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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McGregor Construction (Highlands) Ltd v Difsl Reorganisation Ltd [2000] ScotCS 167 (16 June 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/167.html Cite as: [2000] ScotCS 167

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[1] In February 1997 a fish processing factory at Dingwall Business Park occupied by The Edinburgh Smoke Salmon Company (1992) Limited ("Edinburgh Salmon") was badly damaged by fire. Highland Council, which was the owner of most of the buildings affected, put in hand work of demolition and reconstruction. The damaged buildings were demolished, the only parts remaining being the foundations and a concrete floor slab overlying a hard core fill. The pursuers were engaged as main contractors. They in turn entered into a sub-contract with the defenders (then known as Devar Industrial Flooring Systems Limited), who are specialist flooring contractors, for a new flooring to be installed over the concrete slab. The four elements for which the defenders tendered by quotation dated 3 April 1997 were -

A Note attached to the quotation included, among other statements, the following:-

A reference was also made in the Note to "our Standard Conditions" but these were neither set out on the quotation nor enclosed with it.

[2] The pursuers, on the instructions of Highland Council, by fax of 21 May confirmed that they would be accepting the defenders' tender with the substitution of the Duracon for the Monile floor finish and with certain consequential adjustments to the price and with certain minor adjustments to the areas. By that fax they also intimated that "contract documentation will be forwarded to yourselves shortly". On 28 May the pursuers sent to the defenders a standard form of Building Sub-Contract. This was in the event never returned to the pursuers. The sub-contract works were commenced, after a short postponement, on 14 July. There was some urgency to complete the works, there being concern that the employment of staff at the factory, which had been interrupted in February, should be resumed as early as possible.

[3] On the face of the pleadings the parties are at issue as to what (if any) express terms, other than those appearing on the face of the defenders' quotation and of the pursuers' fax, were incorporated in the sub-contract. The defenders aver that their Standard Conditions, and the pursuers that the conditions referred to in the Form sent with their letter of 28 May, applied. However, at the end of the proof, Mrs Wolffe for the defenders did not contend that the defenders' Standard Conditions had been duly incorporated into the sub-contract; the pursuers, on the other hand, did not produce in evidence the conditions referred to by them or suggest that they in any way affected the matters now in issue. It was accepted by both counsel that, whatever express conditions (if any) were incorporated, these were of no importance for the purposes of this litigation. The pursuers' primary case is that there was an implied term that the defenders would carry out the works with the skill and care of a reasonably competent specialist flooring contractor. The defenders now accept that such a term was to be implied. Any other implied terms relied on are, in so far as reflected in the pleadings, particularisation in the circumstances of that primary term. No set of express conditions of contract founded on in the pleadings by either party materially affects the nature and scope of any relevant implied terms. It is accordingly unnecessary to reach a view on whether any set of express conditions of contract was incorporated in the parties' bargain. It will, however, be necessary to return to the question whether and, if so, what terms, other than the conceded term, are to be implied.

[4] The defenders supplied the materials and equipment for the execution of the sub-contract works. They engaged labour only sub-sub-contractors to prepare and install the underlayment and the Duracon floor finish. Mr Cornelius Boyle was engaged by them to prepare and install the underlayment and Mr Kenneth Brown to prepare and install the Duracon finish. In the event, after about 80% of the underlayment had been installed, Mr Boyle on or about 5 August sustained an injury which prevented him completing that work. The remaining 20% of the underlayment, as well as the whole of the Duracon finish, was prepared and installed by Mr Brown. Each of Mr Boyle and Mr Brown was assisted in his respective work by a number of individuals. Mr Boyle was assisted by a Mr McDavitt (who acted as mixerman) and two others, a Mr Ferrie and Mr Boyle's son Sean. Mr Brown was assisted by his son Gary and by an Alan Driscoll, an operative in the employ of the defenders. The underlayment work done by Mr Brown and his squad was generally towards the north west part of the factory.

[5] The underlayment (otherwise referred to as "the screed") was laid on top of the pre-existing concrete slab. It was laid, in accordance with a plan, to varying thicknesses designed to provide appropriate falls and crossfalls to accommodate a new drainage arrangement which had been installed as part of the main contract works. Difficulties were experienced in the drying out of the screed, which occurred in a non-uniform way. The defenders from about the middle of August were expressing concern that this phenomenon might be related to the "suspect", as they put it, state of the concrete slab. They sought an assurance that, if they proceeded with the laying of the Duracon finish, they would be absolved from any liability "for failure due to the suspect nature of the sub-strate". The pursuers passed these concerns on to Highland Council which, while accepting that there might be some risk of rising moisture in certain limited parts of the floor where new concrete had been laid as part of the main contract works, was not prepared to absolve the defenders in respect of their work otherwise.

[6] After various measures had been taken to accelerate the drying out of the screed, the Duracon finish was installed. Prior to that being done Mr Stuart Shelton, the defenders' contract manager, carried out, in accordance with his usual practice, Schmidt hammer tests to the screed. He thus satisfied himself that the screed was in a state fit to receive the Duracon finish. However, those tests measured only the surface hardness of the screed and provided no conclusive check of its soundness throughout its depth. There was some delay in completing the Duracon finish work in some limited areas due partly to the bursting of an overhead pipe and partly to the fact that Edinburgh Salmon, which had been allowed sectional occupation of the factory over a period from 20 August, was carrying out operations which involved the use of substantial quantities of water. These factors tended to postpone the time when the screed in those limited areas was in a state fit to receive the Duracon finish. The defenders' work on site, including certain snagging works, was completed by late September or early October.

[7] Within a few weeks of the defenders leaving the site, serious problems were being experienced with the flooring. Depressions began to appear, cracks occurred in the Duracon finish, the screed below it began to become visible where the finish had cracked, all resulting in the development of a substantial number of "pot-holes". On 17 November Edinburgh Salmon's technical manager, Mr Meek, sent a fax to the pursuers representing that operation of the factory process was becoming very difficult due to product falling off racks (that is, trolleys), racks getting stuck in "pot-holes", staff tripping and basic hygiene problems. He continued - "During factory inspections we've been strategically placing items to hide 'pot-holes'. We now have more holes than 'items'!".

[8] A meeting was convened on 25 November attended by representatives of Highland Council, Edinburgh Salmon, the Structural Engineer instructed by Highland Council, the pursuers and the defenders. It was generally agreed by those present that the problem was related to the screed, which appeared to be getting crushed and breaking up, this occurring at that time mainly in two particular areas of the factory, namely, the Wetside Area and the Blast Marshall Area. Consideration was given to the possible effect of the weight imposed on the floor by the trolleys (a matter to which I shall return). It was agreed that core samples of the screed should be taken and tested for mix (i.e. constituent parts) and crushing strength. The Structural Engineer advised that seven samples be taken, three from the Wetside, two from the Blast Marshall, and one each from two adjacent Chills. An Architect's Instruction issued on the same date to the pursuers required that the samples additionally be tested for density.

[9] The pursuers arranged for samples to be taken from the identified areas by H.T.S. Associates, a materials testing business carried on by Mr Derek Barrow in Inverness. H.T.S. Associates themselves carried out crushing and density tests. They sub-contracted the mix testing and analysis to Altec Laboratory Services (Scotland) Limited of Govan. A report containing the whole results was sent by H.T.S. Associates to the pursuers on 5 January 1998. Its terms were communicated to Highland Council and to the defenders.

[10] The defenders did not accept the test results, maintaining that in certain respects they were unreliable. At a meeting held on 3 February they requested that further cores (extending down through the concrete slab) be taken. This request was acceded to but on the basis that permanent repair work to the screed which had failed in the Wetside Area and the Blast Marshall Area proceed later that month. The defenders again suggested that the basic problem lay with the concrete floor slab. They proposed that the testing of the further cores be carried out by Raynesway Construction Services Limited of Paisley. That proposal was accepted. On or about 11 February core samples were taken by the defenders from similar locations to those from which samples had been taken in November 1997.

[11] In view of the need to keep the factory operational it was proposed and agreed that a fast setting cement be used as the cement ingredient in the screed repairs. These repairs were carried out by the defenders in the latter part of February 1998. Although defects had by then begun to emerge in other areas, it was agreed that repairs to these be postponed until the results of the tests on the further cores were available. By late April the need for repair work in the Gutting and Wetside Decant and Chill was becoming critical. On being pressed for production of the test results the defenders ultimately on 28 May sent to the pursuers a fax which included the following passages:-

I shall return to this statement. In the event, the defenders did not, prior to the commencement of the present action, produce to the pursuers any report by Raynesway on the results of any tests on the screed or concrete. Ultimately, during the dependence of this action, the defenders lodged a report from Raynesway dated 20 April 1998 of the results of certain tests, to the terms of which I shall return.

[12] By the summer of 1998 the places in which defects in the flooring were appearing had extended to various other areas in the factory. The general pattern of defect was the same, namely, the development of pot-holes or other unevennesses in the floor many of which gave rise to the trapping of standing water. A report compiled towards the end of August 1998 by the Clerk of Works with the assistance of Mr Meek included a catalogue of such defects. Ultimately the pursuers instructed another contractor, Datum Industrial Flooring Limited, to carry out repairs. These were effected in January 1999.

[13] In this action the pursuers sue the defenders for damages for breach of contract. The defenders deny breach and counterclaim for the price of the remedial work carried out by them in February 1998. Parties are agreed on the quantum of each of the claim and of the counterclaim. The outstanding issue remaining between them is whether the pursuers have proved that the defects which emerged in the flooring were caused by breach of contract on the part of the defenders. An alternative positive explanation pled by the defenders for the failure of the screed, namely, sulphate attack on it from the state of the concrete slab, was departed from in the course of the proof. Certain other possible explanations for what occurred were mooted in the defenders' pleadings or in evidence. I shall consider these in due course.

[14] As earlier noted, it is undisputed that the sub-contract included an implied term that the defenders would carry out their work thereunder with the skill and care of a reasonably competent specialist flooring contractor. It is also undisputed that the defenders are responsible for any failures in that respect attributable to the labour only sub-sub-contractors whom they engaged to execute this work. Although in terms the pursuers plead only the single implied term referred to, they plead a number of additional respects in which they allege it was not complied with. These relate to (1) certain British Standards, (2) compressive strength, (3) the aggregate/cement ratio and (4) compaction. No express performance criterion in respect of any of these matters was imposed by the sub-contract but their significance to the issue of poor workmanship is condescended on in the pursuers' pleadings.

[15] The screed contracted to be supplied and installed by the defenders was a "co-polymer underlayment". It is not disputed that its appropriate constituent elements were cement, sand (as aggregate) and polymer, all mixed on site with water. The cement, sand and polymer (the last in liquid form) were supplied by the defenders, the water being available on site. There is no suggestion that any of these ingredients was as such defective. The pursuers' contention is that in making up the screed and installing it on site there was a failure to take the appropriate care. They aver that any reasonably competent specialist contractor would have used a ratio of aggregate to cement of between 3:1 and 4:1 by weight. They also aver that any reasonably competent specialist flooring contractor would, unless specifically instructed otherwise, have laid a screed with a density of at least 2000 kg/m³ when tested to BS 1881: part 114. For these quantities they rely on Part 3 of BS 8204, that Part being published in 1993. It is headed "In-situ floorings Part 3. Code of practice for polymer modified cementitious wearing surfaces".

[16] The pursuers' expert, Mr Richard Baker, in his report and in evidence relied on that Part as being applicable to the screed with which this case is concerned. In particular, he relied, in relation to mix proportions, on the design considerations discussed in section 6 of that Part, including certain tables referred to in that section, and, in relation to a threshold for density, to the criterion mentioned in section 10.4. He was challenged in cross examination as to the applicability of that Part, primarily on the ground that the screed with which this case was concerned was not a "wearing surface" but rather a screed designed to receive a wearing surface - to which Part 1 of BS 8204, it was contended, applied. Mr Baker did not accept that contention, referring to a sentence in section 6.2 of Part 3 which states -

He pointed out that Part 1 made no reference to a screed of which polymer was an ingredient. Mr Stuart Devine, a director of the defenders, expressed the contrary view, namely, that Part 3 had no application to the relevant screed but that Part 1 did apply. In response to a question in cross examination as to whether in Part 1 there was any reference to a polymer modified screed, he referred to section 5.13 of that Part, where mention is made of "Admixtures", but was unable to be more precise as to the significance of that section.

[17] I am not satisfied on that tentative evidence that Part 1 does apply to this screed. On the other hand, there is force, at least as a matter of literal construction, in the proposition that Part 3 is not applicable either. The whole tenor of Part 3 is, as its title suggests, directed to wearing surfaces, not to underlayments. The sentence relied on by Mr Baker does not, in my view, indicate that the draftsmen of this Part had in mind an underlayment overlaid with a finish to a thickness of some 10 millimetres but rather to a polymer modified wearing surface, the surface of which might in particular circumstances require to be specially treated (by a coating or the like). In short, in so far as disclosed in the evidence, there is no Part of BS 8204 which clearly applies to the screed here in issue and which any designer of this screed must accordingly be taken to have had in mind as indicative of good practice in that regard. Nonetheless, the function of the polymer modified screed to be laid under this sub-contract shared certain of the characteristics of polymer modified cementitious wearing surfaces for which Part 3 provides a code. In particular, it required to be of sufficient strength to resist (albeit through the Duracon finish) forces exerted by traffic using the floor. In these circumstances I am prepared to give some, though limited, weight to Mr Baker's view that regard may properly be had to Part 3 as guidance on relevant mix proportions and density standard for the screed to be laid under the present sub-contract. Part 1, in so far as relevant, gives no specific guidance on these matters.

[18] As to mix proportions, Part 1 provides in tabular form recommended mix proportions for different classes and thicknesses of flooring. The classes (light, medium and hard duty) relate to the expected traffic on the floor having regard, among other considerations, to abrasion resistance, compressive strength and impact resistance. In so far as appears, no specific information about expected traffic was given to the defenders; but having regard to the anticipated use (as underlayment in a floor to be subjected to traffic appropriate to a fish processing factory) it would have been reasonable for the defenders to expect that the floor would be subject to medium duty traffic. Direct application of the figures in the tables is not easy, partly because the recommended mix proportions vary with the design thickness (while in the present case a single mix proportion was required for varying thicknesses) and partly because the recommended aggregate contents involve a combination of aggregates, including aggregate other than "sand" as there defined (while in the present case a single aggregate, namely, local washed concrete sand was reasonably used). However, taking the tables broadly the indications are that an aggregate to cement ratio of 4:1 by weight would not have been unreasonable.

[19] Mr Boyle and Mr Brown both understood that the sand/cement ratio to be used for the screed in question was 4:1, though to be assessed by volume rather than by weight. Mr Boyle, at least, had been so instructed by Mr Shelton. That ratio was also in accordance with standard practice, the cement being by the bagful and the sand by a number of shovelfuls taken from a pile. As will be seen, assessment by volume rather than by weight makes some, though not a radical, difference.

[20] Other evidence touching on mix ratio was a technical data sheet issued in December 1996 by the manufacturer of the polymer and a letter of 3 March 2000 from that manufacturer addressed to the defenders. The former suggested typical modified mixes by weight of 3:1 for heavy duty granolithic (the aggregate ingredient being a mixture of granite chips and silica sand) and 2:1 for a medium duty topping or render (the aggregate being silica sand). But neither of these mixes provides useful guidance for present purposes, there being no suggestion that silica sand (a rarely used commodity in Scotland) should have been used here. Nor is the letter of 3 March 2000 of real assistance. It bears to be a response by the manufacturer following a request from the defenders in the course of this litigation that it test the compressive strength of a screed made up with a sand/cement ratio of 6:1. No witness was called from the manufacturer to speak to the circumstances of this test, which may have been carried out in laboratory conditions. It does not support any proposition that a ratio of 6:1 by weight would for practical site purposes have been reasonable.

[21] Dr Brian Brown, the technical director in 1997 of Altec Laboratory Services (Scotland) Limited, was called to give evidence concerning the analysis of mix proportions conducted by that company. In the course of that evidence he referred to a tripartite division of screed types or designations. The three designations (a, b and c) have, according to BS 4551 Part 2, traditional volume proportions of sand/cement of 3:1, 4:1 and 5:1 respectively. While that indicates that there is a range of traditional mixes (presumably related to the functions which the end product is intended to serve), it does not assist in identifying where in that range fell the mix proportion appropriate for the screed to be provided under this contract.

[22] As earlier noted, the sub-contract made no express provision for mix proportions. However, it must have been obvious to the defenders as specialist flooring contractors that the aggregate/cement ratio adopted by them would materially affect the durability of the product installed. Having considered the whole evidence, including what the defenders knew or ought reasonably to have known about the function which the flooring was to serve, I am satisfied that the adoption of a sand/cement ratio not leaner in cement than 4:1 by volume would in all the circumstances have been reasonable. It was accordingly an aspect of the implied duty incumbent on the defenders that reasonable skill and care would be taken to achieve a mix no leaner than that ratio. Although this ratio is a modification of the ratio founded on by the pursuers in their pleadings, it involves no radical or unfair departure from it.

[23] The evidence relied on by the pursuers to establish the proportions actually used is real evidence in the form of chemical analyses of samples taken from the floor subsequent to its installation. The first set of samples was analysed in December 1997 for mix proportions by Altec Laboratory (Scotland) Limited, as sub-contractors to H.T.S. Associates. The second set was analysed some time before 20 April 1998 by a testing company instructed by Raynesway Construction Services Limited who had in turn been instructed by the defenders. The identity of that testing house is not disclosed on the face of the composite report submitted but it was not disputed that Altec Laboratory Services (Scotland) Limited had also tested those samples for mix proportions. The former samples had been taken in November 1997 and the latter in February 1998, both from the same general area of the factory (the Wetside and Blast Marshall Areas and adjacent rooms). The three samples analysed in December 1997 gave the following results for aggregate/cement ratio - (a) by weight, 6.6:1, 6.2:1 and 6.6:1 (an average of 6.5:1) and (b) by volume, 5.8:1, 5.3:1 and 5.8:1 (an average of 5.6:1). The five samples analysed later gave the results (a) by weight, 5.5:1, 7.3:1, 5.7:1, 7.3:1 and 5.9:1 (an average of 6.3:1) and (b) by volume, 4.8:1, 6.4:1, 4.9:1, 6.4:1 and 5:1 (an average of 5.5:1). The ratios by volume are calculated by applying a conventional formula to the ratios by weight. Each of the analyses proceeded upon certain standard assumptions in relation to the materials used; but there was no evidence to suggest that the materials in fact used rendered any of those assumptions inappropriate. There was no express testimony that the proportions found on an analysis of the end product represented the proportions actually used in making up the screed. But the technical evidence proceeded on that assumption and I have no reason to doubt its soundness.

[24] The areas in which the screed failed were primarily, if not exclusively, areas in which it had been mixed and laid by the squad headed by Mr Boyle. The mixerman in that squad did not give evidence nor was any explanation spoken to for his absence. Mr Boyle's own task was to lay the screed barrowed to him, it having been mixed elsewhere on the site. He did not see the mixes being made up. Although he did not observe anything untoward in the screed brought to him for laying, I am not persuaded that he would necessarily have observed an irregularity in the mix proportion except in circumstances where that was gross. Nor am I persuaded that the mixing arrangements, including a mixing machine of a specific type, were sufficient wholly to exclude the risk of some underprovision of cement in the mix.

[25] In August 1999 a Mr John Watt, employed by Weeks Materials Consultancy and Laboratory Services, carried out on the instructions of the defenders certain tests on cores (extracted in July 1999 through the screed and the underlying concrete slab) from various parts of the factory. Those tests were primarily designed to ascertain whether the screed had been subject to sulphate attack, a hypothesis subsequently departed from. However, as a preliminary to any chemical analysis, Mr Watt made a visual inspection of the cores. However, nothing found on such examination negatives or tends to negative the results or the proper implication from the results found on the chemical analyses.

[26] Although the results of the chemical analyses display a range of values, they present a consistent pattern of a mix leaner and significantly leaner in cement than a sand/cement ratio of 4:1 by volume. There is no reason to doubt the correctness of the methodology employed in these analyses or the reliability of the results. In my view they point strongly to an inappropriately low amount of cement having been used in the mix of the screed in an area where the flooring failed. That screed may reasonably be taken as typical of the screed laid in other areas which similarly failed. The underprovision of cement was not gross but it was material. Allowing for a degree of imprecision necessarily inherent in mixing by volume on site, these results also point to lack of reasonable care by the mixerman to ensure that an adequate amount of cement was used in these mixes. In reaching these conclusions I have taken into account my finding that Mr Shelton carried out Schmidt hammer tests on the screed before the Duracon was laid. But, while such tests were sufficient to give a measure of surface hardness, they were not, as I have already found, capable of providing a conclusive check of the soundness of the screed throughout its depth.

[27] The pursuers also allege that no reasonably competent specialist flooring contractor would have laid screed with the compressive strength found on testing by H.T.S. Associates in December 1997. Again, the sub-contract made no express provision for a performance standard in terms of compressive strength. Mr Cowie for the pursuers submitted at the hearing on evidence that there was an implied term that the screed as installed would have a compressive strength of at least 25N/m². The pursuers have no pleadings to the effect that any particular minimum of compressive strength was to be implied in the contract. In any event, while there was, after failure of the flooring had begun, some discussion among interested parties about compressive strength of the screed, including reference to 25N/m², I am not satisfied on the evidence that a performance standard in such terms can properly be implied in this contract. Nonetheless, the level of compressive strength of a screed is an aspect of its capacity to withstand imposed loads, a characteristic which may in turn be affected by its aggregate/cement ratio. Accordingly, measurements of compressive strength which are unexpectedly low would appear to be consistent with an inappropriate aggregate/cement ratio.

[28] The results obtained by H.T.S. Associates on testing did show on their face remarkably low levels of compressive strength. The estimated in-situ cube strengths for the four samples tested were 5, 5.6, 6.2 and 9.5 N/m² (an average of 6.8). These results must, however, be treated with some caution as it appears that the core diameter used in testing was below the minimum recommended in the relative British Standard. The defenders challenged the reliability of those results. One of the ostensible purposes of further core samples being taken in February 1998 was to allow the defenders to have the screed tested for compressive strength by a testing house of their choice. Such testing, it seems, was never carried out - for reasons which were not, in my view, satisfactorily explained in the evidence. Mr Devine did not testify as to what had become of the further investigations by Raynesway referred to in the defenders' letter of 28 May 1998 mentioned earlier. Nor was the witness adduced from Raynesway asked about this. Accordingly, the only material available on compressive strength is the H.T.S. Associates results. While I would not have placed substantial reliance on these results if they had stood alone, they give some, albeit limited, support in the circumstances to the implication to be drawn from the chemical analyses that the mix was materially inadequate in cement content, giving rise to a weaker than appropriate screed.

[29] The pursuers also maintain that there was a failure adequately to compact the screed. Inadequate compaction by the operative may be disclosed by low density subsequently found on testing. The materials on which the pursuers rely for this purpose are the density figures brought out in the H.T.S. Associates report and the reference in section 10.4 of Part 3 of BS 8204, supported by Mr Baker, to the density to be expected of polymer modified cementitious flooring. The density referred to in that section is "above 2,000kg/m³ after drying to a constant weight at (104±5)^oC when tested by the method given in BS 1881: Part 114: 1983". The H.T.S. Associates report bears that the cores were tested in accordance with that standard. Although the materials engineer who actually carried out that test, a Mr Walsh, did not give evidence and the report was spoken to by his employer, Mr Barrow, I have no reason to suppose that the density test was carried out otherwise than in accordance with the prescribed method. The density results found in respect of the four samples were 1964, 1973, 1992 and 1962k/m³. While these are all below the figure referred to in Part 3 (the applicability of which on this aspect was also in issue), they are all within 2% of that figure. Mr Boyle, who was personally responsible for the tamping or compaction of the screed subsequently tested, was not expressly challenged in cross-examination on the quality of his tamping nor asked whether he had any explanation to give or comment to make on the density figures subsequently obtained. While the density figures give rise to some concern, the figures fall short of the threshold (assuming for present purposes that it is applicable) by so small a margin that I am not satisfied that in all the circumstances it has been proved on a balance of probabilities that there was a failure to take reasonable care as regards compaction of the screed.

[30] As earlier noted, the positive case advanced by the defenders in their pleadings (sulphate attack through the concrete slab) was departed from in the course of the proof. The defenders also aver separately that the concrete slab was unsuitable by reason of a defective damp proof membrane. This contention was hardly pressed at the hearing on evidence. There is, in my view, no evidence to support the proposition that any defect in the membrane played any part in the failure of the screed. In the end, the matter largely founded on by Mrs Wolffe was evidence of the traffic, consisting primarily of loaded trolleys, to which the flooring was subjected in the months immediately following its installation. The defenders have no pleadings to found a positive case that the screed failed for this reason and that the defenders are on that ground entitled to absolvitor. However, the matter of the trolleys (and the loads imposed by them) was explored with a number of witnesses before Mr Cowie took objection to the line. At that stage I allowed the line subject to competency and relevancy. In the end, Mr Cowie did not invite me to sustain his objection. Accordingly, the evidence concerning the trolleys forms part of the evidence in the case and the factual and legal conclusions from it require to be addressed.

[31] Edinburgh Salmon used a number of hand operated vehicles, including trolleys to a height of about 5 foot 5 inches laden with fish. Those trolleys ran on six small rubber wheels. At the meeting on 25 November 1997 a suggestion was made that the weight imposed by those trolleys was considerable - 75kg. over the six wheels - and that some of them might be rolling on the two middle wheels, thus imposing greater point loads. In order to alleviate any problem associated with those trolleys, Mr Meek agreed to increase the size and number of wheels on them. This was effected shortly afterwards. By that time the six wheel trolleys had been in use for about two months. Mr Sutherland, Highland Council's architect, spoke in evidence to Mr Tough, the Structural Engineer, having done some calculations at the meeting on 25 November which suggested that, if those trolleys had been proceeding on two wheels only, the point loading might be as much as 15N/m². Mr Tough had, Mr Sutherland said, later made further calculations which suggested that, if the full load were imposed through a single wheel, a load of 30N/m² might be imposed - though Mr Sutherland testified that he (Mr Sutherland) did not necessarily accept that proposition. Mr Tough did not give evidence. When repair work was instructed in February 1998 a specification was prepared which required that that work achieve a compressive strength of 20N/m².

[32] Mrs Wolffe submitted that there was an onus on the pursuers to demonstrate that the loading to which the flooring was subjected in the period immediately following its installation had not contributed to the breakdown of the screed. If the pursuers did not positively exclude that as a contributing factor, she argued, then they could not legitimately draw the inference that a properly laid screed would not have achieved a particular compressive strength. This submission was made primarily in the context of meeting Mr Cowie's argument that there was an implied term in the contract that the screed as laid would have a compressive strength of at least 25N/m² and that it had been proved that that implied term had been breached. I have already held that there was no such implied term. However, the matter of loading, including point loading, arises in a wider context and it is necessary to deal with it. As to the facts, I am not satisfied on the evidence that the flooring was subjected to point loading of anything in the order of 30N/m². There is no satisfactory evidence that the trolleys did at all or at least with any frequency proceed on a single wheel; nor in the absence of evidence from Mr Tough am I satisfied that, if they did, an imposed load would have been as much as 30N/m². I accept that at times they proceeded on their two middle wheels, on such occasions imposing a load which may have been as much as 15N/m². That was no doubt a substantial load, but I am not satisfied on the evidence that it involved a greater imposed load than a well made flooring of medium duty classification would have been expected to withstand. Moreover, the failure of the flooring was not demonstrated to be closely related to the use of heavy trolleys on it. Some areas failed which had not been so subjected; some areas did not fail which had.

[33] No doubt if the factory had been subjected only to pedestrian traffic, it is possible that the flooring might never have failed. But, even if I had been satisfied (which I was not) that the loading imposed by the trolleys was a material cause of the failure, that would mean only that it was a cause of that failure. It remains that the breach of contract which I have found to have been established was at least a material cause of the failure of the flooring. That being so, the defenders are liable to the pursuers for the loss they have sustained by reason of that breach. No question of contributory negligence arises.

[34] I should add that Mrs Wolffe submitted that the H.T.S. Associates tests on compressive strength should not be relied on for the additional reason that they had been taken from "weakened screed". There is, however, no reason to suppose that the cores were taken at points where the flooring was already broken. Nor is there any sufficient basis in the evidence for the suggestion that the screed examined was in any material sense in a "weakened" state as against the screed as first laid.

[35] In the whole circumstances I am satisfied that the pursuers have proved that the defenders were in breach of contract and that as a result of that breach the pursuers sustained loss and damage. In terms of the Joint Minute entered into between the parties it is agreed that, in that event, the pursuers are entitled (1) in the principal action to decree in the sum of £39,529.58 with interest at the rate of 8% per annum from the date of citation until payment and (2) in the counterclaim to decree of absolvitor.

[36] I shall accordingly in the principal action repel the defenders' first, second, third and fifth pleas-in-law, sustain the pursuers' first plea-in-law and grant decree in the pursuers' favour for the sum of £39,529.58 with interest at the rate of 8% per annum from the date of citation until payment. In the counterclaim I shall repel the defenders' first plea-in-law, sustain the pursuers' third plea-in-law and assoilzie the pursuers from the first conclusion of the counterclaim. It is unnecessary or inappropriate to deal with the remaining pleas.