Tortious Liability for Defective Construction and Design - Essay Example

?Introduction Legal means provide for various avenues that can be utilised in order to deal with any damages that occur due to the fault of a goods or service provider. The construction contractor is also treated under law as a service provider and has the responsibility of assuring the quality and some minimum standards of his services beyond those stipulated by any contract. For example, the contractor has to assure that the building he constructs keeps free from structural faults even though the contract does not explicitly express such ideas. Any damages that tend to arise from a contractor’s or a consultant’s practices during or after a construction contract is executed, are liable to tort based prosecution in a court of law. However, there are certain stipulations that must be met under different legal systems in order to ensure that the dispensation of justice is fair to all involved parties. The legal code in practice in the United Arab Emirates derives a number of different elements from English law but still has subtle differences when it comes to practice. This paper will look into the various kinds of protections offered under English law and UAE law for tortuous liability on grounds of defective construction and design. The discussion in this paper will be focused on the relationship between the developer (or contractor as applicable) and the end consumer who buys the constructed product or services in order to form a comparison of which legal system provides greater protection to the end buyer. Tortious Liability for Defective Construction and Design A number of legal systems provide for tortious liability for acts of omission and commission practiced by the contractor. It is possible to classify building defects using two clear classifications: patent defects and latent defects. While the former deals with defects that are visible to the contractor, consultant and other involved parties, the latter refers to defects that appear years after the building is complete. As far as patent defects are concerned, the involved parties can detect and deal with the defects as they appear unless the project owner is not satisfied. However, it is possible that latent defects remain and only appear after the building is taken into service. For example, it is typical to find leaking plumbing, easily broken floor tiles and the like once a property is taken into custody. The law does provide for remedies in these situations but such remedies are subject to certain stipulations such as time bars. English Law English law dictates that any defects observed after a takeover of constructed property must be evaluated through the Limitation Act of 1980. It is common practice for the parties involved i.e. the contractor and the project owner to agree to a period where any discovered defects would be rectified. It is typical to see contractual agreements between parties that stipulate periods of between one year and two years, after the completion of construction, to deal with any discovered defects1. This would apply solely to latent defects as common practice shows that patent defects are removed prior to building handover by the project owner or end consumer. Another set of circumstances would emerge if there are no such clauses available in the construction contract to deal with defects in the post construction completion scenario. In such circumstances, the aggrieved party has the option to go to a court of law in order to deal with any damages incurred due to the contractor’s actions. It must be taken to note that tort actions for such cases under English law are only possible if the tort claim is brought before the case no later than six years after the damage has been caused2. Technically the date that the damage is notice or secured is better known as “the date of action accrued”3. Here it must be taken to note that the involved parties may reduce or increase the period settled by the Limitation Act (1980) for tort claims to occur. It is common court practice not to interfere with the actions of parties in contractual agreements, especially if the parties involved are experienced commercial contractors and service seekers. Other than the 6 years period settled under the Limitation Act (1980), a party may bring about a tort claim even if damage has not been done. The party undertaking such legal action has a period of 3 years from the date it discovers a latent defect or from a point in time that the aggrieved party ought to have known of such a defect. Here it needs to be realised that a party need not establish scientific cause or undertake such establishment in order to pursue a legal action. Instead, it is possible under the law to bring about a tort action and investigate the scientific basis if required as need arises4. Moreover, the aggrieved party has the option to undertake legal tort action against the offending party for a maximum of fifteen years from the date that the offence has been committed due to negligence or omission5. The overall limit has been provided under the Latent Damage Act (1986) as a means to deal with the maximum period under which a tort claim can be brought by the offended party. The landmark decision in Pirelli General Cable Works Ltd v Oscar Faber and Partners6 by the House of Lords’ provided that the claimant can claim tort damages up to a maximum period of 15 years from the suspected data of negligence or any act of omission. Legal practice shows that any claims of tort must be made as soon as possible in order to circumvent the possibility of being time barred. The decision in Haward v Fawcetts7 shows that the claimant must take legal action as soon as it is made apparent that there are some forms of latent defects available. As mentioned before, the claimant need not produce evidence of actual damage or other scientific findings when filing such a complaint with a court of law. The fact of the matter is that English law provides a large amount of leverage to the claimant in order to protect the claimant’s rights as was made apparent in Harris Springs Ltd v Howes8 that used the grounds in Haward v Fawcetts to prove that time barring did not apply. It also needs to be kept in mind that the claimant can file any form of actual or suspected damaged including loss of life, property and profits. While English law provides large leverage to the claimant, it is not true that the claimant is the only party that can win a tortious claim. Instead, a recent case ruling from J A Robinson v P E Jones Ltd9 shows that the claimant filed for torts based on fiscal loss due to ill constructed housing chimneys. The court found that the contractor was not responsible for ensuring repair based fiscal coverage on the initial construction and hence was not responsive to ensure latent damage to the claimant. It is noticeable that there were no issues raised as per the time of the claimed latent damage since the construction terminated in 1992 and the latent defect was discovered in 2004. UAE Law Tort based liability arises in UAE law under the realm of the Civil Code of the UAE. The Civil Code requires that three different stipulations be met in order to classify a claim as a tort rather than as a contractual breach. The conditions are: breach of conditionality imposed by the law of the state; demonstrated loss sustained by a party; a causal link between the caused damage and the breach implied. Another important thing about the UAE Civil Code is the stipulation that any contractual condition that seeks to avoid tort based liability is considered null and void10. It must be taken to note that the subject article considers liability that can be expanded to tort based liability as well. The greatest issue of important under the UAE Civil Code is the inability to limit liability since tort based liability covers greater area than contract based liability. In the case that a claimant brings forth a claim for contract based liability, the claimant has to use the grounds of foreseeable damage only. However, when dealing with tort based liability under the UAE Civil Code, it must be kept in mind that both foreseeable damage and unforeseeable damage must be taken to account11. In the case of UAE, it is also noticeable that a contractual claim can be processed based on a time barred limit of fifteen years. However, in the case of tort based liability the claimant has to bring forth the claim at most three years after the latent defect has been discovered. Alternatively, the claimant must bring about a tort liability claim at most three years after the consequential foreseeable or unforeseeable damage has been caused to the claimant based on any act of omission or negligence on the part of the contractor. Moreover, another limiting factor in the UAE’s case is the limit prescribed by contractual relationships. In case that a contractual understanding exists between the parties, the claimant cannot bring forth a liability of tort claim. However, there is the possibility that the claimant may bring about a claim in the cases of fraud or breach of duty. These actions on the part of the contractor tend to make him vulnerable to the UAE Civil Code that requires a tort liability claim to be supported by a breach of any duty or obligation12. On another note, Articles 880 to 883 of the UAE Civil Code stipulate a number of different conditions for a tort liability to take effect. One such condition is the absence of defects. Under the said provisions, the claimant can bring about a claim of tort liability against the contractor whether a defect exists or not. Moreover, the contractor or the consultant involved is not allowed under the said provisions to pass on the claim to their sub contractors or sub consultants13. Hence, the contractor or the consultant involved is in a fix given that there is no actual defect existing and that the claim cannot be passed on down the line. A straight consequence of Article 254 of the UAE Civil Code is that the architect and the contractor are not liable to the end buyer since they are not involved in any contractual obligations. Instead, the developer of the property is liable to the end buyer since they are in a contractual relationship. The developers of property are liable for ten years to the end buyer under the new Strata law14 that is meant to extend the liability of tort as long as deemed possible. Conclusion It needs to be taken to account that English law and UAE law have their own peculiarities in relation to tort liability claims. On the one hand, the English law is more relaxed in allowing tort claims in term of the barring period while on the other hand, UAE law allows greater leverage to the claimant to produce a claim. Moreover, English law tends to provide some coverage to the contractor too but this is not so under UAE law that is too complicated and well construed to let anyone off the hook. References Ben Cowling and Diana Hudson, Construction in Saudi Arabia: decennial liability (Clyde and Co 2013) Christopher Wong, Liability after take over: the English Position (White and Case 2009) Faisal Attia, 'Can we really limit liability?' (Tamimi 2010) accessed 4 June 2013 Harris Springs Ltd v Howes [2007] EWHC 327 Haward v Fawcetts [2006] UKHL 9 J A Robinson v P E Jones Ltd [2011] EWCA Civ 9 Limitation Act (1980) Latent Damage Act (1986) Ownership of Jointly Owned Properties in the Emirate of Dubai (2007) Pirelli General Cable Works Ltd v Oscar Faber and Partners [1983] 2 AC 1 UAE Civil Code Read More