Working as an independent expert witness, called upon to survey and report on a wide range of landscaping projects that have failed for one reason or another, in preparation for a Court claim, I am privileged to observe these issues from more than one viewpoint.
A claim against a contractor may be valid in the opinion of the customer/claimant, whilst the contractor/defendant – who is likely to have a great deal more experience than the customer will see matters differently due to their experience. On many occasions, disputes could have been avoided if only the contractor had made their specification and method statement logic clearer and more easily understood, in writing, prior to tendering.
The Court will always take the view that the customer is not an expert, and therefore cannot know as much about practical matters as the experienced contractor, and I think this is the correct and logical viewpoint. This is not the same as claiming that the customer should have been aware – caveat emptor or Buyer Beware in common parlance – as the customer may have done due diligence as far as they are concerned, by engaging a claimed expert in the first instance.
Replacing Existing Grass Matting
One of the most common disputes is in relation to the laying of new artificial grass over an existing base. Most ‘replacement’ projects will have originally been laid some years ago, when the use of sharp sand was commonplace. This was often used without a separation barrier to prevent migration of the MOT Type 1 sub-base (usually 100mm deep) from being forced into soft soil, with sharp sand spread too deeply over the surface under the grass matting to correct any minor undulations in the MOT sub-base.
Laying methods used (say) ten years ago, have been altered, with less emphasis on the use of sharp sand at depth – or at all, with the current preference for grano-dust, laid to a depth of 25 – 30mm now widely considered the better option.
Lawns for sites with dogs are now specified as using MOT Type 3, to a greater depth (125 -150mm) to allow freer drainage, with a non-woven geotextile membrane under and on top of the MOT, to prevent migration of the grano-dust laying bed into the more open-grained MOT.
Often, the replacement matting is required due to the ‘failure to perform’ of the sharp sand laying base, due to urine saturation or ‘rucking’ caused by mobility in the overly deep sharp sand laying bed, especially problematic on clay or wet ground. The customer expects the new replacement matting to be an improvement on the old one, with the contractor making practical changes in the specification to ensure that the problems are removed.
In such cases, to avoid any complaints, it is incumbent on the contractor to make matters clear in their quotation, and if a complete rebuild, from soil upwards is required, this fact should be recommended. If unacceptable due to cost, it is better that the contractor resiles from carrying out works that may be deemed to be less than required by the circumstances facing the contractor – who will be deemed to be the expert on site.
Laying New Grass Matting Over a New Base (by Others)
The second main scenario involving artificial grass concerns what may be described as ‘split responsibility’ projects, requiring a contractor to supply and lay new grass matting over a sub-base and laying bed prepared and constructed by others. Sometimes a customer will decide to save on labour costs by having the area reduce dug, with the sub-base and laying bed ready for a supply and lay contract, with the contractor arriving on site, and laying grass matting, with no preparation works included in their quotation.
On some occasions, the ‘fixing edges’ will have been prepared – either timber or concrete haunching – with the central area compacted and ready to receive the matting. Once again, the Court will take the view that the contractor will be the expert on site – irrespective of who prepared the site – and expect the laying contractor to carry out due diligence, by conducting certain tests before tendering including opening up one or more sections of the site and excavating down through the various layers to establish the quality and quantity of the prepared site.
Often, visual inspection will indicate potential problems – whacker-plate lines in the laying bed, indicating inadequate compaction, potential for ponding due to raised hard edges around the project, use of sharp sand instead of grano-dust, any of which should raise red flags. If any of these signs are obvious, conduct a simple form of the Californian Bearing Test, by using your heels to see if any indentations in the laying bed appear.
In my experience, the outcome of any claim will depend on the Judge and the circumstances in the case. If the customer has taken due care in employing professional contractors – albeit not artificial lawn experts – e.g. groundworkers or builders, to carry out the preparation work, and will have reasonable expectations that the work has been carried out to a certain standard, he/she may decide to award 50% of any claim to the Claimant.
If the Judge decides that the matt laying installing contractors should have conducted tests before tendering for the project to satisfy themselves of the correctness of the preparations, he/she may not award any claim in their favour.
Such is the nature of dealing with Court claims. They are rarely straightforward, assessed with a broad-brush/open minded approach by most Judges. Always protect yourself with your Terms & Conditions, clearly setting out any potential problems prior to tendering and mitigate potential issues.
Alan Sargent