Cornes and Lupton's Design Liability in the Construction Industry (eBook)

Sarah Lupton has degrees in architecture and law, and has over 30 years' experience as a partner in the London-based architects' practice of Lupton Stellakis. She combines practice with an academic post at the Welsh School of Architecture, as Professor and director of the MA in Professional Studies. She lectures widely on subjects related to construction law, and is an arbitrator, adjudicator and expert witness. Sarah is a member of many industry and professional committees, and is chair of the CIC Liability Panel, and past chair of the RIBA Presidents Advisory Committee on Dispute Resolution. As well as this publication, she is the author of many books, including a series on standard form construction contracts.

Acknowledgments

Preface

1 The Industry Context

1.1 What is design?

1.2 Procurement routes

1.3 Who are the designers

2 Liability under Contract

2.1 Formation of contract

2.2 Problems with contract formation

2.3 The terms of a contract

2.4 Exemption clauses

2.5 Privity of contract

2.6 Assignment

3 Law of Tort - Part 1

3.1 Definition of a tort

3.2 Vicarious liability

3.3 Negligence

3.4 1932-1964 historical perspective

3.5 1972-1978 historical perspective

3.6 Anns v London Borough Council

3.7 1983 Junior Books

3.8 1988 D&F estates

3.9 Murphy v Brentwood District Council

4 Law of Tort - Part 2

4.1 Liability for injury and damage to property

4.2 Liability for economic loss

4.3 The complex structure theory after Murphy

4.4 Summary of the position 2011

5 Liability under Statute

5.1 Defective Premises Act 1974

5.2 Building Act 1984

5.3 Health and Safety at Work Act 1974

6 Nature of Liability for Professional Negligence

6.1 Reasonable skill and care

6.2 Application of the test to designers

6.3 Examples of failure to take care - general

6.4 Special skills

6.5 State of the art defence

7 Fitness for Purpose Liability

7.1 Contractor's design obligation

7.2 Reliance and partial reliance

7.3 Consultants and strict liability

8 Duty to Warn

8.1 Contractors duty to warn

9 Duties in Detail

9.1 General designer duties

9.2 Delegation of duties

9.3 Site investigation

9.4 Appraisal and client knowledge

9.5 Design details and technical information

9.6 Innovative and risky design

9.7 Commenting on others design

9.8 Inspection

9.9 Duty to review the design

10 Liability to Third Parties: 'Novation' and Collateral Warranties

10.1 Contract/tort liability

10.2 Architect-contractor liability

10.3 Sub-contractor/employer liability

10.4 Novation

10.5 Warranties

11 Damages

11.1 Compensatory

11.2 Causation

11.3 Contract: remoteness

11.4 Tort: remoteness

11.5 Measure of damages

11.6 Mitigation/reasonable cost

11.7 Damages and designers

11.8 Injunction or damages?

11.9 Diminution in value or cost of remedial work?

11.10 Consequential loss

11.11 Distress

11.12 Betterment and elaborate repair

11.13 Contributory negligence and contribution

12 Limitation

12.1 Statutory periods

12.2 Limitation and contract

12.3 Fraud and concealment - contract

12.4 Limitation and tort

12.5 History of development of the law prior to Pirelli

12.6 Limitation in negligence - the Pirelli decision

12.7 Developments since Pirelli

13 Measures for Limiting Liability

13.1 Using financial caps

13.2 Limiting liability for consequential losses

13.3 Net contribution clauses

14 Standard Forms of Contract

14.1 JCT

14.2 GC Works

14.3 FIDIC

15 Standard Forms of Appointment

15.1 RIBA

15.2 ACA

15.3 ACE

15.4 PPS3

15.5 RICS

16 Professional Indemnity Insurance

16.1 Principles of professional indemnity insurance

16.2 Changing insurers

16.3 Dealing with the claim

16.4 Avoiding disputes with insurers

16.5 PII for design build contracts

16.6 Other types of insurance

17 Design Liability in the EU

18 Design Liability in Other Jurisdictions

Bibliography

Case List

Index