Mr Robinson Complained That There Were Defects To The Chimney Flues In His House Which Had Been Built By The Builder PE Jones.
The trouble was though that by the time the defects had become apparent the limitation period for a claim in contract had expired.
So rather than giving up, Mr Robinson took PE Jones to court relying on S.14A of the Limitation Act 1980, which allows you to extend the limitation period for bringing proceedings where an action is based on negligence, as the contract contained provisions that were of potential relevance to this. The matter ended up in the Court of Appeal.
It was hoped by many that the Court of Appeal would clarify whether contractors owed a duty of care in tort in respect of economic loss at the same time as a duty under a contract, and if they did under what circumstances. Unfortunately though, the decision still seems to leave a lot of questions unanswered.
The Court of Appeal agreed with the first court's decision that a contractor can in principle owe concurrent duties in tort and in contract and a contract with a construction professional is itself sufficient to activate such a duty.
However, it was held that in the absence of appropriate drafting a contractor does not normally owe a concurrent duty of care to avoid causing economic loss to his employer; or rather the mere existence of the building contract does not mean that he does owe such a duty. A building contractor's contractual obligation to exercise reasonable skill and care will not be enough on its own to create such a duty of care in tort because, of itself, it does not amount to an assumption of responsibility.
Unfortunately though, the Court of Appeal did not give any detailed guidance as to what will constitute such an assumption of responsibility by a contractor. It remains unclear as to what may be sufficient to take the relationship between contractor and employer into one of assuming responsibility. We know that professionals somehow assume responsibility for economic loss when they contract to provide their services but it remains unclear how they do so. It could be by simply being professionals or by accepting obligations to exercise reasonable skill and care in performing their services or because the outcome of their services is a product which the employer relies upon when he engages a contractor to build in the light of the professional advice.
Like old Robinson Crusoe, we may have to be content with our stock of desert island discs and keep scanning the horizon for another decision to clarify the issues. In the meantime, though, it is worth checking the small print or paying a lawyer to do it for you to ensure that you aren't left stranded.
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