Construction Bites: Duties Of Care Owned By The Building Contractor

South of the border, the question as to whether a building contractor owes to his client a duty of care in tort as well as a contractual duty can be of some considerable importance. This is because under the rules in England and Wales limiting the period within which claims must be pursued, a party may find that a contractual claim is excluded leaving only the option of a claim founded on a breach of a tortuous duty of care.

This is the situation that was considered in the recent English Court of Appeal decision in the case of Robinson v PE Jones (Contractors) Limited [2010].

Decision in Robinson

It has been established for some considerable time that loss in the form of damage to the article supplied under a contract is classified as pure economic loss. A claim by an employer against his building contractor to recover the cost of remedying defective works is regarded as a claim to recover economic loss. These economic losses can be recovered by an employer as damages for breach of contract. Is, however, he also entitled to recover such losses by way of a claim for breach of a tortuous duty of care?

A number of cases have concluded such losses are so recoverable. The Court of Appeal has, however, now made it clear that it is extremely unlikely that a building contractor will ever be liable in tort to his employer in respect of losses incurred to remedy the defective works of the building contractor. Previous decisions where it has been held that a building contractor owes a duty in tort in relation to the economic losses sustained by his employer are stated to have been wrongly decided.

What does this mean for Scotland?

Because...