Was The Warning Given By The Builder Sufficient To Exclude Any Implied Fitness For Purpose Obligation?

Mr Justice McCombe in the case of Baylis Farms Ltd v R B Dymott Builders Ltd, [2010] EWHC 3886 (QB), had to consider to whether a drain was fit for its purpose and/or whether the builder had given a sufficiently clear warning about the risks of proceeding with the construction of the drain such as to exclude any implied warranty of fitness for purpose.

The Facts

Dymott undertook improvement works on premises owned by Baylis on the basis of oral instructions without a written building agreement. The works included the creation of an office, lavatory and kitchen in an old dairy building with associated drainage works.

Following completion of the works, and faced with a refusal by Baylis to pay certain outstanding invoices, Dymott sued Baylis for the unpaid sum of £4,933.83. Baylis counterclaimed for defective works, namely defective construction of a drain from the new lavatory (£2,500); a leaking cistern system in the lavatory (£500) and defective doors (£80).

At Baylis' request, Dymott had laid the drain to an existing manhole outside another building on site and from there through an existing drain to an existing septic tank. Part of the drain did not produce the fall that would be required by good building practice and/or by building regulations and this eventually caused the drain to block. The drain was "not fit for purpose".

There was a dispute of fact as to what had been said in an important conversation between Mr Dymott and Mr Baylis about the adequacy of the fall in that part of the drain. Dymott alleged that Baylis was warned that the fall was inadequate but Baylis instructed Dymott to install the drain anyway. Baylis contended that Dymott had confirmed that notwithstanding the non-compliant fall the drain would probably work and it was in reliance on that reassurance that the instruction was given.

The Judge at first instance was not satisfied that the inadequate fall was the cause of the drainage problem, given the period of time that passed without complaint and the fact that the septic tank was problematic and had not been serviced regularly. In dismissing the counterclaim in relation to the drain, the Judge also held that Dymott was not warranting that the new drain would work, having pointed out that the fall was inadequate, but having received instructions to carry on nonetheless.

Dymott obtained judgment for the amount claimed plus interest, less £80 awarded to Baylis on its counterclaim for the doors. Baylis was ordered...