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Wilson v Mills [1984] CKHC 6; HC Plaint No 41 of 1984 (31 August 1984)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA

(CIVIL DIVISION)

PLAINTIFF NO. 41/84

BETWEEN

GREGORY J WILSON
of Titikaveka, Rarotonga, Blocklayer.
PLAINTIFF

AND

KENNETH MILLS
of Titikaveka, Rarotonga, Building Supervisor.
DEFENDANT

Date of hearing: 20th, 27th July 1984
10th and 14th August 1984.

Date of judgment: 31 August 1984.

Counsel for plaintiff: Ptf appeared for himself.
Counsel for defendant: Dft appeared for himself.

DECISION OF SPEIGHT C.J.

As with many building disputes this case presents a sad story. Sad because the finished product has left much to be desired, yet from my observation of some of the work done and from advice received Mr Wilson is a competent tradesman capable of acceptable work, given appropriate circumstances. Similarly, Mr Mills is an experienced architect and the finished product is not up to the standards he would require in the practice of his profession.

There have been a number of factors contributing to the unsatisfactory result.

1. First and above all the very inferior nature of locally manufactured concrete blocks - particularly in those available for the upper floor. Mr Greg Wilson says that he protested about having to use the very defective blocks upstairs - he has demonstrated their gross irregularities - and I accept that he only agreed to do that work under protest.

2. It was a stop-start job, which often produces patched up work when things are done out of normal sequence. The responsibility for lack of co-ordination and continuity possibly rests with the owner and the builder but it does not rest with Mr Gregory Wilson.

3. Mr Mills was apparently unavailable for substantial periods. Had communication with him been more frequent and had he had the opportunity to exercise his supervision skills, mistakes could have been avoided.

4. I think when troubles arose not enough care was taken by Mr Greg Wilson to cope with difficulties, such as the existence of the rafters, and the absence of proper cutting equipment, and some of the work with the poor blocks may have been done by a less experienced assistant.

The Agreement

Originally was for $43 per 100 blocks and no variation was consented to by Mr Mills. The ground floor block work appears to have been satisfactorily done, probably because it was straight forward and reasonably satisfactory blocks were supplied.

The local rate applicable by the time the shed was completed and the first floor was reached had increased to $50 but no step was taken to negotiate an increase. Complications had arisen on the first floor and I will discuss these in a moment, but in the absence of consent to an increased rate, the earlier price of $43 per 100 must still apply to the straight forward ground level shed. 111 blocks gives $47.73.

The First Floor

For a reason for which Mr Greg Wilson was not responsible the rafters were put in before the upstairs work. And this made it an entirely different proposition than a straight forward "dollars-per-hundred" job. When authorised work is done without an agreed price which is relevant in the circumstances the law says "Quantum Meruit" - i.e., what was it worth?

The flat rate originally agreed upon could no longer apply because the owner or builder had departed from the originally intended method, so in the absence of agreement, he is entitled to a fair rate. In his invoice Mr Wilson claimed an hourly rate, because he was now having to cut and fit under rafters - an unusual method - and he was using odd sized blocks which required juggling around. That is a fair basis and his claimed rate of $9 per hour for himself and $3 for his assistant is acceptable. But his claim for 53.5 hours surprises me. As a check we see that even at the new rate $50 for 100 blocks would mean that at $12 hourly rate the two men should lay 24 blocks per hour on straight forward ground level work. I accept straight away that at first floor work, including cutting and fitting under the rafters a much slower rate would result.

But having checked with both Mr Mills and Mr Wilson I am informed there are 364 blocks on the first floor - this averages just under 7 blocks per hour - even with the site difficulties this seems far too low. Given the difficulties and the extra work it seems to me that at least 50% of the ground floor rate should be expected and I could not accept a charge of more than 27 hours at $12 which would give $324 for this part of the job. I know that Mr Wilson has said that part way through the job he ran out of cutting discs and had to improvise with grinding wheels and this slowed him down. That however is not a matter Mr Mills should have to pay for. A subcontractor must supply proper tools, and if, through misfortune because of unavailability of replacements, the job proceeds slowly, he must bear that responsibility. Indeed this difficulty probably explains the high number of hours.

Giving it the best consideration I can, on somewhat inadequate information, my best estimate of Mr Wilson's claim is:-

However Mr Mills counter claimed for quite large sums saying that the workmanship was defective and he would have to spend additional money to rectify.

Faults Alleged

(a) Gaps in the bond beam at the downstairs window. Apparently this is not uncommon and a few minutes pointing would fix it;

(b) The joints - these are uneven in parts but the blocks are not uniform in size and with the exception of the raking walls are not attributable to bad workmanship. However, apart from unevenness they are not neatly or evenly cleaned out and blobs of cement appear. Mr Wilson acknowledged these faults - especially in the stair well area;

(c) Lack of plumb - that to the left of the upper bedroom door is apparent - but could easily be covered by an architrave - I think it was so intended. But the bedroom wall has not been kept as straight as careful work would require - some blocks protrude one side and recess the other. Mr Wilson acknowledged this as faulty;

(d) The raking walls - as viewed from the lounge - have very ragged edges.

Part of the cause of the difficulty was the pre-erection of the rafters - but proper cutting tools produced a satisfactory result elsewhere - inability to achieve this when grinding had to be resorted to must be the fault of the blocklaying contractor;

(e) Non aligned perpends - these were partly contributed to by the difficulty of building with rafters in place - the lack of alignment would probably not be so noticeable but for the very wide and poorly finished joints - especially on the wall inside the front door on the left. Nevertheless the blocks they are particularly poor;

(f) Conduits - the evidence as to what portion of extra costs incurred was attributable to the block layer is vague to the point of being guess work. The onus of proving this was on the Defendant, and I am not satisfied that the small amount of cement which may have dropped in the one conduit shown in the coloured photo has any relation to the high bill from MacKays.

Excluding the conduits therefore it must be said that part of the troubles are due to the rafters being put up first, part is due to particularly irregular blocks and part by defective workmanship. The difficulty lies in dividing financial responsibility.

In the case of defective workmanship in a building contract the normal measure of damages is the cost of rectifying the work - unless that cost is disproportionate to the benefit gained. The difficulty here is deciding what remedial work is the responsibility of the builder.

Conclusion

I believe that bad blocks made plastering inevitable on those special feature walls in the lounge which the visitor sees from that room - the block layer could have made a better job, but it was still going to call for plastering. In the stair well however, where the observer would not get such an "all over" view, the poor shaped blocks would probably not have been particularly noticed but for lack of plumb - plastering is reasonable for this area too, but would not have been necessary but for the bumps and hollows caused by poor laying. It is hard to apportion how much of the anticipated plastering cost was needed in any event (i.e., the raking walls) and how much is attributable to the lack of plumb in the stair well and bedroom wall. Plastering the raking wall however will cost more because of the scaffolding needed and the greater area. My best estimate is 2/3:1/3.

Award

Counter-claim

Now the foregoing has depended a great deal on my assessment, partly due to the vagueness of the information now available - and partly due to the impossibility of assessing responsibility for the mistakes made. And in assessing figures I am particularly doubtful about $5 per square meter for painting. My understanding is that three coats of paint would cost less than $2 square metre and $3 would be excessive for labour.

There is only one small note of comfort. I advised Mr Sharp that as a referee advising me he was entitled to charge a fee for his time, which would have to be paid by the parties. He said that in view of his relationship with both parties he would not charge for his services - he is entitled to have that kindness recognised, and I thank him for his help.

Putting the cost of cutting the raked wall aside for one moment, we see my estimate of a proper charge for block laying and the cost of remedial work of plastering and painting virtually balance each other out. Given the vague nature of some of the information and need for making estimates I propose to treat these as cancelling each other out.

Mr Wilson however must bear responsibility for the ragged lines on the top of the raked walls. I therefore make no award on Mr Wilson's claim and Mr Mill's counterclaim succeeds to the extent of $128 only.