Facts
J Murphy & Sons ordered a glass-reinforced plastic pipe from Johnston Precast for a water main. Murphy faxed the order and Johnston acted on it, preparing an acknowledgement and starting manufacture. The pipe was installed in a tunnel backfilled with foam concrete. It burst several years later.
Issue
When was the contract made, whose terms applied, and was Johnston liable for supplying a pipe that failed or for failing to warn Murphy about using foam concrete?
Decision
The Technology and Construction Court held that the contract was made when Johnston acted on the faxed order. On that analysis, neither party’s standard terms were incorporated. The court also considered the alternative formation analysis and reached the same result on liability.
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There was no implied term that the pipe would be fit for use with foam concrete. That particular purpose had not been made known to Johnston when the contract was formed on the court’s primary analysis. Johnston later learned that foam concrete would be used, but did not know and had no reason to know that it could damage the pipe. It had therefore not breached its duty to warn.
The pipe failed because of the combined effect of a void around it and alkaline attack in that area. Johnston was responsible for neither cause. The court dismissed Murphy’s claim.
Source: Full judgment
