Are There Concurrent Liabilities In Contract And Tort Under A Building Contract? The Court Of Appeal Decides

The case of Robinson -v- P E Jones (Contractors) Ltd [2011] EWCA Civ 9 deals with the issue of tortious liability running concurrent to contractual liability. This is an issue both for contractors and for employers because the limitation period in contract is usually shorter than in tort. In contract you can agree to the limitation period, it is usually 6 years from the date of breach, if the contract is signed under hand or 12 years if executed as a deed (in building contracts these periods often run from the date of practical completion rather than breach). In tort the limitation period can be extended to 3 years from the discovery of the breach or defect. This can obviously exceed the contractual period.

Also, if the parties exclude liability under the contract in certain circumstances, the big question is: can you get around this exclusion by suing in tort? Does the contract set out all of the rights and obligations governing the transaction or can the law of tort impose rights and obligations which the parties did not agree at the time of contracting? This case answers these questions clearly.

The answers can be summarised succinctly as follows:

Contracts between professionals such as architects and engineers generally attract a concurrent duty of care in tort for losses being damage to property, injury to persons and pure economic loss, such as the cost of repairs. Contracts between contractors and clients will attract a concurrent duty of care in tort for losses being damage to property or injury to persons; however they will not generally NOT attract a concurrent duty of care in tort for pure economic loss such as the cost of repair. Exclusions of liability for economic loss in a building contract will generally not be found to be unfair and will be applied by the courts. This case tested the question of whether a house builder owed a duty of care to the purchaser, concurrent with a duty in contract, for pure economic loss.

This is a duty above and beyond the builder's normal duty of care to take reasonable care to ensure the client did not suffer personal injury or damage to property. The court concluded that in principle, a builder could owe his client a duty of care in relation to economic loss, but only if there were particular circumstances which evidenced an assumption of responsibility. The court concluded that normally a building contractor will not, by entering into a building contract, assume such responsibility. In this...