Non-delegable duty and the withdrawal of support

In Wilmott Dixon Construction Ltd v Robert West Consulting Ltd [2016] EWHC 3291 (TCC), Coulson J declined to permit the defendant to amend its defence in order to add a new allegation purporting to make the claimant vicariously liable for the work of the claimant’s independent contractor, on the basis that the contractor had been entrusted with work which involved the withdrawal of support from neighbouring property. The non-delegable duty recognised in relation to the withdrawal of support by the owner of one property which causes damage to the adjoining property is one that is applicable as between neighbouring landowners and does not apply as between contracting parties, neither of whom has an interest in the land in question. In any event the existence of any non-delegable duty was not relevant to the defence of contributory negligence on which the defendant sought to rely. Finally, the amendments were sought to be made at too late a stage in the proceedings and would have required the claimant to engage in too much by way of re-consideration of its case for it to be appropriate to allow the amendments to be made.