- Common Law within the construction industry. Common law forms the basis of all law that is applied in England; it is also known as ‘evolved’ law as it has developed as a result of custom and judicial decisions as distinct from the law that is made by governments. It is now being developed by the courts and taken over by legislation such as the Sale of Goods Act 1979. The most popular form of Common Law in the construction Industry is right of way on land. For example if a builder wanted to build on some land that doesn’t have access without using a neighbouring plot of land [belonging to someone else], common law allows him to continue accessing this land for right of way. Torts are usually a product of common law.
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Tort is a civil not a criminal wrong and as such is not punishable by the state unless the wrong is a crime as well. If a developer built a property badly and the house was unsafe he would be in breach of his contract and also could be sued for negligence as in the case of Batty v Metropolitan Property [1978]. In a building contract if the contractor is sued he could regard the employer as partly to blame for any damage. He could then either serve a third party notice and join him as co-defendant or settle the claim out of court and seek a contribution from the employer within 2 years. In Thompson v London County Council [1899], Thompson’s house was damaged when the foundations subsided. This was caused by London County Councils negligence in the excavation and by the water company [second defendant] allowing water to escape from their water main. If there is more than one defendant [tortfeasors] whose separate wrongs combined produce the same harm to the plaintiff they are both jointly and severally liable for the whole loss. If however one of the tortfeasors has to pay the whole amount or more than his fair share of such an amount then the Civil Liability [Contribution] Act 1978 lets him claim a contribution from his fellow tortfeasors. Negligence is one of the more important modern torts and has far-reaching effects for the construction industry. To bring an action in negligence 3 points must be met; duty of care; breach of that duty; damage resulting from that breach. In construction all the parties involved owe a duty of care to each other as well as the ultimate occupants. Engineers and architects will owe a duty of care to the contractor, sub contractor, workmen on the site and the subsequent purchasers – given protection by the Defective Premises Act 1972. This duty carries on to any future owners. In the case of Clay v Crump [1963] where some buildings were being demolished the architect did not inspect a wall that had been left standing but accepted the opinion of the demolition contractor that it was safe. The building contractor started work without inspecting the wall and some time after the wall collapsed injuring the plaintiff who was employed by the building contractor. The architect, the demolition contractor and the building contractor were all held to be liable to the plaintiff owing him and all workmen on the site a duty of care.
- The court system in England
Criminal courts - In most cases, the prosecution is on behalf of the Crown and is handled by an official agency called the Crown Prosecution Service who take the case from the police who have already investigated most of the evidence. The first stage will be to decide whether there is a case to answer - what is called a prima facie case. This will be dealt with by a magistrate on the basis of evidence disclosed by the prosecutor. If the case proceeds, it is heard in the Crown Court. The trial is before a judge and jury. The judge presides over the trial process by attempting to ensure clarity and fairness. The judge must also consider and decide on legal issues (such as whether a piece of evidence should be put before the jury) and also instruct the jury as to the correct view of the law relevant to the case. The jury decides the facts - whose story is more believable - and applies the law to those facts. So, it is the jury not the judge which reaches a verdict on the guilt or innocence of the defendant. In criminal cases, the prosecution has the burden of proof - it must prove guilt, rather than the defendant having to prove innocence.
In less serious criminal cases, the case is sent for summary trial in one of over 400 magistrates’ courts. A summary trial means there is no committal and no jury. The trial is before a bench of magistrates. In most cases, there are three magistrates who are "lay" persons - in other words, they are not professional judges nor are they lawyers, but, like the jury, they are persons from the local community. However, there is now an increasing number of "stipendiary" magistrates - paid magistrates who are qualified lawyers.
Those defendants who are dissatisfied by the verdict may be able to appeal:
- from the Magistrates’ Courts, there is an appeal to the Crown Court on matters of fact or law .
- from the Crown Court, it might be possible to appeal to the Criminal Division of the Court of Appeal on matters of fact or law
- certain legal disputes arising in the magistrates’ courts or the Crown Court can be taken before the Divisional Court of the High Court matters of important legal dispute arising in the Crown Court or Divisional Court may be appealed to the House of Lords.
Civil Cases - In civil cases, the litigation is commenced by a plaintiff against a defendant. The plaintiff must try to prove the liability of the defendant on the balance of probabilities. The sorts of claims arising in the civil courts are typically about contracts, torts, and land disputes. The choice of court depends in most cases on the value of the claim. Small claims will start in a County Court. They can also deal with divorce and bankruptcy matters. Relatively small claims (less than about £3,000) can be handled by a Small Claims Procedure. This involves a quick hearing, often without lawyers being present, before a District Judge.
More substantial civil claims (over around £25,000) are heard in the High Court. The action is begun by writ, which is accompanied by a statement of claim in which the details of the legal dispute is set out.
- Any civil trial is in the vast majority of cases by a judge alone. Cases are often slow to pass through the system, measured in months or years rather than weeks as for criminal cases. It is also important to note that a very large proportion of civil claims are "settled" - the parties agree on how they should be resolved and therefore the case never reaches trial. This applies both to High Court and County Court.
The system of appeal in civil cases is as follows:
- from a County Court or the High Court, there is an appeal to the Civil Division of the Court of Appeal on law only
- from the High Court, there may be an appeal to the House of Lords on a matter of legal importance
- from the Court of Appeal, there can be an appeal to the House of Lords on fact or law, but usually appeal is only allowed on matters of legal importance
Task 2
Delegated legislation – legislation are rules of law created and enacted by Parliament which acknowledges that it does not have time or expertise to deal with all legislation. Therefore it will grant delegated powers to other people or bodies to supply the detailed legislation. This is called delegated legislation; it has all the power of Parliament as it could only be made by the transfer from Parliament to the designated persons or bodies. These forms of delegated legislation are: Statutory Instruments (including Rules or Regulations and Orders), and by-laws. The Building Regulations are published in Statutory Instrument reference SI 1991 No 2768 and the relevant Act is the Building Act 1984. Another enabling Act is the Health and Safety at Work Act 1974, all power [technical, policy making and enforcement was transferred to the Health and Safety Commission and the Health and Safety Executive.
Successful legal challenges are often mounted on the basis that the legislation is ultra vires – beyond its powers and void. While it is unlikely that a minister or a Local Authority would intentionally (or even carelessly) usurp powers in this way, it has been argued that an `unreasonable' by-law, for example, is ultra vires. The basis of this argument is that Parliament would never intentionally delegate authority to frame oppressive or gratuitous legislation.
Task 3
Real property is an immovable property such as land, buildings or an object that, though at one time a chattel, has become permanently affixed to land or a building.
Personal property consists of chattels real and chattels personal.
Chattels are moveable items of property which are neither land nor permanently attached to land or a building. Chattels are also known as personal property. A freehold property is not a chattel, but leasehold is.
Chattels personal - there are two groups of chattels personal, choses [things] in possession and choses in action.
The terms real property and personal property derive from the mediaeval judicial remedies that were available in disputes over ownership. A real remedy involved the return of the thing itself, while a personal remedy was satisfied by the award of the value of the thing. Where the thing in dispute was land or an interest in land, then in most cases a personal remedy would not be adequate; for most people there would be no adequate substitute for the land itself. Land does not move: if someone else is occupying land then that land is needed not another piece of land elsewhere. Whereas one cow, for example, may be as good as any other. Such considerations led to the notion that ownership of land was fundamentally different from ownership of other things (specifically, moveable things), and this in turn leads to our modern concept of real property. This term is difficult to give a precise definition to but it usually means interests in land, buildings and fixtures on land, and rights to the enjoyment of land. Everything else is personal property.
Task 4
In this case Alpha plc can sue Buildwell plc for trespass. The scaffolding erected sits on land belonging to Alpha plc, Buildwell plc should have obtained permission to site the scaffolding prior to commencing work eg Westripp v Baldcock 1939. 2 All ER 779. There is no need to prove that the trespasser did any real damage as the tort is for itself, committing the offence is enough and ignorance is no defence. Buildwell has a duty of care to the client, the public and neighbour including Alpha plc. If light or right of way is blocked by the scaffolding this also constitutes trespass. Buildwell plc needs to re-erect the scaffolding on the right side of the boundary. It could also be a criminal case if any damage or injuries occurred, he would then incur damages and costs.
Swinging the cranes jib over Alpha plc’s property also constitutes nuisance as in the case of AnchorBrewhouseVBerkelyHouse1987 2 EGLR 173. The claimants sought an injunction to prohibit the defendants' allowing the booms of their cranes to swing over their (the claimants) property. There was no question that damage had been caused, or was likely to be caused, but as a matter of principle the infringement was a trespass, and should be curtailed. The court accepted this argument, on the authorities, albeit with some reluctance.
Task 5
Green, the purchaser of a flat from the developer, Builders plc can sue under breach of duty of care. Green has to prove that he has suffered damage because of the breach either injury to his person or to his property. As the plasterwork needs renewing it would be held that it is sufficient to found an action that he has suffered financial loss without physical harm. This was established in the case of Junior Brooks Ltd v Veitchi Ltd 1982. Here the plaintiff’s factory floor was re-laid badly and although no damage was caused to the property the plaintiff needed to have the floor re-laid again causing loss of profit due to disruption of the factory. It was held by the House of Lords that the defendant was liable for the economic loss.
Green will recover the cost of re-plastering in a civil action due to breach of duty of care and negligence. Builders plc could then recover the damages from the sub-contractor.
Task 6
a] Pluto would be liable under the rule in Rylands v Fletcher [1866] LR 3 HL 330 (HL). The claimant's mine workings were flooded when a well dug by the defendant collapsed, allowing water to escape onto the claimant's land. There was no reason to believe that the defendant had constructed his well negligently, or was otherwise at fault in his conduct. Nevertheless, it was held that a person who brings something onto his land that is apt to cause damage if it escapes, is liable to his neighbours if it does escape, regardless of fault. It follows that Pluto was also not deliberately at fault – he maintained his pool and the equipment which operated it were in good working order.
b] If the drain had been blocked by a malicious trespasser Pluto would not be liable under Rylands v Fletcher. The blockage would have been due to a trespassers malicious act. This is shown in Richards b Lothian[1913] where it was held to be a complete defence as the escape was due to the malicious interference of a stranger.
REFERENCES USED IN THIS ASSIGNMENT
Class notes
Law for the Construction Industry 2nd edition Stephanie Owen
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