Turriff Limited -v- The Welsh Water Authority (1979)

© Daniel Atkinson  1999

The contract involved the manufacture, laying and jointing of rectangular precast concrete culvert units. The units were designed by the Employer. The Contractor contended that the culvert units were physically impossible to joint in accordance with the Contract specification. Accordingly the Contractor contended that by virtue of Clause 13 of the Contract, he was entitled to cease work on the Contract, as indeed he eventually did.

It was argued that a Contractor, when faced with a physical impossibility resulting from the employer's design or Specification, is under an obligation to render possible that which the employer had by Contract made impossible, and, it would seem, that the contractor must re-design or re-specify some other mode of working, not in compliance with the Contract, in order to achieve the end result. This argument was rejected by Judge William Stab. It was held that the performance, which was required and intended to be required, was performance in accordance with Drawings and Specification. Turriff was not under an obligation to depart from that Specification and those drawings, when performance in accordance with them became impossible.

His honour Judge William Stab dealt with the meaning of "impossible" in Clause 13 of the Contract. It was held that the design and specification required Turriff in effect to order the units from Trocoll in a form in which it was impossible to comply from a practical commercial point of view, which was the manner in which it was intended that the parties should contract. Accordingly it was impossible for Turriff to comply with their obligation to manufacture the units to Specification on an ordinary commercial competitive basis as the parties intended. Accordingly that part of the works which involved the manufacture and jointing of the culvert units in accordance with the contract was physically impossible within the meaning of Clause 13 of the General Conditions of Contract and as such Turriff were not bound to execute or complete that part of the works.