Construction: Sub-Contractors - Concurrent Duty of Care in Contract and Tort

The Technology & Construction Court (TCC) has held that a sub-contractor may owe a duty in tort to its direct contractor, in addition to the duties it owes in contract.

Our previous LawNow article Construction: can a sub-contractor be liable for economic loss considered the decision of the TCC in Linklaters Business Services v Sir Robert McAlpine Limited to dismiss a strike-out application by the sub-sub contractor Southern Insulation (Medway) Limited. In that case, it was deemed that Southern could, as a matter of legal theory, owe a direct duty of care to the main contractor's employer.

The court has now considered a further strike-out application by Southern, made in the context of separate proceedings against Southern by its direct contractor, How Engineering Services Ltd. The claim by How against Southern alleges a concurrent duty in tort and is for damages equal to such sum as How might be held liable for to McAlpine (under a sub-contract or in tort) or to Linklaters (in contract via McAlpine's collateral warranty, or in tort).

The issues for determination in this strike out application were: (a)...