COLIN MCKENDRICK AGAINST MR STEPHEN CUMMING AND MRS HEATHER CUMMING
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2016] SC EDIN 61
SA599/16
JUDGMENT OF SHERIFF T WELSH QC
In the cause
COLIN MCKENDRICK
Pursuer
Against
MR STEPHEN CUMMING & MRS HEATHER CUMMING
Defenders
Pursuer: Wishart, Lay representative; Party
Defenders: Party
The Issue
[1] On 8 June 2015 the pursuer contracted with the defenders to install a wooden sub frame capable of supporting composite UPM ProFi decking, a well-established off the shelf brand of decking, in the defenders’ back garden. The parties agreed that the defenders would pay for the decking and installation materials which cost £2458.86. The decking was acquired from Keyline Builders Merchants, a wholesale supplier of building materials and paid for by the defenders. Essential to the contract, the pursuer offered to erect a timber platform, capable of supporting the decking. The timber platform was attached to the back of the defender’s house to allow access via patio windows onto the decking and down two steps into the garden. To build the framework, the pursuer purchased timber for £866. He also agreed to do the entire construction job himself, for £800. The defenders do not dispute that the £866 lumber cost is their responsibility. However, they fell out with the pursuer over the quality of the workmanship put into the construction of the frame and decking and refused to pay his £800 labour cost. In addition to disputing his charge they now counterclaim in the sum of £2860, which they aver was the cost of unfixing the defective decking from the framework, remedying the underlying faults in the framework, relaying the decking and doing the job properly.
The Parties
[2] The pursuer was a family friend of the two defenders. They have all known each other for approximately 15 years. The pursuer has worked as a gardener for the defenders in the large garden which is part of their well-appointed home in a pleasant residential area of Edinburgh. Heather Cumming is a mum and housewife. Stephen Cumming has his own design and print business. They have a young energetic family and the addition of decking at the rear of the house was intended to increase the living space the family could enjoy and give their children safe easy access from home to garden.
[3] The pursuer and defenders have fallen out badly over this case. Initially the case was sent to mediation but that failed. The case called before me on 17 and 19 August for proof. The pursuer was represented by a lay representative, Mr Wishart, a retired solicitor. The defenders represented themselves. At the outset I raised the question of a practical resolution of the case to avoid the necessity of a proof. The defenders indicated they would offer the pursuer £866 for the lumber cost, on a pragmatic, no expenses due to or by basis, to resolve the case. This was unacceptable to the pursuer and the case proceeded to proof.
The Pursuer’s Proof
Colin McKendrick (This note of his evidence is not intended to be exhaustive)
[4] The pursuer gave evidence. He is 60 years of age and a landscape gardener. He was previously a sheet metal worker. He spoke to the contract he had with the defenders based on his offer of 8 June 2015. He indicated he had constructed decking in the past and never had any complaints about his workmanship. Most of his work came from personal recommendations. Initially the contract was for decking, steps and planters at the side of the steps but he indicated the ‘big picture’ was the decking. He bought the decking for £2458.86 from Keyline Builders Merchants, using the defenders’ credit card. He himself paid £866 for the timber to erect the framework to support the decking. During the course of his evidence he conceded he seriously underestimated the amount of work involved in erecting the platform and fixing the decking. However, he indicated he agreed with the defenders that the decking should have some degree of slope to allow for drainage. He stated there were criticisms of his work from the clients but he considered none of these were significant. The pursuer was aware the defenders had gone to a recommended UPM decking installer for a second opinion about the decking by August 2015. This was Dan Hewins, a joiner from Falkirk, who surveyed the pursuer’s completed decking and reported on 10 August 2015. His various criticisms are contained in P4. He submitted a quotation to rectify the decking for £1875 plus VAT and labour at £375. His criticisms were 7 in number. These were put to the pursuer in an e mail from the defenders of 11 August 2015. The criticisms were:
1. Uneven levels of sub-frame from joist to joist and overall front elevation slopes to the right.
2. Joists require to be supported on posts not on brickwork.
3. Expansion gaps in deck boards not equal due to boards not being trimmed square either end (boards are supplied 4020mm to allow square trimming to 4000mm with clean cut).
4. Starter clips have not been used at bi-fold doors and boards are loose, silicone will not stick to UPM decking.
5. UPM rail step has large expansion gaps, and not required if fixed correctly.
6. Steps to front and side have face screwed boards, need levelling and rail step has been fixed mismatched.
7. Around the perimeter between deck board and rail step most clips are missing.
The pursuer said the defenders intimated in the same e mail that they were not prepared to pay any more money to the pursuer and all the money at that stage still due under the contract should be applied to remedying the defects, as they saw it. The pursuer replied to this e mail on 12 August 2015. He disputed that the criticisms were either accurate or substantial and indicated that he could remedy any of the issues raised. In evidence the pursuer denied that the decking was unstable. He described it as ‘fantastic’ and ‘rock solid’. He was adamant that the decking was level and fit for purpose. However, the defenders remained dissatisfied. They took legal advice and gave the pursuer an opportunity to address the issues raised in Dan Hewins’ report. The pursuer was of the opinion that the issues raised by the defenders were cosmetic and trivial. However as at August 2015 he maintained he had a right to remedy minor defects and claim his contracted fee. The pursuer also spoke of a garden meeting with the first defender, Stephen Cumming, at about this time when the customer’s dissatisfaction about the quality of the decking was discussed. In the event the defenders again took legal advice and the pursuer was retained on the job to address the defects, as the defenders saw it and to complete the contract. However, it became apparent to the pursuer that quite separately Heather Cumming had contacted the international sales director of the decking supplier UPM, Peter Stewart, who agreed to visit the site in November 2015 while he was on business in Edinburgh. He too submitted a report, P14/A, following a visual inspection of the decking. The pursuer was not present at either the Hewins or the Stewart inspection. However the pursuer was given sight of Mr Stewart’s report. According to that report “The deck in (sic) holding water at one or more points on the deck and there is a clear dip at the mid-point of the main deck – in front of the house adjacent to the garden…….The unevenness of the timber frame must be resolved to ensure the deck drains correctly. To do this the deck boards need to be removed and the timber frame adjusted.” Mr Stewart remarked that most of the decking had been installed correctly but it was noticed “….the wrong clips have been used in certain areas.”
[5] From the pursuer’s productions which were referred to it was obvious that the defenders’ solicitors had now become involved and by September 2015 there was an acrimonious and terse correspondence between the pursuer and the solicitors about the defenders’ complaints with regard to the decking. However, in the event, the pursuer was given his place and the defenders allowed him to attempt to make good the various problems identified. Between November 2015 and 12 February 2016 remedial work was carried out. In evidence the pursuer described the finished product as ‘a belt and braces job’. He was of the opinion that he had created a product which conformed to contract and was built to a high standard. As remedial work, he explained he removed the decking and cemented 5 additional posts in place which were bolted to the structure. The platform was sitting on 40 concrete/breeze blocks. He adjusted the height slightly by raising the right hand side and lowering the left hand side. In the pursuer’s view the decking was solid and could not move. The pursuer said he checked this against a laser spirit level. In his opinion the surface was dead level and plumb. Reference was made to P 19 which is an e mail of 5 February 2016 from Heather Cumming to the pursuer. This complains that the remedial work has not been done as requested by the defenders. It is said that the decking ‘appears’ more level because the pursuer used ‘packers’ underneath. The e mail also raises issues with regard to the steps at the side and front of the decking. The defenders complain that the corner mitres “…are terrible and there are pieces of decking moving….it is also not level and there are still cuts in the decking that shouldn’t be there. You have not replaced the decking that you drilled through as you agreed to do. We gave you instructions from UPM on how to build the steps properly….” A further opportunity was extended to the pursuer to remedy the defects. By a reply on 9 February 2016 the pursuer indicated what he did by way of adjusting the under frame. He denied that there has been any procrastination in the completion of the job and stated “I also refute any suggestion the work carried out is flawed. The decking is completely level and rests on solid foundations, in view of the additional work carried out in inserting the 5 x posts….I would go so far as to say myself that the decking is up to a very high standard and is rather attractive”. The pursuer in that e mail demands full payment by 24 February 2016 otherwise he states he will commence legal proceedings. By reply on 12 February 2016, the defenders reiterate their dissatisfaction stating “….we have already stated that the levels of the main deck appear to be fine, we made clear that our issue was with the steps….we are not prepared to pay you the sum you have invoiced us. We have given you every single opportunity to make good this project. We are now not prepared to let you back on the property.” They then ask for their keys back. In evidence the pursuer stated that so far as he was concerned the problem with the steps became an obsession with Heather Cumming. She was also obsessed about the use of screws on the facia boards at the front of the decking to secure it to the sub-structure. She did not want these. The pursuer thought this complaint trivial. He gave evidence that the specification of the side and front steps had been agreed early in the project on an occasion when Heather Cumming’s father was in the house. The option of a single boarded step was too narrow and a possible safety risk. According to the pursuer a double boarded step was agreed at this stage and he proceeded to make bespoke steps on the side and at the front of the decking. He said the finishing of the corner mitres of the decking and the steps were all completed with safety in mind. He had smoothed off any sharp edges to the finishes using a plane. According to the pursuer, after this action was initiated he happened to be walking his dog near the rear of the defender’s garden when he saw the then remedied decking with an entirely different ‘wrap around step’ on it. He photographed this in P5/30 and it confirmed in his mind that the defenders had altered the original contract and a new step had been created which he believed the defenders wanted him to pay for through their counterclaim. He said his steps were safe and secure and built to a proper standard. The problem was that Heather Cumming had been shown a ‘rail step’ which is a totally different kind of step, which is contained in the diagram form in P26 and this accounts for her obsession with changing the step agreed in the contract. When asked about the counter claim the pursuer indicated he considered the two reports from Dan Hewins and Peter Stewart to be ‘hatchet jobs’, by which he meant the authors had come in with an eye to secure the contract for themselves and unnecessarily and unfairly criticised the quality of the workmanship done by the pursuer. He also deponed that, in his opinion, the pre-litigation report by Cameron Elliot, D6/1, dated 28 March 2016 was also a hatchet job and the counterclaim itself was fraudulent because there was nothing wrong with the quality of the work he did and the defenders were trying to get him to pay for this new wrap around step which was not in the original contract. He said the steps he made were securely attached to the sub-structure by an ‘almost tongue and groove’ connection which he had secured with screws and timber. The steps were custom built. When shown the defenders’ photographs taken after Cameron Elliot had removed the decking to do remedial work he accused the defenders of ‘doctoring the photographs’. He said repeatedly he was never given a chance to remedy the defects identified by the customer. The counter claim was for a different job.
[6] The pursuer was cross examined by the defenders. Inevitably this started with the best of intentions but frequently descended into acrimonious quarrelling. If nothing else was forensically achieved, the bitter exchanges enabled me to further reflect on the depth of feeling involved on both sides. When the counterclaim was put to the pursuer and it was suggested the sub-structure was unstable he disagreed. He said the supporting beams were on 5 concrete blocks and 40 breeze blocks. The whole structure when completed weighted more than 2 tons. The 40 blocks were rock solid and the counter claim based on Cameron Elliot’s report was a hatchet job done to get the contract from the pursuer. He repeated his structure was rock solid. When shown D6/P1 the defender’s photograph showing the side step on the day Cameron Elliot visited he said ‘that was a solid step it was not dangerous’. He was shown photo D6/P8 from the defenders’ book. This showed ‘cleats’ the pursuer had custom made to help attach the facia boards to the sub-structure. They were his own invention and not fixings recommended by the manufacturer. He said the cleats were galvanised and strongly welded by him. He had a background in sheet metal working. He said the corner mitres were all level and well filed when he left the job. He said the whole decking was constructed with family safety in mind. It would not collapse. He took a belt and braces approach and carried public liability insurance. He said he put the 5 extra posts in at no extra cost. He said the clients were unhappy with his work and got a new contractor. It was put to the pursuer he used silicone as an adhesive to connect the sub -structure to the house and the plastic decking to the wooden sub-structure. The pursuer stated silicone is an industry standard building material. He did not consider its use was a problem. He was challenged about the use of an aluminium rail to connect the steps to the decking. He said this was acceptable and secure. At one point he said the defenders wanted ‘a Rolls Royce job for the price of a Mini’. He said he addressed all the snags the defenders identified.
[7] On that basis Mr Wishart closed the pursuer’s proof.
The Defender’s Proof
Heather Cumming. (This note of her evidence is not intended to be exhaustive)
[8] Heather Cumming gave evidence. She was led, as best he could, by her husband, the second defender. Mrs Cumming spoke to the general background of the decision by the defenders to erect a decking at the rear of her home. They have a young and very active family of boys. Their intention was to improve their home by extending access into the garden and creating a safe and durable decking leading out from the patio windows into the back garden. The pursuer was described as a family friend. He had done a lot of garden work for the defenders over the years. He was consulted about the proposed project and recommended using the UPM product. The defenders trusted the pursuer. He quoted £866 to buy the lumber to build the sub-frame. He quoted £800 for his labour and he was given the defenders’ credit card to buy the UPM decking for £2458.86. All this was accomplished in June 2015. Heather Cumming anticipated the work would be completed in a few weeks. By August there were serious misgivings about the quality of the work. She was unhappy with the under structure but was assured by the pursuer it would be alright once the decking was laid over it. The defender thought the pursuer had ‘bitten off more than he could chew’. The defender spoke to the various concerns she and her husband had about the stability of the under structure and the level of the decking. She indicated there was undulation under foot and the appearance of waving on the decking. There was puddling at certain points as well. She said this can be seen on the pursuer’s production P5/28, where she pointed to 5 or 6 distinct patches of puddling. There were other complaints as well. The patio doors were jamming on the uneven decking and could not open properly. She said the decking must be ‘super level’ to allow the patio doors to open freely beneath them. The decking was uneven. The left step was insecure. The expansion gaps between the boards were uneven and different. They were not uniform. The finishing facia boards were not securely fixed and mitres and corners were unsafe because they were sharp. She was concerned one of the boys would get hurt running or jumping on and off the structure. The decking was uneven, she repeated. The step was squint against the horizontal line of the decking. The decking was not firm under foot. It had a rippled look. She was concerned that if the sub-structure was not properly created to support the decking she would not be covered by the manufacturer’s warranty on the decking. She was so concerned she checked the manufacturer’s website and arranged for a recommended installer to come and examine the decking. She referred to Dan Hewins’ report. She said she thought the pursuer was struggling with the job and that he had bitten off more than he could chew. She said the defenders had bent over backwards to give the pursuer the opportunity to remedy the flaws but the problem was he denies there are flaws. She got information on the type of fittings and clips needed to fit the decking from the manufacturers and gave this information to the pursuer. She said that even after being given the opportunity to remedy the faults the pursuer failed. She said the level of the decking remained uneven after his first attempt to remedy in November 2015 and again in February 2016. To remedy the uneven surface the pursuer had used plastic packers and not rubber pads as recommended in Peter Stewart’s report. She said the packers were useless as when people move around on the deck they worked loose beneath, then became dislodged and the support was lost. The deck was then uneven again. The fundamental problem is the decking was not adequately supported. The pursuer put in 5 extra posts to support it. Cameron Elliot, when he did the remedial work, added 90 more. The deck is now inflexible and level. She said that initially the defenders thought the pursuer had done a good job regarding the decking but it was only later after the decking came off that the true extent of the problem of the uneven sub-structure supported in places with small plastic packers which loosened and fell away became apparent. She said that when Cameron Elliot came to do an inspection before the remedial work he fell through the side step. It was dangerous and unsteady. Cameron Elliot charged £2860 to dismantle and rebuild the decking. This figure included £410 for the cost of additional decking material. The defender explained that the wrap around step shown in P5/30 was made following an idea from Cameron Elliot. She said she paid £345 separately to Mr Elliot and he constructed the new step. His work was commenced on 3 May 2016 and completed in 10 days.
[9] The defender was cross examined by Mr Wishart. The defender repeated her evidence that the steps were both badly built. She said they were not attached to the structure properly as recommended by the manufacturer. Both were dangerous and had sharp corners. The side step wobbled. Proper attaching clips were not used. The pursuer used silicone to attach the steps, which was inadequate. The side step was defective. She said this can be seen in photograph D6/1. The aluminium rail used by the pursuer was inadequate. The step fell apart the day Cameron Elliot came to inspect the decking. That step was loose and the decking was moving substantially. Side pieces were coming off the decking which was unstable. The side step could be pulled out like a drawer. It was put repeatedly to the defender that she was happy with the decking and steps in February 2016. She vehemently denied this. It was suggested to the defender that her true motivation in this case was she wanted a completely new step and had the wrap around step built by Cameron Elliot which she wanted the pursuer to pay for. She denied this and said she wanted steps that would not invalidate the warranty because they fell apart. She said she wanted a safe step. The defender explained she gave the pursuer plenty of opportunities to fix the decking and the steps. She said she involved her solicitor because she had lost faith in the pursuer’s ability to fulfil his side of the contract.
William Dennis Cameron Elliot. (This note of his evidence is not intended to be exhaustive)
[10] William Dennis Cameron Elliot, gave evidence. He is 73 and has been a landscaper for 12 years. He described gardening as his passion and he had been managing director of a window company employing 160 people in Hawick before he retired to start his own gardening design business. He has worked on thousands of garden projects, small and large. He is very familiar with UPM decking. He is a UK recommended installer of the product. He has displayed UPM decking at the Garden Scotland Show, which is an annual trade fair held at Ingliston market, on two occasions. He won bronze and silver awards for the design of the decking and gardens displayed. He became involved in this affair when Heather Cumming contacted him in March 2016. He arranged for Peter Stewart the international sales director of UPM to come and inspect the decking. He said that when he visited the house to inspect the decking his first impression was of ‘waves’ on the decking. He said there were high and low parts of the surface which was visually upsetting. The product did not look sleek and it was sprung underfoot. It should have been flat and solid. There was a loose board at the window which was glued down with silicone. He said you cannot stick plastic to wood using silicone. The plastic decking expands according to temperature and will snap off the wooden underframe if silicone is used. The side step he said looked ‘OK’. However, when he stood on it, it gave way under his weight. On inspection he said the basic problem was it had no proper fixtures. The aluminium rod used to fix it to the structure was inadequate. When he removed the step, he said there was inadequate support. He also saw more glue or silicone had been used as an adhesive in this area. There were no fixing cleats on the boards. In his opinion it looked as if the person who built the side step had run out of materials and was using cut-offs. He said that when he remedied the work he used over 200 fixing cleats to attach the decking to the sub-structure. On D6/1 he said there was a timber cross member missing on the left side which weakened the step. The plastic step had been cut through which was wrong. It should have been a single length of decking. In his opinion both the steps were very dangerous. They were not attached properly to the decking. They were unsafe. The deck was flexing or undulating because the builder had used what the witness called ‘glazing bars’ to fill in gaps between the underside of the decking and the sub-frame. With movement on the decking these small rubber bars vibrated out of position and because they were used extensively under the decking their absence created the undulation problem. If they did initially provide sufficient support when inserted between the deck and the frame, that was lost when they fell away. He pointed to P5/28 which showed the puddling effect quite clearly. During his remedial work he said he added 91 upright timber supports under the decking to give rigidity and support. He said he took off all the boards strengthened and evened the substructure and replaced the boards some of which were damaged. The front facia board of the decking had to be replaced. He highlighted in D6/8 what he called ‘unauthorised cleat fixings’ which were the fixings made by the pursuer. These were inadequate to fix the boards securely and it appeared that the builder had used screws on the facia to add security. He said screws should not be used on the material as it expands according to temperature and the screws will tear the plastic and invalidate the warranty. The attachments must be done with what he called ‘proper company fixing cleats’. The corner mitres were what he called ‘dreadful’. They were ‘very rough, dangerous and unsightly’. He described the corners as ‘shocking’ and said in his opinion the decking was not built for family safety. He spoke to his invoice. He purchased additional materials for £410 and completed the remedial work for £2450. Total cost of rectification was £2860. Separately, he agreed with the defenders to build what he called a ‘floating, wrap around step’ which can be seen in P5/30. He thought that was safer and aesthetically more pleasing as a solution to the step issue. He suggested this option to the defenders and they agreed to go with it. He said the decking he inspected would not be covered by the manufacturer’s 15 year warranty because it was under additional and unnecessary stress caused by the construction faults. He though the structure he inspected would have lasted 2 years ‘if they were lucky’.
[11] Mr Wishart the lay representative informed me he had forgotten his glasses and knew very little about joinery, so the pursuer would cross examine Mr Elliot. The pursuer tried his best and I am sure he was well intentioned but inevitably his cross examination broke down into a series of bitter quarrels about the quality of his workmanship. At one stage I had to reprimand the pursuer for insulting the witness. He apologised and resumed. During the exchange the pursuer did concede that the structure was ‘not ideal’. Mr Elliot said that in his opinion the joinery work of the pursuer was of a good standard overall but critically he did not go on to secure the substructure so that it was permanently secure, level, solid and rigid. The witness said it took 2 days to level the structure and 4 days to reinforce it and rebuild. He did not give any cost breakdown of the amount of work he did not have to do because the substructure was already built. He said the unauthorised cleats used on the facia board were dangerous.
The Submissions
[12] At the close of the evidence Mr Wishart addressed me for the pursuer. His submission was in two parts. Firstly with regard to the claim for payment he invited me to accept the pursuer as credible and reliable. He said the pursuer if believed had demonstrated the work was done to an adequate standard and Mr McKendrick should be paid the £866 for timber and the £800 for his labour cost. He argued that by 5th February 2016 (DP 19) it was obvious the only issue between the parties related to the steps and the defenders had accepted the additional work the pursuer did between August 2015 and February 2016 to remedy the defenders’ concerns about the decking.
He referred me to the case of Lindley Catering Investments Limited v Hibernian Football Club Ltd 1975 S.L.T. (Notes) 56 in which Lord Thomson said:
“In my opinion the legal position in a case like the present can be broadly stated thus: if one party so breaches a material stipulation in the contract as to preclude the other from fulfilling his part of the contract, the innocent party is entitled to regard himself as absolved from further performance of his obligations and to rescind the contract. But if the breach is such, by degree or circumstances, that it can be remedied so that the contract as a whole can thereafter be implemented, the innocent party is not entitled to treat the contract as rescinded without giving to the other party an opportunity so to remedy the breach.”
According to Mr Wishart the present action was precipitate. The pursuer had been given neither sufficient time nor a reasonable opportunity to remedy the perceived problem with the steps. In fact he went further and suggested the first defender was obsessed with altering the contract and having a totally different step installed which is evidenced in the pursuer’s production P5/30 which shows a totally different wrap around step. Mr Wishart’s second point was that the counterclaim should be refused because it failed to distinguish between the value created by the pursuer’s work and the cost incurred by Mr Cameron in ‘so called’ rectification. He argued the defenders cannot be lucratus as a consequence of any breach of contract.
[13] The defenders both made short submissions to the effect the pursuer was in breach of contract. They did not dispute he was entitled to the timber cost of £866 but strongly rejected his right to payment in respect of a contract which had cost them £2860 to remedy. They invited me to refuse the pursuer’s claim for payment and grant decree in terms of the counterclaim.
The Decision
The action for payment
[14] The lumber cost is not disputed so I have no difficulty in finding for the pursuer to the extent of £866. With regard to his claim for payment for his labour cost at £800 I have a number of observations to make.
1. I agree with the pursuer, having heard his evidence, that he seriously underestimated the true cost of erecting a suitable sub frame and fitting the decking to it. However that is what he agreed to do. I also agree with the first defender in her analysis of what happened, namely, that the pursuer ‘bit off more than he could chew’ in relation to this contract.
2. I formed the impression that the pursuer, in his evidence, was inflexible, unreasonable and argumentative, if the quality of his workmanship on this contract was brought into question. It was obvious to me that Mr McKendrick was adamant and had firmly reached the unwavering conclusion that the decking was ‘rock solid’. Nothing and no one will change his mind on that. However, in my judgement, I prefered the evidence of the defenders and Mr Elliot on that question. I considered Heather Cumming was both credible and reliable. I believed her. She gave her evidence clearly and articulately, if somewhat exasperated by the whole experience. From an early stage in the summer of 2015 the decking the pursuer erected showed signs of water pooling. This can clearly be seen on P5/28. This is consistent with the evidence I heard that the frame was not level.
3. I found Mr Elliot to be a helpful witness. He was balanced, professional, well informed and highly persuasive. I have no doubt he is an expert in relation to the construction and installation of UPM decking. I did not consider he was engaged in a ‘hatchet job’, as the pursuer described it, in criticising the pursuer’s work. In fact, I thought, overall, he complimented Mr McKendrick on the quality of his carpentry. The problem was, and I accepted Mr Elliot’s evidence on this point, that having erected the sub-frame, Mr McKendrick did not go on to strengthen and level it for the decking. Because of that structural defect, which in my opinion was a fundamental design fault in the frame, the water pooling occurred and the overall structure, once completed, seemed soft and yielding underfoot as the defenders complained of.
4. A combination of factors caused the underlying problem with the strength and stability of the sub frame. The pursuer in a number of places used silicon to bind parts of the structure. This can be seen illustrated as white spots on the bottom right hand side in Defender’s photograph D6/1.
Silicone can also be seen in D6/2. It forms the large white spots adhering to the underside of the decking and on the face of part of the timber sub frame.
Again silicone can be seen in D6/3 used extensively at the base of window frames.
The pursuer indicated in his evidence this bonding material was acceptable because it was ‘an industry standard’. Mr Elliot said it was inappropriate to use silicon to bind wood to plastic because the plastic decking needs to ‘breathe’ or move depending on weather conditions and use by those walking on it. I preferred the evidence of Mr Elliot on this point. It seemed to me to make sense that potentially moving surfaces bonded by silicone would eventually detach. This in my judgement contributed to the sense of overall instability of the finished structure. In my opinion the use of this bonding agent was below the standard of workmanship that could reasonably be expected in the erection of decking, securely and safely fixed to a sub frame, such as the one constructed by the pursuer. The use of this bonding agent constituted a material breach of contract.
5. The pursuer manufactured ‘cleats’, which he made using his expertise as a sheet metal worker, as an attachment device between the frame and the facia boards. These can be seen on D6/8 as the blue plastic and metal fixings.
I agree with Mr Elliot that these were inappropriate however I do not believe they contributed to the overall structural instability of the frame given their position and function. Nonetheless they could not and did not attach the facia securely to the decking. The pursuer went so far as to suggest in his cross examination of Mr Elliot that these were not ideal. I agree. In my opinion the use of these joins was below the standard of workmanship that could reasonably be expected in the erection of decking, securely and safely fixed to a sub frame, such as the one constructed by the pursuer. This too constituted a material breach of contract.
6. In my opinion the sub frame was not stable. I accepted the evidence of the second defender on this point and the evidence of Mr Elliot. The first defender did not give evidence as such but he agreed with the evidence given by his wife. I rejected the evidence of the pursuer on this point. The reason for the instability and imbalance of the sub frame became apparent during the rectification process by Mr Elliot. He required to add 91 substantial upright wooden poles at corner joints to strengthen and stabilise the sub frame. Some of these additions can be seen in D6/4, D6/5 and D6/6 before they are cut down to size.
The pursuer stated in evidence that when he tried to stabilise the structure in the autumn of 2015 he put down 5 extra posts at the front of the sub frame. In my opinion, that was inadequate and below the standard of workmanship that could reasonably be expected in the erection of decking, securely and safely fixed to a sub frame such as the one in question. This also constituted a material breach of contract.
7. The sub frame was not level. This meant that the underside of the decking was not uniformly supported. This can be seen on D6/5 and D6/6 where the industrial spirit level is clearly several millimetres above a central cross beam of the sub frame as illustrated by Cameron Elliot in his evidence. He said the gaps varied but on average there were about 4mm off level. This defect was repeated across the frame. It caused the lack of support which created the look of waving or undulation on the surface and the feeling of insecurity or movement underfoot. I preferred the evidence of Mr Elliot on this point. I rejected the evidence of the pursuer that the structure was as solid as a rock. The construction of a sub frame which was not true and level was inadequate and below the standard of workmanship that could reasonably be expected in the erection of decking, securely and safely fixed to a sub frame such as the one in question. It also constituted a material breach of contract.
8. To compensate for the lack of support to the underside of the sub frame the pursuer used small plastic packers or ‘glazing bars’ which were jammed between the timber frame and the decking to provide support. Over time, with movement on the decking, these dislodged and the space they created contributed to the sense of instability felt by the defenders. The pursuer can be seen laying the bars or packers in D6/7. Many of these bars were found lying beneath the decking when remedial work was carried out. Some are also shown in situ in D6/6 beneath the industrial spirit level. I preferred the evidence of Mr Elliot on this point and concluded that this method of introducing stability and flatness to the decking was inadequate and fell well below the standard of workmanship that could reasonably be expected in the erection of decking, securely and safely fixed to a sub frame such as the one in question. This too constituted a material breach of contract.
9. The step at the side of the structure was inherently weak. I preferred the evidence of Mr Elliot in this regard. A cut-off panel was used which can be seen on D6/1 on the left hand side. This too fell well below the standard of workmanship that could reasonably be expected in the erection of a step, securely and safely fixed to a sub frame such as the one in question. This also constituted a material breach of contract.
[15] Mr Wishart argued that by 12 February 2016 the defenders’ perceived problem about the stability of the structure had been resolved and the only disputed issue related to the step. I disagree. I prefer the evidence of the second defender. She was clear that the structure was unstable even after the pursuer had been allowed a reasonable opportunity to remedy the defects. I have reached the conclusion that the reason the defects remained unaddressed by 12 February 2016 was essentially twofold.
i. Firstly there was an inherent design fault in the structure explained in point 3 above.
ii. Secondly, I have concluded the pursuer could not see that fundamental and material fault because he was convinced, in his own mind, that the structure was sound. He remains implacable in that regard and will not change his mind. It is said, there are none so blind as those who will not see. In my opinion, it will not do simply to say, as the pursuer does, that the defenders wanted a ‘Rolls Royce job for the price of a Mini’. The court must look to the parties’ agreement in deciding a case like this. The pursuer contracted to install a framework for decking and install decking on top of it. That he failed to do to a reasonable standard, in my opinion. As such, he is in material breach of contract.
[16] However, I do agree with Mr Wishart that the pursuer should have been given a reasonable opportunity to remedy the faults complained of, before the defenders could be said to be entitled to treat the pursuer’s breach of contract as material and the contract as rescinded; resile from the bargain and refuse further payment. I am satisfied on the evidence of the second defender (supported by the first defender) that the pursuer was given sufficient reasonable opportunity between August 2015 and 12 February 2016 but did not remedy the substantial and material faults, I have concluded existed, for the reasons specified in para [14] above. I readily understand why the pursuer found himself in the position he did. He seriously underestimated the cost of creating an appropriate frame for the decking, most likely because he was a family friend trying to give the defenders the best price he could. He probably cut the price to the quick. However, he then put himself in an untenable position where he had to cut corners in the construction process by using insufficient uprights to stabilise and strengthen the substructure; insufficient care in the levelling of the structure; silicon instead of manufacturer approved joining clips to bond the structure to the decking and off-cuts and inadequate timber support under the side step. The net result was a defective product which the pursuer, in his mind, feels the defenders could have and should have made do with. Their problem, however, was that they had invested in brand new, state of the art, modern, attractive decking, which needed a stronger, true level, plumb and more stable substructure than the one the pursuer built. I have no doubt the pursuer has the technical skill to create what Mr Elliot did. The problem is he did not have the funds to do the job properly, but yet, that is what he agreed and contractually bound himself to do. The moral of this tale so far as the pursuer is concerned, is that; ‘You get what you pay for’. I disagree. Today the consumer has rights which are enforceable. The moral in fact is: ‘There are no friends in business’. The pursuer should have properly costed the job and tendered appropriately. The fact he did not cannot be laid at the defenders’ door. By underestimating the cost of doing the job properly the pursuer has effectively hoist himself on his own petard and must pay the price for that.
[17] For the reasons stated above I hold that the defenders were entitled on 12 February 2016 to treat the pursuer as in material breach of contract; the contract as rescinded and resile themselves from the bargain. The defenders were not bound by mutuality of contract to continue performance of their obligations under the contract in these circumstances and the pursuer is not entitled to any further payment, save for that which is uncontested between the parties, in the sum of £866 for the timber used to make the frame.
The counter claim.
[18] The counter claim is problematic. The defenders claim £2860 which is the total cost of Cameron Elliot’s remedial work. I accept that the wrap-around step which now features on the structure is a collateral agreement between the defenders and Mr Elliot. That cost was paid for separately by the defenders. However, the finished structure remedied by Mr Elliot contains value which was added by the pursuer. In my opinion Mr Elliot did not rip out and replace the frame. Instead he built on it, strengthened and reinforced it. Thus the pursuer’s work is contained in the finished structure. The counter claim does not identify the element of value which is attributable to the work done by the pursuer. The defenders cannot be lucratus or enriched by the counterclaim. It is not clear to me the extent to which the counter claim relates solely to the remedial work of Cameron Elliot arising from the pursuer’s failure to honour his side of the bargain. I am not prepared to speculate in this regard. A counter claim arising from breach of contract based on defective workmanship must quantify precisely the nature and extent of the remedial work reasonably and necessarily carried out to restore the defenders to the contractual position they would have been in but for the breach of contract. That has not been done here, so for that reason I will refuse the counter claim. The onus is on the defenders to prove the factual basis of the counter claim; see Duncan v Gumleys 1987 S.L.T. 729. I could but I am not prepared to enter into any speculation in this regard, based on an apportionment of Cameron Elliot’s time. In my opinion such an exercise would lack a proper factual basis and the necessary intellectual rigour needed to justify penalising the pursuer any further. It is for the defenders to prove the counter claim and this they have failed to do, properly.
The result
[19] I shall order that the defenders pay the pursuer the sum of £866, which was the cost of the lumber used to construct the defective frame.
Expenses
[20] The pursuer and the defenders both seek their expenses in this case. Given the value of the claim, the maximum award I can make is £150. I will award expenses of £150 to the defenders as they offered to settle the case for the cost of the lumber, namely, £866. Had the pursuer accepted this offer, a day and a half of court time could have been saved and a proof avoided.