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GAZETTE
APRIL 1986
This means in effect that the building (or article) will
be fit for its purpose in spite of latent defects not
noticeable on inspection of the completed building. It is
a warranty stopping just short of an absolute assurance
against defect in any circumstances. It could be said by
analogy from the cases involving sale of goods that it
would be possible to design in accordance with standard
codes of practice and using proper materials and
workmanship in building and still be in breach of a
warranty as to "fitness for purpose". Lord Reid stated
in
Kendall
v.
Lillico
w
that the assurance covers latent
defects where even the utmost skill and judgment on the
part of the seller would not have detected them.
An example in building might be in the design of a flat
built-up factory roof. The building as designed and
erected could conform to reasonable standards most of
the time. However, if there was a "defect" which came
into view only once in a while and became dangerous as
a result then the design and construction might be said
to have failed its fitness for purpose. In the example of
the flat factory roof this could occur where ice formed
after snowfall. The melting ice could block the roof
outlets with the result that water could accumulate on the
roof deck in excess of the design load. Leaks, deflection
or collapse could result.
By the ordinary standards of proper work and
materials and design in accordance with the standard
codes of practice there would be a good defence against
negligence. This would not necessarily be so if the term
"fitness for purpose" could be implied into the contract.
The roof as such would not be fit for its purpose. The
extra ingredient which "fitness for purpose" brings to
a project is therefore the need to foresee events which
might affect the premises. The concept was canvassed in
the Irish Supreme Court in
Norta Wallpapers (Ireland)
v.
John Sisk & Sons (Dublin) Ltd."
and there are
instances in England where the judges agreed - to the
designers detriment - that there had been an arrangement
to build to the standard of "fitness for purpose". See
Greaves and Co. Ltd.
v.
Baynham
Meikle
and
Partners
12
for instance.
Building is an attempt to place an untested, hand-
crafted cube made of materials which expand, contract,
shrink, creep and warp unilaterally on to foundations laid
in a mosaic of erratic geological conditions owing its
nature to the caprice of the ancient ice. It can never be
the tested product of the laboratory, and legislation
governing defective products should have no application
to building. But there is no reason why specific legislation
should not be enacted to balance competing interests.
The question of liability for defective building in
Ireland has traditionally been left to the common law.
There is no definitive statute to control building
operations as yet. This position will change radically in
the near future when the Control Bill for the
administration of the new building regulations is
published. The EEC Directive on product liability will
have its own effect within a few years. The present test
of "discoverability" in cases of negligence is guaranteed
to cause litigation, because competing claims will onlj
be resolved by expert evidence on when the damage wa:
reasonably discoverable. This in turn will lead to mon
insistent demands for legislation designed to provide <
balance between plaintiff and defendant.
The building industry as a whole apparently views wit!
apprehension the threatening mesh of promised law which
they would say in the case of the LRC proposals at least
are planned by people who have no understanding ol
building, and who are unwilling to give a realistic hearing
to those who have. It seems reasonable that any legislator
enacted should strike a balance between competing
interests and a long stop limitation point in latent damagt
cases would go some way towards achieving that balance.
c
Footnotes
1
. Sparham-Souter
-v-
Town and Country Developments (Essex) Ltd.
|1976] 1QB858.
2.
Anns
-v-
Merton London Borough Council
|1978] AC728.
3.
Pirelli General Cable Works Ltd.
-v-
Oscar Faber and Partner!
[1983] 2 A.C. 1.
4.
Morgan
-v-
Park Developments
|I983] ILRM 156.
5. Law Reform Committee, 24th Report (Latent Damage) Cmnd.
9390.
6. Architects Journal, January 1985 and New Civil Engineer, 7th
November, 1985.
7. Latent Defects in Buildings: An analysis of insurance possibilities.
Prepared for publication by the National Economic Development
Office.
8.
Murphy
-v-
Murphy
11980] 1R 183.
9.
Hancock
-v-
Brazier (Anerley) Ltd.
|1966] 2 All ER1 901.
10.
Kendall
-v-
Lillico
[19691 2 AC at p84.
11. Norta Wallpapers (Ireland) Ltd. -v- John Sisk and Sons (Dublin>
Ltd.
(1978] 1R 114.
12.
Greaves and Co. -v- Baynham Meikle and Partners
(4BLR 56).
•
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