Building Defects ? How do we manage them
Because of the stratified nature of english law it is often the case where authority will have to be assimilated from various sources in order define the current law and still this approach may not provide a definitive answer. The law relating to building defects is an example in this respect, with authority derived from common law, statutory law, European law and what parties have agreed in their contract as well as duties being owed in tort. It will often be necessary to interpret what the law is in context of the particular circumstance with regards to all the relevant sources.
Common Law and Statutory Rights
In the expansion period of the law of negligence in the case Anns v Meron London Borough (1978) the claimants house had been badly built and the defective foundations had caused cracking in the walls. This might at first sight appeared to be a case of damage to property but the courts have traditionally been insistent that a defect is not the same thing as damage: where a product is defective in its manufacture claims may only be made for any personal injury or damage to property as a result, but not the defect itself, which is considered economic, since the loss arises from the reduced value of the object. The House of Lords never the less decided to view cracks in wall as damage to property rather than pure economic loss.
This was followed by Junior Books v Veitchi (1983) which is considered to be the peak of the expansion period in the law of negligence the House of Lords held that despite the existence of a contract, builders owed factory owners a duty of care for a defective floor, despite the loss being purely economical.
The situation after this meant that claimants could recover for economic loss caused by statements under Hedley Byrne v Heller and for economic loss caused by negligent acts under Junior Books. However in Murphy v Brentwood District Council (1990) which concerned a defective building the House of Lords put a stop to the possibility that defects in products could be seen as damage to property. This affirmed that defects were to be regarded as economic loss and that they could not be compensated in negligence.
This has left the Defective Premises Act 1972 to provide the principle right of redress outside the field on contract. The act creates a general duty on persons to see that work is done in a workmanlike or professional manner, with proper materials and so that the dwelling will be fit for habitation. The act therefore creates a statutory duty similar (although wider than) that which the the courts had sought to impose under the law of tort, and also provides what may be regarded as a fair limitation rule, which has no need of a longstop provision.
Standard Forms
The JCT uses a Code of Practice for discovering the extent of defects, without running the risk of having to pay where work is found to comply with the contract, however there is no power to order replacement of defective work; this obligation remains on the contractor by virtue of obligation to complete the works.
Independent of the contract the work must comply with various statutory requirements and difficult questions arise in the event of conflict between these requirements and the architects design. Provided the contractor adheres to the contract documents his obligation is limited to giving notice to the architect of any breach of statutory requirements which he in fact discovers. The additional cost of taking down and rebuilding work so as to comply with byelaws is then likely to fall on the architect if it is shown to be his fault. The contractors obligations are generally limited to physical performance of the work described in the Contract Documents.
Under the ICE contract the engineer has extensive powers to instruct the contractor, during the progress of the work, to remove from site any materials that are in his opinion not in accordance with the contract, substitute materials and the removal and proper replacement of any work which in respect of workmanship or design by contractor is not in his opinion in accordance with the contract. In addition to this and independent of the contract the work must by law comply with statutory requirements and difficult questions can arise in the event of conflict.
Common Law and Statutory Rights
In the expansion period of the law of negligence in the case Anns v Meron London Borough (1978) the claimants house had been badly built and the defective foundations had caused cracking in the walls. This might at first sight appeared to be a case of damage to property but the courts have traditionally been insistent that a defect is not the same thing as damage: where a product is defective in its manufacture claims may only be made for any personal injury or damage to property as a result, but not the defect itself, which is considered economic, since the loss arises from the reduced value of the object. The House of Lords never the less decided to view cracks in wall as damage to property rather than pure economic loss.
This was followed by Junior Books v Veitchi (1983) which is considered to be the peak of the expansion period in the law of negligence the House of Lords held that despite the existence of a contract, builders owed factory owners a duty of care for a defective floor, despite the loss being purely economical.
The situation after this meant that claimants could recover for economic loss caused by statements under Hedley Byrne v Heller and for economic loss caused by negligent acts under Junior Books. However in Murphy v Brentwood District Council (1990) which concerned a defective building the House of Lords put a stop to the possibility that defects in products could be seen as damage to property. This affirmed that defects were to be regarded as economic loss and that they could not be compensated in negligence.
This has left the Defective Premises Act 1972 to provide the principle right of redress outside the field on contract. The act creates a general duty on persons to see that work is done in a workmanlike or professional manner, with proper materials and so that the dwelling will be fit for habitation. The act therefore creates a statutory duty similar (although wider than) that which the the courts had sought to impose under the law of tort, and also provides what may be regarded as a fair limitation rule, which has no need of a longstop provision.
Standard Forms
The JCT uses a Code of Practice for discovering the extent of defects, without running the risk of having to pay where work is found to comply with the contract, however there is no power to order replacement of defective work; this obligation remains on the contractor by virtue of obligation to complete the works.
Independent of the contract the work must comply with various statutory requirements and difficult questions arise in the event of conflict between these requirements and the architects design. Provided the contractor adheres to the contract documents his obligation is limited to giving notice to the architect of any breach of statutory requirements which he in fact discovers. The additional cost of taking down and rebuilding work so as to comply with byelaws is then likely to fall on the architect if it is shown to be his fault. The contractors obligations are generally limited to physical performance of the work described in the Contract Documents.
Under the ICE contract the engineer has extensive powers to instruct the contractor, during the progress of the work, to remove from site any materials that are in his opinion not in accordance with the contract, substitute materials and the removal and proper replacement of any work which in respect of workmanship or design by contractor is not in his opinion in accordance with the contract. In addition to this and independent of the contract the work must by law comply with statutory requirements and difficult questions can arise in the event of conflict.
posted by Will at 10.7.05
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