Construction Law Question and Answer 2022

Running Head: CONSTRUCTION LAW
CONSTRUCTION LAW
Name of the Student
Name of the University
Author’s Note

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Question 1:
Issue:
The issue in the case is whether Careless Carl is liable for the claim of possible
negligence.
Rules:
Negligence: it is failure of the defendant to exercise the duty of care as imposed upon
the defendant owing to the position of the person being that of the reasonable man (Luntz et
al. 2017). Thus the elements of the negligence (Peoples and MacDougall 2018) to form an
actionable offence are:
 Duty of Care: this is the standard of care which is expected from the defendant
against the harm which is foreseeable by such defendant (Donoghue vs. Stevenson [1932]
AC 532). However, the standard of care is ought to reasonable in nature in the aspect as
the care would have been taken by any other reasonable man in that particular
situation1.
Breach of duty of care: it is the failure of the defendant to exercise the duty of care as
expected to be exercised by the defendant against the harm created by the acts of such
defendant due to which the plaintiff would have suffered harm (Caparo Industries Plc vs. Dickman
[1990] UKHL 2).
 Foreseeable risk: this means that the risk against which the defendant is ought to
exercise duty of care should be foreseeable in nature (Caparo Industries Plc vs. Dickman
[1990] UKHL 2).
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 Proximate Causation: this means that the harm caused to the plaintiff should be a
direct or proximate result of the breach of duty of care due to which the plaintiff
suffered such harm (Palsgraf vs. Long Island Railroad Co. [1928] 248 NY 339, 162 NE 99).
 Damages: this is cost of actual harm being caused to the plaintiff against which the
claim is actionable (Constantine vs. Imperial Hotels Ltd [1944] KB 693). This includes both
physical injury and mental trauma as inflicted upon the plaintiff due to the harm
caused due to the actions of the defendant against which the defendant was supposed
to exercise care and the same has been breached by the defendant.
The theory of contributory negligence (Goudkamp and Nolan 2019) is a defense which is
available to the defendants by restricting the plaintiffs from recovering the claim by arguing
the injury being partly due to the fault of the plaintiff (Barry 2017).
Application:
Applying the elements of negligence, it can be explained that Careless Carl drove well
above the speed limit and hence, he owed duty of care towards others that they should not be
injured because of his driving. Further, the duty was breached when Carl was driving at a
speed which was well above the speed limit stipulated for safe driving and hence, the duty
was breached. Further, the risk of injury to others was foreseeable because the high-driving
technique is injurious to others as well as self. Dad delightful was hurt with the proximate
cause being the high speed of the car and crashing the car into the wall. Damages are the
actual cost incurred for the injury which is the recovery of Dad Delightful. However, it can be
argued that applying the theory of contributory negligence, it can be explained that Careless
carl would be liable only for the injury occurred due to the reckless high speed driving and
not the worse injury caused due to the fault of Dad Delightful for not wearing his seat belt. It
can be contended that applying the element of proximate cause, it can be explained that the

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cause of in jury is primarily the wall crash due to high speed driving of Careless Carl and
fault of Dad Delightful is only a remote causation to the injury caused.
Conclusion:
It can be concluded that Careless Carl is liable for the claim of possible negligence.
Question 2:
A: Mortgage:
The theory of mortgage is enshrined in the Law of Property Act 1925. The English
law has ensured restriction upon the possession of the property in case of failure of the
repayment of the loan and it imposes duty upon the mortgagee with respect to the price which
may be gained at the time of selling of the property. Section 85 of the Law of Property Act
1925 explains that the mortgage shall be enforceable only if it is executed in the form of
deed. Section 1 of Law of Property Act 1925 also states that any document which is signed,
and witnessed shall be explained as a deed. Section 85 of the Act further explains that
mortgages are the secured loans which creates similar rights as a holder of 3000 year old
lease which is a primitive protective measure in common law system of mortgage terms
wherein it was explained that property shall be redeemed in the end, only after the loan has
been repaid in full (Vernon vs. Bethell [1762] 28 ER 838). However, the same was criticised in
1802 explaining that a mortgage cannot be converted into a property ownership by terms of
an agreement (Seton vs. Slade [1802] 7 Ves 265, 273). However, the rule was later suspended
stating that such rule shall not be exercisable in commercial terms protecting the interest of
vulnerable lenders (Jones vs. Morgan [2001] EWCA Civ 995). Applying the rule, it can be
explained that the right of the bank from the property shall cease to exist once the loan has
been repaid in full conferring the entirety of the ownership rights of the land to the Delightful
Developers.