Fitness for purpose is a phrase much debated and bandied about. But what does it really mean?
What your contract needs
If you want your contract to provide a project which is ‘fit for purpose’ you need three things:
- a contractor responsible for both design and construction (either D&B or traditional with CDP) – a designer only has a reasonable skill and care obligation
- an employer who relies on the contractor’s expertise e.g. to chose a specific component to meet your output requirements, and
- an employer who sets out clearly the purpose for that component or project.You cannot require the contractor to meet a vague purpose or oblige the contractor to provide a project to meet’s a purpose you did not disclose.
We need to consider purposes and reliance in more detail.
Purposes in Action
In IBA v EMI (1980) the purpose of a TV mast purpose was to withstand foreseeable weather conditions for its location i.e. Emley Moor (which the mast did not do, and collapsed three years later).
In BSS Group v Makers (2011) the purpose of valves was to be compatible with specific branded adaptors (the valves proved incompatible).
In Lowe v Machell Joinery Ltd (2011) the purpose of a bespoke staircase “must surely include the compliance of the goods, when installed and used, with the Building Regulations.” As “…the goods, supplied in exact conformity with the contract, could not lawfully be used for their intended purpose, known to the seller, it does not seem to me that they were reasonably fit for purpose.”
In Trebor v ADT (2012) no specific purpose had “been made clear… At no stage did the [buyers] ever indicate any particular purpose.” As a result the supplier could not be held liable for the goods failure to meet any purpose at all.
Reliance
On a construction project, you will not be relying on your D&B contractor where you provide detailed project requirements, or where you ask your contractor to price your own specification.
In Trebor v ADT, the Court of Appeal held that there was no such reliance. The client, Trebor, had already decided they would replicate an existing system from another factory, and merely asked their D&B supplier, ADT to price that decision.
What should you do?
If you want to rely on fitness for purpose, whether for individual components like valves, a £16,00 staircase, or a complete project, then you need to state the output or purpose you require and let the contractor get on with using its expertise to satsify that purpose.
If you want to avoid fitness for purpose, read on.
Cases: Independent Broadcasting Authority v EMI Electronics and BICC Construction (1980) 14 BLR 1; BSS Group Plc v Makers (UK) Ltd (t/a Allied Services) [2011] EWCA Civ 809; Lowe & Lowe v W. Machell Joinery Ltd [2011] EWCA Civ 798; Trebor Bassett Holdings Ltd & Anor v ADT Fire and Security Plc [2012] EWCA Civ 1158
