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GAZETTE
APRIL 1986
that the British Standard in Bridge Building No.540C
(B.S. are normally taken as deemed to satisfy in Irish
building bye-laws) is the only B.S. assuming a required
nominal design life - in that case 120 years. The code also
assumes ongoing maintenance and repair. On the other
hand, a mineralised felt finish provided on a typical built-
up factory roof would have only a one year guarantee
as laid with perhaps a ten year life span. In essence the
questions of durability and maintenance are integral and
the building owner who neglects maintenance and repair
is inviting minor latent defects to become major patent
damage. The study of life cycle costing of buildings and
materials is now advanced enough to offer a statutory
defence based on the life expectancy of various building
materials and methods of construction.
The building industry can point to the Directive of the
EEC Council of July 1985 regarding liability for defective
products as an example providing for statutory defences.
This directive will not include buildings but it will include
some building materials and building products erected by
sub-contractors on site. Article 7 envisages defences
including a "state of the a r t" defence i.e. that the state
of technical knowledge at the time the product was put
into circulation was not such as to enable the existence
of the defect to be discovered. This Directive, which
includes a requirement that the Member States shall bring
into force a national law within three years in order to
comply with its provisions, contains alternative forms of
possible national legislation of vital interest to the Irish
building industry and its customers.
Regardless of which alternative legislation is enacted
(let Irish builders and sub-contractors be warned) the legal
consequences on site could lead to further confusion given
the present uncertainty on latent defects and the varying
degrees of responsibility which the law imputes on
members of the building team. The variation in the
standard of care required on a typical commercial but
non-housing development using the 1977 yellow Form of
Contract (with quantities) of the Royal Institute of
Architects of Ireland will then be on three levels as follows
(a) for the Consultant designers the standard of care will
be that of a reasonable member of his own profession
and (b) the standard for the Contractor will be good work
and proper materials and (c) the standard for certain as
yet unspecified building materials supplied, fabricated,
delivered and erected on site will be subject to future
legislation which the EEC directive requires to be passed
by July 1988. This legislation is likely to lead to a standard
of care closer to strict liability for these products but
statutory defences will be available as explained.
It is easy to visualise a site situation where the
Architect/Engineer designs and the Contractor builds into
a fabrication supplied and erected by a sub-contractor
in accordance with the design. This could arise for
instance in building - in mechanical and electrical services-
which of their nature have a shorter working life than
the materials of construction such as brick and timber.
Latent defects turning into discoverable damage in that
situation is duly bound to create further disorder and
uncertainty in the field of construction law.
The existing legal circumstances in this area present an
opportune time to introduce an imaginative Bill to
accomodate an agreed solution to the problems outlined.
There will be no shortage of ideas. The building industry
would be concerned if such legislation included the
imposition of new duties based on a concept of "fitness
for purpose" in non-housing contracts. Even with
statutory defences avialable there is a fear that this could
eventually lead to the acceptance of a building as " a
product" in legal terms. Thus "fitness for purpose"
today might mean strict liability tomorrow.
"Fitness for purpose" is a concept borrowed from sl4
(1) of the Sale of Goods Act 1893 where it is an implied
condition as to quality. The reported building cases leave
no doubt that the concept means more than just providing
a premises using good materials and p r oper
workmanship. The term "fitness for purpose" itself
denotes the giving of an implied assurance beyond the
level of a duty to use a reasonable skill on the part of
the designer and beyond the duty to use proper materials
and workmanship on the part of the builder.
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continued from page 102.
Lost Title Deeds
Premises: 72 Amiens Street, Dublin. Will anyone knowing of the whereabouts
or having any information concerning the Title Deeds of the above premises pur-
chased by the Trustees of Fianna Fail, Dublin Central Comhairle in or around
1955, please contact Devaney & Ryan, Solicitors, 53 North Strand Road, Dublin
3. Telephone: 746500.
The Profession
MARY M. FOLAN, B.A., H.D.E., Solicitor, Commissioner for Oaths,
wishes
to announce that she has commenced practice under the style of Folan & Co.,
at 33 Capel Street, Dublin 1. Tel.: (01) 786933.
Solicitors required for progressive new law firm.
General Practice. Excellent prospects.
Tel.: 694766 Unit 1201
94