The Gazette 1986

APRIL 1986

GAZETTE

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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