Construction Law

Running head: CONSTRUCTION LAW
Construction Law
Name of the Student
Name of the University
Author Note

1CONSTRUCTION LAW
Question 1:
In the present scenario, it can be stated that Brownwood Mining and Power ( BMP) is
liable under the law of tort for causing harm to the general public to a large extent. In this regard,
the essential elements of tort can be explained as-
1) Duty to take care: There lies a duty to take care on the part of the defendant. Therefore,
the defendant is at the liability to compensate for the damages if the injury is caused on
his behalf (Wildavsky 2018). However, the nature of the damage must be such which can
be foreseeable by a reasonable man of prudent nature.
2) Breach of duty to care: For the purpose of determining the fact that whether there was a
breach of duty, the Courts are at the authority to two different tests (Keating 2017).
Firstly, the Courts will determine the behavior of the defendant in that particular situation
and secondly, whether the behavior of the defendant was consistent with the nature of the
standard of care which was held in Blyth v Birmingham Waterworks [1856] 11 Exch
781.
3) Causation: This essential deal with the loss or damages caused to the victim as a result
of breach on duty to take care (Robinson 2015). If the plaintiff has suffered loss as a
result of the breach of duty on the part of the defendant then there exists the principle of
causation. In Barnett v Chelsea and Kensington Hospital Management Committee
[1969] 1 QB 428 it was observed that the defendant has caused breach of the duty to take
care however there was no principle of causation.
4) Injury: In order to claim damages under tort there must be an injury of any kind whether
physical or financial.

2CONSTRUCTION LAW
Duty of Care:
The defendant is at the authority to owe a duty of care to the plaintiff. In this context, the
concept of proximity can be discussed which was established in a landmark case of Donoghue v
Stevenson (1932) where it was observed that the plaintiff consumer ginger beer without noticing
the contents of the bottle which contained a decomposed snail. The Court held the manufacturer
liable for breach of duty to take care. In Woolcock Street Investments Pty Ltd v CDG Pty Ltd
[2004] it was held that the duty of care did not exist between the engineer and the owners of
commercial premises. However, in Bryan v Maloney [1995] HCA 17; 182 CLR 609; 128 ALR
163, it was observed that the builder had certain duty of care to the purchaser to take reasonable
care of the house in his absence but failed to do so. In this case, it was observed that the plaintiff
was entitled to claim for damages for the loss occurred. In Woolcock Street Investments Pty Ltd
v CDG Pty Ltd [2004] HCA 16, it was held by the Court that between the builder and the
purchaser, the vendor is at the authority to assign certain rights under the building contract. The
nature of the contract may be direct so the purchaser is at the liability to sue the builder
depending upon the building contract. Therefore, the nature of the contract should be such to
allow the vendor to assign its responsibilities with or without prior consent of the builder.
According to the English law, there is a duty of care on the part of one person to another
to limit them from causing unreasonable harm (Meagher and O'Day 2015). In Caparo Industries
Plc v Dickman (1990) three main questions were considered by the Court while conducting the
test in order to measure that whether there was a duty of care. These are:
 Whether proximity existed between the plaintiff and the defendant on the basis of
relationship.

3CONSTRUCTION LAW
 Whether the nature of the damage was such could be foreseeable by a reasonable person
of prudent nature. The Courts are at the authority to enquire that whether such reasonable
person had knowledge on the nature of the dame. Whether he could possibly foresee the
risk arising out of such damage.
 Whether it would be fair and reasonable to impose a duty of care.
In Paris v Stepney Borough Council [1951] AC 367 it was observed that there was a
duty of care on the part of the defendant which he failed to perform. In this case, the plaintiff was
hired by the defendant for vehicle maintenance. However, in such process the plaintiff suffered
injury in his one eye as no safety precautions were taken by the defendant. Therefore, it was held
by the Court that the defendant did not perform the duty of care. Similarly in Latimer v A.E.C.,
[1953] AC 643 it was observed that unseen forces could also affect the nature of duty of care. In
this case as a result of heavy rainstorm it flooded the floors of the factory. As a result of it oil
rose to the surface of the floor and due to this the claimant slipped and was injured. It was held
by the Court that the occupiers of the factory were responsible for the injury as they did not make
the floor safe before such incident could have occurred.
Therefore, in the present scenario, it can be stated that there was a duty of care on the part
of Brownwood Mining and Power (BMP) as they have employed the Worldwide Electrical
Company Ltd (WWE) to conduct electrical operations in the mine. Therefore, Brownwood
Mining and Power was at the duty to take care as the operation was performed in a residential
area. The Worldwide Electrical Company Ltd was given strict deadlines to follow by the
Brownwood Mining and Power. Therefore, they had to perform the task even knowing the
harmful consequences of it. However, the nature of the duty was such which could be foreseen
by the Brownwood Mining and Power and in spite of having adequate knowledge about the