the building control (amendment) regulations 2014 fiona forde b.l. the law library b.a. b.a.i....

The Building Control (Amendment) Regulations 2014

Fiona Forde B.L. The Law Library B.A. B.A.I. Mechanical & Manufacturing Engineering MSc.Construction Law and Dispute Resolution Postgrad. Dip. Construction Law & Contract Administration

Professional Negligence of Consultants

Topics

• Builders’ Liability – Negligence / Contract – Damages – Homebond– Building Control (Amendment) Regulations 2013– Negligent Misstatement

• Designers’ Liability – Building and Defects Claims – Building Control (Amendment) Regulations 2013– Joint and Several Liability

Builders’ Liability

Fiona Forde B.L. The Law Library B.A. B.A.I. Mechanical & Manufacturing Engineering MSc. Construction Law and Dispute Resolution Postgrad. Dip. Construction Law & Contract Administration


In the absence of words to the contrary there is to be implied:

“…a threefold undertaking by the builder: (i) that the builder will do work in a good and workmanlike manner (ii) that he or she will supply good and proper materials; and (iii) that the house, built or to be built will be reasonably fit for human habitation.”

Salmond & Heuston (19th edn) p 329 citing Billyack v Leyland Construction Co Ltd [1968] 1 WLR 471 and McGeary v Campbell [1975] NI 7


Negligence & Contract

Existence of a contract between the builder and the owner does not mean that the owner’s rights are confined to contract: the owner may also in appropriate cases sue

in tort.

“I do not think that the existence of a contract of tenancy, or of liability under that contract, excludes liability in negligence. Liability under both heads may exist simultaneously: this Court so held in Finlay v Murtagh”

Henchy JSiney v Dublin Corporation [1980] IR 400 at 412


Negligence & Immunity Gallagher v N McDowell Ltd [1961] NI 26

• Dwelling house was erected by the defendants, a firm of building contractors, for the Northern Ireland Housing Trust. It was inspected by the Housing Trust’s architect and the plaintiff’s husband was the first tenant.

• The plaintiff was injured when the heel of her shoe went through a floor board.• The floor board, when being laid had a defect which had been improperly repaired

by the insertion of a plug of wood which gave way under the Plaintiff’s heel. • The Court of Appeal, reversing the trial judge, held that the defendants were under a

duty to the plaintiff, as a lawful user of the house they had constructed, to take reasonable care in the repair of the hole in the defective floor board.

• Lord McDermott LCJ held that while the immunities of vendors and lessors were well established, they must be confined to vendors and lessors: others could be liable for defects in realty.


Negligence & ImmunityDutton v Bognor Regis UDC [1972] 1 QB 373

• A builder applied for and received planning permission to erect a detached house on a piece of leasehold land owned by him.

• During the course of construction, the foundations were inspected by an officer of the Urban District Council who negligently certified that the foundations complied with local byelaws.

• The house was completed and was sold by the builder / owner to a Mr. Clarke in January 1960.

• In December 1960 Mr. Clarke sold the house to the Plaintiff. • Some months later the house began to subside because of defects on the

foundations.


Dutton v Bognor Regis UDC [1972] 1 QB 373

• The Plaintiff brought an action against the builder and against the council for negligence

• However Lord Denning MR and Sachs LJ intimated that the immunity conferred on the builder / vendor of a house no longer existed.


Anns v Merton London Borough Council [1978] AC 728

• The owners of the property built seven maisonettes which they let in 1962 on long leases.

• In 1970 structural defects manifested themselves in the buildings and the plaintiffs sued the builder/ owners.

• They also sued the borough council for negligence in approving the foundations on which the block was erected and failing to inspect the said foundations.

• Some of the Plaintiffs were original lessees, others held an assignment from original lessees.

• The House of Lords, in respect of the supposed immunity enjoyed by the builder/vendor or lessor at common law, agreed with the Court of Appeal in Dutton’s case.


Anns v Merton London Borough Council [1978] AC 728

“That immunity, as I understand it, rests partly on a distinction being made between chattels and real property, partly upon the principle of “caveat emptor” or, in the case where the owner leases the property, on the proposition “for fraud apart there is no law against letting a tumbledown house”. But leaving aside such cases as arise between contracting parties, the terms of the contract have to be considered … I am unable to understand why this principle or proposition should prevent recovery in a suitable case by a person who has subsequently acquired the house, on the principle of Donoghue v Stevenson: the same rules should apply to all careless acts of a builder: whether he happens to also own the land or not. I agree generally with the conclusions of Lord Denning MR on this point (Dutton’s case). In the alternative, since it is the duty of the builder (owner or not) to comply with the byelaws, I would be of the opinion that an action could be brought against him, in effect for breach of statutory duty by any person for whose benefit or protection the byelaw was made. So I do not think that there is any basis here for arguing from a supposed immunity of the builder to immunity of the council.”


DamagesIn Colgan v Connolly Construction Company (Ireland) Ltd [1980] ILRM 30 (HC) the plaintiff, who was the second owner and occupier of a dwelling house sued the defendant building company for damages in respect of defects in the dwelling house.

McMahon J stated:

“I am satisfied….that the principle of Donoghue v Stevenson applies to the relationship between the builder of a house and a subsequent occupier so as to entitle the occupier to recover damages against the builder for personal injuries caused by defects in the house which are attributable to the negligence of the builder and which are not discoverable by the kind of examination which the builder could reasonably expect the occupier to make before occupying the house.”


DamagesColgan v Connolly Construction Company (Ireland) Ltd [1980] ILRM 30 (HC) Held:• The plaintiff would be entitled to damages for personal injuries caused by defects

in the building and damages in respect of expense incurred in removing “defects in the dwelling which threaten the health and safety of the occupier”, if such damages arose (which in this case they did not).

• However in the case of defects of quality which did not pose a threat to the health or safety of the occupier, the court held that the liability of the builder rested in contract only.

• Accordingly the plaintiff in the Colgan case was not able to recover damages for defects in the internal plaster or for defects in the porch roof.

• Defects in the main roof of the dwelling were recoverable in so far as they could easily result in personal injury.


DamagesAnns v Merton [1978] A.C. 728

Junior Brooks v Veitchi [1983] 1 AC 520

However in the UK the law had developed with the decisions of Anns v Merton and Junior Brooks v Veitchi [1983] 1 AC 520 where the House of Lords held that it was appropriate to compensate Plaintiffs for non-dangerous, qualitative defects in the house the Plaintiffs had purchased, occasioned by the builder’s negligence.


Anns v Merton [1978] A.C. 728;

Opened the door to a flood gate of tortious claims in the UK involving defective building work.

Low threshold for claims set by Wilberforce LJ stating:

“The damages recoverable include all those which foreseeably arise from the breach of the duty of care… these damages may include damages for personal injury and damage to property. In my opinion they include damage to the dwelling house itself.”


DamagesWard v McMaster [1985] IR 29 (HC)

Costello J

• Approved the Anns/Junior Brooks approach to damages in a decision which was not challenged in the Supreme Court on appeal.

• Moved away from Colgan on the basis that it had been handed down before Junior Brooks v Veitchi which changed the law in the UK.


Damages Ward v McMaster [1985] IR 29

The plaintiffs, a married couple, purchased a house from McMaster and moved into possession in 1981. Shortly thereafter they discovered that the house was grossly substandard, structurally unsound, a source of danger and a risk to health.

They vacated the house and sued the vendor/ builder, the local authority (for breach of statutory duties) and the auctioneer who valued the property for the local authority.


Damages Ward v McMaster [1985] IR 29 (HC)

Having examined the holding in Junior Brooks, Costello J concluded:

“There is no doubt that this case has extended the liability of a builder for loss sustained by defective workmanship. I find its reasoning persuasive and I have no difficulty in applying it. It follows from it that the concept of reasonable foresight is one to be employed not only in deciding in a given case whether a duty of care exists, but also can be employed in determining its scope. Applying this concept to the present case it seems to me that the duty of care which the defendant owed to a purchaser of the bungalow which he built was one relating to hidden defects discoverable by the kind of examination which he could reasonably expect his purchaser to make before occupying the house….”


DamagesWard v McMaster [1985] IR 29 (HC)

“…. But the duty was not limited to avoiding foreseeable harm to persons or property other than the bungalow itself (that is a duty to avoid dangerous hidden defects in the bungalow) but extended to a duty to avoid causing the purchaser consequential financial loss arising from hidden defects in the bungalow itself, (that is a duty to avoid defects in the quality of the work). It seems to me that the defendant should have foreseen that if he caused the bungalow to be so badly constructed as to force the plaintiff and his wife to leave it that this would cause them both inconvenience and discomfort and so he owed a duty both to the plaintiff and his wife not to cause hidden defects which would result in such inconvenience. This conclusion is consistent with the decision of the Supreme Court in Siney in which the Court upheld an award of damages in negligence to the plaintiff and his family for the inconvenience that each suffered.”

Costello J [para. 44]


Damages “These developments justify me in holding that in this country as in England, the immunity in tort of a builder who owns the land on which the house is built and who subsequently sells it to a purchaser (or who lets it to a lessee) no longer exists. And I am satisfied both on principle and on authority that in this case the first named defendant when building the bungalow owed a duty of care to the person to whom he might subsequently sell it, based on the neighbour principle established in Donoghue v Stevenson. There are no facts arising under contract or otherwise that require that that duty should be restricted or limited in any way …”

Having examined the existing authorities Costello JWard v McMaster [1985] IR 29 at 42


Damages: The Present Position in the UK

• Yet in Britain subsequent to Ward v McMaster, the House of Lords in D&F Estates Ltd v Church Commissioners [1989] AC 177 and even more emphatically in Murphy v Brentwood DC:

isolated and essentially repudiated Junior Brooks

A once off exceptional decision Based on the particularly close proximity between the parties Clear reliance on the defendant’s expertise.


Damages: The Present Position in the UK Murphy v Brentwood District Council [1991] 1 AC 398 (HL)

Also in Murphy the House of Lords explicitly overruled its earlier decision in Anns and to classify damages directly sustained as a result of defective building work as economic loss which in only extremely limited circumstances could be recoverable.

In the absence of a “special relationship” giving rise to an assumption of responsibility between the parties, recovery was now normally restricted to damages arising from actual physical injury to persons or to property other than the property that was the subject of the alleged negligence.


Damages: The Present Position in the UK Murphy v Brentwood District Council [1991] 1 AC 398 (HL)

Oliver LJ:

“I have found it impossible to reconcile the liability of the builder propounded in Anns with the previously accepted principles of the tort of negligence and I am able to see no circumstances from which there can be deduced a relationship of proximity such as to render the builder liable in tort for pure pecuniary damage sustained by a derivative owner with whom he has no contractual or other relationship.”


Damages: The Present Position in the UKRobinson v RE Jones Contractors Ltd

[2010] EWHC 102 (TCC) Judge Davies held that a builder entering into a contract with a first time buyer that incorporated a requirement to employ all reasonable skill and care was enough to ground a finding that the requisite “special relationship” or tortious relationship of proximity existed between the parties. This appeared to offer a first time buyer statute barred in contract an opportunity to rely on the existence of the contract to ground the basis of the tortious duty of care and in particular support a claim for economic loss against the builder.


Damages: The Present Position in the UKRobinson v RE Jones Contractors Ltd

[2010] EWHC 102 (TCC)

However the Court of Appeal overturned Judge Davies

Murphy v Brentwood followed with Jackson LJ stating “The law does not automatically impose upon every contractor or sub-contractor tortious duties of

care co-extensive with the contractual terms and carrying liability for economic loss.

Such an approach would involve wholesale subordination of the law of tort to the law of contract.”


Damages: The Present Position in the UK Robinson v PE Jones Contractors Ltd

[2010] EWHC 102 (TCC) Lord Justice Jackson, giving the leading judgment, said:

“Absent any assumption of responsibility, there do not spring up between the parties duties of care co-extensive with their contractual obligations. The law of tort imposes a different and more limited duty upon the manufacturer or builder. That more limited duty is to take reasonable care to protect the client against suffering personal injury or damage to other property. The law of tort imposes this duty, not only towards the first person to acquire the chattel or building, but also towards others who foreseeably own or use it.”

Robinson v Jones, note 1, para 68.


Damages: The Present Position in the UKRobinson v PE Jones Contractors Ltd

[2010] EWHC 102 (TCC)

He qualified this, saying: “If the matter were free from authority, I would incline to the view that the only tortious obligations imposed by law in the context of a building contract, are those referred to in [the paragraph above]. I accept, however, that such an approach is too restrictive. It is also necessary to look at the relationship and the dealings between the parties, in order to ascertain whether the contractor or sub-contractor “assumed responsibility to his counter-parties, so as to give rise to Hedley Byrne duties”




[2010] EWHC 102 (TCC) Earlier in his judgment, he said:

“In my view, the conceptual basis upon which the concurrent liability of professional persons in tort to their clients now rests is assumption of responsibility.”




[2010] EWHC 102 (TCC) He went on:

“When one moves beyond the realm of professional retainers, it by no means follows that every contracting party assumes responsibilities (in the Hedley Byrne sense) to the other parties co-extensive with the contractual obligations. Such an analysis would be nonsensical. Contractual and tortious duties have different origins and different functions. Contractual obligations spring from the consent of the parties and the common law principle that contracts should be enforced. Tortious duties are imposed by law, as a matter of policy, in specific situations.”




[2010] EWHC 102 (TCC)Concluding:

“There is no reason why the law of tort should impose duties which are identical to the obligations negotiated by the parties.”

It followed that the existence of a contract did not, without more, necessarily create a tortious duty.., because one has to look at the relationship between the parties to see if there has been an assumption of liability.




[2010] EWHC 102 (TCC) The Court of Appeal judgment:

“In Murphy v Brentwood the House of Lords had returned to the orthodox and principled basis of tortious duty for negligently inflicted harm in holding that if a building defect became apparent before injury or damage is caused, the loss sustained is purely economic and in the absence of a special relationship of proximity is not recoverable in tort.”



Damages: The Present Position in the UKBroster v Galliard Docklands Limited [2011]

EWHC a1722 (TCC), [2011] BLR 569, 137 ConLR 26

The principles of Murphy v Brentwood were further adopted in Broster v Galliard Docklands Limited [2011] EWHC a1722 (TCC), [2011] BLR 569, 137 ConLR 26 where the owners of a terrace of six house issued proceedings against a builder and developer in relation to damage emanating from defects in the terraced roof.

The Court echoing Murphy found that the claim was for damage “to the thing itself” and so the Claimants were not entitled to economic loss.




The policy adopted by the English courts in the context of building claims was referenced by Akenhead J in Broster as follows:

“Whilst one can of course have sympathy for owners of premises such as those who find themselves in the type of predicament these Claimants experienced, there are or were, some types of protection available. It is clear from the Particulars of Claim that some or all of them had the ten year protection of NHBC warranties. They could arguably have had, subject to limitation, some protection under the Defective Premises Act 1972….. Given the policy of the law in this area, it is not obviously unjust or unreasonable that the scope of any duty of care is limited.”




Attempts to circumvent Murphy are prevalent, such as the use of the complex structure theory (argued unsuccessfully by the Claimants in Broster) which contemplates the separateness of the component parts of a building or structure such that a defect in one part causing damage to another can support a claim in tort.


Damages: The Present Position in Ireland

However the UK has explicitly:

Distanced itself from Anns and Junior Brooks upon which Ward v McMaster is based.

Moved to a much more restricted view on damages. Has consistently stood over this narrower view.

What about Ireland?



In the Supreme Court decision of Glencar Explorations plc v Mayo County Council (No 2) [2002] 1 IR 112 Keane CJ sounded an ominous note indicating certain openness to revisit the question.

HOWEVER

While, referring to Murphy v Brentwood DC, he observed that the Supreme Court had not been invited in the instant case to override its earlier decisions in Siney and Ward v McMaster:



Glencar Exploration Plc v Mayo County Council [2002] 1 IR 84 142 The Supreme Court expressly reserved its position.Keane CJ stated:“In Siney v Corporation of Dublin [1980] IR 400 economic loss was held to be recoverable in a case where the damages represented the cost of remedying the defects let by the local authority under their statutory powers. Such damages were held to be recoverable following the approach adopted by the House of Lords in Anns v Merton London Borough [1978] AC 728. While the same tribunal subsequently overruled its earlier decision to that effect in Murphy v Brentwood District Council [1991]. I would expressly reserve for another occasion the question as to whether economic loss is recoverable in actions other than for negligent misstatement and those falling within the categories defined on Siney v Dublin Corporation and Ward v McMaster and whether the decision of the House of Lords in Junior Books Ltd v Veitchi Co.Ltd. [1983] 1 AC 520 should be followed in this jurisdiction.”


Damages: The Present Position in Ireland Also:

• Beatty v Rent Tribunal [2006] 2 IR 191 at 200 (SC) that Geoghegan J was “satisfied that the law on the question of recovery of damages for economic loss in a negligence action] has not been finally determined in Ireland notwithstanding some relevant obiter dicta of Keane CJ in Glencar..”

• Glencar did not concern builders’ liability • McMahon & Binchy – Law of Torts Fourth Ed. – it would seem “just and

reasonable” to impose a duty of care towards those who sustain economic loss in preventing injury, death or damage from resulting as a foreseeable consequence of a builder’s negligence in creating such a risk (page 506)

HomeBond


HomeBond

Homebond If the builder is registered with the company – the scheme intends to give

purchasers of new dwellings purchased within the terms of the scheme a guarantee in respect of certain major structural defects (“Major Defects”) which occur within ten years after completion of the dwelling.

The liability period for the scheme is ten years from the date of issue of the final notice except for smoke damage and water damage in which case the limitation period is reduced to two years from the date of issue of the final notice.

The final notice refers to a notice which is issued following a final inspection of the building.

HomeBond

Member warrants:

The dwelling will be built with suitable and adequate materials and in a workmanlike manner so as to ensure structural stability. (s. 3.1)

The member will attend to any Major Defect in the dwelling either by remedying the Major Defect or paying the cost of the remedial works to the purchaser, with the agreement of HomeBond. (s. 3.3)

HomeBond

Homebond warrants:

If the member defaults on their warranty Homebond will attend to any Major Defect in the dwelling either by remedying the defect or at its discretion by paying the cost of the remedial works to the purchaser. (s. 3.2)

The warranty on the part of HomeBond is subject to notification requirements (3.4) and exclusions / limitations (s. 3.6) and can be revoked automatically if the member enters into liquidation or if a receiver or an examiner is appointed to the member’s business or undertaking and at the date of the appointment of the liquidator, receiver or examiner, the dwelling is still vested in the member (s. 3.2(b))

HomeBond

Exclusions:

Homebond is not bound to compensate the owner for anything other than the cost of remedying the Major Defect or paying a sum equal to any diminution in value of the dwelling arising from the presence of the major defect.

In particular the HomeBond scheme does not cover any financial or consequential economic losses or loss or damage to property not being a Major Defect (3.6(a))

HomeBond does not cover any defect which is the result of negligence on the part of someone other than the Member or his sub-contractor (3.6(a)).

Nor is the scheme liable for any defect which is covered by a policy of insurance or in relation to which the legislation provides for compensation.

The scheme expressly excludes any defect which is the result of drawings, materials, designs or specifications which have been provided for or on behalf of the original purchaser.

HomeBond

Exclusions: Damages arising from hair cracks, shrinkage, expansion, dampness caused by

normal drying out or condensation, wear and tear or gradual deterioration, or any defects in the central heating system (s. 3.6(a)).

Defects arising from the installation or lifts and swimming pools (s. 3.6(a)). Homebond’s liability is limited to €200,000 in respect of any major defect or any

number of major defects for any one dwelling and the overall limit of liability in respect of any one dwelling (3.6(b)) and the overall limit of liability in respect of any one member of the scheme is €2,000,000 for claims made in respect of Major Defects although this limit may be increased by HomeBond at their discretion. (s. 4.1).

HomeBond

Exclusions: HomeBond shall have no liability to make any payment to a Purchaser unless

HomeBond is satisfied that there are sufficient monies in the Guarantee Fund both the defray that payment and any other resulting or incidental costs (having regard to the contingent or other liabilities of Homebond). (s. 4.3)

Neither HomeBond nor the Member shall have any liability to any successor in title of the Purchaser named in this Agreement who acquired title after the Dwellings owner at the relevant time knew (or ought to have known) of the Major Defect, or where reasonable examination by a competent surveyor, architect or engineer would have disclosed a Major Defect. (s.3.6(b))


The New Regulations

(1 March 2014)


The Main Changes


The Main Changes

I New Commencement Notice Requirements

II New 7 Day Notice Requirements

III New Certificates of Compliance on Completion

IV The New Forms (The Schedules)


I Commencement Notice Requirements

Section 7: New form and requirements for Commencement Notice

(Amendment of Article 9 of the Principal Regulations)


Commencement Notice must be accompanied by:

9(1)(b)(ii)

3 Certificates of Compliance in the form set out in the Second Schedule a Certificate of Compliance (Design) a Certificate of Compliance (Undertaking by Assigned Certifier) a Certificate of Compliance (Undertaking by Builder)

2 Notices of Assignment in the form set out in the Second Schedule a Notice of Assignment of Person to Inspect and Certify Works (Assigned

Certifier) a Notice of Assignment of Builder


II 7 Day Notice Requirements

Section 10: New form and requirements for 7 Day Notice

(Amendment of Article 20(A)(2) of the Building Control Regulations 1997 as

amended “the Principal Regulations”)


7 Day Notice must be accompanied by:

Article 20(A)(2)(a)(ii)IV.

3 Certificates of Compliance in the form set out in the Third Schedule a Certificate of Compliance (Design) a Certificate of Compliance (Undertaking by Assigned Certifier) a Certificate of Compliance (Undertaking by Builder)

2 Notices of Assignment in the form set out in the Third Schedule a Notice of Assignment of Person to Inspect and Certify Works (Assigned

Certifier) a Notice of Assignment of Builder


III New Certificate of Compliance on Completion

Section 12: New Certificate of Compliance on Completion

(The Principal Regulations are amended by inserting New 20F “Part IIIC –

Certificate of Compliance on Completion” after Article 20E)

Signed by Principal or Director of a Building Company only and

Assigned Certifier (including employee)

The Building Control (Amendment) Regulations 2014:

The Builder



Builder: Supervision (Code)


Code of Practice

“Builder” means a competent builder appointed, for purposes of the Building

Control Regulations, by the building owner, to build and supervise the works.

3.3 The Builder’s Role:

The Builder should carry out the works in accordance with the plans and specifications of the professional design team, their specialists and sub-consultants as necessary and have regard to these in accordance with the requirements of the Building Regulations.


Code of Practice

3.5 Assigned Certifier’s Role

“The Assigned Certifier is assigned by the Building Owner as required under the Building Control Regulations. They undertake to inspect, and to coordinate the inspection activities of others during construction, and to certify the building or works on completion. The role of Assigned Certifier does not include responsibility for the supervision of any builder. They may or may not be a member of the design team.”


Code of Practice

3.3 The Builder should:

a. Accept from the Building Owner the assignment to build and supervise the building or works outlined in the Commencement Notice;

b. Familiarise themselves with the drawings, specifications and documents lodged with the Commencement Notice;

c. Ensure a competent person is assigned to oversee the Construction works;

d. Co-operate with the design team, the Assigned Certifier and other certifiers;

e. Ensure that the workmanship complies with the requirements of the Building Regulations;


Builder: Certification


The New Certificate of Compliance (Undertaking by Builder)

Same Form:

Commencement Notice – Schedule 2

7 Day Notice - Schedule 3



3. I undertake to construct the building works in accordance with the plans, calculations, specifications, ancillary certificates and particulars listed in the schedule to the Commencement Notice to which this undertaking refers and certified under the Form of Certificate of Compliance (Design) or as subsequently issued to me and certified and submitted to the Building Control Authority and such other documents relevant to compliance with the requirements of the Second Schedule to the Building Regulations as shall be retained by me as outlined in the Code of Practice for Inspecting and Certifying Building Works.



4. Having regard to the Code of Practice for Inspecting and Certifying Building Works or equivalent, I further undertake to cooperate with the inspections set out in the inspection plan prepared by the Assigned Certifier and to take all reasonable steps to ensure that I shall certify that the works or building is in compliance with the requirements of the Second Schedule to the Building Regulations insofar as they apply to the building works concerned.”


The New Certificate of Compliance on Completion

Form: Schedule 6



Part A — Certificate signed by Builder

3. I certify having exercised reasonable skill, care and diligence, that the building or works as completed has been constructed in accordance with the plans, specifications, calculations, ancillary certificates and particulars as certified under the Form of Certificate of Compliance (Design) and listed in the schedule to the Commencement / 7 Day Notice relevant to the above building or works, together with such further plans, specifications, calculations, ancillary certificates and particulars, if any, as have been subsequently certified and submitted to the Building Control Authority, and such other documents relevant to compliance with the requirements of the Second Schedule to the Building Regulations as shall be retained by me as outlined in the Code of Practice for Certifying and Inspecting Building Works.



Part A — Certificate signed by Builder

4. Reliant on the foregoing, I certify that the works are in compliance with the requirements of the Second Schedule to the Building Regulations insofar as they apply to the building works concerned.


Code of Practice

3.3 The Builder should:

f. Ensure that materials which they select and for which they are responsible comply with the requirements of the Building Regulations;

g. Sign the Certificate of Compliance (completion);

h. Provide to the Assigned Certifier, such documents for which they are responsible, as may assist the Assigned Certifier to collate particulars for the purposes of handover and certification, and/or for further submissions to the Building Control Authority;

i. Ensure the coordination and provision of all test certificates and confirmations to the satisfaction of the Assigned Certifier or other designated inspectors or certifiers providing Ancillary Certificates; and (j) maintain records.


Code of Practice

4.5 Undertaking by Builder

To construct, to cooperate with the Assigned Certifier and to sign the Certificate of Compliance on Completion as required under the Building Control Regulations.

As part of this undertaking, the Builder should co-ordinate the work of specialist sub-contractors and designers and should ensure that Ancillary Certificates of Compliance are provided.


Certification

Liability of the Certifier – Ireland

As stated by David Kean in his book “Building and the Law” (page 293) on the issue of

Sutcliffe v Thackrah (negligent certification):

“The House of Lords held that in certifying an architect was not acting in any arbitral or judicial capacity and was liable for any negligence in certifying. To “certify” after all, means that the certifier is ‘certain’. It is vital for the architect to be aware of the fact that he is only to certify for work which has been properly done and that he will be liable if he acts otherwise.”

Negligent Misstatement

Fiona Forde B.L. The Law Library B.A. B.A.I. Mechanical & Manufacturing Engineering MSc. Construction Law & Dispute Resolution Postgrad. Dip. Construction Law & Contract Administration


Glencar Explorations plc v Mayo County Council (No 2) [2002] 1 IR 84

“economic loss is recoverable in actions for negligence misstatement.”

Keane CJ at 142-143


Hedley, Byrne & Co Ltd v Heller & Partners Ltd. [1964] AC 465 (HL, Eng)

Reference as to creditworthiness of a customer given by one bank to another In giving the reference the bank knew or ought to have known that this

information would be passed on to the plaintiff company which was about to do business with the customer.

The reference was incorrect and as a result the plaintiff company suffered loss. The reference contained a disclaimer which the House of Lords held was sufficient to relieve the defendant bank of responsibility.

However the House of Lords found that there can be liability for negligent misstatement in cases where the party seeking the information from the defendant relies on his special skill and trusts him to exercise due care.


“it should now be regarded as settled that if someone possess of a special skill undertakes, quite irrespective of contact, to apply that skill for the assistance of another person who relies upon that skill, a duty of care will arise… Further, if in a sphere in which a person so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise.”

Lord Morris Hedley, Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465 at 502-503


Securities Trust Ltd v Hugh Moore & Alexander Ltd [1964] IR 417 (HC)

Davitt P following Hedley Byrne

“Circumstances may create a relationship between two parties in which, if one seeks information from the other and is given it, that other is under a duty to take reasonable care to ensure that the information is correct.”

At 421


The Hedley Byrne Principle – Post Glencar Wildgust v Bank of Ireland [2006] 1 IR 570

Plaintiffs effected life policies on each of their lives with the second respondent, Norwich Union Life Insurance Society.

The life policies had been assigned by mortgage to Hill Samuel. Norwich Union informed Hill Samuel’s manager that the policy was “correct

and in order” when in fact it had lapsed. Supreme Court allowed Plaintiffs’ claim for negligent misstatement against

Norwich Union. Geoghegan J emphasised that it must have been clear to Norwich Union that

the plaintiff would suffer damage if Norwich Union’s statement about the policy was incorrect.


Wildgust v Bank of Ireland – Kearns J Geoghegan J:

“From the foregoing it is apparent that I favour the interpretation or adaptation if needs be, of the Hedley Byrne principles which would include more than just the person to whom the negligent misstatement is addressed. The “proximity” test in respect of a negligent misstatement in my view must go further than that and include persons in a limited and identifiable class when the make of the statement can reasonably expect, in the context of a particular inquiry, that reliance will be placed thereon by such person or persons to act or not act in a particular manner in relation to that transaction. As I accept the submission of plaintiff’s counsel that Mr. Wildgust and Hill Samuel had virtually an identical interest in preserving the policy and that both formed such an identifiable class, either of whom could have acted to prevent Mr. Wildgust’s loss, I believe it is just and reasonable to ascribe to the respondent’s a duty of care with regard to Mr. Wildgust in such circumstances….”


Walsh v Jones Lang Lasalle Ltd [2009] 4 IR 401

The plaintiff had purchased property for investment purposes, relying on incorrect floor area measurements contained in a brochure produced by the defendant auctioneer.

Quirke J:

“…It was to be expected that the potential purchasers would rely upon the information contained within the brochure when deciding whether or not to offer to purchase.”

at 410


Walsh v South Tipperary County Council [2011] IEHC 503

The original vendor had through their solicitors made enquiry of the County Council as to whether a particular laneway was in the charge of the County Council and had been carelessly and inaccurately informed, by letter or certificate, that it was.

The vendor’s successors in title sold the property to the plaintiffs. Clarke J concluded:

“the proper principle is that the class of persons to whom a negligent misstatement can be said to have been published must be capable of being defined with some accuracy at the time the statement was made even though there may be subsequent events, foreseeable at the time the statement was made, which lead to a person coming within the class.”

Para. 3.22


Walsh v Tipperary County Council [2011] IEHC 503

On the evidence Clarke J was satisfied that it had been foreseeable at the time the statement was made that it would be used by the original vendor to satisfy his purchaser and that, in turn, the statement would be relied on by others who in the future might purchase the property with the benefit of the letter or certificate:

“While the fact that the [plaintiffs] might become members of that class was not ascertained at the time when the negligent misstatement was made, the class itself was capable of easy and rigorous definition. In the circumstances I am satisfied that South Tipperary Council owed a duty of care to persons within that class (being persons who might purchase the property in question with the benefit of their letter) and that the plaintiffs fall into that class.”

Para. 3.22


Henderson v Merrett Syndicates [1995] 2 AC 145 (HL): Goff LJ in Henderson:

“..once the case is identified as falling within the Hedley Byrne principle there should be no need to embark on any further enquiry where it is “fair and reasonable” to impose liability for economic loss”


Professional Certifier Robinson v PE Jones (Contractors) Ltd. [2010] EWHC 102 (TCC) (para. 75)

“It is perhaps understandable that professional persons are taken to assume responsibility for economic loss to their clients. Typically they give advice, prepare reports, draw up accounts, produce plans and so forth. They expect their clients and possibly others to act in reliance upon their work product, often with financial or economic consequences.”

Now Builder Certifier?

Designers’ Liability


Professional Negligence

Duty of Care Normal Standard

“Reasonable skill and care”

Common law reasonable standard of care for construction professionals was

defined in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 HL

as:

“the standard of the ordinary skilled man exercising and professing to have that special skill.”


The Engineers’ duty of care

An engineer must show that the majority of his profession

would have acted the same way as he has and that he acted

“in accord with general and approved practice.”

Keating on Construction Contracts

8th Ed. London Sweet and Maxwell 2006

page 482

Building and Defects Claims



Duty of care in certifying “The general position, as laid down in Sutcliffe v Thackrah is that a negligent certifier who thereby causes loss to the employer will be liable to the employer for breach of the obligation of skill and care in their contract of engagement and a

breach of their duty of care to the employer.”

Sutcliffe v Thackrah [1974] AC 727

Hudson’s Building and Engineering Contracts 12th Ed. Sweet and Maxwell 2010 Page 331


Certification Liability of the Certifier – Ireland Quinn v Quality Homes Ltd [1976 – 77] ILRM

Firm of specialist consultant engineers who had supervised the carrying out ofremedial works certified that the structural stability of the premises was satisfactory.

This turned out to be incorrect. The court held that the engineers were negligent in issuing the certification. Relying on the certificate, an architect issued a certificate in similar terms. The court held that the architect was also negligent in particular for failing to make

appropriate enquiries from them.


CertificationLiability of the Certifier – Ireland In the case of Moran v Duleek Developments High Court (Murphy J) 7 June 1991 an engineer who certified that a house had been constructed in accordance with planning permission was held to have been negligent when this turned out to be incorrect. Henry v Foxrock Construction – unreported judgment of Lardner J 11 July 1985 Where a certificate of compliance was issued to a developer / builder in circumstances where the architect was aware that it would be relied on by a builder in order to satisfy the purchaser, the architect was held liable for the errors in the certificate.


Certification Liability of the Certifier – Ireland

As stated by David Kean in his book “Building and the Law” (page 293) on the issue of Sutcliffe v Thackrah: “The House of Lords held that in certifying an architect was notacting in any arbitral or judicial capacity and was liable for any negligence in certifying. To “certify” after all, means that the certifier is ‘certain’. It is vital for the architect to be aware of the fact that he is only to certify for work which has been properly done and that he will be liable if he acts otherwise.”


CertificationOpinions on Compliance

Led to practice of giving an “opinion” of “substantial” compliance with planning permission / building regulations being adopted by engineers / architects.

This can be seen in the ACEI (Association of Consulting Engineers of Ireland) and the RIAI standard Opinions on Compliance.

Substantial compliance – (Planning) any deviations are of such a minor nature theywould not contravene the planning permission or (Building Regs) any deviations are of such a minor nature would they would not merit the issue of enforcementproceedings.

However – now “certificates of compliance” under the Building Control (Amendment) Regulations 2014


Survey / Inspection

The key question that arises when a construction professional is obtained to supervise/inspect or monitor building works is the extent to which they are expected to identify bad workmanship. David Kean in his book “Building and the Law” (page 293) stated “It would be clear though that defects which he could not have observed or any fraudulent concealment, would not form the basis of any negligence claim.” This is particularly relevant as the most common defence put forward by a construction professional is that they engaged in a visual inspections for example in relation to preparing the Opinion of Substantial Compliance.


Survey / Inspection

In Sunderland v Greevy [1987] IR 372 at 385, an architect was held not negligent because on inspection there were no physical signs which should have alerted him to a serious problem. Lardner J stated:

“The duty of care which the architect undertakes is related to and determined by the scope and terms of his engagement. [The Architect] says he was asked to inspect the house by the plaintiffs as prospective purchasers as a matter of urgency and to give a report. He interpreted this and I think reasonably in the circumstances as meaning a “walk through” visual inspection of the property. In such circumstances his duty of care and skill relates to the inspection and report. His duty is to inspect his premises with the eye of a competent architect and to draw inferences which such an architect would draw from what he sees….”


Survey / Inspection

Sunderland v Greevy [1987] IR 372 at 385Lardner J (continued) “…..If there are physical signs which would alert him to the existence or possible existence of some problem or danger he would be obliged to warn or recommend that they be investigated further. But the building is not his building or his client’s and the fabric or construction may only be opened with permission of the owner and he will no normally recommend this unless he had cause to believe it necessary.”


Survey / Inspection

In Flanagan v Griffith High Court 25 January 1985 Barrington J held that an architect who was asked to make a structural report was required to:

“show the skills of a competent architect in inspecting the building and in making his report. But he does not guarantee the soundness of the building or in this case, the roof. He is expected to inspect the building with the eye of a competent architect and to draw inference which a competent architect would draw from what he sees. But the building his building nor is it his client’s. He is not expected to – or entitled to – take samples of portions of the building or the roof and have these subjected to tests or analysis. Neither, it appears to me, is he concerned with whether an old building conforms with the best modern standards. He is not himself designing the building. He is giving his judgment on whether the building as it stands, is structurall sound.”


Survey / Inspection

Curley & Dowley v Mulcahy High Court 21 December 1977

McMahon J:

“In my opinion negligence cannot be imputed to an architect merely because he fails to discover a defect as soon as it has happened. In Eastham BC v Sunley [1965] 3 All ER 619 Lord Upjohn at page 636 points out that an architect is not permanently on site and when he arrives a reasonable order of priorities may involve not inspecting at all some of the work, particularly where he knows the builder sufficiently well and can trust him to carry out a good job.”


Survey / Inspection

However the construction professional needs to carefully specify the scope and extent of the inspection role they are taking on as this will go to determine their subsequent exposure to liability.

Bedford v Lane High Court 22 November 1991A surveyor missed alarm signals when surveying a property which should have put him on notice that it was structurally unsound.

Barr J held that In carrying out a visual inspection of the premises, the surveyor had negligently failed to observe defects or signs which suggested structural instability and advise accordingly.

The Building Control (Amendment) Regulations 2014:

The Designer



Designer: Certification


The New Certificate of Compliance (Design)

Same Form:

Commencement Notice – Schedule 2

7 Day Notice - Schedule 3



4. I confirm that the plans, calculations, specifications, ancillary certificates and particulars included in the schedule to the Commencement / 7 Day Notice to which this certificate is relevant and which have been prepared exercising reasonable skill, care and diligence by me, and prepared by other members of the owner’s design team and specialist designers whose design activities I have coordinated, have been prepared to demonstrate compliance with the requirements of the Second Schedule to the Building Regulations insofar as they apply to the building or works concerned.



5. I certify that, having regard to the plans, calculations, specifications, ancillary certificates and particulars referred to at 4 above, the proposed design for the works or building is in compliance with the requirements of the Second Schedule to the Building Regulations insofar as they apply to the building works concerned.


Code of Practice

4.3 Certificate of Compliance (Design)

Designer: Signs the Design Certificate that is lodged with the Commencement Notice Ensures that any necessary Ancillary Certificates from members of the design

team are scheduled and lodged as necessary and appropriate. Is responsible for co-ordinating and compiling and scheduling of the plans,

calculations, specifications and particulars that are to be included on the schedule to be lodged at commencement and to which the Design Certificate relates.

In compiling the plans and documentation and in preparing the Design Certificate should review the scope of requirements of the Building Regulations that apply to the building work concerned.


Code of Practice

5. Lodgement of Plans and Documentation

5.1 Plans and specifications

The Design Certifier and the Assigned Certifier, before signing the Design Certificate and the form of Undertaking by the Assigned Certifier respectively, should exercise reasonable skill, care and diligence in checking that the documentation for which each is responsible is appropriate for lodgement with the Commencement Notice.


Designer: Inspection


Code of Practice

3.5 Designers should: -

a. Design their respective elements of work in accordance with the applicable requirements of the Second Schedule to the Building Regulations;

b. Provide the Design Certifier with the necessary plans, specifications and documentation that is required for lodgement at commencement stage;

c. Arrange to provide sufficient information to the Assigned Certifier to enable them to fulfil their role;

d. As agreed with the Assigned Certifier, carry out work inspections which are pertinent to their elements of the Design, and liaise with the Assigned Certifier in terms of this and the required ancillary certification;

e. Notify the Assigned Certifier of their proposed inspection regime for inclusion in the overall Inspection Plan;

f. Provide the Ancillary Certificates when required by the Assigned Certifier and Design Certifier; and g. maintain records of inspection.


Code of Practice

7. Construction Stage Inspection – by Certifiers

7.1 Inspection Plan

“The Assigned Certifier and other persons nominated to undertake necessary inspections should adopt an appropriate Inspection Plan which takes full account of relevant factors for the building work concerned. Relevant factors should be assessed at the outset and regularly reviewed so that effective control is maintained for the duration of each project, with adequate site inspections and records sufficient to demonstrate the application of reasonable skill, care and diligence.”


Code of Practice

7. Construction Stage Inspection – by Certifiers

7.1 Inspection Plan

“Inspection staff should use professional skill and judgement in their selection of priorities for inspection. Depending on the complexity of the project, such inspections may need to be carried out by personnel with greater expertise. Inspection staff should be briefed by their employer and, where necessary, by the Assigned Certifier on the Design lodged to the Building Control Authority and on appropriate inspections and tests to carry out.”


Code of Practice

7.1.2 Inspection

Subject to the appropriate professional judgement and risk assessment, and

recognising that it is not practicable to examine every item of work to which the

requirements of the Building Regulations relate, inspection arrangements should

normally make provision for inspection of:

a. elements and components, the failure of which would, in the opinion of the certifier, be significant;

b. works which, in the opinion of the certifier, constitute unusual designs or methods of construction;

c. work relating to fire safety;

d. types of work, construction, equipment or material which could, if not verified, cause defects which would, in the opinion of the certifier or designated inspector, be seriously detrimental to the fundamental purposes of the Building Regulations; and

e. additional areas of work necessary for the subsequent issue of a certificate at completion.


Code of Practice

7.2 Inspection frequency

“The most important thing is to have an appropriate Inspection Plan; the scope and frequency of inspection should be determined and incorporated in a formal written plan. This plan should be kept under review as the project proceeds. It should take into account the Inspection Plan factors above.”

“Periodic inspection should be carried out depending on the size and nature of the particular building project. This should include critical milestone inspections and inspections as set out in the Inspection Notification Framework (INF). “


Code of Practice

7.4 Follow up procedures

“Effective follow up procedures are essential to check that previously noted non-compliance issues have been corrected. The person responsible for the particular inspection, e.g. the Assigned Certifier or the Ancillary Certifiers, should check that the matter raised has been resolved satisfactorily.”


Code of Practice

7.5 Tests

“Certain tests may need to be carried out, as necessary, in order to demonstrate compliance…. The Assigned Certifier and Ancillary Certifiers should consider and identify the need for such tests at the earliest possible stage and as far in advance as possible. They should include them, as far as possible, in the building contract documentation where there is a contract in place.”

“The Inspection Plan and the INF should indicate the tests that the Certifiers wish to monitor periodically and, where necessary, the Building Owner should be notified about test requirements.”


Code of Practice

7.6 Records of inspection

“Records of each inspection should be maintained by the person and firm responsible and should be sufficient to identify the work inspected and any non-compliance. Where the work inspected is not shown on drawings available to the person inspecting, these records will necessarily be more detailed. It is important, in order to ensure that proper, evidence-based inspection arrangements and procedures are in place, that adequate records are maintained to show what works were inspected, the results of the inspection and any remedial action considered necessary and when such remedial action was carried out.”

Joint and Several Liability



Civil Liability Act 1961

Concurrent liability – where two or more parties are responsible for the same damage, a plaintiff may pursue recovery against any of those parties as if they were liable for the entire damage.

The paying “defendant” is entitled to seek contribution from other parties who have contributed to the loss. However, are they still trading?


Concurrent wrongdoers Section 11 of the Civil Liability Act, 1961 provides that: "Two or more persons are concurrent wrongdoers when both or all wrongdoers and are responsible to a third person [the plaintiff] for the same damage, whether or not judgment has been recovered against some or all of them."


Concurrent wrongdoers Section 12(1) of the Civil Liability Act, 1961 provides that: ”Subject to the provisions of sections 14, 38 and 46, concurrent wrongdoers are each liable for the whole of the damage in respect of which they are concurrent wrongdoers."


Lynch v Beale unreported, Hamilton J., High Court, November 23 1974

• Hotel premises collapsed due to (i) subsidence of the foundations in a corner of the building and (ii) inadequate design in the first floor of the building.

• The building owner sued his architect, main contractor and nominated subcontractor for negligence and/or breach of contract.

• The nominated subcontractor and architect argued that, as these were two separate and distinct causes for the structural defects, the Defendants were not "concurrent wrongdoers", and that if there was any liability an behalf of any of the Defendants, such liability should be limited to the actual loss resulting from the particular wrong committed by each Defendant.


Hamilton J., in considering this, stated: "the damage claimed in this case against all the Defendants is the same damage, viz: the loss sustained by him as a result of the internal collapse of the hotel and the subsidence thereof and the Court is satisfied that the Defendants herein are "concurrent wrongdoers" as defined in the Civil Liability Act 1961."


Kerr "The Civil Liability Acts" (4th Edition) (2011):

“It is clear, therefore, that in determining whether parties are to be regarded as concurrent wrongdoers, primary emphasis is to be placed on the damage caused and not on the role played by each of the Defendants, provided each contributed to causation. Where there are two tortfeasors responsible for the same damage, one could have a claim for contribution against the other but that does not absolve an original tortfeasor from his or her liability to the injured party: per Lewison J. in Vision Golf Limited v Weightmans, the Times, September 1, 2005"


The dicta of Hamilton J. above were cited with approval and adopted by Finlay Geoghegan J. in Larkin v Joosub [2007] 1 IR 521.

"it is the damage suffered by the Plaintiff which has been referred to [in section 11(1) of the 1961 Act]...", not the damage caused by the individual defendants.”

[Para. 36]


UK Position Summary

Economic losses in Tort: (including costs of repair)

Extremely difficult to claim against builders (Robinson v Jones) Easier to claim against professionals in particular on the basis of “negligent

misstatement” (Hedley Byrne, Henderson v Merrett Syndicates)

Irish Position?


Conclusion


Thank You

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