Blind eyes and bloody kids

It is a dangerous business being a builder. There are pitfalls even if the contractor does what the contract requires. And there are greater pitfalls if the contract is not complied with. Two recent cases highlight the problems.

In a South African decision, SM Goldstein & Co vs Cathkin Park Hotel, the builder built a hotel fireplace and firebox in accordance with the contractual design. In spite of that, a fire broke out and it was held liable in tort. Why? The problem was that it had not fully complied with the contract because it had failed to follow the manufacturer’s instructions and the Building Regulations. The contract required the contractor to notify the architect and seek instruction if there was a conflict between the manufacturer’s instructions and other contractual requirements. The contractor had failed to do this.

The Supreme Court of Appeal said: “It has to be accepted that in general a builder does have a legal duty to both the building owner and to third parties to refrain from building something which is manifestly unsafe”. If it ought to have been obvious to the builder that what it was contractually asked to do was dangerous, and physical harm or damage was caused by the dangerous installation, judges will often work hard to fix liability on to the builder.

The difficulty arises as to what extent the builder needs to review the employer’s design to see if it is dangerous. In some British standard forms, for instance many of the JCT forms, the contractor must comply with statutes and the Building Regulations and report to the architect any conflicts between contract documents and statutory requirements – although the builder is unlikely to be under some implied duty to look for defects in the design.

But even without such provisions, the English Court of Appeal case of Plant Construction vs Clive Adams Associates (2000) ruled that a builder was obliged to warn of a dangerous design defect of which it was aware. The logic is that the builder is invariably under an implied duty to exercise care, and that gives rise to an obligation to warn of known dangers. An earlier case of Lindenberg vs Canning (1992) suggests that the duty extends to design defects that are not known but ought to have been picked up by a competent builder.

The court considered whether it could be foreseen that children would go onto the site and throw stones

The other recent case involved a danger on a building site: children. In Tashen Gabriel vs Kirklees Metropolitan Council, a building site owned by the council proved an irresistible lure to children. The council was undertaking demolition work; the site, in a residential area, was said to have contained rubble and stones. The council said the police had advised it not to fence off the area because children might be injured trying to climb in. Children allegedly used the site as a play area. The claimant, a boy of six, was injured by a stone or mud thrown by children on the site as he walked by.

The Court of Appeal held that a defendant may be liable for damage caused by the deliberate wrongdoing of a third party where a defendant negligently permits or causes a state of danger to be created on their land that may be exploited by a third party and where a defendant knows or has the means of knowing that intruders may trespass onto their land and create a risk of damage to others. To determine whether there is a breach of duty the court will consider such factors as whether it was reasonably foreseeable that children would go on the site, that the children would play there, that they might throw whatever came to hand and cause injury to those passing by. It is sometimes impossible to exclude children from construction sites, particularly at non-working times. However, at least reasonable efforts must be taken to exclude them. Bless ’em!

Robert Akenhead QC is a barrister in construction law at Atkin Chambers and joint editor of Building Law Reports