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CHAPTER 3 The obligations of construction professionals

Professional Negligence in Construction

Page 27 CHAPTER 3 The obligations of construction professionals The obligations of construction professionals Section A: the contract 28 The function of the contract 28 When will a contract exist? 28 When will a contract be varied? 30 Section B: express terms 30 Ascertaining the meaning of express terms 30 Common types of problem 31 Express terms relating to services 31 Other express terms 33 Section C: implied terms 35 Section D: the tort of negligence 35 Section E: duty of care – personal injury 36 The general rule 36 Requirement of duty to the client 37 Section F: duty of care – physical damage 38 The general rule 38 No recovery for economic loss 38 No recovery where not just and equitable 39 Examples 40 Section G: duty of care to the client – economic loss 42 The general rule 42 The emergence of concurrent liability 42 Concurrent liability established 43 Section H: duty of care to third parties – economic loss 45 The general rule 45 Exceptions that failed 45 Assumption of responsibility 46 Section I: statutory duties 50 The Defective Premises Act 1972 50 The Construction (Design and Management) Regulations 2015 52 Section J: personal liability 54 Section K: remuneration and other matters 55 Remuneration 55 Disputes over remuneration 56 Plans, documents and copyright 57 Page 28 Section A: the contract The function of the contract 3.1 The starting point (and often the ending point) for appreciating the obligations of a construction professional is its contract. The contract will define what it is that the construction professional is obliged to do, setting out the balance of its rights and obligations against the rights and obligations of the employer. As is discussed below, this is true even where the contract takes the form of the simplest written document or (as sometimes happens) no document at all.

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