Negligence Divergence: When Is a Duty of Care Owed in Construction?1
Partner, Hazelton Law, Wellington, New Zealand
Senior Lecturer and Co-Director of Studies for Construction Law, Melbourne Law School
Partner, White & Case LLP, London
The first step in risk management is risk identification. Contractual risks can be defined and identified by agreement. But in negligence the scope for risk identification is more limited, as negligence liability can arise over or without contractual webs of obligation.
Negligence liability is the unclearest area of construction law. This ambiguity stems from the courts grappling with the basic question of whether A owes a duty of care to B, and how to formulate a “duty of care” test.
There is great diversity between common law jurisdictions in addressing this issue. This article considers how the courts of England, Australia and New Zealand have addressed fundamental issues such as:
- • Can a contractor be held liable in negligence to an employer or subsequent owner for building defects?
- • If an inspecting authority fails to spot defective design and/or workmanship, is the authority liable in negligence?
Pt 1] Negligence Divergence: When Is a Duty of Care Owed in Construction?