Duty of care in building design and construction
Contents |
[edit] Introduction
A duty of care to ensure that another party does not suffer unreasonable harm or loss can arise in the construction industry as a result of:
[edit] Contractual obligations
Contractual obligations can be express terms of the contract or implied terms. Terms may be implied as a matter of law (legislation of general application to all contracts) or as a matter of fact (the presumed intention of the parties).
Generally, the contractual obligation is a duty to perform services with reasonable skill and care, that is, to the standard of a reasonably competent professional. However, if an appointment is made on the basis of specialist capabilities, then the duty will be to perform services with the standard of care that would be expected from a reasonably competent specialist, rather than the standard of a general practitioner operating in that field.
On design and build projects (subject to the express terms of the contract) there is an implied term that the building will be fit for purpose. This duty exists provided there is reliance by the client on design decisions taken by the contractor, for example, there is no reliance if the client insists on a particular construction method which subsequently fails.
The 'fitness for purpose' obligation is not generally extended to designers unless the contract specifically provides for this (for example, if they have accepted obligations under a design and build contract).
The Defective Premises Act 1972 provides that a contractor building a residential dwelling or converting or enlarging an existing dwelling, has a duty to ensure that the building work '...is done in a workmanlike or, as the case may be, professional manner with proper materials and so that as regards the work the dwelling will be fit for habitation when completed'
A duty of care can be restricted (subject to the Unfair Contract Terms Act 1997) or extended by agreement, and contractual rights (but not obligations) can be assigned to other parties unless the contract specifically prohibits this.
NB: Other statutory duties may exist, for example in relation to waste handling, CDM, environmental protection and so on. Duties here may apply not only to contractors and consultants, but also to the client and workers. In addition, there is an implied duty to warn, if proposed works are likely to pose a danger.
[edit] Tort of negligence
A concurrent duty of care exists in tort of negligence unless the contract has specifically restricted this duty.
Contractors and consultants will generally owe a duty of care in tort to their clients and third parties to take reasonable care to avoid causing personal injury or damage to property (other than to the works themselves).
Consultants will normally also owe their clients a duty of care in tort for the quality of their work, but this duty is not generally be owed by contractors.
In the absence of a contract, contractor design liability may arise in tort by reason of a duty to warn. This arises when a reasonably competent contractor should have realised that a design or elements of the design were likely to be defective.
Purely economic loss is generally not recoverable in tort other than where the loss is consequential upon damage for which a duty is owed, or where there is an assumption of responsibility, special relationship or reliance.
[edit] Collateral warranties
The case of Murphy v Brentwood District Council made clear that there is no duty of care to subsequent purchasers in respect of latent defects as they are a purely economic loss. As a result, collateral warranties have emerged creating a contractual duty of care to a third party who is not party to the original contract. A typical example would be where an architect accepts a duty of care to the occupier of a development in relation to defects which may arise.
[edit] The Contracts (Rights of Third Parties) Act
The Contracts (Rights of Third Parties) Act 1999 enables third party rights to be created by a contract. This is seen by some to offer an alternative to collateral warranties.
[edit] Related articles on Designing Buildings Wiki
Featured articles and news
The 5 elements of seiri, seiton, seiso, seiketsu and shitsuke.
Shading for housing, a design guide
A look back at embedding a new culture of shading.
The Architectural Technology Awards
The AT Awards 2025 are open for entries!
ECA Blueprint for Electrification
The 'mosaic of interconnected challenges' and how to deliver the UK’s Transition to Clean Power.
Grenfell Tower Principal Contractor Award notice
Tower repair and maintenance contractor announced as demolition contractor.
Passivhaus social homes benefit from heat pump service
Sixteen new homes designed and built to achieve Passivhaus constructed in Dumfries & Galloway.
CABE Publishes Results of 2025 Building Control Survey
Concern over lack of understanding of how roles have changed since the introduction of the BSA 2022.
British Architectural Sculpture 1851-1951
A rich heritage of decorative and figurative sculpture. Book review.
A programme to tackle the lack of diversity.
Independent Building Control review panel
Five members of the newly established, Grenfell Tower Inquiry recommended, panel appointed.
Welsh Recharging Electrical Skills Charter progresses
ECA progressing on the ‘asks’ of the Recharging Electrical Skills Charter at the Senedd in Wales.
A brief history from 1890s to 2020s.
CIOB and CORBON combine forces
To elevate professional standards in Nigeria’s construction industry.
Amendment to the GB Energy Bill welcomed by ECA
Move prevents nationally-owned energy company from investing in solar panels produced by modern slavery.
Gregor Harvie argues that AI is state-sanctioned theft of IP.
Experimental AI housing target help for councils
Experimental AI could help councils meet housing targets by digitising records.
BSRIA Occupant Wellbeing survey BOW
Occupant satisfaction and wellbeing tool inc. physical environment, indoor facilities, functionality and accessibility.
Comments
To start a discussion about this article, click 'Add a comment' above and add your thoughts to this discussion page.