Legal Developments In Construction Law: April 2021

Published date05 May 2021
Subject MatterGovernment, Public Sector, Real Estate and Construction, Government Contracts, Procurement & PPP, Construction & Planning
Law FirmMayer Brown
AuthorMayer Brown

1. Do public bodies owe a duty of care?

In the exercise of its statutory duties, the Environment Agency provided comments, approval and consent to proposed diversion works for a culvert, including the design of the culvert and trash screen. It was also, however, involved, in the hydraulic modelling used in the design of the works. When refuse became trapped against the bars of the trash screen, the culvert was blocked and flooded neighbouring houses, whose owners and occupiers brought proceedings against the Agency and others. The Agency claimed that it did not owe a duty of care and asked the court to strike out the claim against it. But was it right?

The court summarised the relevant principles derived from the case law:

  • public authorities do not owe a duty of care at common law to private individuals or bodies, simply by exercising their statutory powers or duties;
  • comparable cases concerning planning authorities and other public bodies indicate that the absence of a duty of care extends to advice given as part of the exercise of their statutory powers and duties;
  • a common law duty to protect from harm may arise in circumstances where the principles applicable to private individuals or bodies would impose such a duty;
  • such circumstances may include conduct undertaken by public authorities in the exercise of their statutory powers or duties that gives rise to an assumption of responsibility, as explained in Spring v Guardian Assurance plc.

In dismissing the Agency's application to strike out the claim against it, the court said that the Agency's pleaded involvement in the hydraulic modelling used in the design of the diversion works arguably went beyond its statutory duties and powers, so as to impose a common law duty of care to the claimants. On the pleaded facts, it was unlikely that the Agency's clearance of debris from the culvert amounted to an assumption of responsibility for its maintenance but, without all relevant evidence, the court could not exclude the possibility that its conduct gave rise to a duty of care.

Anchor Hanover Group & Ors v Arcadis Consulting (UK) Ltd & Ors [2021] EWHC 543

2. Exclusion of 'fundamental, deliberate and wilful' breaches of contract - special treatment required?

An engineering contractor claimed that a consultant had "fundamentally, deliberately, and wilfully breached" its obligations under their agreement. The consultant denied any such breaches but said that, in any event, the claim was subject to the exclusions and restrictions in the agreement. The contractor contended that those exclusions and restrictions did not apply to fundamental, deliberate and wilful breaches. Are such breaches treated differently or do the normal rules of construction apply?

The contractor placed some reliance on the case of...

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