that the cause of the collapse was
an incorrect calculation of the pressure of the grain inside the building, and
that the error in this calculation came from what were referred to as “the
original design assumptions for grain pressure”. These factors in the
calculation had been established by the owner’s engineers, who had supplied
them as basic data to those who had been given contracts for the work. The
conclusion was that the owner was solely responsible for the entire loss.
Speaking for a unanimous Court, de Grandpré J., after reviewing legal theory
and case law, said (at p. 577):
In order to escape liability, is it
necessary for the evidence to establish that the owner had greater competence
than his architect and contractor? Certain expressions used in France lead to
this belief; thus in various places it is noted that the knowledge of the owner
“out-classed” the knowledge of the specialists. However, I believe that the
true meaning of the words used in the case law and theoretical discussion goes
beyond a simple question of more or less. The picture must be seen in its
entirety. The point of departure is the liability of the specialists; they are
liable if the evidence does not establish a cause of exoneration resulting from
the owner’s action to the satisfaction of the Court. If he has great expertise
in the field, clearly surpassing that of the persons who performed the work,
the latter will completely escape liability. If, however, the owner’s expertise
is approximately equivalent to that of the specialists, their liability will
only be mitigated.
French legal theory and case law impose one
condition on the exercise of this defence: that the persons performing the work
not willfully close their eyes to mistakes by the owner which could affect the
security of the work. I accept this condition. Having an expert in the field as
a client, the persons performing the work are not obliged to go over on site
everything the owner sends them as basic data and documents. However, if the
persons performing the work have questions on reading these data and documents,
they have an obligation to inform the expert owner, thereby giving him the
opportunity to make his decisions with full knowledge of the situation.
Is not this reasoning directly applicable to
Forgues’s meeting with Eryasa and Jennings? The action was based on
art. 1688 C.C., the application
[Page 180]
of which was beyond dispute. This is disputed
here because the loss occurred during the course of the work but, be that as it
may, the conclusion on the law arrived at by de Grandpré J. (at pp. 577-78)
conclusively disposes of this contention:
There is another aspect of 1688 which must
be noted. If the circumstances justify application of the rule in favour of the
owner, the persons who performed the work must be held jointly liable. However,
as between themselves, the burden will finally be on the one responsible for
the basic fault. If there was a defect in the plans or in the architect’s part
of the transaction, he must indemnify the contractor. Conversely, if the loss
results from the construction as such, the architect has a complete remedy
against the contractor. The fact that the architect and the contractor had
certain duties to check the other’s work changes nothing; the primary cause
must still be sought. See as to this Bilodeau v. Bergeron, [1975] 2 S.C.R.
345, which, although decided on a point not covered by art. 1688, seems to
me to state the relevant principles.
On the whole, it seems clear to me that there
can be no liability of the engineer Demers toward the contractor under 1053 or
1688 C.C. because the accident was not caused by faulty design of the
work but solely by a bad work method adopted by the contractor. The only
possible source of liability toward the latter is therefore the stipulation for
the benefit of third parties in the contract between the engineer and the
Corporation du pont de Trois-Rivières. The faults for which the Court of Appeal
held him liable were, it appears to me, faults in supervision only, of which
only the owner of the undertaking is entitled to complain. I can find no failure
to perform the obligation imposed by the stipulation for the benefit of third
parties. This clause does not appear to me to require the engineer to take any
initiative: “He shall make himself … available to … the contractors … in order
to provide them with the information, advice and instructions they need in
carrying out the work.”
In my view, this stipulation did not oblige the
engineer to go to the contractors and instruct them to avoid any error in their
own area of responsibility: the method of carrying out the work. If the
contractor chose not to ask him for advice, he was
[Page 181]
not obliged to give any. In the Dictionnaire
Robert one reads:
[TRANSLATION] To keep, to make oneself
available to someone: to undertake, to serve, to await his orders, to be
ready to give him satisfaction.
Forgues went beyond what the engineer was
obliged to do and committed no fault in giving correct information, even though
he did not then see that his observations were followed by orders designed to
remedy the inadequacy of the precautions which the contractor was taking to
avoid the danger that had been pointed out to it. In respect of the
professional services contemplated therein, the stipulation for the benefit of
third parties obliged the engineer to “await orders”, from the contractor not
to issue any.
For these reasons I would allow the appeal,
reverse the decision of the Court of Appeal, restore the judgment of the
Superior Court and dismiss the cross-appeal, the whole with costs throughout
against respondents.
Appeal dismissed, cross-appeal allowed
in part, with costs, PIGEON J. dissenting.
Solicitors for the appellants: Campbell,
Pepper, Laffoley, Legault & Langlin, Montreal.
Solicitors for the respondents: Gilbert,
Magnan & Marcotte, Montreal.
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