The Construction Law Resit - Essay Example

Construction Law Resit Construction Law Resit Introduction In the English tort laws, an individual may owe the other a duty of care. The chief purpose of the obligation of care is to ensure that one party do not experience any harm or loss due to the action of the other party. A breach of the obligation of care attracts a legal liability to the tortfeasor that lead to compensation of the victim in question for any losses incurred. According to the same law, the duty of care only existed from a contractual arrangement such as the case of Nina and the Contractor. However, in the course of the 20th century, the duty of care extended to an individual owing the stranger a duty of care as stipulated in the Common Laws. The doctrine of the responsibility to care develops significantly in the case of Donoghue vs. Stevenson (Card, Murdoch & Murdoch, 2011 p. 12) Duty of Care and Nina’s Case The duty of care arises precisely when an individual or a group of people carries out an activity that may cause any reasonable harm to the other party. The harm from such activity may be physical, economic or mental injuries. The activities such as driving and dispensing of the medications that lead to substantial harm can be subjected to the duty of care as provided for in the Common Law (Anson, Beatson, Burrows, & Cartwright, 2010, p. 219). The legal obligation of care is the first element of negligence. The element describes the relationship between the claimant and the defendant. The defendant in all circumstances must take critical care to prevent any possible injury or harm to the plaintiff. The duty of care is established in two significant cases. These include where the defendant and the plaintiff are operating within a relationship in which the duty of care was precedent set. In the second instance, in case the relationship is outside the provisions, the duty of care is achieved through given principles developed by the law in the case. There are three chief principles delineated in the Caparo s. Dickman that precisely specify a clear tripartite test for the duty of care. The test entails three governing question that facilitate discerning of the legality of the claim by the plaintiff to the duty of care. First, the principles confirm whether the harm was reasonably foreseeable. The second principle evaluates whether there was any degree of closeness between the claimant and the concerned defendant. The third principle questions any fair play in the implantation of the duty of care and whether there is any precluding policy of the public concern (Anson et al 2010 p. 224) Duty of Care Owed to Nina According to the principles, guiding the application of the duty of care, both Peter the surveyor and the Fellowship Building Group through Jimmy build Limited owe Nina duty of care. According to the first principle that questions whether the harm was visible, there is indeed an enormous evidence that the damage was clearly evident and that the Jimmy build limited did everything possible to hide the construction defect from being known. The Jimmy build limited, therefore, owed Nina duty of care due to the negligence in their construction work. The defect in the foundation that led to the cracks and eventual devaluation of the property was well known to the constructor. In regards to the same principle, Peter, the surveyor, owed Nina duty of care. The surveyor carried out a 15-minute survey that was not enough to determine the real worth of the property. As a consequence, the valuation of the property at 185,000 pounds was a significant cause of economic harm to Nina. The surveyor could have easily foreseen the impending danger in such sales due to the low-quality work of the Jimmy build limited (Anson et al. 2010 p. 230). According to the second principle of the tripartite rule that governs the duty of care, the proximity of the defendant and the claimant is of critical concern. In this regards, both the surveyor and the Jimmy build limited were close to Nina. Under such circumstances, the duty of care is not applicable in instances where such closeness does not exist. Nina, however, expected a full account of the construction details from the constructor and the surveyor of whom she was in a close location to. Failure by the concerned parties to give a precise account of the real condition of the property owe them the duty of care to Nina, the property buyer. Lastly, the conditions threaten the public safety and are of great public policy interest. It is, therefore, critical to note that both the constructor and the surveyor are liable to any damage due to the collapse of the building due to the cracks from a defective foundation. Nina in due considerations to the factors that surround the sales of the building deserves some duty of care from the losses incurred from the purchase of the building. Nina Case in Regards to the Limitation of Action Limitation of action period prescribes the time limit within which the party to a particular contract must bring a legal complaint concerning the issues that surround the legality of the contract. Specifically in the construction contract as in the case of Nina, the limitation of action period are principally relevant to the claims brought against the constructor, in this case, the Jimmy build limited. Common Law Provisions on the Limitation of Action. According to the English laws, the construction contracts provides a defect liability period that runs from one year to two years after the completion of the contract. The contractor remains liable for any error that arises within the time limit. The usual arrangement is that the constructor should rectify the error using their resources to prevent any economic, physical or mental harm to the concerned individuals. In case the original builder is incapable of correcting the defects, thought to engage another instructor to remedy the defect that arises from the construction (Sweet & Schneier, 2012 p. 10). The end of the liability period which runs to a maximum of two years does not guarantee the contractor freedom from all the liabilities that results from the defective constructions. The statutory term of limitation still bound the contractor to the defects of the constructions and any harm due to the defects. Statutory Limitation Period Regarding Contract Breach and Other Tort Claims The Limitation Act that came into existence in 1980 specifies the given term of limitation. The term of limitation applies to simple contracts and deeds. The limitation Acts empowers the claimant to launch any complaint in regards to the breach of contract within six years in cases of simple contract. Under the formal deeds, the complaints are applicable up to twelve years. According to the English Common Laws, simple contracts are the contracts that are executed with a single signature only. A deed, on the other hand, is a contract that is executed in advanced formalities that exceed a single signature (Sweet & Schneier, 2012, p. 50) Unless stipulated by given special provisions, the statutory periods begin on the date on which the breach happens, or the date on which negligent neglect act or the omission in question occurs. The date of the contract is not a factor of the limitation period (Sweet & Schneier, 2012 p. 47). Statutory Limitation Period Due to the Negligent Latent Claims of Defects The latent damage Act established an extrapolation of the normal six-year statutory limitation period of simple contracts. The extension applies to the claims that arise due to the latent defects. The defects include the defects in the property that results from the faulty design, the personnel and the materials that were used during the construction of the property. These factors might not be very apparent at the time of completion of the property. The latent statutory period, however, do not apply to the injury that results from such errors by the constructor (McGee, 2012 P. 75). In case of a latent defect, for instance, in Nina’s case, the time bounds is as follows; six years from the date at which the accrual cause of action is reported. It also includes three years from years from which the claimant was aware of the defect (McGee, 2012, p.66). Timeline of Nina’s Case and its Relevance to the Latent Statutory Provisions. The first crack due to the defective foundation appears after five years of completion of sales. Nina took no action at this point. Nina reports the defect two years later after the cracks become more evident. She informs her solicitor and the legal action starts seven years after the purchase. The interpretation of the limit of action is therefore solely based on the timing of the report of the defect and the nature of the contract Nina is engaged in. The Statutory limitation law provides Nina with the legal authority to claim the contractor for any defect in the property. Of particular interest and relevance to the case is the latent Statutory Law, which applies specifically to the property deals. The claims to the defects that results from the poor quality workmanship, materials and designs by the contractor can be executed in a maximum of six years from the time of noticing the defect by the plaintiff (Card, Murdoch & Murdoch, 2011, p. 12) Conclusion In relevance to the Latent Statutory Limitation Acts, therefore, Nina has no limitation action period and is free to sue both Fellowship Housing Group Limited through Jimmy build Limited. Nina can enjoy the legal provision that protects against the defects in the design of the property, in this case, the foundation defects. The English Law protects the claimant from the loss that occurs due to such defects (Card, Murdoch & Murdoch, 2011, p. 12) Bibliography Anson, W. R., Beatson, J., Burrows, A. S., & Cartwright, J. (2010). Ansons law of contract. Oxford: Oxford University Press. Card, R., Murdoch, J. R., & Murdoch, S. (2011). Real Estate Management Law. Oxford: Oxford University Press. McGee, A. (2012). Limitation periods. London: Sweet & Maxwell. Sweet, J., & Schneier, M. (2012). Legal aspects of architecture, engineering and the construction process. London: Cengage Learning. Read More