Tort - Construction And Maintenance Of Real Property

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Construction and Maintenance of Real Property - Introduction

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Injuries incurred through the defective condition of buildings give rise to a number of issues concerning the scope of the tort of negligence.

These issues can broadly be divided into the duty of care owed to certain persons with regard to the construction of buildings, and that owed to people with regard to the maintenance of buildings.

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Construction

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The construction and sale of buildings involves numerous parties, the duty of most of whom is governed by other principles (e.g. architects and surveyors = professional negligence; professional institutions = negligent misstatements; local authorities = obligations of public authorities etc.).

However, here, we need to examine whether builders themselves owe a duty of care to purchasers, occupants and visitors.

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The duty of care of builders

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For a considerable time post-Donoghue, buildings remained outside of the scope of the tort of negligence.

The relationship between landowner and builder was seen as being governed by contract solely.

Builders who owned land and then sold or leased the building (speculative builders) were given the immunity granted to all lessors and vendors, which was a remnant of the caveat emptor principle (even though this principle had been ousted from contract law).

Turning point: Gallagher v. McDowell (1961) - NI CA held the Def liable, analogising with products liability – the fact that the defective product was realty rather than chattels was irrelevant. Principle confined to builders buliding on another’s land, however – did not extend to speculative builders.

Principle extended to speculative builders in England by the CA in Anns v. Merton London Borough Council (1978).

In Ireland Colgan v. Connolly Construction (1980): The court adopted the English approach. NB: Mahon J. held that this was an extension of Donoghue into the realm of buildings, but only insofar as defects may cause injuries or damage to property – the quality of the building itself still lies in the realm of contract law.

Further extension of the principle came in Junior Books v. Veitchi (1983) although there was no immediate danger of injury or damage, HL allowed the Pl to recover.

Junior Books was followed in Ward -v- McMaster (1985), based on foreseeability and absence of policy - Anns type approach.

Retrenchment in the UK - Murphy -v- Brentwood (1991) HL held that the builder’s duty extends only to dangerous defects, unless there is a high level of proximity between Pl and Def

Differences between jurisdictions in the common law world: Canada and UK = only dangerous defects recoverable (unless proximity shown); Australia and NZ = dangerous defects and serious non-dangerous defects (i.e. those which affect the property’s value).

Quill defends the Ward position and the distinction between products and buildings in this regard, because (a) the scope of potential economic loss is much greater in terms of buildings than products, and (b) legislation protects purchasers of defective products extensively in conract; they no longer need to take actions in tort.

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Gallagher v. McDowell (1961)

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Pl was the wife a tenant; Def was builder employed by NI Housing Trust;

Pl was injured due to a defectively-installed floorboard;

NI CA held the Def liable, analogising with products liability – the fact that the defective product was realty rather than chattels was irrelevant.

Principle confined to builders building on another’s land, however – did not extend to speculative builders.

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Anns v. Merton London Borough Council (1978)

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Principle extended to speculative builders in England by the CA.

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Colgan v. Connolly Construction (1980)

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Second owner of a house managed to recover from the builder for dangerous construction defects.

The court adopted the English approach.

NB: Mahon J. held that this was an extension of Donoghue into the realm of buildings, but only insofar as defects may cause injuries or damage to property – the quality of the building itself still lies in the realm of contract law.

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Junior Books v. Veitchi (1983)

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Pl architects employed Def sub-contractors to fit a factor floor before equipment was installed; they did so negligently; the floor began to crack; although there was no immediate danger of injury or damage, HL allowed the Pl to recover.

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Ward v. McMaster (1985)

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Followed Junior Books. Pl bought a bungalow which the Def had originally built for himself; Pl later discovered serious structural defects and non-dangerous defects in materials and workmanship.

Costello J. held that the Def owed the Pl a duty of care to

(a) not sell a house with defects threatening danger to person and property which were not reasonably discoverable on inspection prior to the purchase of the house, but also

(b) not to sell a house with defects which would give rise to later economic loss.

NB: the decision is based on (a) the foreseeability of the damage, and (b) the absence of any policy reasons to deny the duty.

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Murphy v. Brentwood (1991)

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HL held that the builder’s duty extends only to dangerous defects, unless there is a high level of proximity between Pl and Def.

Overruled Anns, but not Junior Books because of the proximity in the latter case. This is now the law in England.

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The standard of care of builders

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Ward v. McMaster (1985) suggests that the standard of care of a reasonable builder applies, regardless of level of training (i.e. an objective standard of care, cf. Topic 13).

However a higher standard will apply to a builder who holds himself out as a specialist in an area.

Building Regulations 1997-2002 provide technical standards for construction work; they do not create civil obligations, but are likely to be used by the courts in ascertaining the expected standard (a major and deliberate deviation from the standards will most likely constitute negligence).

s. 34(2)(f) CLA 1961: the Pl’s possibility of discovering defects in a product is not a bar to be recovery, but rather an evidential issue. Mahon J. applied this in Colgan; per Quill, this is too literal an analogy between buildings and products.

Costello J. did not consider this subsection in Ward, however his definition of the duty of care suggests that if the purchaser ought to have discovered the defect prior to purchasing the property, there is no breach of duty by the builder.

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Maintenance

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Owners and occupiers are subject to obligations to keep it from being a source of danger to others.

Obligations toward neighbouring properties are governed by private nuisance, R v. F, and negligence.

Obligations toward passers-by are goverened by public nuisance and negligence.

Where injury results from active interference with the property, negligence principles will apply.

Where injury results from a failure to repair, omissions principles will apply.