Local authorities fail in damages claim against contractor over botched road repairs

Tayside Contracts claimed that the chippings it purchased from D Geddes (Contractors) Limited for road surface dressing works were “not fit for purpose”, but a judge in the Court of Session absolved the defenders after ruling that the pursuers had failed to prove their case.

Lord Doherty heard that the pursuers, a combination of local authorities carrying on business under the name Tayside Contracts, carried out works on a number of roads for Dundee City Council, Angus Council, Perth and Kinross Council and for Falkirk Council in the summer of 2010.

Loose chippings

The pursuers purchased from the defender the aggregate chippings they used for those works, but many of the works failed in early course.

Lord Doherty said: “In the autumn of 2010 there were some reports of loose chippings on roads which had been surface dressed, but I am satisfied that at that stage the number and nature of the reports were not markedly different from what might usually have been expected following works of this type.

“Significant failures did not emerge until after the onset of very cold weather. The winter of 2010/11 was exceptionally cold and severe.

“During January 2011 it became evident the nature and scale of loose chippings reported was very significant indeed.

“By the early spring of 2011 it was apparent the problem was widespread and that most of the surface dressing sites had experienced some degree of failure.”

In all, the total quantity of chippings purchased from the Geddes Group’s Waulkmill Quarry near Arbroath was more than 8.7 tonnes, for a total price of £176,631.

Not fit for purpose

The pursuers raised a commercial action maintaining that the chippings were “not of satisfactory quality” and that they were “not fit for the purpose” of use as surface dressing on roads in eastern Scotland, as about 90% of the work had to be redone.

They claimed that as a result the defender was in breach of the terms implied into the contracts of sale by sections 14(2) and 14(3) of the Sale of Goods Act 1979, and sought damages in respect of those alleged breaches.

Tayside Contracts averred that the mechanism of failure of the surface dressing was that the chippings had been liable to “dusting up”, and that because they had dusted up before use there had not been proper adhesion with the bitumen binder.

Cause of failures not established

However, the judge noted that it was common ground between the parties that there was “no evidence” that dusting up had actually occurred.

He said: “The chippings were produced to meet demand for deliveries. They left the quarry very soon after crushing. They were ‘fresh’ when delivered - clean and unweathered. Had they been dirty or dusty when delivered that would have been evident to the pursuers and they would have been returned (as indeed a very few dirty deliveries were). Had they dusted up when stockpiled by the pursuers that would have been detected before use.

“That had not happened. Once delivered the chippings were used relatively quickly: within a matter of days in some cases and, generally, within a few weeks. For all of the foregoing reasons I am not satisfied on the balance of probabilities that any of the failures of the surface dressing were caused by dusting up.”

The second suggested cause of the failures was that the Waulkmill aggregate’s mineralogy made it “susceptible to stripping” of the aggregate from the binder emulsion, particularly in the presence of water.

But having considered the views of the civil engineering experts who gave evidence, Lord Doherty was not satisfied on the balance of probabilities that the mineralogy of the Waulkmill aggregate made it prone to water absorption and adhesion loss.

The third argument was that if the court was not satisfied that the failures were caused by one or other of the suggested causes, it “should nonetheless be satisfied they were caused by some unknown characteristic of the aggregate which made it of unsatisfactory quality or unfit for the purpose of use in surface dressing on roads in eastern Scotland.”

The “bold” submission was that although the aggregate satisfied all relevant applicable industry standards for road surface dressing, and although the only specific mechanisms of failure of the aggregate which were posited may be rejected, the court should nonetheless hold that some unknown feature of the aggregate was the source of all of the failures of the surface dressing.

Absolvitor

However, the judge held that on the evidence, the cause or causes of the failures had “simply not been established”.

In a written opinion, Lord Doherty said: “In conclusion, I am not satisfied on the evidence (i) that the failures all had a common cause; or (ii) that all potential causes other than a problem with the aggregate may be eliminated; or (iii) that some characteristic of the aggregate was an effective cause of each of the failures. On the evidence the cause or causes of the failures have not been established.

“The pursuers have failed to prove their case. It follows that the defender is entitled to decree of absolvitor.”