Anthony Speaight QC
February 2003
A paper based on a talk given to the Society of Construction Law and the Chartered Institute of Arbitrators in Birmingham on 7th November 2002.
In considering the answer to the question posed in the title, four provocative ideas are put forward: first, that there is not, or ought not to be, any difference between the duty of care owed by a professional and a contractor (they owe concurrent duties in tort); second, that as a result of this and section 3 of the Latent Damage Act 1996, subsequent owners of defective buildings can generally sue professionals and contractors for economic loss; third, that concurrent causes of action in tort are assignable to subsequent owners; and fourth, that public law actions under section 6 of the Human ights Act may provide a remedy and (if there could have been a cause of action under Building Act 1984 section 38 if it had been in force) create a liability on the government.
Tort of negligence – Why there ought to be no distinction between the duty owed by professionals and that owed by contractors – Granted that contractors and professionals owe the same tort duty, what is that duty? – Potential impact of a concurrent tort duty: Latent Damage Act 1986 section 3 – Potential impact of a concurrent tort duty: assignment – The Defective Premises Act 1972 – Summary of statutory duty – The duty problem – Public law routes – Liability of public authorities under the Human ights Act – Who else is a ‘public authority’? – Trail blaze via Building Act 1984 section 38 – Conclusion.
The author: Anthony Speaight QC is a barrister. He is author of several publications, including The Law of Defective Premises, and is co-editor of Butterworth Professional Negligence Service. He has served on the Council of the Society of Construction Law and was chairman of the Bar Council’s working party on Modernising the Civil Courts.
Text 18 pages.
PDF file size: 89k