CARRINGTON CONSTRUCTIONS PTY LTD v FIORE HOLDINGS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and HANDLEY JJA 6 November 1991, 1 May 1992 [1992] NSWCA 36 APPEAL from District Court — Contract between builder and plasterer for plastering of a house during building. NATURE OF WARRANTY BY PLASTERER — Whether warranty of reasonable fitness for the purpose or promise to carry out work in proper and workmanlike manner and with proper materials — Depends on circumstances of job and contract. WHETHER WARRANTY BREACHED — Judge held not breached — (By majority) Held warranty was breached. Mahoney JA In or about January 1981 Carrington Constructions Pty Ltd ("the builder") commenced construction of a house for Mr and Mrs Bihari. In or about July 1981 it engaged a firm United Plasterers Company ("the plasterer") to carry out the plastering work in the building. The plastering work was completed in or about October 1981. In December 1981 Mr and Mrs Bihari moved into the house. In March or April 1982 cracks began to appear in the paint surface in parts of the building. It now appears that the substantial defects which developed resulted from cracking in the plasterwork which had been done by the plasterer. Mr and Mrs Bihari sued the builder for the defects which had emerged. The builder served third party notices on the plasterer and others. An agreement had been arrived at between Mr and Mrs Bihari and the builder and the third party notices served by the builder upon parties other than the plasterer have not been proceeded with. The only matter now in issue is whether the plasterer is liable to compensate the builder for the amount which the builder has paid to Mr and Mrs Bihari. It is the issue of liability only which is now in question. The proceeding was heard by his Honour Judge Mahoney in the District Court. On 24 April 1990 his Honour dismissed the builder's claim against the plasterer. The builder has appealed to this Court against his Honour's judgment. The builder's claim against the plasterer, as set forth in the third party notice, was that in the contract made between them there was an implied term that the plasterer "would carry out the said work in a proper and workmanlike manner and would select and use proper materials for the said work". In the proceeding before the District Court, the precise form of the obligation of the plasterer to the builder in this regard appears to have been in issue: at least, the learned trial judge referred to authorities in which consideration has been given to the principle involved. It has been submitted before this Court that the contract contained a warranty to the effect that the walls, when plastered, would be reasonably fit for the purpose for which relevantly they were intended, viz, for painting. Alternatively, the builder's contention was that the warranty was to the effect of that originally pleaded. Its submission was that what was done was a breach of one or other of these warranties. 1. The warranty to be implied: 2 UNREPORTED JUDGMENTS The main submission made for the builder was that there was a contractual warranty to be implied that the work when completed would be reasonably fit for the relevant purpose: Mr Birch, for the builder, referred inter alia to McKone v Johnson (1966) 2 NSWR 471; Rea Glass Pty Ltd v Rivers Locking Systems Pty Ltd (1968) 42 ALJR 254; Cable (1956) Ltd v Hutcherson Bros Pty Ltd (1969) 123 CLR 143 and Helicopter Sales (Aust) Pty Ltd v Rotor work Pty Ltd (1974) 132 CLR 1. There is, no doubt, an implication to be drawn as to the quality of the work to be carried out by a building subcontractor. But I do not think that any general principle has been established as to the content of the warranty to be implied: to adapt what was said by Stephen J in Helicopter Sales (Aust) Pty Ltd v Rotor work Pty Ltd: at 8; broad generalisations are better avoided. His Honour: at 12; cited from the judgment of the Exchequer Chamber in Readhead v Midland Railway Co (1869) LR 4 QB 379 at 392: "Warranties implied by law are for the most part founded on the presumed intention of the parties, and ought certainly to be founded on reason, and with a just regard to the interests of the party who is supposed to give the warranty, as well as of the party to whom it is supposed to be given." In order to determine the content of the warranty to be implied in this case, it is therefore necessary to examine what was done and the respective positions of the parties. The plasterer was engaged by the builder as a subcontractor. Its function was to plaster the surface of the brickwork of the inside of the building at the relevant places to provide, as in this case, a foundation for the painting of the walls. The work involved the application of two coats. The first coat ("the float') was to be comprised of, inter alia, cement; the second coat ("the finish") was to give a smoother surface than would be provided by the ordinary float or a conventional cement surface finish. Two things were, in substance, common ground in relation to the nature of this work. The float, after it was applied and as a consequence of its drying, was apt to develop cracks. Various reasons were given for this but it was, I think, accepted as an ordinary incident of the operation. The contemplation was that, insofar as the cracks had occurred, the finish when applied would cover and no doubt to an extent fill the cracks so that the final surface would be smooth and appropriate for painting. It was also common ground that the finish should not be applied until the float had appropriately dried. Reference was made by expert witnesses and others to the effect of the drying procedure upon the float and so upon the finish. The expiration of moisture by the wall could, if the work was not properly done, affect the finish layer and also any coating of paint applied to it. I come now to the circumstances in which the plasterer was engaged in the present case. It had done plastering work for the builder on previous occasions and the builder had found the work done to be of a high standard. There were no written specifications for the present work and, apart from indicating the fact that the finish was required, no particular instructions were given. The builder was, it was suggested by Mr Watt, for the plasterer, content to accept the standard of work which the plasterer had in the past done for the builder in this regard. It was, subject to the matters to which I shall refer, generally accepted in the present case that the standard of the work previously done by the plasterer had been of a high level. The learned judge did not find any defect in the work which the plasterer did in the instant task. WARRINGTON CONSTRUCTIONS PTY LTD v FIORE HOLDINGS PTY LTD (Mahoney JAB The plasterer was, of course, but one of the several tradesmen assisting in the erection of the building. The order in which the plastering work was to be done was, in general, in the discretion of the builder. It would, no doubt, be the prerogative of the builder to order the sequence of works by the various trades and, within appropriate limits, it would be the duty of the plasterer to comply with any directions given in this regard. It was also, I think, generally accepted that the nature of plastering work required that different parts of it be done at different times and with intervals between them. Thus, the finish could not be applied until the float had appropriately dried. One thing to be drawn from this is that it would be possible for the builder, if the exigencies of the building schedule so required, to require the plasterer to do work at a time at which ordinarily it would not have carried out its plastering work. It would, of course, be expected of the plasterer, as a practical matter and perhaps as a part of its obligation, that it would draw to the attention of the builder the significance of any direction of this kind and its possible effect on the quality of the work which would be done: if the direction would produce unacceptable cracking or other defects, the plasterer would no doubt draw that to the attention of the builder. But, I think, it would remain with the builder to determine, inter alia, the order in which the work was to be done and when. The evidence disclosed that there might be other matters which could, notwithstanding proper workmanship by the plasterer, affect the quality of the result produced by it. Reference was made to such matters in the reports and evidence provided by those called as experts in this area. Some criticism was directed to the form and the substance of this evidence. Some at least of it appears imprecise: no doubt it was given to deal with a practical problem in a practical way. But, in my opinion, at least the possibility of difficulties in respect of plastering emerged from the evidence. Some examples may be taken of this. Thus, if there was subsidence in the building that could cause or contribute to cracking in the float. If there was dampness, in the brickwork or otherwise, other than would normally be expected, this could, inter alia, affect the drying and subsequent processes associated with the float. These and other possibilities are significant because they could result in the float and the finish being unsatisfactory and not fit for the purpose of being painted or otherwise dealt with in the building process. It is in this context that it is necessary to determine the content of the term to be implied in the contract between the builder and the plasterer. The matters to which I have referred indicate "the practical inability of the defendant to insure compliance with" an absolute warranty of fitness: there were, as the parties would have known, circumstances in which work otherwise properly done by the plasterer would not result in a surface which was to be painted or otherwise dealt with as desired by the builder. The nature of the warranty to be implied is to be settled at the date of the making of the contract and the fact that matters of the kind to which I have referred did not or may not have occurred during the course of the actual work does not alter the position. I therefore do not accept the term to be implied was an absolute warranty of fitness for the relevant purpose. The term to be implied is, I think, that set forth in the builder's third party notice, viz, that the plasterer would "carry out the said work in a proper and workmanlike manner and would select and use proper materials for..." it. This is, I believe, the nature of the implication which the learned judge adopted. 2. Was there a breach of warranty? 4 UNREPORTED JUDGMENTS The learned judge held that the plasterer did not breach the implied warranty. Mr Birch, for the builder, has submitted that his Honour was wrong. It is therefore necessary, as on a rehearing, for this Court to consider what was the correct conclusion. A number of witnesses gave evidence before the learned judge and written reports and other documents were tendered. His Honour noted in his judgment that he was satisfied "that none of the witnesses deliberately set about misleading the court or giving any evidence other than that which they sincerely believed to be the truth. Obviously there were honest mistakes made, just as the passage of time has operated to expunge many details about dates and sequences from many witnesses' memories". The evidence of the witnesses was, in some respects at least, not completely consistent. His Honour did not, in terms, analyse the evidence particularly of the expert witnesses nor did he make specific findings as to the accuracy of the evidence of particular witnesses. It is therefore necessary for the court, within appropriate limits, to form its own opinion as to the effect of the evidence, giving due weight to such findings as the learned judge made. The position is to some extent complicated by the fact that at the trial the work of the painter also was in issue. The learned judge found that the system of painting and the work of the painter were not responsible for what happened and the appeal has proceeded upon that basis. The central fact was that cracking did occur in the float and that it was that cracking which caused the difficulty experienced with the paintwork. The question to be determined was therefore, as I have indicated, what caused the float to crack. Various things were suggested as possible causes of the cracking of the float. For the builder, the main causes suggested were that the materials used in the float were "cement rich" and that the finish had been applied by the plasterer before the float had properly dried. Other reasons were suggested: it was suggested by Mr Mahaffey, an expert witness for the plasterer, that there was excess water in the walls due to poor construction practice, that an impermeable paint had been used, and that this had led to the cracking of the float. Reference was made also to the effect of the settlement of the building in producing the cracking. As his Honour recorded in his judgment, the builder's contention at the trial was that the float failed "because the plasterer did not judge the correct time to wait before applying the set coat". The builder placed reliance upon the evidence of his expert Mr Anderson that "the float coat was harder than normal" and accordingly was "too rich in cement". But, as his Honour recorded, that "was not in the front of the builder's battle order". Accordingly, at the trial various possibilities were canvassed as causes of the cracking of the float some of which, viz, the cement mix of the float material and the premature application of the finish were consistent with a breach of warranty by the plasterer, and some of which, eg, the defective construction of the building, its wetness or its subsidence did not evidence default by the plasterer. And, having regard to the state of the evidence, I would myself not be satisfied that there may not have been other things which could have caused the cracking of the float. The evidence of the experts, as I have suggested, lacked precision or consistency, to the extent that I am not satisfied that all of the possible causes of cracking of the float were listed or detailed. WARRINGTON CONSTRUCTIONS PTY LTD v FIORE HOLDINGS PTY LTD (Mahoney JAB I come, in this context, to consider whether it has been established that the cracking of the float was due to one or other of the suggested causes and whether that cause was one for which the plasterer is responsible. In approaching this matter, it is, in my opinion, important to have in mind both that the plasterer was accepted to be a workman of high competence and that the work that was done on this occasion was, when done, apparently of first quality. Mr Roughsedge, the builder's supervisor had worked for the builder for a number of years. He said that the plasterer had worked on the builder's projects since 1969 and that "his work could not be faulted". He agreed that "he turned out a first class job" "always". Mr Roughsedge said that he "looked at the finished job, after it was set, and the job looked 100 per cent". And, as has been put to the court, it was not until some five months or more after the work was completed that cracking became evident. The inference to be drawn from the evidence was that the plasterer, in doing the subject work, followed the work practices which ordinarily it followed. These were detailed by Mr Fiore and his main workman Mr Biviano gave evidence of what was done. Subject to what I shall say, it was not suggested that the work had been done in a fashion which differed from the work which over the years the plasterer had done for the builder. It is relevant therefore to consider, if the plasterer was responsible for what happened, why in this case the result of what it had done was of a standard less than that produced by it for the builder between 1969 and 1981. Some of the witnesses suggested that the cracking was due to the float being over rich in cement. It was accepted that, if it was over rich in cement, that could lead to it being harder than it should have been and to the development of cracks as the material dried. The trial judge did not see this as "determinative of the duties and responsibilities because of the prior history of dealings between the builder and the plasterer". And, as his Honour noted, this was not the matter in the forefront of the builder's case at the trial. There are, I think, difficulties in accepting that what was done in this regard constituted a breach of warranty. The plasterer adopted a 7:2 mix, that is, the materials were comprised of two parts of cement and seven of other substances. This was said by Mr Fiore to be the mix which he adopted for the job. It was not suggested to him that he had, in this, departed from his normal practice: the inference I would draw from the evidence is that in this also he followed his normal practice. That practice had, in other work over the years, produced proper results. Neither party explored this matter in depth and Mr Fiore was not questioned as to the propriety of adopting the mix that he did. The evidence given by such of the witnesses as professed qualifications for speaking as to the mix to be used was, I think, not compelling. The preponderance of witnesses who spoke to the matter referred to the hardness of the float but whether this would have produced the result in question is not, I think, clearly demonstrated. The evidence was that it was to be anticipated that cracks would or might develop in the float as it dried or after it had dried. There was evidence that one of the functions of the finish was to fill the cracks which had developed in the float. If it be accepted that a float over rich in cement would be more likely to produce cracking or cracking of greater dimensions, it is not clear why the finish, properly applied, would not have remedied these defects or remedied them to an extent greater than appeared in the present case. 6 UNREPORTED JUDGMENTS It is also to be recalled that both Mr Fiore and Mr Biviano spoke as to the state of the float: their evidence was to the effect that the work was properly done and Mr Fiore was definite that there was, at the relevant time, no such cracking as was suggested. In the end, I am not satisfied that the composition of the float was the cause of the damage which, in March-April 1982 and thereafter, was observed. It was common ground that, if the finish was applied before the float had properly dried and if the float subsequently cracked, damage to the painted surface could occur. The issue in this regard was therefore whether the finish had been applied too soon. Both Mr Fiore and Mr Biviano denied that it was: Mr Fiore was particularly emphatic upon the matter. There was no direct evidence to the contrary. Mr Roughsedge, who was present to supervise the job, gave no evidence inconsistent with theirs. The evidence for the plasterer was that it was necessary to wet the walls after the float had been applied and before the finish. This was, perhaps, not inconsistent with the float not having fully dried but, I think, the thrust of the evidence was that the float was not applied too soon. This was the inference which the learned judge drew from the evidence as it was given before him. It was upon the evidence of the persons claiming expertise that, in the main, Mr Birch relied in this regard. The learned trial judge was not convinced by that evidence. But, however that be, it is open to this Court, I think, to consider what inferences should be drawn from that portion of the evidence. In Chambers v Jobling (1986) 7 NSWLR 1 at 24-6, I referred to the approach which, in the cases, has been taken to evidence of this kind. The witnesses in question in this case, insofar as they concluded that the finish had been applied before the float had properly set, relied upon inference. It is arguable that they drew this inference because, the over rich cement factor apart, they saw no other acceptable explanation for what, as they were informed, had appeared. But, however that be, their conclusions consisted essentially of inferences. The weight to be given to such inferences in such a case will depend upon the view taken by the court of "the certainty of his facts and the stringency of his principles': at 24. And, in assessing the evidence of a witness, the trial judge is, in my opinion, particularly in a position of advantage. Where the evidence of experts is not completely consistent or satisfactory, as this evidence was, the benefit of the "feeling" of the case and of the witness which the trial judge has is, I think, not lightly to be put aside. In this case, as I have said, the learned judge was not convinced by what they had said that the finish had been applied before the float had properly dried. If Mr Fiore and Mr Biviano be accepted as honest witnesses endeavouring to give accurate evidence, as the learned judge held, I find nothing in the evidence of the other witnesses to lead me to the conclusion that they were wrong. But, however that be, I am not satisfied that the finish was applied before the float had dried. Mr Mahaffey suggested at least one other reason why the cracks could have occurred and, it may be, the fact that the difficulties came to notice only in March-April 1982 rather than earlier provides some support for this. I therefore do not find that the plasterer was in breach of the warranty. The appeal should therefore be dismissed with costs. Clarke JA In January 1981 Mr and Mrs Bihari ("Bihari") engaged Carrington Constructions Pty Ltd ("Carrington") to construct a residence for them at 80 Sugarloaf Crescent, Castlecrag. In turn Carrington engaged Fiore Holdings Pty Ltd and Biviano Holdings Pty Ltd, trading as United Plasterers Company ("the WARRINGTON CONSTRUCTIONS PTY LTD v FIORE HOLDINGS PTY LTD (Clarke JAY plasterer''), as its subcontractor to carry out the plastering work involved in the construction of the residence. Carrington also subcontracted the painting to Andrew Bognar ("the painter"). Within six months of the completion of the residence, that is about mid-1982, Bihari noticed that the paint which had been applied internally was bubbling and peeling in a number of places. Upon investigation it was found that the paint was not adhering properly to the plaster surface on the walls and, to a lesser extent, the ceilings. Attempts were made during the following years to remedy the defect and finally Bihari sued Carrington for defective workmanship. Carrington joined the plasterer and the painter in the action upon the basis that one or other of them had brought about the defects which led to Bihari's action. Although other parties were joined it is unnecessary to refer to them for they took no part in this appeal. The case duly came on for hearing before Mahoney DCJ. On the first day the proceedings between Bihari and Carrington were compromised and the issues which were litigated were those between Carrington and its plasterer and painter. The facts not in dispute, the respective arguments of the parties and the findings of fact were set out clearly in the judgment and it is helpful, I think, to quote from the relevant passages in the judgment. In adopting this course I will not set out the whole detail of the findings of fact but only those matters which are relevant to the determination of the issues confronting this Court: "All parties seem to have been agreed that: (i) The internal coating of the inner skin or wythe of the brick walls has been cement rendered with a mix of cement and sand blended by using water containing some lime (the 'float coat') over which a further covering of gypsum plaster based substance has been applied (the "set coat'). These two coats were supplied and fixed by the plasterer. (ii) Over the top of the set coat the painter has applied by spray gun the paint system which was a sealing coat of water based emulsion marketed by Krysler and two, and in places three, coats of oil based enamel marketed by Wattyl. (iii) The failure of this paint system was what first attracted attention. The subsequent investigation of that failure has revealed geographically matching failures in both the set coat and the float coat as well. That is to say wherever the paint came off or peeled back such failure was located over discernible cracks in both the set coat and, beneath that, in the float coat. There was a faint submission put forward on behalf of the plasterer that some paint failures were not geographically matched by set coat and float coat failures but this submission is not supported by the evidence. The Respective Arguments: By Builder: 1. That the cracks in the float coat cracked the set coat and, in turn the paint system. 2. That the float coat failed because the plasterer did not judge the correct time to wait before applying the set coat. 3. That the evidence as to causation by Mr Mahaffey, the expert called by the plasterer, to the effect that the wetness in the walls of the building was due to the builder's bad practices and that the wetness caused the cracking, should be rejected. 4. That the admitted settlement cracks which do exist in the building have nothing to do with the aetiology of the cracking mechanism. 8 UNREPORTED JUDGMENTS 5. Although it was not at the front of the builder's battle order, there was also reliance placed on the evidence of a Mr CW Anderson that the float coat was harder than normal, leading to the conclusion that the mix was too rich in cement and that such richness would have produced a fast rate of drying which speed in turn would have produced cracking. 6. The combination of these matters has resulted in a failure by the plasterers to produce a result which was acceptable, because the rendering system failed and the paint system was thereby made to fail. Such failures, it was submitted, established both a breach of contract and a case in tort. By Plasterer: 1. That the Painter applied a paint system to walls which were still wet with plaster. 2. That the paint system, because of its outer films being enamel, trapped that moisture, whereas a different selection of paint with greater permeability would have permitted the moisture to pass through the film of paint and evaporate within the house. 3. That the trapped moisture destroyed the addition of the paint and broke the film open. 4. The opening up of the paint film initiated a differential rate of drying, with the areas of render closest to the paint ruptures drying more quickly than the areas more remote therefrom. 5. The differential drying rate produced cracking where the drying was quicker. By Painter: 1. The builder told the painter when the job was to be performed. 2. There is no evidence to support the differential cracking theory of the plasterer. 3. The attack by the plasterer on the painter's choice of paint system is not supported by the preferable evidence on that issue. 4. All the eye witnesses' evidence in the case is that the wall was dry when the paint was applied. 5. The wall would have cracked in any event, no matter what paint system was applied nor when it was applied. Findings of Fact: (1)... none of the witnesses deliberately set about misleading the court or giving any evidence other than that which they sincerely believed to be the truth.... (2) Next, I find that the trade skills and the practical application of those skills in the courses of their businesses by both the plasterer and the painter have been of superior quality. 3. Thirdly, I find that this builder has had a high regard for the competence of both plasterer and painter and that it was for this reason that they were selected as the relevant sub contractors for this project. 4. Fourthly, I find that the paint finish met the contractual requirements of the builder and the satisfaction of the owner, even though unfortunately the cracking mechanism has truncated its durability and useful life. I also find, in this regard, that the paint system selected by the painter was appropriate for the use to which he put it, despite expressions of opinion by some witnesses to the contrary. In this regard I prefer the technical opinion of Mr Willis, Wattyl's expert employee, and the practical experience of the painter, who had used it previously, to any evidence in the case to the contrary. WARRINGTON CONSTRUCTIONS PTY LTD v FIORE HOLDINGS PTY LTD (Clarke JAD 5. Fifthly I find that the walls were dry when the painter commenced to apply the paint system, that is to say dry as gauged or measured by him, and I find that he was not in any way negligent or in breach of any relevant duty of care by the manner and method he employed to test such dryness. Despite evidence in the case of availability of electric meters to test for dryness, there is no evidence that the failure to use them was a departure from a reasonable standard of good painting practice in 1981. 6. Sixthly I find that the paint system, whatever it may have been, would have been ruined by the cracking mechanism in any event. It follows then that the painter cannot be held to be responsible in any way so there will be verdicts in his favour in the claims against him by the builder and by the plasterer. 7. Seventhly I find that the sequence of the cracking mechanism originated in the float coat and then propagated through the set coat into the paint system. 8. Eighthly, I find that the plaster was applied in a good and tradesman like manner both as to the float coat and the set coat and I find, as the plaster's two operatives, Messrs Fiore and Biviano, have said in evidence that by the time they came to apply the set coat the float coat was indeed dry - so dry that water had to be 'pumped' into it in such quantities that they had to spread sand on the floor to mop it up as they worked. It follows that in my view the set coat was not applied while the float coat was too wet or damp from the original drying process. 9. I find next that the sequence of application of the float coat and the set coat was somewhat disjointed and that the plasterer had to 'come and go', so to speak, in such a fashion as to be able to accommodate to the builder's progress through the works. Although there is no evidence on the point and no submissions were put to me about this, it may well be that there were differential drying rates in respect of the different cycles of time within which the plaster was applied. The disjointed sequence of the application of the plaster is in no way the fault or the responsibility of the plasterer. As Mr Fiore so picturesquely expressed the situation 'The builder tells us when to do the work. We have a saying: "Tie the donkey where the owner says".' 10. Next, although there is evidence in the case to the effect that the hardness of the float coat admits of the inference that it was too rich in cement and that this is the genesis of the cracking mechanism and its propagation, I find that in engaging the plasterers the builder relied on its past very high regard for the plasterer's skill and competence and that in so doing it left the ratio of the proportion of cement and sand in the float coat mix to the skin and judgment of the plasterer. In this context also I find that evidence in the case about the acceptability of a mix in proportions of 7:2 in preference to a mix in proportions of 3:1 ought not to be determinative of the duties and responsibilities because of the prior history of dealings between the builder and the plasterer. From their past dealings the builder was aware of the system employed by the plasterer in achieving the ratio of the mix and it was that level of performance of which the builder approved and of which its site controller Mr Laurence Roughsedge spoke in glowing terms. The builder did not in this case set parameters of the ratio by involving a written performance specification, specifying a particular mix ratio to be maintained. In the performance of the plastering work the builder received what it expected to get from the plasterer by way of performance and it cannot now be heard to complain. There is no evidence that, as of 1981, the standard of performance of plastering work was anything different from the tradesman having a labourer batch the mix by shovel and then testing its suitability by observing how it went onto the was in the course of the job, as was done on this job." 10 UNREPORTED JUDGMENTS In the light of these findings his Honour found that Carrington had failed to establish its case against either the painter or the plasterer and entered judgment in their favour. Carrington has appealed from the judgment entered in favour of the plasterer. It has accepted his Honour's conclusions that the painter was not shown to be in breach of any duty to Carrington but claims that in those circumstances his Honour should have entered judgment against the plasterer as the party at fault. In particular it was submitted that, insofar as his Honour found that "the builder relied on its past very high regard for the plasterer's skill and competence, an implied warranty arose that the plastering work would be reasonably fit for its purpose, which warranty was breached by the plasterer. Ihave had some little difficulty understanding how it is that his Honour found that neither the painter nor plasterer were at fault in the light of the cases which were presented. As the extract from the judgment, which I have set out, demonstrates the plasterer sought to make a case that the painter was at fault and the painter, for its part, sought to rebut that case. It does not appear from his Honour's judgment that the plasterer asserted that someone else, for instance Carrington or the subcontract bricklayer, was at fault. The key to an understanding of his Honour's conclusion is, perhaps, to be found in paral0 of the findings of fact. That paragraph starts with a reference to evidence which may tend to explain the failure of the paint work and to implicate the plasterer. His Honour did not, however, make a definitive finding in relation to that evidence but then directed his attention to the past history of the dealings between Carrington and the plasterer. Having referred to that past history and the past performance of the plasterer his Honour concluded that Carrington received "what it expected to get from the plasterer by way of performance and it cannot now be heard to complain". That finding did not address the questions whether any term was to be implied in the contract as to the quality of the works and, if so, the content of any such implied term. Later in the judgment, under the heading "The Authorities" the trial judge made further observations which tend to suggest that his Honour took the view that as no defects appeared during or immediately after the performance of the work by the plasterer Carrington could not be heard to complain. Although his Honour did not consider the nature of any implied term he did advert to Helicopter Sales (Australia) Pty Ltd v Rotor Work Pty Ltd 132 CLR 1 in concluding that where there is a special relationship between the parties one of them cannot be heard to demand a level of performance greater than what all parties knew was being offered at the time they came together in both their contractual and tortious roles. Because of the importance of this passage in the judgment to an understanding of my ultimate analysis of his Honour's conclusions it is necessary to set it out. What his Honour said was: "In the instant case the builder knew that the plasterer would be employing a labourer, albeit a supervised labourer, to batch the mix using a shovel and his vast experience and that the quality control would be exercised by the tradesman using the hawk and the trowel to place the mix on the wall. It had been a satisfactory arrangement for the builder in the past. That was what it asked for this time and that is what the plasterer delivered. The builder cannot now claim that the control of the order and sequence and cyclic progress of the building work it was controlling should pass into the hands of the sub contractor. Overall site control, management, organisation and responsibility remains with the WARRINGTON CONSTRUCTIONS PTY LTD v FIORE HOLDINGS PTY LTD (Clarke JA) builder. If it had had any doubts about the suitability of the performance of the sub contractor it could have called the plasterer back to eradicate faults. It did not do so because none were known to it. When the plasterer was performing the work no faults became apparent. When the painter arrived on site no faults in the plasterer's work occurred to him. In a job of this nature, organised with the level of informality which obtained and based upon the tacit reliance upon the past performances of the subcontractors, as I find to have been the case, the builder cannot be heard to complain if it gets from each of those subcontractors what it bargained for and what in law they were under a duty to provide to the builder. The fact that the end result was unsatisfactory for the owner at the expense of the builder is a factor of its informality in contracting with the subcontractors and of the way it supervised and coordinated and controlled the whole project. Despite the criticism which it attracted at the hand of Mr Duncan Wallace QC in the First Supplement to the Tenth Edition of Hudson's Building and Engineering Contracts, it seems to me that the principle set out in Helicopter Sales (Australia) Pty Ltd v Rotor Work Pty Ltd 132 CLR | is entirely apposite, namely, that because of the special relationship between the parties one of them cannot be heard to demand a level of performance greater than what all parties knew was being offered at the time they came together in both their contractual and tortious roles. All the evidence from the actual eye witnesses to the performance of the work attests to its suitability and acceptability." An appreciation of the decision in Helicopter Sales is, I think, necessary for an understanding of his Honour's approach. In that case it was held "... a contract to do work and to supply materials in the absence of special circumstances, will carry implied warranties that the materials are of good quality and free from latent defects and that they are reasonably fit for their intended purpose. " It was also held that there were in that case special circumstances which negated the implied warranty. Stephen J, who delivered the leading judgment, thought there were two reasons why the implied warranty was excluded. The first was that there was an express term dealing with the same subject matter and in these circumstances the implication of a term as to quality was likely to do "violence to their contractual intentions rather than to give effect to them" (p 12). Secondly, his Honour referred to particular acts which negated the inference that the presumed intention of the parties was that a warranty as to quality should be superimposed upon the express term. It is unnecessary to set those facts out for the contract in Helicopter Sales was completely different to the one under consideration here and the particular facts which excluded the implication were special to that contract. The importance of Helicopter Sales to his Honour's judgment lies in its recognition of the fact that the Particular circumstances of a contract may prevent the implication of a warranty of quality in that contract. The special circumstances which, in his Honour's view, negated the implication of that warranty in this case were those set out in the latter passage of his judgment which I have quoted. The first question which arises is whether his Honour was correct in this conclusion. In Helicopter Sales Stephen J observed that it was not open to doubt that warranties of quality and fitness for purpose may be implied in contracts for work and materials (p 8). His Honour also referred with obvious approval to the decision of the House of Lords in Young and Marten Limited v McManus Childs Limited (1969) 1 AC 454 in which each of their Lordships adopted as their own 12 UNREPORTED JUDGMENTS the enunciation of principle by du Parcq J in GH Myers and Co v Brent Cross Service Company 1934 | KB 46. What du Parcq J said was: "... a person contracting to do work and supply materials warrants that the materials which he uses will be of good quality and reasonably fit for the purpose for which he is using them, unless the circumstances of the contract are such as to exclude any such warranty." It is to be noted that the warranty relates to the materials used by the person contracting to do the work. In general that person's obligation in respect of the work to be done is not in doubt. It must be done with all proper skill and care. In some contracts there will be an express term to this effect but in a simple oral contract pursuant to which a person retains a contractor to perform works for it there will usually be implied a term that the contractor perform the work in a good and workmanlike manner. It is possible that a contractor may be able, by a special term, to exclude this obligation but there is nothing which would exclude that obligation in this case. Returning to the statement by du Parcgq J it will be seen that his Lordship spoke of two warranties. The first is that the materials will be of good quality and the second that they will be reasonably fit for the purpose for which the contractor is using them. Both can, as his Lordship recognised, be excluded by the circumstances of the case. An example is to be found in Helicopter Sales itself. Where the customer's main reliance is on the skill of the tradesman and the use of the materials is incidental to the tasks being performed the position may be that, to adopt the words of Lord Reid: "... less cogent circumstances may be sufficient to exclude an implied warranty of quality" in those circumstances. (Young and Marten Ltd pp 468, 476-7.) But speaking generally where there is a simple oral contract whereby A retains B to perform, for instance, plumbing work for it I see no reason why the law would not imply warranties that the work would be performed by the plumber in a proper and workmanlike manner and that he or she would use materials which were of good quality and which were reasonably fit for the purpose. In that circumstance there would be nothing that would detract from the conclusion that those warranties would accord with the presumed intention of the parties. What I think is demonstrated by HelicoPter Sales is that before those terms, or either of them, are excluded there needs to be particular facts supporting the conclusion that the presumed intention of the parties was that the customer was accepting the risk of the quality of the materials. In a normal situation the customer's reliance upon the skill of the contractor would extend both to the selection of the materials and the performance of the work. The warranties which I have been discussing are to be distinguished from another warranty which may arise in a contract for the performance of work. That is, that the work when performed will answer the purpose for which it was intended. The discussion in this case tended to confuse these warranties but they are in truth essentially different. Where the customer relies on the contractor's skill and judgment the latter warranty may also arise. In McKone v Johnson (1966) 2 NSWR 471 Sugerman JA (with whose judgment the other members of the court agreed) adopted the expression of the general principle articulated in Corben v Hayes (Full Court NSW Supreme Court, 29 April 1964, unreported) in these terms: "Unlike a warranty of good workmanship, a warranty that the work will answer the purpose for which it is intended is not implied in every contract for work. The essential element for the implication of such a term is that the WARRINGTON CONSTRUCTIONS PTY LTD v FIORE HOLDINGS PTY LTD (Clarke JAB employer should be relying, to the knowledge of the contractor, upon the contractor's skill and judgment and not upon his own or those of his agent." The critical factor is that the customer relies upon the contractor to produce a particular result. In McKone it was a roof which prevented the entry of water. In Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd 120 CLR 516 it was a burglar proof door. Ihave no doubt that in the present case the plasterer contracted to carry out the plastering work in a workmanlike manner and, in the course of doing that, to use materials which were suitable for the task undertaken. The question whether, however, there was an implied term that the plastering surface when completed, would be suitable for the application of paint is more complex. That is because there were possible causes of the failure of the plaster which were not the responsibility of the plasterer. For instance, chemical may have leached from the bricks which caused the plaster to break down months after completion or the cement used for the bonding of the bricks may have counteracted with the plaster in such a manner as to cause it to break down. I do not mean to suggest that these possibilities were demonstrated in the evidence. Rather I seek to make the point that the plaster could have broken down even if the plasterer had used materials which were entirely suitable and had done its work in a proper manner. That circumstance leads me to conclude that it would be wrong to imply a term in this contract that the plasterer guaranteed its result. There are, however, no facts which were proven, or which could be inferred, which would support the view that there should not be implied a term that the plasterer would use suitable materials in its plastering operation. Accordingly, I would conclude that the terms which should be implied are, first, that the work would be done in a workmanlike manner and, secondly, the terms which appear in the passage from the judgment of du Pareq J which I have quoted. These are, in fact, essentially the implied terms which were pleaded in the third party notice and which were admitted by the plasterer, in its defence to that notice, to be applicable. Unfortunately his Honour does not seem to have considered whether there had been a breach of the implied terms which in my opinion clearly arose in this case and the existence of which had been admitted on the pleadings. His Honour's statement in the concluding part of his judgment that the principle set out in Helicopter Sales is entirely apposite is consistent with the view that his Honour rejected Carrington's claim against the plasterer because there was a special relationship between the parties which excluded the implication of those terms in the circumstances of this case. - In the light of the pleadings that was not a course which was open to his Honour and, even if it had been, the conclusion was, in my opinion, an erroneous one. Nowhere in the judgment did his Honour set out those terms as to the quality of the work and materials used which bound the plasterer. Accordingly, he did not address the question whether there was evidence which established, prima facie, that the relevant implied terms had been breached. Nor did he consider whether, if there was evidence of breach, that evidence should be accepted. The whole thrust of the judgment was that because Carrington had found the plasterer satisfactory in the past Carrington left it to the plasterer to carry out its work in its own way and could not now be heard to complain that the plaster was in fact defective. It is true that earlier in the judgment his Honour made a finding that the plaster was applied in a good and tradesmanlike manner both as to the float coat and the set coat. This finding reflected an acceptance by his Honour of the evidence of 14 UNREPORTED JUDGMENTS two witnesses called by the plasterer as to the manner in which they had gone about their task. The difficulty with the conclusion is that it takes no account of the fact that on his Honour's clear finding the plaster had cracked in an unacceptable manner. Once his Honour had rejected the claim made by the plasterer that the paint bubbled and peeled away because it had been applied in an improper manner and found that the underlying problem was that a cracking mechanism originated in the float coat and extended into the set coat the conclusion appears compelling that the plasterer had failed to establish that it was the painter who was to blame and must, therefore, itself accept responsibility for the failure of the plaster. Although it may have been impossible to discern the precise cause of the cracking mechanism the substantial extent of the cracking established, at least prima facie, that the plaster was defective. I emphasise at this stage that no suggestion appears in the pleadings, or his Honour's judgment, that some other tradesman may have been responsible for the ultimate failure of the plaster. Indeed the manner in which his Honour expressed the respective cases is consistent only with the view that the real dispute was whether it was the painter or the plasterer who was at fault. In any event no where does his Honour consider in his judgment the possibility that someone else might have been at fault. There is, however, an indication that the evidence supported the conclusion that the plasterer had used an incorrect mix of sand and cement. This appears in paral0 of his Honour's findings where he said: "Although there is evidence in the case to the effect that the hardness of the float coat admits of the inference that it was too rich in cement and that this was the genesis of the cracking mechanism and its propagation..." Unfortunately his Honour did not indicate whether he found that evidence acceptable or not. If his Honour had accepted that evidence and drawn the inference then the cause of the failure of the plaster would clearly be shown to have been consistent only with defective workmanship by the plasterer in mixing the plaster. Instead what his Honour went on to say was that: ".. I find that in engaging the plasterers the builder relied on its past very high regard for the plasterer's skill and competence and that in so doing it left the ratio of the proportion of cement and sand in the float coat mix to the and judgment of the plasterer." That is undoubtedly a correct statement on the facts and it provides the very reason why the implied terms arose in this case. Carrington was relying on the plasterer to use suitable materials and to perform its works in a proper way. Further, the evidence which supported the inference of which I have spoken tended to establish that although suitable materials had been used the plasterer had failed to carry out its work in a workmanlike manner. On the whole it seems to me that his Honour's conclusion that the implied terms discussed in Helicopter Sales did not arise in this case led to the consequence that he did not consider the critical question which was whether the plasterer had breached the implied terms which did arise. In those circumstances his judgment cannot stand and it is necessary for this Court to reconsider the case and, in doing so, to accept his Honour's findings that all witnesses attempted to tell the truth in this case. Although the real question which seems to me to arise on the issues litigated between the parties is whether the inference that the plaster was too rich in cement should be drawn, I should say at the outset that during the appeal the plasterer sought to mount a case that it was the builder who was at fault. Although this contention did not appear in the written submissions of Mr Watt, counsel for the plasterer, it was raised during his address to the court. This issue does not WARRINGTON CONSTRUCTIONS PTY LTD v FIORE HOLDINGS PTY LTD (Clarke JAB appear to me to have been litigated below and, for that reason, I do not think that it can now be raised in this Court. Nonetheless, I have considered the submissions and found them unacceptable. The reasons which lead me to this conclusion will appear in the general discussion of the cracking and its cause which follows. The Court was shown photographs of the peeling paint and cracking plaster work which were taken at various times following the completion of the work. What these photographs made absolutely clear was that the cracking of the plaster work was of a significant nature and led, as his Honour found, to the paint peeling away. Such cracking would have been completely unacceptable to any home owner and clearly resulted from some underlying fault. It could not simply be explained on the grounds of natural causes nor, subject to what appears below, did any expert seek to explain it on natural causes or as resulting from the fault of someone other than the plasterer and painter. Carrington clearly recognised the defective nature of the plaster in compromising, and properly compromising, the home owner's claim. As I have earlier indicated the plasterer contended that the fault lay at the feet of the painter and it is implicit in that contention that the cracks in the plaster neither evidenced defective workmanship nor led to the paint failure. His Honour, correctly in my opinion, rejected the latter claim, holding that the cracks did cause the paint failure. A number of expert witnesses were called by the various parties and counsel analysed their opinions carefully during the examination and cross examination at the trial. The main witness relied upon by the appellant was Mr CW Anderson, a building consultant whose involvement in the building trade commenced in 1934. He concluded that the paintwork failed because: (a) The float coat of plaster contained a high proportion of cement. This produced a strong mixture and exacerbated the crazing of the plaster in drying; (b) The set coat of plaster, whilst of satisfactory mix, was applied before the float coat was thoroughly dried out. Consequently the shrinkage cracking still occurring in the float coat was reflected in the set coat. His Honour in fact rejected the second conclusion but did not make any finding in relation to the first. Counsel for the appellant complains about his Honour's rejection of the second finding upon the basis that Mr Anderson was not challenged upon it during his cross examination and in fact reiterated his view in some detail when asked by the cross examiner to indicate the principal reason which led to the cracking. I will put that complaint to one side for the movement. There was support for Anderson's opinions to be found in the evidence of Mr Foxton, an expert retained by the painter, by Dr MG Stevens of Insearch (Department of Materials Science - University of Technology, Sydney) and by Mr Collins, an expert who prepared a report on behalf of Unisearch Limited for Bihari. The only evidence to the contrary effect was given by Mr Mahaffey an expert who was ultimately retained by the plasterer. He prepared a number of reports in which he attributed the responsibility to different people. In his first report, dated 26 October 1987, which was prepared at the behest of the lime supplier, Blue Circle Southern Cement Limited, he concluded that the failure resulted from the plasterer not having taken sufficient care to avoid uncontrolled drying of moisture from the render with resultant cracking. In his second report, dated 25 October 1989, which was prepared for the respondent, he blamed the painter for using the wrong paint. He did however note, and I will return to this, that there was 16 UNREPORTED JUDGMENTS evidence of dampness in the southern and northern walls at the time that he saw the building, which was, of course, eight years after it had been completed. In his evidence in chief he went further and suggested that the underlying problem was the poor construction of the building and in particular the failure to form cavity drains which led to an accumulation of moisture in the walls. There are a number of problems with this evidence not the least being that this case was not put to any of the other experts in cross examination and, as finally developed, was somewhat unclear. I will put to one side for the moment the consequences of the failure of the plasterer's counsel to put this case to any other expert witness in order to deal m a little more detail with the reports prepared by Mr Mahaffey which provide the background to his later evidence. His first report was dated 26 October 1987 and followed an inspection of the premises on 22 October 1987. His brief was on behalf of the lime supplier, Blue Circle Southern Cement Limited, who had been accused by Carrington and the plasterers of providing defective lime. One of his tasks was to advise whether the popping effect (I take that to mean the bubbling of the paint) had been caused by the failure to properly slake the lime in accordance with proper procedures. At that time he was in no doubt, as his report makes clear, that the owners had sued Carrington in respect of the faulty wall surfaces and that Carrington and the plasterers were looking to the lime supplier. In the report Mahaffey sets out the result of his inspection. What is presently relevant is that there is no suggestion that at the time of that inspection there was any dampness in the walls. On the contrary there is a close examination of the weather conditions in late 1981 and early 1982 designed to support the conclusion which Mr Mahaffey reached that in the relatively dry conditions which operated at that time the plasterer had failed to take sufficient care to avoid uncontrolled drying of the plaster with the consequence that it cracked. His next report was made after the proposed proceedings against the lime supplier had been abandoned and took place at the behest of the plasterer. He inspected the site on 17 October 1989 and reported on 25 October 1989. His concluding comments in that report were: "There is evidence of dampness in the southern and northern walls, and this would have caused the paint on these walls to fail, regardless of the condition of the plaster or the type of paint used." This expression of opinion was greatly amplified in his evidence in chief but until that time there would not have appeared to be any support in the case for the view that dampness in the southern and northern walls, found for the first time in 1989, played a part in the peeling of paint four or five months after the completion of the building (that is in March 1982). In this context it should not be overlooked that Mr Bihari had not limited his complaint to peeling paint on the north and south walls. According to his evidence all the walls in the house, except Gyprock walls, cracked. He gave a graphic description saying "The whole house, yes, was like a cobweb, it was full of cracks." Of more importance to the theory which emerged in Mahaffey's evidence in chief was what the painter Mr Bognar had to say. He finished his work in about December 1981 and there were not then problems with the paint work. About March or April 1982 he was called back to the site by Mr Bihari and found that in some places the paint was peeling. He carried out repainting of the affected parts of the building. WARRINGTON CONSTRUCTIONS PTY LTD v FIORE HOLDINGS PTY LTD (Clarke JAY Again in 1983 he was called back to the site and again he found peeling paint. Once again the affected surfaces were repainted. This did not effect a permanent cure and finally he told Mr Bihari that he could not fix the problem. The subject of dampness first arose when counsel for the plasterer asked him whether he had noticed paint peeling of the architraves, skirtings and pelmets in places. The clear thrust of this question was to demonstrate that the paint failure was not associated with any defect in the plaster. He agreed that he had seen paint peeling off one skirting board on the lower level. His Honour then asked why he thought the paint had peeled off the skirting and Mr Bognar said that there was a patch of dampness on the wall about three metres long and that that was a possible explanation. The cross examiner then sought to take the matter of dampness further and Bognar agreed that if there was permanent dampness in a wall plaster will, after the passage of ten years or so, eventually corrode. On the other hand he thought that temporary dampness would not have that effect. Although his evidence supported the conclusion that long standing permanent dampness of a wall will cause plaster to degenerate the significant feature of his evidence for present purposes is that he did not suggest that on any of the two occasions when he was recalled to the site there was any dampness in the walls apart from the one small area associated with the peeling paint on the skirting board. Indeed his specific reference to that one spot conveys the clear inference that the walls were dry in all the other areas. With that background in mind I come to the evidence of Mahaffey. In his examination in chief he took the short statement in his report about the dampness on the northern and southern was much further. Indeed it seems to me that he suggested that poor building practices relating to cavity drains and weep holes had led to a rising damp problem which was probably the cause of the peeling of the paint in the subject premises. His exact words were: "The problem is the water in the house, the massive amount of water stored in the walls of the house." He also stated that he considered that the painter contributed to the problem by using a paint which did not permit the water to escape. He did not, however, measure the moisture content of the bricks in order to determine whether the dampness had caused the cracking of the render or plaster and was forced to concede that the fact that he had not observed dampness on the eastern, western or internal walls, which were cracked in a similar manner to the southern and northern walls, was not entirely consistent with his theory. He did, however, suggest that this apparent inconsistency might be explained by the transmission of moisture through the bricks, an explanation which in the circumstances of this case seems to me to be fanciful. He then gave the following evidence in answer to cross examination by counsel for Carrington: "Q. I think you agreed that the render would not have cracked because of the moisture, you say has got into the walls? A. Did you say the render would not have cracked? Q. That was the opinion you had expressed, did I correctly summarise your evidence? A. If I understand you, the water in the walls did not have a big impact on the cracking of the render. Q. Did you accept that? A. Yes. Q. It follows, as night follows day, that the only reason the paint cracked is that the render cracked underneath it? A, It is not as clear cut as that. 18 UNREPORTED JUDGMENTS Q. You are here to explain it; can you suggest whether there was some other cause that may have caused the paint to crack apart from the cracking in the render? A. I am not suggesting that there is more to it than the cracking of the render. Q. So far as the cracking of the render is concerned you agree that is shrinkage cracking? A. Yes. Q. You accept that? A. Yes. Q. You accept that has been reflected in the set plaster layer on top of it? A. That is correct. Q. In the normal course of things the render dries out and the shrinkage cracks appear early in the process of it drying, do you agree with that? A. Yes. Q. And if a set coat over that, the plaster will fill the cracks and leave you with a completely smooth surface, do you agree with that? A. If the conditions are right, yes." Although the failure of counsel for the plasterer to put Mahaffey's theory to the various experts called by the other witnesses may be thought to cause difficulty in the resolution of this case it would seem to me that the concessions which he eventually made removed this difficulty. For my part I would infer that his Honour's statement of the separate cases of the parties reflected the submissions made in final addresses. Everyone agrees that it properly reflected the submissions made by Carrington and the painter. Furthermore, it would seem to me that the plasterer would have had difficulty in supporting a case on the basis of the theory of was dampness which Mahaffey expressed in the light of his subsequent concessions, and the absence of any evidence of dampness in the walls when the paint first peeled in 1982, and that difficulty would explain the fact that counsel for the plasterer based his case in final address wholly and solely upon the use by the painter of an unsuitable paint. If I be correct in the view that his Honour correctly stated the submissions of the parties then the issue which arose for his determination was whether, the painter having satisfied him that he had performed his work in a proper manner, the inference should be drawn that the float coat was too rich in cement and had caused the problems of which the owner complained. It would seem to me that the evidence overwhelmingly supports the conclusion that this inference should be drawn and in those circumstances I would conclude that the plasterer breached its contractual obligations. Even if it is permissible to regard Mahaffey's theory as raising a real issue at the end of the case I would adhere to the same conclusion. I would do so for two reasons. The first is that there is no evidence supporting the conclusion that the walls were, except in one small area, damp in 1982 and 1983. The second is that the inconsistencies between Mahaffey's reports and his evidence (including his concessions), renders his evidence, and in particular his theory that the dampness in the walls caused the problem, quite unreliable and certainly not of sufficient weight to lead me to reject the cogent expression of opinion by Anderson. It should not be overlooked that in reaching this conclusion I am not differing from the views of the trial judge on the acceptability of Mahaffey's evidence. His Honour did not, in terms, express any view on the issue under discussion. He did, however, deal with one issue - the suitability of the paint - on which Mahaffey gave evidence and on that issue he preferred the evidence of Willis which was in direct conflict with that of Mahaffey. WARRINGTON CONSTRUCTIONS PTY LTD v FIORE HOLDINGS PTY LTD (Handley JAD For these reasons I would allow the appeal, set aside the judgment of Mahoney DCJ in favour of the plasterer and remit the proceedings to the District Court for an assessment of the quantum of damages. The respondent must pay the appellant's costs of the trial and the appeal. Handley JA I agree with Clarke JA. (By majority) 1. Appeal allowed; judgment of Mahoney DCJ set aside. 2. Proceedings remitted to the District Court for assessment of the quantum of damages. 3. Respondent to pay appellant's costs of the trial and appeal. Counsel for the Appellant: CJ BIRCH Counsel for the Respondent: OG WATT Solicitors for the Appellant: BENJAMIN and OSBORNE Solicitors for the Respondent: LESLIE E ABBOUD