Memorandum of Advice on Legal Issues in Construction of Lecture Halls

Running head: MEMORANDUM OF ADVICE
MEMORANDUM OF ADVICE
Name
Institution
Professor
Course
Date

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MEMORANDUM OF ADVICE
MEMORANDUM OF ADVICE
1. PRELIMINARY ANALYSIS
The Technical University of Sydney (TUS) has requested for me to draft a memorandum of
advice in line their construction of lecture halls to be used during the summer. The report
addresses legal issues that arise concerning the evaluation, and implementation of the tender
awarded to Broadway Builders Pty Ltd. The university has requested advice on the legal steps to
be taken in order to bring the school to the situation before tort. The memorandum has focused
on the law of contract and tort as per the building and construction sector, strictly the Australian
Construction law. The report borrows literature review from similar cases in history concerning
tort law and contract law. The opinions expressed in this memorandum of advice are my own.
2. Literature Review
The law of tort is the law of wrongdoing and it mainly deals with the conduct of an individual or
party that causes harm to another person, financial interests and proprietary interests1. The law of
tort provides remedies and allocate responsibility for any careless conduct that leads to harm.
However, the definition of tort has always been challenging because of its sheer breadth.
According to Uff2 a tort is a “civil wrong independent of a contract; or as a breach of a legal duty
owed to persons generally”. On the other hand, Armes3 defines tort as “legally wrongful acts or
omissions that interfere with some legal right of the complaining party.”
1 Martin, Elizabeth A. A dictionary of law. OUP Oxford, 2009.
2 Uff, John. Construction law. London: Sweet & Maxwell, 2005.
3 Ames, F. B. "How Far an Act may be a Tort Because of the Wrongful Motive of the Actor." Harv. L. Rev. 18
(1904): 411.

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MEMORANDUM OF ADVICE
Proof should always be provided to establish liability in tort. The proof must contain legally
recoverable losses. Unlike contract law, there is a hierarchy of losses, for example, a defect may
cause injury to an individual or persons, two, cause of damage to property, three, and the defect
may also cause some part of a product being damaged or four reducing the quality or value of the
product.
The existing contract must be able to cover other defects besides defect caused to a person or
persons. Some examples of elements of tort include negligence, which is the most important
element of tort and a focus in this case analysis. Negligence forms the cause of action in a case
involving tort due to its wide coverage covering liability in any other applicable tort4. Negligence
involves causing harm or damage to a person or persons in a manner that is proof of carelessness.
Therefore, an individual is required to act responsibly by showing the duty of care, and breach of
duty of care. Duty of care arises from different statutes or acts such as the occupier’s Acts,
defective premises act, Highways Act as well as the common law. Goods and materials also
benefit from the duty of care especially materials that are proven to be dangerous for use.
Citing from the Defective Premises Act of 1972, “any person taking on work for the provision of
a dwelling, owes a duty to its employer and to every person who acquires an interest whether
legal or equitable in the dwelling; to see that the work which he takes on is done in a
workmanlike or, so as the case may be, professional manner, with proper materials and so that as
regards that work the dwelling will be fit for habitation when completed5.” Therefore, an
occupant has a right to take action against any individual that has taken up work to construct or
design a building including consultants, suppliers, and subcontractors. The Defective Premise
4 Weinrib, Ernest J. "The Monsanto lectures: Understanding tort law." Valparaiso University Law Review 23, no. 3
(2011): 485-526.
5 Morrell, John, Richard Foster, and Gary Hay. Local authority liability. Jordans, 2015.