1. The channel of construction matters administers by legal regulatory frameworks. The construction contract law result from agreements made between parties for all construction matters even if they are not executed on written agreements.
The response to the problem provides explanation of new statutes, court cases and standard form of contract. As per facts of the problem, John is an aggrieved party who seek claim for damages and compensation against the threatening actions of Chris and Peter under the construction law.
Every Construction Contract law binds with an obligation to specific performance to contract. If any default in performance of contract then the ambiguity in construction terms takes place. The court have acknowledged following four major classification of construction defects:
The present problem to the response supports the “design and workmanship deficiencies”.
In the provision of Section 2.1 of the Construction Contract Law – the general rule is that the contractor is in obligation to convey the entire construction work in a prescribed mode according to the terms of the contract. In case of defects occur during period of construction contract law, the contractor obliged to facilitate the default without any additional or extra cost. Even the contractor is liable to pay defect in the construction project (Keenan and Smith, 2007).
The ambit of construction law states that the damages may be claimed by the aggrieved party on the basis of breach of contract or in defaulting on the part of contractor. The basic claims of the construction contract are ruled by the application of contractual legislation in Australia. The application of contractual law specified in the leading case of Hadley v Baxendale [1854] EWHC J70. The rule of Baxendale provided the base of damages mainly under two circumstances. The circumstances are that quantum of damages are determined by the “general damages” and another “special damages”. The general damages can be awarded in the general circumstances. While, the special damages are awarded when the party provides a justification that the damages were not foreseeable or remote in nature (John, 2013).
Fairfield Development, Inc. v. Georgetown Woods Sr. Apartments Ltd. Partnership, 768 N.E.2d 463, 474 (Ind. Ct. App. 2002) held that the court shall determine the measures of damages on the basis of fair and reasonable theme of argument for the breach of the contract. The case is simply a rectification of the application of Hadley rule.
Under English law, the legal rule is that every construction work must be free from any patent or latent defects. In case of Dura (Aust) Constructions Pty Ltd v Hue Boutique Living Pty Ltd, the court held that any conveyance contract is not complied without the requirements of the “show cause notice” in case of any fault arisen in the agreement. Such show cause notice does not require any particular or precise detail but must show that the agreement is broken by the contractor. Mostly, the verdict of court favours the compliance of show cause notice in the conveyance agreement (Slapper and Kelly, 2009).
The legal rule in construction law is that settled compensations are awarded in the event of violation of contract. Such liquidated damages may also be rightfully given when there is a pre estimation of genuine loss. However, the Australian Apex Court changed the method in the thought of “liquidated damages”. The test of pre estimation of loss must be taken place before awarding any liquidated damages to the aggrieved party in Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67.
Further, the present problem supports the application of common law; every contractor is liable to complies with the duty to care, skill and diligence in order to carry out the basic requirement of the construction. The strict duty must be follow in the construction work.
In Greaves v Baynham Meikle, [1975] 1 WLR 1095, the case states that duty is mandatory in nature. Lord denning asserted that there must be a fitness for obligation. Such obligation include that the owner hire contractor for a purpose to renovate building only on the basis of contractor skill and capability to construct a building. Therefore, it the obligation of the contractor to find out the work implementation in a proper manner and also ensure that work is finished according to owner terms and conditions. Thus, the application of “reasonable care” must be properly applied in every case of construction work (Hapke, 2009).
In IBA v EMI and BICC, (1980) 14 BLR held that the agreement to construction if not made on any express terms then in such implied conditions are set down because the obligation to construction work is deemed to be include an undertaking obligation of the contractor personally. Moreover, Judge John Davies stated in case, Viking Grain Storage v T.H. White Installations Ltd, (1986) 33 BLR that the benefit of the implied condition prescribes reasonable standard of liability. In such circumstance, the contractor cannot deny the unfinished work to complete on a demand additional consideration (Hinze, 2012).
Generally, the owner of the building is not entitled to recover amount of costs if he does not prove the case under nature of “breach of contractual terms”. Such remedy to the breach of the contract requires an evident factor of specifications. For example- the specification is that to construct a building for a purpose of commercial use and construction of parking area is a must requirement under specification. However, the contractor constructs a building but fails to provide any space for parking area. Such specification of the construction constitutes a breach of the contractual relations. The breach of the contract always followed with a principle of remedy. Thus, in order to claim damages, the owner has to provide evidences that no space was provided for parking in an existing construction agreement and other reliable documents in it (Holt, 2013).
In Newton Abbott Development Co. Ltd v Stockman Brothers (1931) 47 T.L.R. 616 it was held that an owner is entitled to claim specific performance in case on the part of failure to act as per construction law. The plea of specific performance activates in the case in case when contractor shift his intention not to work further for the project of owner.
In William Cory & Son v Wingate Investments (1980) 17 BLR 109 the court held that the plaintiff is entitled to cost of reinstatement in case when prima facie case made out in his favour (Sweet and Schneier, 2012).
In British Transport Commission v Gourley [1956] AC 185, in this case, compensations are calculated on the losses. As per defects, the liability of the defaulting party is assessed. The contracts of the construction are mainly based on the extent of defects and as per extent of such damages; the compensation is awarded to the aggrieved party to the case. According to the facts, the aggrieved party entitled to the maintenance and replacement work by defaulting party. Thus, if no such assessment of the compensation takes place that may cause injustice to the aggrieved party.
The overview of the present cited cases states that the defects are considered as a common base of the dispute in the construction contracts. Every owner is legally entitled to acquire a defect free construction work. The present problem supports the case of defects and breach by the Chris and Peter. No contractual terms can be taken for granted by any contractor or sub-contractor.
Undoubtedly the defects matters are mostly referred to mental trauma to the owner. The defects are simply a result of negligence performed by any contractor or sub-contractor. In order to curb the numbers of defects matters, the ADR alternative dispute resolution procedure is highly demanding by the parties to the construction law. The procedure involves a speedy remedy to the parties in an easy and economical way (Lin, 2015).
Thus the conclusion of the present problem is that the John is legally entitled to claim damages against the action of Chris and Peter. The response follows with a principle that “absolute liability for defects arisen in the construction litigations”. As per facts of the problem, the Court of Law may order the compensation to the John against the action of Chris. Also the Chris and peter are obliged according to provision of “specific performance of the contract. Thus, the threatening by the Chris shall not harm to the john. In fact, John is legally entitled to claim specific performance of the unperformed task by the Chris. In case of peter, no contractor can break the contract without prior information to the owner. Here, john is legally entitled to claim damages against the Peter’s breach of contract. Alternatively, John can also bind the peter to perform his contract as he failed to provide prior intimation to John.
2. Under English law or Common law, the law of tort is a civil wrong occur at the event of loss raising a legal liability of an injured person. The legislation on tort allocate obligation as well as remedy for any negligent conduct. “The term tort defined as a civil wrong which is independent to the contract” (Uff, 2009).
The liability of tort does not rise automatically, it only exist when any reasonable losses takes place (Bruner and O’Connor, 2009). The required components of ascertaining reasonable losses are
Under common law, the leading case, Donoghue v. Stevenson [1932] AC 562 states the fundamental principle by Lord Atkin. The duty of care is a key factor to ascertain the basis of negligence (Jervis and Levin, 2008).
Another prominent case of negligence is Rylands v Fletcher (1868) LR 3 HL 330 where justice Blackburn states the theory on “strict liability”. The case paved the way of judgment of numerous cases on negligence. As per doctrine of strict liability, the liability does not include any mensrea (an intention of negligence).
As per facts of the present problem, the primarily responsibility was of McKeown who does not provide adequate number of guards in the building. Secondly, the guards were also not supervised by the managers. Thirdly, the builder does not provide any quality work in the building. The defaulting party is McKeown in this present problem and is liable under tortious law. As per law of tort, McKeown committed negligence and breach the fundamental duty of care and diligence. The cases supports the response to the problem is:
The leading case which invokes a fundamental principle on negligence in construction law in the Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 establishes the fundamental ruling on liability. In this case, House of Lords held that the liability of defaulting party recognises not only on the basis of pure economic terms but also with the liability on the basis of compliance of “standard of responsibility” (Jones, 2010).
The same application of “economic loss” is laid down in Murphy v Brentwood District Council [1991] 1 AC 398 where a House of Lords held that the damages are compensated on the basis of pure economic losses. As per facts of the case, builder failed to provide adequate compliance of construction which later results of owners’ death by slippery tiles used by builder. The case also overruled the ruling of Anns v Merton London Borough Council [1978] A.C. 728 where two stage test is applied to ascertained the measures of damages.
London Borough of Merton v Love [1988] 18 Con LR1- where the builder of the swimming pool failed to discover cracks ceilings in pool and court held that builder is obliged to perform a repairs as well as compensation to provide to the owner of the property on the basis of negligence.
Justice Dyson reviewed the duty of care and diligence in the case of Chesham Properties Ltd v Bucknall [1996] 82 BLR 92- where the builder was need to implement a proper application of the “duty of care and diligence” in the construction of the flats. After completion of the flats, complaints were received by the occupants of the sound proofing. In such case, the court held that architecture is liable to follow the proper application of the “duty of care and diligence” and compensate the aggrieved party in case of breach of their fundamental duty of care and diligence (Deakin, Johnston and Markesinis, 2012)
The general rule of the construction law is that every architecture must ensure the duty to provide work with free defects and also such work must fall under “fit purpose” in order to check its accuracy of the performed work (Rubin, 2013). Such applicability also lied in the case of Greaves & Co v Baynham Meikle [1974] 1 WLR 1261- where the engineer was instructed to construct first floor as per principle of “balance in loaded weight”. Such balance of weight was ignored by the engineer. Justice Kilner Brown held that engineer is liable as he failed to exercise a reasonable care and skill and also failed to provide “fit purpose” of the construction (QC, R.W.S., 2010).
In IBA v EMI & BICC [1980] 14 BLR1 HL- the defaulting party committed a breach of duty of “reasonable care and skill” as contractor failed to complied with all agreement of the construction agreement. Lord Scarman held that contractor is obliged to fulfil all the terms of contract either it is expressed or implied and must exercise the duty of care and skill during the course of the contract.
Same application of the contract compliance held in the case of Payne v John Setchell Ltd [2002] PNLR 7- where the claimant entitled to compensation on a breach of “duty of care and diligence” on the part of the builder who was obliged to design three sets of three units in the building. In addition, the claimant reported the allegation of the negligence on the part of builder as after construction building was facing water ceiling in the rooms (Fenn, Lowe and Speck, 2007).
Harrison v Shepherd Homes Ltd [2012] EWCA Civ 904- Justice Ramsay J held that the every builder is required to compliance with a requirement of the “Defective Premises Act, 1972” which states that person must owe work of construction with an usage of quality materials so that a proper implementation of “fitness for habitation” can be sought (Richter and Mitchell, 2012).
In the present problem, the three claimants namely Timothy, Samson and William are required to constitute following elements of the negligence as per according to tortious law (Barrett, 2008):
Hence, the law of tort includes the basic criteria needs to follow. Such basic criteria are not fulfilled results into damage. Such criteria include an “utmost duty to provide care and diligence”. If any contractor performs any breach then such default falls into category of “negligence”. Therefore, every builder, contractor or sub-contractor is liable to foresee the nature and extent of their duty to care and diligence so that no third party is damaged by such breach (Appleman and Holmes, 2016). Further, the standard of care is a most significant element to prove the basis of negligence on the part of defaulting party. The aggrieved party must foresee the circumstances of damages in order to claim any compensation against opposite party.
It to be noted that any claim on the negligent construction work lies in independently footings other than claims of breach of any contractual liability. The negligence elements are based on the four main core bases to arise the breach of “standard of care”. These four core bases include degree of duty, breach, causation and damages (Peck, 2016). The duty involves compliance of entire requirement of “standard of care”. Secondly, the breach involves an establishment of negligent conduct. Thirdly, the element of causation is establishes the moment breach takes place. The principle of causation deals with an apportionment of damages. Lastly, the principle of remoteness takes place when losses are ascertained on the basis of foreseeability of damages (Clough and Sears, 2014).
At the end of the present problem, the standards of damages are not meant to provide monetary benefits but also to aid in securing the justice to the aggrieved party. The construction law mainly based on the principles of natural justice include a fair trial, impartial and independent settlement of the disputes between parties to the case (Treacy, 2015). The law of negligence is not categorised in breach of contract but the nature of negligence confers on wrongful acts or negligent act. The present response to the problem concludes that Timothy, Samson and William are legally entitled to the award of damages and court should draw inference in the merits of the claimants. The claims are genuinely matching with requirements of the negligence in tort law. Thus, the McKeown Builders Ltd is liable to compensate the claimants.
References
Appleman, J.A., and Holmes, E.M., 2016. Contract Concerns: Reinsurance Contract Formation, Validity, And Judicial Construction (Vol. 14). Appleman on Insurance Law and Practice.
Barrett Jr, S.R., 2008. Recovery of Economic Loss in Tort for Construction Defects: A Critical Analysis. SCL Rev., 40, p.891.
Bruner, P.L. and O’Connor, P.A.T.R.I.C.K., 2009. Construction Law.
Clough, R.H. and Sears, G.A., 2014. Construction contracting. John Wiley & Sons.
Deakin, S.F., Johnston, A. and Markesinis, B., 2012. Markesinis and Deakin’s tort law. Oxford University Press.
Fenn, P., Lowe, D. and Speck, C., 2007. Conflict and dispute in construction. Construction Management & Economics, 15(6), pp.513-518.
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Jervis, B.M. and Levin, P., 2008. Construction law, principles and practice. McGraw-Hill College.
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Jones, W.K., 2010. Economic Losses Caused by Construction Deficiencies: The Competing Regimes of Contract and Tort. U. Cin. L. Rev., 59, p.1051.
Keenan, D.J. and Smith, K., 2007. Smith & Keenan’s English Law: Text and Cases. Pearson Education.
in, Y.C., 2015. Use of BIM approach to enhance construction interface management: a case study. Journal of Civil Engineering and Management, 21(2), pp.201-217.
Peck, C.J., 2016. The Federal Tort Claims Act–A Proposed Construction of the Discretionary Function Exception. Wash. L. Rev. & St. BJ, 31, p.207.
QC, R.W.S., 2010. Construction Contracts: law and practice (p. 210). Oxford University Press, New York.
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