Construction Law: Liability of Contractor in Case of Negligence

This article discusses the liability of a contractor in case of negligence in construction law. It explains the elements of negligence and limitation of liability act 2008. The article also covers the special conditions mentioned in the contract and how they affect the liability of the contractor.

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CONSTRUCTION LAW
ANSWER – 1(a)
Jack Bundy undertook the contract as a builder, whereas Mary acted as the principle. A
simple Work Contract had been executed between the parties under the provisions of
AS4000-1997. Based on the provisions contained therein, Clause 2 of AS4000-1997
specifies the conditions under which a work can be undertaken by a Contractor by
entering into a Contract with the Principle, assert Cane & Atiyah, (2013). The Contract
Document will specifically state the terms at which the work has been undertaken by the
Contractor. The Contract Document shall also state the Payment Terms, Period of the
Contract and shall specify the Technical Specifications of the work being undertaken by
the Contractor, as per Cane & Atiyah, (2013).
Mary, upon knowing the damage caused to Freddie Mercury’s Koi Cark should have
issued a notice to Jack Bundy under Clause 41 of AS4000 – 1997. This clause specifies
that a Notifications is to be issued by the Principle to the Contractor for any negligence
on the part of the Contractor/Sub-contractor. Subsequently, as per Clause 42 of AS4000
– 1997, both parties should convene a meeting and formulate a Dispute Resolution, say
Deakin, Johnston & Markesinis, (2012).
The case is of Contributory negligence under the common law and offers the chance
of defence to Jack Bundy as the claim by Mary is based on negligence, which is an
action in tort. Mary’s negligence lies in the fact that she did not install an alarm in the
aeration system which could have saved the damage. As the plaintiffs/claimants, Mary,
through her own negligence, contributed towards the harm she suffered, as per
Morrison et al, (2012).

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ANSWER – 1(b)
Negligence
Considering the special conditions mentioned in the contract, Jack can still escape
liability under the Law of Negligence and Limitation of Liability Act 2008. The five
elements of the negligence case, explained below will exonerate him of all liabilities,
assert Morrison et al, (2012).
1. Duty.
The outcome of negligence depends on whether Jack, as the defendant, owed a duty to
Mary, the plaintiff.
2. Breach of Duty.
It will not be enough for Mary to prove that Jack owed her a duty. She will also have to
prove that Jack breached his duty towards her.
3. Cause in Fact.
Under the rules of the cited Act, in a negligence case, Mary must prove, without any
reasonable doubt, that Jack's actions were the actual cause of her loss.
4. Proximate Cause.
Under the Proximate Cause rule cited in the Act, Jack, as the defendant is only
responsible for those losses which he could have foreseen through his actions.
5. Damages.
Mary, as the plaintiff, must prove a legally recognized loss incurred to the property. The
failure, on the part of Jack, in exercising reasonable care, must be proved in relation to
the actual damages caused because the defendant owed a duty of care.
In Australia, a court can rule, that 100% contributory negligence is applicable in this
case and hence the plaintiff is not entitled to any damages. This also refers to
Pennington v Norris case as a second test. Hence, Jack will not be liable to pay any
compensation to Mary for her losses, assert Cane & Atiyah, (2013).
LIST OF REFERENCES

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Cane, P. and Atiyah, P.S. 2013, Atiyah's Accidents, Compensation and the Law.
Cambridge University Press, Cambridge.
Deakin, S.F., Johnston, A. and Markesinis, B. 2012, Markesinis and Deakin's Tort Law.
OUP Oxford, Oxford.
Morrison, W. L., Sappideen, C., Vines, P. and Watson, P. 2012, Torts: Commentary
and Materials, 11th ed. Thomson Reuters (Professional) Australia, Canberra.