Provisional Title
Builder’s liability for negligence under the law of tort – a case of fragmented case law regime?
INTRODUCTION
1.1 Background
The English Law
English law is the ‘common law’ legal system governing England and Wales and the unique feature is that the doctrine of judicial precedents. The past reported decisions of the courts form a binding source of law for the future decisions. The doctrine of binding precedent, or stare decisis, lies at the heart of the English legal system. The decision of a higher court will be binding on a court lower than it in the hierarchy. The term ‘common law’ in this context refers to all those legal systems that have adopted the historic English legal system[1]. According to Slapper, the common law emerged as the product of a particular struggle for political power prior to the Norman Conquest of England in 1066 as there was no unitary, national legal system. The emergence of the common law represents the imposition of such a unitary system under the auspices and control of a centralized power in the form of a sovereign king. The common law (also known as Case law or Precedent) has been developed based on the two elements; Ratio Decedendi[2] and Obiter Dicta[3].
The principle sources of UK law are Legislation and the Common law. Legislation come from two branches which are statutes and delegated legislation and these legislations are interpreted and applied by the courts. The important feature of the UK constitution is the sovereignty of Parliament. As per the UK constitutional hierarchy, the parliament sits at the top under the monarch[4]. It is to be noted that legislation takes precedence over case law and if there is a conflict between these, legislation will prevail.
Whereas the Scottish legal system evolved independently from the legal system of England Wales. Scotland retain its unique and separate legal system which was originally based upon Roman Civil Law principles. From 19th century onwards scot law start accepting precedent as a source of law. Scottish legal system mixes aspects of both common and civil law system now. Therefore, law in the United Kingdom is not always the same across the country[5].
Law from the European Union (EU) is the third source of law since the incorporation of the Lisbon Treaty to the UK legal system[6]. As per European Union (Amendment) Act 2008, if there has been a conflict between UK law and European Law, the UK court have to give priority to European Law [Only for criminal? – check]. It has to be noted that UK has voted to leave European Union following the referendum held on 23 June 2016[7] and the future of the UK parliament’s legislative procedure will be subjected to UK parliament’s legislative procedure and article 50 of the Lisbon Treaty[8].
Builder’s lability under Tort Law: Case Law Development
A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. The law tort is mainly concerned with providing compensation for personal injury and property damage caused by negligence.[9]
There is no separate field of law governing the principles of liability in tort to construction works however builder’s liability can be claimed through principles to the field of building contracts. The nature of arrangements and contractual relationship in construction project will impact the decision of the court. There were diametric court decisions during the development of case law in the last century. These developments were mainly concerned on extend of the economic losses which could be recovered out of the contract. There was no liability in negligence for the construction of defective building work until 1970 even if one suffered an injury or a loss through the negligent acts or omissions of another[10]. Earlier negligence claim was considered with respect of breach of contract. If the claimant was not part of the contract then the court ruled in favour of the defendant considering doctrine of privity of contract[11].
In 1932, famous landmark case, Donogue v. Stevenson[12] has brought new development to the case law by establishing a general principle, the Neighbor Principle. The duty of care owed by the defendant to the claimant has been established on this case. It was specifically imposed a duty of care on manufactures who should not cause personal injury or physical damage to others or their properties due to the defect of the chattels they manufactured. Further, this principle had been applied to a defective building to extent the liability in negligence in subsequent construction cases. Applying neighbor principle, the defendant was found to be breach of its duty of care in Dutton v. Bognor Regis[13] case in the year 1972. Further in 1978, the builder was held liable for the negligent construction pointing the imminent danger to the health of the occupants in Batty v. Metropolitan[14] case.
The liability of defective buildings reached its celestial point in 1983 awarding pure economic loss in Junior Books v. Veitchi Company[15] case. The House of Lord held in favour of the claimant stating that the relationship between the parties was sufficiently close to extend the duty of care.
However, further development was seen in 1990 as law has taken a U-turn from the previous cases laws. In Department of the Environment v. Bates, the House of Lords held[16] that the loss suffered by the plaintiffs was purely economic and therefore not recoverable at later the time when defective work was carried out. In most recent case in this series, Robinson –v- PE Jones[17] clarified that a building contractor shall not be liable in tort for pure economic loss unless the contractor can be shown to have assumed additional responsibility for pure economic loss in the contract.
Are these cases in the series create a confusion to determine what exactly the law is in respect of builders’ liability in tort? This research will have an extensive review on the literatures for this case law development and the hypothetical question is that a fragmented case law?
1.2 Aims and Objectives
Historical perspectives on the interpretation of a builder’s liability under the law of tort on examination lacks consistency. Recent case laws have been established on this premise[18]. The current regime imposes no liability on a builder under torts for pure economic loss unless the contractor can be demonstrated to have assumed additional responsibility for pure economic loss as held in the court of appeal in J.A. Robinson v P.E. Jones[19].
The prime aim of this research is to offer a critical assessment of the existing case law regime on a Claimant’s[20] perspective, its fragmentation and the ability to enforce a claim of negligence against a builder under the law of torts.
There has been increased decisions on builder’s liability under tort law in the recent history. Notwithstanding the many decisions made in this area, existing case law shows little existence of correlation of decisions made. Based on the above fact, it is pertinent to examine the growth and consistency of case law regime under liability through tort law. On this premise, following research questions will be addressed in this research paper;
What is the correlation between builder’s liability under tort law and the existing case law regime on a claimant’s perspective? What forms judicial reasoning on builder’s liability under torts law? Does inconsistency exist under the current case law regime? Does the current case law regime result into miscarriage of justice to the claimants? Is this case law perplexed and confused?
The researcher will compare and analyze various factors driving the case law developments and perform scrutiny on the different decisions and the principles underlying each decision. Such an analysis will help demonstrate the scenario and the tenets of law towards a typical claimant for the negligence of the builder in a dispute over tortious liability. The researcher shall critically assess the literature on case law development to the entirety for lacunas existing on the part of the claimant.
Consequently this research aims at narrowing the decisions on basis of principle and judicial reasoning. This would help to unearth gaps existing of the case law regime through reference on all relevant case laws and further scrutinize the existing law on its development and principles. The researcher shall in addition weigh outcomes of the secondary research on the part of the claimants through the analysis of principle and assess the likelihood of miscarriage of justice. These results shall be used to give recommendations to a potential claimant who seeks remedy form the negligent construction.
The above illustrated aims shall be accomplished through the fulfilment of the following research proposal objectives:
Examine negligence under the law of torts, its history and aspects.
Examine the application of the neighbor principle and its influence on the development of the case law and whether it is a good or bad law
Examination of the existing literature on the case law for its refinement.
Examine the floodgate claim on the nature, effects on claimant’s claims and what it spells for the rights of the claimants.
Compare and analyse how other judiciary system respond to builder’s liability cases in tort law.
Tutor’s comment on above (aims and objectives) : “I just wonder if you could make the aims a little more concise. They go on for 4 or 5 paragraphs at the moment and there seems to be some repetition.”
1.3 Reasons for the carrying out the research
“[T]he distinction between chattels and real property is quite unsustainable. If the manufacturer of an article is liable to a person injured by his negligence, so should the builder of a house be liable.”[21]
The above comment had sparked an interest for the researcher to examine the case laws and its literature.
The Lord Denning’s above comment on Dutton v Bognor Regis UDC case would have wide much-admired by occupiers of the buildings having seen applied Neighbor Principle in the in property sector as well [reframe?]. For couple of decades, the English Law was in favorable to the claimant who seeks remedy for the negligent construction in tort law. However, the law have taken a U-turn after the judgment of Murphy v Brentwood District Council[22]. However, House of Lords decision in Murphy’s judgment was rejected or not considered in other commonwealth jurisdictions, mainly in Canada, Australia and New Zealand. These jurisdictions are still favoring the position of Anns v Merton LBC[23] which seeks two stage test of proximity and policy.
The current position of English Law is that it does not permit recovery in tort for a defective building. Whereas the same English Law is observing famous Neighbor Law Principle with great appreciation. This would be a surprising element when it comes to lay people or even for a law student. Therefore, researcher had an inspiration to examine these case laws to understand law regime at its entirety to analyse the judicial decisions and its reasoning. In order to fully understand how the law operates on this particular sector, it is important to trace through case law development from its beginning. Therefore, this research will be a useful for understanding how judicial opinion can change over the period of time.
1.4 Outline Structure of the Dissertation
To be filled.
1.5 Research Methodology
The research will be conducted based on desk-research of academic books, journals, case studies, statutes, opinion and case laws. Primary research shall not be adopted as research is mainly subjected to law and statues. All of the material will be sourced either through library (physical and virtual) or internet. This dissertation does not involve or seek the information related individual humans, ethnic groupings, organisations or animals. (PENDING)
Chapter Two: Tort law on negligence:
2.0 Introduction
This chapter is intended to demonstrate the basics of negligence and tort law prior discussing about builder’s liability case laws.
2.1 Negligence – Definition and elements
Negligence is a conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.
Negligence is defined in the Statutory Act (Unfair Contract Terms Act);
of any obligation, arising from the expression or implied terms of a contract, to take reasonable care or exercise reasonable skill in the performance of the contract;
of any common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
of the common duty of care imposed by the Occupiers’ Liability Act 1957 or the Occupiers’ Liability Act (Northern Ireland) 1957.
The common law has defined the negligence while establishing the basis of the case;[24]
“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”
English common law had long imposed liability for the wrongful acts of others. The law of negligence developed through the nineteenth century[25] by identifying duties of care which were owned in particular situations. However the concept of the modern negligence developed as an independent cause of action from the twentieth century[26]. The modern negligence law has four elements to test in order to be a successful in negligence claim; (1) That the defendant owed them a duty of care; (2) that there was a breach of that duty; (3) that the breach of duty caused damage and; (4) the damage was not too remote. The first three test was conducted in a landmark case, Donoghue v Stevenson[27] and the additional test, remoteness of damage (fourth one) was added since Wagon Mound no 1[28] case. The test for remoteness of damage is that damage must be of a kind which was foreseeable.
2.2 Tort Law
Tort can be defined as a civil wrong independent of contract. A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. Negligent or malicious failure to exercise the duty to act diligently can be remedied with a claim under the tort law. This branch of the law in England is known as ‘tort’ and the equivalent branch of the law in Scotland is known as ‘delict’. The practical consequences of the law of tort are concerned with the adjustment of losses. Once the elements of fault and damage are recognised, the law decides who should bear the financial losses. It is to be noted that law takes action only if the defendant owe the claimant a duty of care. That duty must be breached. That breach must cause harm. And further subject to the remoteness of damages limitation, the defended will be entitled for the compensation. The primary aims of tort law are to provide relief to injured parties for harms caused by others, to impose liability on parties responsible for the harm, and to deter others from committing harmful acts. Torts can shift the burden of loss from the injured party to the party who is at fault or better suited to bear the burden of the loss.[29]
2.3 Negligence; a brief comparison of Contract vs. Tort.
In contract agreement, the parties are agreed the terms as in the contract and law regulate the matter in dispute based on this agreement and precise type of relationship between the parties.
A contract is basically an agreement between parties outlining their duties and responsibilities to one another. The court rely on these terms of agreement and formulate legal rules. In contrast, tort laws govern situations where one person has harmed or injured another person and the situations in which liability can arise are infinite and such liability can arise in a much wider range of circumstances. Tort laws cover violations where the party intentionally harmed the other person and also address incidents where the party may be held liable even if they did not act intentionally, such as in negligence claims or strict liability claims.[30] In contracts, the rights and obligations are driven by the contract agreement terms between the contracted parties. Whereas in tort, the rights and obligations driven by the courts by applying common law. Therefore, it is to be noted that each party’s consent is required to the contract to be valid and such contract is the beginning and end of the legal relationship between the parties. But, the tort law is never based on consent and it basically one party’s intrusion into other party’s matter such as safety, health, profit, privacy etc. A tort claim does not require a contract in place and the parties involved in a tort claim may never have met, or even seen each other before the event giving rise to the claim.
However, essentially a claim in both contract and tort deals with a duty that has been breached. Through contract a claimant pursue his claim for the breach of duty that defendant agreed in the contract agreement whereas in tort defendant owed a duty of care to the claimant as a reasonable prudent person.
The damages are awarded in contract claim as to restore the parties to their position before the breach occurred. In tort claim damages are awarded to compensate the claimant for their losses and the court may also take into the consideration of claimant’s dignity, feelings and pride then aggravated damage may be awarded. Most of the standard forms of contract contain provisions to deal with the defective works during the course of construction and defect liability period. Though, existence of contract agreement does not preclude the tortious claim. Party to a contract can also raise a claim for a damage under tort. Sometimes there will be parallel claims, one based on contract and the other based on tort. Essentially tort claim can be raised even if there is a contract exist.
2.4 General builder’s liability on Negligence
Construction defects are commonly defined as a failure or shortcoming in the building’s function, performance, statutory or user requirements.[31] The defects in construction project are inevitable however builders are accountable for their defective works. If defects occur during the contract period, the contractor must remedy those for which he is responsible at no extra cost. There may be some significant defects arise after the contract work has completed and that require expensive remedial work. Some defective works may even cause serious life threat to the occupants. Defects can arise due to the wrong materials used or work was not carried out in a ‘workman like manner’ with good practice or may be because of the design fault. The builder shall be liable for these defects even after the work completion during Defect Liability Period or Rectification Period depends upon the various form of contract. The occupant will further benefit from the Statutory Limitation Period stated in the Limitation Act passed in 1980 for any latent defects appeared during such period. The Limitation Act allows actions for breach of contract and tort, such as negligence, to be brought within a period of six years under a simple contract and twelve years if the contract is executed as a more formal deed.
2.5 Types of defects: Patent Defects and Latent Defects.
A patent defect is one that is detectable either at or before apparent practical completion or during the defects liability period (or Rectification period). Whereas a latent defect is one which has been concealed in the works and may not become apparent for many years.[32] In most of the standard contracts insist that Patent Defect should be rectified before the practical completion date. Latent Defects shall be addressed during defect liability period or limitation period.
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Upon identification of the defects and failed approach for the rectification through contract, a party to that contract who wishes to claim for loss or damage can do under the contract or under the tort or two potential claims can run alongside each other. A claimant may prefer to base his claim for loss or damage on the law of tort rather than on the contract for following reasons;
The contract is an agreement between the two parties with defined possibilities and their risk sharing method. The actual disputed issue may not exactly scripted in the contract so there may be lack of validity in each parties arguments. At some instant, the contract is not wide enough to cover such situation
Claims under contract may be difficult at some time as parties are agreed on certain terms and they interpret on different manner due to vague draft. This can lead to serious dispute over the extent of contractual obligations.
Damages may limited in the contract and possibility of having higher value of damage under the law of tort.
The rules on remoteness of damage (see below) are less restrictive in the law of tort/delict than in contract law.
In certain circumstances a claimant who is time barred from bringing a claim for breach of contract.
2.6 Legislative Acts – How does Acts protect the interest of building owners?
Statutory Acts provide certain time limits for the claimants to rise their claims. Limitation Act is a statutory remedy which prevents a claimants from bringing proceedings after the expiration of specified time limits. The prime intention of this statute is to provide defendant a peace of mind from stale proceedings of claims and encourage the claimants to avoid delayed claim. The limitation period only give restrictions in the time period for the claimants whether he can bring the claim or not. This does not necessarily give right to the claimant for the remedy.
As per the Limitation Act passed in 1980[33], a claim made in relation to a simple contract must be commenced within six years of the cause of action. Claims in relation to contracts executed as deeds must be made within 12 years from the date on which the cause of action arises. Deed is nothing but a contract made with higher formalities than a single signature such as under seal and signed by two directors or witnessed by the company representatives. Therefore, it is important to the building owner that all contracts are made under seal. It is to be noted that a cause of action may occur some years before the subsequent defects establishes itself such a cause defective foundation can produce crack in the wall. The claimant would there not know that the cause of action has arisen. Subsequently full six or twelve years period may not be available for the claimants to act and he may run out of time completely before the defects becomes evident.
In most cases the claimant would have detected the defects when actually he suffer the damages not when cause of action arises. The Latent Damage Act 1986[34] assist claimants by preventing negligence claims from being time-barred with further three years extension from the time of discovery of the defect. The Act further instruct that the claim must be commenced within 15 years from the breach duty. This applies whether or not any defects have appeared or been discovered.
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Topic 1: Introduction to Delict/Tort and General Principles (1)
Chapter One: Introduction (1500 words)
1.0 Thesis – Introduction
1.1 Background
1.2 Aims and Objectives
1.3 Reasons for carrying out the research
1.4 Outline structure of the dissertation
1.5 Research methodology
Chapter Two: Tort law on negligence: (2,000 words)
2.0 Introduction
2.1 Negligence – Definition and elements
2.2 Tort Law
2.3 Negligence; a brief comparison of Contract vs. Tort.
2.4 General builder’s liability on Negligence
2.5 Types of defects: Patent Defects and Latent Defects
2.6 Conclusion
Chapter Three: Case Law: Judicial reasoning and scholarly literature (4,000 words)
3.0 Introduction
3.1 Case Law Development – Orthodox View
3.2 Influence of Neighbor Principle
3.3 Case Law Development – Departure from Orthodox View
< Note: – Review on minimum four cases, their judicial reasoning and secondary literature >
3.4 Case Law Development – Return to Orthodox View
< Note: – Review on minimum four cases, their judicial reasoning and secondary literature >
3.5 Conclusion
Chapter Four: Analysis of the precedent regime (4,000 words)
4.0 Introduction
4.1 Scrutiny of case laws based on the facts
4.2 The Principle derived from each cases
4.3 Analysis of principle derived based on the case scenario
4.4 Correlative empathising
4.5 Conclusion
Chapter Five: Analysis and Findings (3,000 Words)
6.0 Introduction
6.1 Review of all conclusions
6.2 Analysis and appraisal
6.3 Conclusion
Total: 11,000 words (As per order) [chapter 3,4 & 5)
[1] Gary slapper & David Kelly, The English Legal System – Fifteenth edition [2014-2015], Routledge Taylor & Francis Group, page 5
[2] Ratio Decedendi (latin) – ‘the reason for the decision’; It means the principle of law which a decision is based.
[3] Obiter Dicta (latin) – ‘by the way’; anything said in the process of making decision. It has only persuasive authority.
[4] The UK monarch is a hereditary office and the monarch is the head of the state.
[5] Lecture Notes, RGU, BSM 743
[6] Decision Pursuant to Article 10 of protocol 36 to The Treaty on the Functioning of the European Union, HM Government, July 2013
[7] BBC report dated
[8] http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-European-union-and-comments/title-6-final-provisions/137-article-50.html
[9] Dictionary of law, oxford, sixth edition 2006.
[10] Cavalier v. Pope [1906] AC 428
[11] ibid.
[12] Donoghue v. Stevenson [1932] AC 562
[13] UDC [1972] 1 QB 373
[14] Batty v. Metropolitan Property Realisations Ltd. [1978] QB 554
[15] [1983] 1 AC 520
[16] Department of the Environment v. Bates [1990] 2 All ER 943
[17] J.A. Robinson v P.E. Jones (Contractors) Ltd [2011] EWCA Civ 9
[18] J.A. Robinson v P.E. Jones [2011] EWCA Civ 9
[19] [2011] EWCA Civ 9
[20] In this document a claimant generally refers to a person who pursue the case to seek the remedy from builder’s negligent construction, unless otherwise stated therein.
[21] Dutton v Bognor Regis UDC [1972] 1 QB 373
[22] [1991] 1 AC 398
[23] Anns v Merton London Borough Council [1978] A.C. 72
[24] Blyth v Birmingham Waterworks Co (1856) 11 Exch 781 at 784 (chek page number required or not?)
[25] Winterbottom v Wright (1842) 10 M. & W. 109; 152 E.R. 402.
[26] Donoghue v Stevenson [1932] AC 562
[27] [1932] AC 562
[28] The Wagon Mound no 1 [1961] AC 388
[29] https://www.law.cornell.edu/wex/tort
[30] http://www.legalmatch.com/law-library/article/contract-and-tort-law.html
[31] A. Mills, P.E.D. Love and P. Williams, “Defects cost in residential construction,” Journal of Construction Engineering and Management.
[32] http://www.out-law.com/en/topics/projects–construction/construction-claims/defects-liability-periods/
[33] Act 1980 (state correctly)
[34] Act 1986 (state correctly)
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