Construction Law

This article discusses the essential elements of tort, duty of care, doctrines of vicarious and strict liability, and legal liability in construction law. It also explains the limits imposed on the recovery of personal injury claims and the time limits for making such claims.

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

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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.

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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.

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 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

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nature of the risk they have employed the Worldwide Electrical Company Ltd to carry on the
operation under strict deadlines. Therefore, it can be stated that Brownwood Mining and Power
is liable under the law of torts for the damages caused to the general public to a large extent.
Question 2:
The basis of attributing liability for damages can be emphasized with the doctrines of
vicarious and strict liability.
The doctrine of strict liability was introduced in order to improve the existing safety
working conditions in factories. The doctrine of strict liability can be well explained with the
help of landmark case Rylands v Fletcher (1866) LR 1 Ex 265. In this case, it has been
established that in certain cases individuals may not be liable for the harm caused by them
(Meagher and O'Day 2015). He may not be negligent in his act or there may not be any intention
on his part to cause the harm. Therefore, the ‘no fault liability’ has been recognized by the law.
The rule that has been depicted in Rylands v. Fletcher is also known as the Rule of Strict
Liability. In this regard, it is noteworthy to mention here that the doctrine of ‘No Fault Liability’
was later recognized by the House of Lords to be ‘Strict Liability’. In Rylands v Fletcher (1866)
LR 1 Ex 265 it was observed that the defendant employed some independent contractors to
construct a reservoir for the purpose of supplying water to his mill. However, there were existing
old disused shafts beneath the site where the reservoir was intended to be constructed. The
contracts failed to notice those shafts and did not block them. After water was filled in the
reservoir, it busted and flooded the adjoining coal mines of the plaintiff. In this case, it held that
though the defendant was not negligent in his act, he was still held liable. Therefore, the rule of

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strict liability was developed so that the defendant can escape liability. However, for the rule to
apply three essentials must be there-
1. Dangerous Object:
According to this rule, in order to escape liability from one’s land there must be a
presence of a dangerous thing.
2. Escape:
The rule of strict liability could be applied in cases where the thing causing damage has
escaped. In this regard, it is worth noting that the thing must be such that it is outside the control
of the defendant.
3. Non-natural use of land:
When there is a presence of non-natural use of land, the defendant can escape liability
which was evident in Rylands v Fletcher (1866) LR 1 Ex 265.
In general, an individual is liable for his own act however; in some cases individuals are
liable for the wrongful acts done by others. In this regard, the rule of vicarious liability arises that
is the liability of one person for the done by another. Vicarious liabilities can be applicable in
cases involving-
I. Liability of the principal for the act of his agent.
II. Liability of the partners in a firm for each other’s act.
III. Liability of the master for an act of his servant.
IV. Liability of the employer for the acts of the independent contractor.

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When a principal authorizes an agent to work on his behalf, the principal shall be liable
for the act done by his agent. In Anchor Brewhouse Developments v Berkley House Ltd [1987]
EGLR 172 it was observed that the principal was held liable for the act of negligence on the part
of his agent.
The relationship between partners is equal to that of a principal and an agent. A partner is
equally liable for the acts done by another. In a similar way a master is also responsible for the
acts of his agent. However, in some cases servants who exceeds the control of the maters. In this
regard, it is worth mentioning that there exists a distinction between a servant and an
independent contractor. A servant works under the supervision of his master and cannot perform
independently. On the other hand, an independent contractor undertakes a task assigned to him
by the owner. In this regard, the independent contractor is at the authority to perform the work
according to his free will. He is not under the control of the person who has assigned him with
the job. In Northern Sandblasting Pty Ltd v Harris [1997] HCA 39 it was observed that a nine
year old gil died as a result of electrocution when the water tap was turned off by her. It was seen
that the independent contractor was hired by the owner of the premises for the purpose of
repairing defective appliances. In this case, the independent contractor was held liable for
leaving the premises in a condition which could cause dangerous accidents. It was held in
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13 that an independent contractor
can be engaged by the builder to carry out architectural or engineering operations; however in
case of negligence on the part of such independent contractor, the builder shall be held liable. In
this case it was observed that the Burnie Port Authority owned a building in which frozen
vegetable were stored by General Jones. However, an independent contractor was employed by
such authority for the installation of extra electrical refrigeration and electrical equipments in the

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building. As a result of this, sparks caused and the stock of the plaintiff was damaged. Burnie
Port Authority was held liable in this case. In Sydney Water Corp Limited v Aqua Clear
Technology Pty Limited (1995) it was held that an independent contractor shall be held liable if
there was a presence of unreasonably subjective assessment which could result into loss of major
contract on the part of the contractor. In this case, it was observed that the architect was largely
depending upon the ability and the capacity of the independent contractor. Therefore, in such
case, the independent contract shall be held liable. In Andrews v John Fairfax & Sons Ltd
[1980] 2 NSWLR 225 it was observed that the architect has the authority to sue on the basis of
injury to his work and reputation, if it has been criticized on any grounds.
Therefore, in the present scenario, it can be observed that both Brownwood Mining and
Power (BMP) and Worldwide Electrical Company Ltd (WWE) were equally liable for the
injuries caused to the general public. The case of Rylands v Fletcher (1866) LR 1 Ex 265 can be
referred in the case of Brownwood Mining and Power in regard to the doctrine of strict liability.
It can be observed that Brownwood Mining and Power had the knowledge regarding the harmful
consequences of the work. They were aware of the fact that such an act could possibly harm the
public and create hazardous damage. In spite of knowing the consequences, they emphasized on
cost and not safety measures. Therefore, it can be stated that Brownwood Mining and Power
cannot escape liability by applying the principle of strict liability. Similarly, Worldwide
Electrical Company Ltd (WWE) was employed by Brownwood Mining and Power as
independent contractors to carry on the operations in the mine. Therefore, Brownwood Mining
and Power was at the authority to take care of safety measures as it not an independent contractor
and not a servant which was observed in Tarry v Ashton (1876) 1 QBD 314. They were aware of
the fact that the nature of the work involved high risk. In spite of knowing this they removed fire

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safety equipment systems and sprinkler systems. Therefore, in the present scenario, it can be
stated that Worldwide Electrical Company Ltd (WWE) cannot escape liability by applying the
principle of vicarious liability.
Question 3:
In the present case, there is an existence of legal liability. However, various limits can be
imposed on the recovery of the classes of people listed above. There are strict time limits which
are applied while making a claim for personal injury. The Australian Limitation Act 1969
addresses these limitations from time to time. In this regard, it can be noted that the considerable
period to bring a suit for accident claim for compensation of damages is minimum three years.
However, failure to commence the action of the Court within the stipulated period of three years,
the claim for personal injury shall become time-barred.
Therefore, in the present case study it can be observed that as a result of negligent act on
the part of Brownwood Mining and Power (BMP) and Worldwide Electrical Company Ltd
(WWE). It can be observed that, houses were burnt and people were hospitalized as a result of
smoke and haze caused by fire. It is observed that as a result of this business enterprises has no
close down as their operation were hampered as a result of the closeness to fire and even workers
could not return to duty as a result of the hazardous activity. In this context, it can be rightly
stated that as strict limitations has been applied to claims related to personal injuries, the victims
are at the authority to bring a claim for damages for personal injury which is limited to a period
of three years.
Question 4:

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Time limits in civil claims existed in Australia from the very beginning which has been
treated as a matter of public policy (Goldberg and Zipursky 2016). In case of claims related to
personal and professional negligence, the person injured is insured with a degree of certainty in
relation to the duration of financial exposure to the claims (Feinman 2015). Therefore, time
limits have been imposed by the Court for the purpose of efficient adjudication. However,
sensible time limits have been imposed for the purpose on ensuring fair trials of compensatory
claims (Solheim 2018). Therefore, in this way it can be observed that there was a reduction in
rates of stale claims as a result of such limitation. However, the quality of the evidences in recent
years considerably diminished overtime. The Limitation Act 1969 clearly addresses the relevant
claims and their time period that could be brought before the court (Wildavsky 2018). A claim in
tort regarding professional negligence can be brought before the Court within a period of 6 years
from the date on which the damage occurred. A claim for breach of a contract can be brought
before the higher authority within a period of six years from the date when such breach took
place (McDonald 2015). In case when the person claiming compensation is not aware of the
amount of the financial loss suffered by him during that time, he is at the authority to bring a
claim for financial within a period of six years from the date of occurrence or within a period of
three years at the earliest possible date when the sufferer has the knowledge that he requires to
bring a claim for his injury (Luntz et al. 2017). In cases which involves claim for negligence
related to personal injury, cannot be brought before the Court for claim for compensation before
a period not more than 15 years 15 years after the end of the actual date on which such act or
omission took place. Even if the prescribed time period expires, the injured party has the right to
claim for damages.

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Therefore, it is important on the part of the injured p[arties to gain appropriate knowledge
regarding the nature of the negligence before bringing a claim of action before the court. In this
regard, it can be commented that an individual has various grounds for pursuing a claim of
professional negligence (Kakkar et al. 2015). The injured party may have a period of 6 years to
claim from the date the loss has occurred however; he may have 3 years from the day he
acquired knowledge regarding the damage (Henderson 2017). The final period to bring a claim
of action is limited to a maximum period of 15 years.
Therefore, it is essential on the part of the individuals to bring an action for claim within
the stipulated period or before the expiration of the time period before the appropriate Court
(Grenier et al. 2015).Failure to comply with the prescribed time period will create further delay
and the person may not be able to claim further if the time period expires (Goldberg and
Zipursky 2016). It is worth stating that, limitations to damage claims provides appropriate
defense to claims of professional negligence (Fortney 2016). However, according to the current
standards laid down by the bar for successful negligence claims, the time limits could be
postponed or varied by agreements (Deakin 2018). However, the nature of the consequences that
exists within such agreements is complex in nature. Failing to comply with the objectives of the
agreement within the stipulated time period for bringing an action of claim, the parties could face
serious consequences (Backof 2015). Therefore, it is important to take reasonable care while
giving consent to such agreements. The above-mentioned time limits can be extended and
thereby can be affected by conduct when the claim involved is based on fraud related to
professional or personal negligence.
Therefore, after evaluating the above mentioned problems experienced by the persons it
can be stated that the injured persons are at the authority to bring an action of claim for damages

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against Brownwood Mining and Power (BMP) and Worldwide Electrical Company Ltd (WWE)
on the grounds of both personal and professional negligence. However, it is important on the part
of the injured parties to take action within the stipulated period.

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References:
Legislation:
The Limitation Act 1969.
Cases:
Anchor Brewhouse Developments v Berkley House Ltd [1987] EGLR 172.
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225.
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.
Blyth v Birmingham Waterworks [1856] 11 Exch 781.
Bryan v Maloney [1995] HCA 17; 182 CLR 609; 128 ALR 163.
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13.
Caparo Industries Plc v Dickman (1990).
Donoghue v Stevenson (1932).
Latimer v A.E.C., [1953] AC 643.
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39.
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39.
Paris v Stepney Borough Council [1951] AC 367.
Rylands v Fletcher (1866) LR 1 Ex 265.

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Sydney Water Corp Limited v Aqua Clear Technology Pty Limited (1995).
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004].
Journals:
Backof, A.G., 2015. The impact of audit evidence documentation on jurors' negligence verdicts
and damage awards. The Accounting Review, 90(6), pp.2177-2204.
Deakin, S., 2018. ORGANISATIONAL TORTS: VICARIOUS LIABILITY VERSUS NON-
DELEGABLE DUTY. The Cambridge Law Journal, 77(1), pp.15-18.
Feinman, J.M., 2015. Liability of Lawyers and Accountants to Non-Clients: Negligence and
Negligent Misrepresentation. Rutgers UL Rev., 67, p.127.
Fortney, S.S., 2016. A Tort in Search of a Remedy: Prying Open the Courthouse Doors for Legal
Malpractice Victims. Fordham L. Rev., 85, p.2033.
Goldberg, J.C. and Zipursky, B.C., 2016. Triangular Torts and Fiduciary Duties.
Grenier, J.H., Lowe, D.J., Reffett, A. and Warne, R.C., 2015. The effects of independent expert
recommendations on juror judgments of auditor negligence. Auditing: A Journal of Practice &
Theory, 34(4), pp.157-170.
Henderson Jr, J.A., 2017. Learned Hand's Paradox: An Essay on Custom in Negligence
Law. Cal. L. Rev., 105, p.165.
Kakkar, M., Thakkar, R., Karunakaran, A., Mishra, H., Dinesh, A. and Yadav, D., 2015.
Professional Negligence and its Legal Implication in Dental Practice: A Review. Journal of
International Oral Health, 7(10), p.148.

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Keating, G.C., 2017. Response to Fox: Impaired Conditions, Frustrated Expectations, and the
Law of Torts. Colum. L. Rev. Online, 117, p.212.
Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G. and Harder, S., 2017. Torts:
cases and commentary. LexisNexis Butterworths.
McDonald, C., 2015. Torts Law: Blurred Elements: The Nebulous Nature of Foreseeability, the
Confounding Quality of Misfeasance, and the Minnesota Supreme Court's Decision-Doe 169 v.
Brandon. Wm. Mitchell L. Rev., 41, p.365.
Meagher, A.L. and O'Day, M.P., 2015. Who Is Going to Pay for My Impact-A Contractor's
Ability to Sue Third Parties for Purely Economic Loss. Constr. Law., 25, p.27.
Robinson, G., 2015. Construction Law-Texas Supreme Court Shields Design Professionals from
Economic Liability in Negligent Misrepresentation Suits. SMUL Rev., 68, p.299.
Solheim, J., 2018. Health-Malpractice, Negligence, or Breach of Duty: The North Dakota
Supreme Court Holds That the Performance of a Surgery other than the One Identified on a
Consent Form Does Not Constitute an Obvious Occurrence of Professional Negligence. NDL
Rev., 93, p.143.
Wildavsky, A., 2018. From Individual to System Blame: A Cultural Analysis of the Historical
Change in the Law of Torts (with Daniel Polisar). In Cultural Analysis (pp. 171-198). Routledge.

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