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
Professional Negligence of Consultants
Topics
• Builders’ Liability
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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
Builders’ Liability
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
Builders’ Liability
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 J
Siney v Dublin Corporation [1980] IR 400 at 412
Builders’ Liability
Negligence & Immunity
Gallagher v N McDowell Ltd [1961] NI 26
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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.
Builders’ Liability
Negligence & Immunity
Dutton v Bognor Regis UDC [1972] 1 QB 373
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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.
Builders’ Liability
Dutton v Bognor Regis UDC [1972] 1 QB 373
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The Plaintiff brought an action against the builder and against the council for
negligence
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However Lord Denning MR and Sachs LJ intimated that the immunity conferred on
the builder / vendor of a house no longer existed.
Builders’ Liability
Anns v Merton London Borough Council [1978] AC 728
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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.
Builders’ Liability
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.”
Builders’ Liability
Damages
In 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.”
Builders’ Liability
Damages
Colgan 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.
Builders’ Liability
Damages
Anns 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.
Builders’ Liability
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.”
Builders’ Liability
Damages
Ward v McMaster [1985] IR 29 (HC)
Costello J
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Approved the Anns/Junior Brooks approach to damages in a decision which was
not challenged in the Supreme Court on appeal.
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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.
Builders’ Liability
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.
Builders’ Liability
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….”
Builders’ Liability
Damages
Ward 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]
Builders’ Liability
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 J
Ward v McMaster [1985] IR 29 at 42
Builders’ Liability
Damages: The Present Position in the UK
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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.
Builders’ Liability
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.
Builders’ Liability
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.”
Builders’ Liability
Damages: The Present Position in the UK
Robinson 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.
Builders’ Liability
Damages: The Present Position in the UK
Robinson 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.”
Builders’ Liability
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.
Builders’ Liability
Damages: The Present Position in the UK
Robinson 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”
Robinson v Jones, note 1, para 82.
Builders’ Liability
Damages: The Present Position in the UK
Robinson v PE Jones Contractors Ltd
[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.”
Robinson v Jones, note 1, para 74.
Builders’ Liability
Damages: The Present Position in the UK
Robinson v PE Jones Contractors Ltd
[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.”
Robinson v Jones, note 1, para 76.
Builders’ Liability
Damages: The Present Position in the UK
Robinson v PE Jones Contractors Ltd
[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.
Robinson v Jones, note 1, para 79.
Builders’ Liability
Damages: The Present Position in the UK
Robinson v PE Jones Contractors Ltd
[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.”
Robinson v Jones, note 1, para 44.
Builders’ Liability
Damages: The Present Position in the UK
Broster 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.
Builders’ Liability
Damages: The Present Position in the UK
Broster v Galliard Docklands Limited [2011]
EWHC a1722 (TCC), [2011] BLR 569, 137
ConLR 26
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.”
Builders’ Liability
Damages: The Present Position in the UK
Broster v Galliard Docklands Limited [2011]
EWHC a1722 (TCC), [2011] BLR 569, 137
ConLR 26
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.
Builders’ Liability
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?
Builders’ Liability
Damages: The Present Position in 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:
Builders’ Liability
Damages: The Present Position in Ireland
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.”
Builders’ Liability
Damages: The Present Position in Ireland
Also:
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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
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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 Building Control
(Amendment) Regulations 2014
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The Law Library
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The Building Control (Amendment) Regulations 2014
The New Regulations
(1 March 2014)
The Building Control (Amendment) Regulations 2014
The Main Changes
The Building Control (Amendment) Regulations 2014
The Main Changes
I
II
III
IV
New Commencement Notice Requirements
New 7 Day Notice Requirements
New Certificates of Compliance on Completion
The New Forms (The Schedules)
The Building Control (Amendment) Regulations 2014
I Commencement Notice Requirements
Section 7: New form and requirements for Commencement Notice
(Amendment of Article 9 of the Principal Regulations)
The Building Control (Amendment) Regulations 2014
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
The Building Control (Amendment) Regulations 2014
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”)
The Building Control (Amendment) Regulations 2014
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
The Building Control (Amendment) Regulations 2014
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
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The Building Control (Amendment) Regulations 2014
Builder: Supervision (Code)
The Building Control (Amendment) Regulations 2014
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.
The Building Control (Amendment) Regulations 2014
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.”
The Building Control (Amendment) Regulations 2014
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;
The Building Control (Amendment) Regulations 2014
Builder: Certification
The Building Control (Amendment) Regulations 2014
The New Certificate of Compliance (Undertaking by Builder)
Same Form:
Commencement Notice – Schedule 2
7 Day Notice - Schedule 3
The Building Control (Amendment) Regulations 2014
The New Certificate of Compliance (Undertaking by Builder)
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.
The Building Control (Amendment) Regulations 2014
The New Certificate of Compliance (Undertaking by Builder)
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 Building Control (Amendment) Regulations 2014
The New Certificate of Compliance on Completion
Form: Schedule 6
The Building Control (Amendment) Regulations 2014
The New Certificate of Compliance on Completion
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.
The Building Control (Amendment) Regulations 2014
The New Certificate of Compliance on Completion
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.
The Building Control (Amendment) Regulations 2014
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.
The Building Control (Amendment) Regulations 2014
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.
The Building Control (Amendment) Regulations 2014
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
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Negligent Misstatement
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
Negligent Misstatement
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.
Negligent Misstatement
“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
Negligent Misstatement
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
Negligent Misstatement
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.
Negligent Misstatement
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….”
Negligent Misstatement
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
Negligent Misstatement
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
Negligent Misstatement
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
Negligent Misstatement
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”
Negligent Misstatement
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
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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.”
Professional Negligence
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
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Professional Negligence
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
Professional Negligence
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 of
remedial 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.
Professional Negligence
Certification
Liability 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.
Professional Negligence
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 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.”
Professional Negligence
Certification
Opinions 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 they
would not contravene the planning permission or (Building Regs) any deviations are
of such a minor nature would they would not merit the issue of enforcement
proceedings.
However – now “certificates of compliance” under
the Building Control (Amendment) Regulations 2014
Professional Negligence
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.
Professional Negligence
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….”
Professional Negligence
Survey / Inspection
Sunderland v Greevy [1987] IR 372 at 385
Lardner 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.”
Professional Negligence
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.”
Professional Negligence
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.”
Professional Negligence
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 1991
A 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
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The Building Control (Amendment) Regulations 2014
Designer: Certification
The Building Control (Amendment) Regulations 2014
The New Certificate of Compliance (Design)
Same Form:
Commencement Notice – Schedule 2
7 Day Notice - Schedule 3
The Building Control (Amendment) Regulations 2014
The New Certificate of Compliance (Design)
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.
The Building Control (Amendment) Regulations 2014
The New Certificate of Compliance (Design)
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.
The Building Control (Amendment) Regulations 2014
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.
The Building Control (Amendment) Regulations 2014
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.
The Building Control (Amendment) Regulations 2014
Designer: Inspection
The Building Control (Amendment) Regulations 2014
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.
The Building Control (Amendment) Regulations 2014
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.”
The Building Control (Amendment) Regulations 2014
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.”
The Building Control (Amendment) Regulations 2014
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.
The Building Control (Amendment) Regulations 2014
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). “
The Building Control (Amendment) Regulations 2014
Code of Practice
7.4 Follow up procedures
“Effective follow up procedures are essential to check that previously noted noncompliance 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.”
The Building Control (Amendment) Regulations 2014
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.”
The Building Control (Amendment) Regulations 2014
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 noncompliance. 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
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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?
Joint and Several Liability
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."
Joint and Several Liability
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."
Joint and Several Liability
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.
Joint and Several Liability
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."
Joint and Several Liability
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"
Joint and Several Liability
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]
Negligent Misstatement
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?
The Building Control (Amendment) Regulations 2014
Conclusion
The Building Control (Amendment) Regulations 2014
Thank You