Scenario on Property and Building Law

 

Coursework Assignment for Property and Building Law
The case       Harrison and Others v. Technical Sign Company limited and Others which was decided by the Court of Appeal on 4 December 2013, concerned liability following upon building work in Putney, London  SW15.
Context     The case involved Cluttons, the well-known firm of surveyors.  The ground floor of the building involved was in the occupation of a patisserie – Maison Blanc Patisserie a lessee.In 2005 Maison Blanc had arranged for the Technical Sign Company Limited to remodel its shopfront.In 2006 the building owner had refurbished the flats above the shop,In March 2007, a few months after completion of the refurbishment of the flats, the patisserie’s employees found difficulty in using a retractable awning that had been installed together with a fascia.Maison Blanc had in mind that the problem stemmed from the refurbishment of the flats above the patisserie - such that the building owner could be responsible.Maison Blanc contacted the building owner about this.  Whereupon, the building owner asked Cluttons to inspect the awning.Cluttons did so, and concluded that the awning-retracting mechanism had moved slightly.  Cluttons, reported back to the building owner and also informed Maison Blanc.  Cluttons, later, saw photographs of the alleged damage, which showed a marked deterioration in the position - but did not warn its client the building owner (or Maison Blanc). Later in 2007 members of the Harrison family were injured by falling materials in connection with the awning and fascia.  Judgement was entered against Maison Blanc for personal injury. Blanc entered into proceedings against, inter-alia, Cluttons.
Was Cluttons liable? There were the following criteria (among others) from previous judgements in deciding whether there was a duty of care:
. (1) foresight - the foresight of the reasonable man (“reasonable foreseeability”).     
. (2) reliance - a limiting factor particularly applicable where a statement is involved as in the landmark case Hedley Byrne & Co. Ltd. v. Heller and Partners Ltd. [1964].
. (3) proximity - a summing up “ … a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists.” per Lord Oliver in Caparo Industries v. Dickman [1990].
. (4) “just and reasonable”.
 (5) policy - where, for example, there is an allegation of negligence on the part of the police in the course of the detection of a crime  (see Hill v. Chief Constable of West Yorkshire [1989]).
Task  -In regard to each of the following make a written submission suggesting, with reasons, the potential liability in law (if any) of the person named:
(1) the potential liability (if any) of the building owner to Maison Blanc in respect of the accident;
(2) the potential liability (if any) of Cluttons to Maison Blanc in respect of the accident: if Cluttons had been acting for Maison Blanc;
(3) the potential liability (if any) of a subcontractor on the refurbishment of the building to the building owner in respect of the accident:  if the accident was caused by  defective work on the part of the subcontractor;
(4) the effect (if any) on the liability of Maison Blanc to Harrison in respect of the accident: if the awning/fascia had fallen partly on account of being struck by Harrison’s umbrella: (Harrison at the time passing beneath the awning in the course of demonstrating to a friend his prowess as a drum major). 

 

 

The Facts of the Case

In June 2007, a shop’s sign fell on the pavement, which caused serious injuries to the passersby. The proceeding was brought against the shop owner and other defendants. A surveyor company, Cluttons, was also included in the case proceedings because it was the company that inspected the awning over the shop window for damage. They were hired on the part of the building owner and were it, agents. By looking at the initial facts of the case, the judge found that the liability is on the part of the surveyors under which they had to indemnify the shop owner in order to satisfy the requirements of foreseeability and proximity. Because it was quite reasonable to impose a duty of care to the shop owner and the public. However, the surveyors denied the charges and appealed in the higher court.

After the trial court, the Court of Appeal held that there were certain errors in the reasoning of the Judge. He observed that the surveyors had not been instructed to inspect the shop front on the shop owner’s behalf. The surveyors, however, had visited the shop for the limited purpose of investigation on the basis of a complaint regarding the awning that had been damaged. The damage was most likely done on the part of the workmen and it was the context in which the relationship between the claimants and the surveyor was to be determined. It was also said that the judge had also erred by emphasizing a lot on the foreseeability of harm, almost to the point as treating it as sufficient to create a relationship of proximity between Cluttons (surveyors) and Harrisons (passersby). Therefore, the judgment was reversed as there was not a sufficient degree of proximity between Cluttons and passersby, also because the relationship between Cluttons and shop owner was seen to be adversarial in nature. They were just agents and there was no evidence to suggest that they had asked to advise the shop owner so that the latter would completely rely on the advice.

The different laws and its provisions that are applicable in this case fall under Property and Building Law. So, the Building Regulations cover accepted standards for the design and construction of the building(Michelman, 1967). These guidelines are inducted in this law for the following purposes:

•    The health and safety of the people in and around buildings
•    To sustain energy conservation
•    To have access to the buildings

Now, in case of any mishap, the responsibility for the compliance usually falls on the builder. So, the terms and conditions regarding this fact should be put in the contract in the first place so that all the parties would be agreed for the construction project at the start of the negotiations. The building owner is the person who would ultimately be served with a notice of enforcement in case the work is not compliant as per the regulations.

The ‘building work’ coming under the guidelines of Regulation 3 of the Building Regulations are as follows:

•    The erection or extension of the building
•    The installation of equipment or service or fitting being controlled by the regulation
•    Any project utilized for alteration, consists of the works that temporarily or permanently affects the continued compliance of the building, service or fittings with the requirements with a purpose of maintaining the structures and controlling fire in the building. 

Scenario 1:

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The potential liability (if any) of the building owner to Maison Blanc in respect of the accident.  
 
Analysis:
 
This situation makes the case of Negligence and Foreseeability on the part of the building owner towards Maison Blanc as far as the accident was concerned. Such claims of negligence are applicable on the basis of accidents or injuries such as car accidents, slip and fall and injuries by falling things. So, negligence is the basis with which a person or a company becomes responsible due to the cause of harm to the victim. It further clarifies that if someone acts in a careless manner and causes an injury to another person, then the former person will be liable under the principle of negligence. This is the basis for the assessment and determination of fault in most of the disputes that involve accident or injury(Green, 1961). However, it is very important to prove four important elements on the part of a plaintiff to win a case regarding negligence:
I.    Duty: There was a legal duty of defendant towards the plaintiff in the given circumstances. In this scenario, the building owner had a proper duty towards the shop owner of Maison Blanc. When, the surveyors, Cluttons, briefed the building owner about the perceived lacunae and inconsistencies on account of the renovation work done on the building, then it was the duty of Building owner to tell Maison Blanc about the possibility of any mishap. 
II.    Breach:The defendant, then, breached that legal duty by acting or failing to act in a certain way. So, in this case, as the building owner was legally duty bound in order to act in a certain way. Clearly, he had breached the duty and failed to tell the shop owner.
III.    Causation: Causation refers to the defendant’s actions (or inactions) that were the actual reasons for the plaintiff’s injury.The fact that building owner was the person who had the information which should have conveyed to Maison Blanc. Therefore, it was a complete inaction on the part of building owner as it somehow became the cause of the accident(Fleming, 1982).  
IV.    Damages:The plaintiff was severely harmed or injured because of the actions (or inactions) on the part of the defendant. Therefore, Mr. Harrison had suffered because of the circumstances created by building owner and shop owner.
This case also involves the element of foreseeability which is the leading test being used to determine the proximate cause. Foreseeability basically clarifies whether the person causing the injury should have analyzed the general consequences that would result because of the action or inaction or a peculiar conduct shown on his/her part. However, the law of foreseeability limits the scope of liability on the basis of three conditions: unforeseeable type of harm, unforeseeable manner of harm and unforeseeable extent of harm.

Scenario 2:

The potential liability (if any) of Cluttons to Maison Blanc in respect of the accident: if Cluttons had been acting for Maison Blanc
Analysis
Unlike the original situation of the case where the surveyor was investigating on the behest of building owner and was liable only towards him in terms of narrating the findings, here the scenario is such that the Cluttons (surveyors) had been acting on the behalf of Maison Blanc. In other words, if the owner of Maison Blanc had hired the surveyors (Cluttons)for the purpose of inspecting the building awnings or fascia in order to ensure that it did not pose a danger to any of the passersby. If the surveyor fails in such a condition, then the clause or provision of a sufficient degree of proximity would probably have existed. Because, in that case the demand of the situation clearly underlines the fact that the very purpose of the inspection would have been to ensure the safety of the passersby or general public.
In view of legal liability of proximity, the law states that the proximity is closely related to the relationship between the claimant and the defendant. In general sense, the clause of proximity is satisfied if the harm to the claimant is reasonably foreseeable, such that the defendant has caused physical harm directly to the claimant or his property(Johnson &Drobny, 1985). However, if the harm done to the claimant is not directly caused by the actions or inactions of the defendant or the harm is economic or psychiatric in nature, then the proximity can be pivotal.
As per our understanding of the concept of proximity, we can conclude that proximity has more to do with the causality, which means, proximity is the idea that an action has directly led to an outcome without being interrupted. So, if for example, a person is doing an audit and after finishing his report he gives it to his manager in order to review and then they altered the document in some way or the other. Then in that case, the alteration would sever the person’s liability as there is no proximate cause from his action to that change.
In everyday scenario, proximity is what the physical closeness is and in the legal parlance and for the purpose of the three stage test, proximity shall be satisfied if the action causes the injury(Smith, 2014). It may also be established by the relationship between defendant and claimant. As a matter of fact this is the situation where the defendant had a degree of control over the situation that he could have used it to prevent the danger from occurring.

 

Scenario 3:

 

The potential liability (if any) of a subcontractor on the refurbishment of the building to the building owner in respect of the accident:  if the accident was caused by defective work on the part of the subcontractor.
Analysis
This scenario is somewhat much more serious in nature than the previous ones, as it takes under consideration regarding the liability of the subcontractor towards the building owner in case of the accident had been caused by the defective work. So, this situation clearly invokes the clause of Negligence and Breach of Duty of Care. It is important to understand that the subcontractor in such a situation would feel somewhat unaccountable as he was working as a third party(Morison &Sappideen, 1993). However, he is fully accountable to the building owner as well as the victim (Harrison) who met with the accident and got injured. Therefore, the logic of the arguments would be similar to the logic cited by the court in somewhat similar case:
There are a number of cases coming before the courts which are the cases of duty of care between the defendant and the claimant. In all of these cases the real issue, however, is whether or not the actions of the defendants were under the requirements to meet their duty. So, in order to determine this, it would be on the part of the courtsto set the standards in order to meet them.These standards consist of the actions which in the court’s view would have taken by a ‘reasonable person’in similar circumstances. If the defendant (the subcontractor in this case) has been failed to act reasonably, then in terms of his duty of care, he would be considered to have breached it.
The Negligence and Breach of Duty of Care attracts two types of cases in such circumstances. The first type of case is the “res ipsa loquitur” situation which simply means “the thing speaks for itself”. So, in such circumstances, the breach of duty is presumed due to the fact the injury would not have occurred unless someone other than the injured person had failed to act in a sensible and reasonable manner. The court would not be distracted otherwise as the carelessness and harm are so obviously linked. The second type of case, in such a scenario is the case of “Strict Liability” or “Negligence per se” case. In such circumstances, the court does not bother to do any kind of analysis as to how the breach of duty occurred(Morris, 1949). As according to the law, the person or company being responsible for the harmful action would be liable for any injuries that the action had caused, no matter how carefully the action was carried out. However, strict liability or negligence per se are relatively rare and restricted to a few areas such as abnormally dangerous activities as well as certain types of products liability cases.

 

Scenario 4:

The effect (if any) on the liability of Maison Blanc to Harrison in respect of the accident: if the awning or fascia had fallen partly on account of being struck by Harrison’s umbrella: (Harrison at the time passing beneath the awning in the course of demonstrating to a friend his prowess as a drum major).  
Analysis
Even this situation, where awning fell partly on account of Harrison’s umbrella being struck while standing beneath it, doesn’t take away the fact that it was still an accident (which no passer-by expects in any situation) and Maison Blanc was seemingly responsible for it from the viewpoint of Harrison. In other words, the argument on the part of Harrison would be “at least Maison Blanc could have put a warning signboard at that place because he still suffered loss or damage as a direct consequence of the breach. Therefore, the case in this situation will be Negligence and Breach of Duty of Care. Again as per the law, the defendant owed a duty of care, breached that duty by failing to meet the standard of care required and as a result the claimant suffered loss or damage which is not too remote("Proving Fault: What is Negligence? - FindLaw", n.d.).
In view of this case, the negligence law, in simple terms, states that a person or a company or any organization for that matter, is generally liable when they act in such a negligent way which causes harm or injury to others. The injured party (Mr. Harrison in this case), then will have to prove that the responsible party (Maison Blanc in this case) has been failed to exercise the degree of care that a reasonable person or party should have acted in that scenario. Therefore, the law would always require to protect the interests of the injured party and which qualifies be entitled to the compensation. The law will always come to the rescue to Mr. Harrison because he, in all likelihood, had suffered due to the negligent behavior on the part of Maison Blanc. However, in most of the cases the negligent acts are unintentional while others are categorized as willful, wanton or reckless. Also, as a matter of fact, the deliberate observations which are dangerously careless such as faulty building designs are under the act of negligence(Armstrong & Francis, 2014).
Therefore, in this situation, the negligence lawsuit would be filed by the claimant, Mr. Harrison against Maison Blanc. However, he will have to prove the four important elements under this lawsuit:
1.    The defendant owed a duty, either to the plaintiff or to the general public
2.    The defendant violated that duty
3.    The defendant's violation of the duty resulted in harm to the plaintiff
4.    The plaintiff's injury was foreseeable by a reasonable person.
Finally, the breach of duty of care on the part of Maison Blanc, in view of the accident, would have to satisfy certain conditions such as “Did the defendant have the duty of care toward the plaintiff? Was it a duty of reasonable care, or was it based on the professional liability? Did the defendant use the same amount of reasonable care which would have been taken by the other person to prevent harm, had he been in the place of defendant (Harrison)?

 

References

Armstrong, A. & Francis, R. (2014). An Ethical Climate is a Duty of Care. Journal Of Business Systems, Governance & Ethics, 3(3). http://dx.doi.org/10.15209/jbsge.v3i3.138
Fleming, D. (1982). Knights Errant and the Law—Negligence—Rescuers—Duty—Causation—Foreseeability—Contributory Negligence. Cam. Law. J., 41(01), 33. http://dx.doi.org/10.1017/s0008197300107792
Green, L. (1961). Foreseeability in Negligence Law (p. 24). Columbia Law Review Association, Inc.
Johnson, J. &Drobny, J. (1985). Proximity biases in the attribution of civil liability. Journal Of Personality And Social Psychology, 48(2), 283-296. http://dx.doi.org/10.1037/0022-3514.48.2.283
Michelman, F. (1967). Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law. Harvard Law Review, 80(6), 1165. http://dx.doi.org/10.2307/1339276
Morison, W. &Sappideen, C. (1993). Torts. Sydney: Law Book Co.
Morris, C. (1949). The Role of Criminal Statutes in Negligence Actions. Columbia Law Review, 49(1), 21. http://dx.doi.org/10.2307/1118427
Proving Fault: What is Negligence? - FindLaw. Findlaw. Retrieved 22 April 2016, from http://injury.findlaw.com/accident-injury-law/proving-fault-what-is-negligence.html
Smith, B. (2014). Proximity-Driven Liability. Stanford Law School Center For Internet And Society, 44.

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