In this exclusive extract from NBS Shortcuts , written by noted industry figure Austin Williams, we introduce the concept of duty of care.
A prima facie duty of care arises if there is sufficient proximity between the alleged wrongdoer and wronged party, such that the former might reasonably expect that carelessness may cause damage to the latter. It is then necessary to consider whether there are any mitigating circumstances that reduce or limit the scope of the duty and damages.
This Shortcut delves into a few classic construction-related legal cases. Many of these cases involve negligence - intentional or accidental - and thus come under the law of tort. A 'tort' is defined as 'a legal wrong, coming from the Latin term 'torquere', which means 'twisted' or 'wrong'. The idea is that someone can be legally 'injured' and tort law is used to provide restitution from another, who owes them a 'duty of care' and can be held to be legally liable for that injury.
Negligence is but one tort; others include trespass, false imprisonment, defamation, assault, battery, nuisance, fraud, etc. indicating that tort law is part of the civil code; as opposed to contract and property law which form part of the criminal law. Civil law tends to represent a dispute between private parties: usually written in the court proceedings as the plaintiff (the alleged victim) versus a defendant. If the plaintiff is successful, the defendant is directed to pay damages to the plaintiff and/ or to stop the wrongful activity (the latter known as 'injunctive relief'). In criminal cases, the plaintiff is the state and, if successful, has the power to hand down custodial sentences. Here we outline a number of well known legal cases. Bear in mind that some of these have been affected by subsequent events, but they still provide food for thought:
D & F Estates Ltd v Church Commissioners for England & Others (1989) AC 177
The Church Commissioners owned a block of flats built by a firm of contractors who had sub-contracted the plastering work. The sub-contractor's operatives apparently hadn't read the instructions on the packet. Fifteen years after construction, the plaintiffs found that the plaster was falling off the walls. The House of Lords held that damages were not recoverable in tort because the plaintiff had suffered purely economic loss and such a claim lay only in contract. Damages were recoverable in tort only where a defective product caused damage or injury other than to the defective product itself; i.e. if the plaster had fallen from the walls and injured someone, or something.
Baxall Securities Ltd. v Sheard Walshaw Partnership (2002)
England and Wales Court of Appeal (Civil Division) Decisions, EWCA Civ 09, 22/01/2002
An industrial unit had been developed by a property company who, in turn, engaged architects Sheard Walshaw to make improvements. Baxall were the tenants. Soon after moving in, the roof drainage failed and the warehouse flooded and so the plaintiff claimed damages in respect of the goods stored in the warehouse and also the effects on profits of the upheaval. (Baxall would not be entitled to recover the 'economic' loss related to the remedial works to the building itself). The detailed design of the roof drainage has been carried out by a specialist sub-contractor - employed by the main contractor - who omitted the overflow to a valley gutter that was unable to cope with peak rainfall. Unsurprisingly, the architects said that they had not approved the sub-contractor's calculations.
The case turned on the fact that the defective gutter was a patent defect - not a latent one - precisely because the problem of a lack of overflow could have been discovered on inspection. As such, it was held that any reasonable inspection by Baxall would have revealed the problem. This negated the duty of care - or at least broke 'the chain of causation' - and the architect was found not to be liable.
About this article
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NBS Shortcuts is a new series of illustrated "how-to" articles and guides, covering a wide range of practice, regulatory and design guidance. The easy to follow text and detailed hand-drawn graphics will aid any building designer. They are available online as part of your subscription to NBS Building Regulations.
Classic case law
A series of three video programmes looking at legal cases that are frequently referred to in construction industry litigation.