Construction firm loses sale of goods action over driving hammer

A construction company has failed in its action against a company it alleged had sold it a defective pile driving hammer, causing it to be unable to fulfil its obligations under another contract.

MG Construction Ltd raised the action against AGD Equipment Ltd on the ground that the hammer was not of satisfactory quality under the Sale of Goods Act 1979.

The case was heard in the Outer House of the Court of Session by Lord Ericht.

Pre-existing crack

The pursuer had been contracted to drive piles on a site in Portobello. On 17 May 2015, the pile driving hammer they had been using broke due to its ram box, part of the mechanism that acted as a guide for the hammer, breaking into two parts. On inspection, it became apparent that it had been sheared along the lines of a pre-existing crack that had been previously repaired by a weld.

The pursuer’s position was that the casualty weld had not been made by the pursuer, and thus had been made before delivery of the hammer. It also suggested that there had been an attempt to conceal the weld with paint. The defender maintained that they did not make the weld, and suggested that the pursuer may have misused the hammer before the incident.

The evidence led by the pursuer was that it purchased the hammer from the defender in 2014. The pursuer maintained that there was no evidence of misuse of hammers in the 28-year history of the company. When the defective hammer was returned to the defender, the pursuer retained the smaller part of the ram box containing the failed weld, but it subsequently became lost.

Counsel for the pursuer submitted that the pursuer’s witnesses would have known about any failure that occurred while the hammer was in the company’s possession. They also submitted the actions of one of the pursuer’s employees, Scott Jack, who applied a weld to the ram box to check for cracks five days prior to the date the hammer failed, did not amount to a break in the chain of causation.

The defender submitted that it was for the pursuer to satisfy the court that the hammer was not of satisfactory quality under the 1979 Act, and the pursuer had failed to discharge this onus. It maintained that it did not carry out the casualty weld, and that it was possible that it was done by Mr Jack without any of the pursuer’s witnesses knowing anything about it.

Conflict of evidence

In his opinion, Lord Ericht said of the dispute over the causation of the casualty weld: “The fundamental difficulty which the pursuer faces in this case is that it has not led Mr Jack in evidence. All we have is what he wrote in his report. He has not been made available for cross-examination on whether what he wrote in his report was true. We do not have his evidence on the state of the ram box when he first saw it. Without hearing from Mr Jack we cannot resolve the conflict of evidence between his report that there was a crack and [the evidence of another witness] that there was merely a blemish.”

Regarding other evidence that there was a “blemish” in the paintwork that the pursuer argued suggested someone else had made the weld, he said: “Absent evidence from Mr Jack, a blemish cannot be accepted as circumstantial evidence pointing towards the casualty weld having been made prior to delivery. It is contradicted by Mr Jack’s report that there was a ‘crack’, and without Mr Jack’s evidence the court cannot resolve that contradiction.”

Of the absence of part of the ram box, he said: “The pursuer’s position was that the failure of the hammer was caused by stresses applied after delivery, in the course of normal operation of the hammer, to a casualty weld which had been made prior to delivery. This position was undermined by [the acknowledgement of an expert witness for the pursuer] that she could not see what the failure mechanism was because she had only been able to examine a small strip of the weld and had not been able to examine the Smaller Ram Box Section.”

He concluded: “The circumstantial evidence led was not sufficient, on its own, to satisfy the onus. The pursuer’s expert evidence did not satisfy the onus as it was limited by the lack of opportunity for the pursuer’s expert to examine the Smaller Ram Box Section and by the location from which paint samples were taken. In these circumstances the pursuer has failed to prove its case.”

For these reasons, which rendered it unnecessary to consider the effect of Mr Jack’s actions on causation, Lord Ericht granted decree of absolvitor in favour of the defender.