Builders’ ‘duty of care’ needed

Construction barristers have called for Australian-style legislation for the house and building construction industry after the publication of the Grenfell Tower Inquiry report.

Inquiry chair Sir Martin Moore-Bick’s Phase 1 report, published this week, focuses on the fire brigade’s response as well as detailing the rapid spread of fire through the cladding. 

Barristers Philip Bambagiotti and Nick Kaplan, of 3PB, said prudent construction companies should not wait for Phase 2 of the report before reviewing their processes. There is a prospect of claims for breaches of duty (contract, tort, and statute) being brought since the use of the cladding was a breach at the time it was specified and used. Similar, non-compliant cladding systems have been used on hundreds of tall buildings across the UK.

Bambagiotti and Kaplan said claims would be ‘likely to involve attempts to apply, and even to extend and to stretch, application of the Defective Buildings Act 1972, possibly the Misrepresentation Act 1967, as well as in contract, tort, and the like’.

Bambagiotti, who is dual-qualified in the UK and Australia, said: ‘Many criticise the technicality and limits of the courts’ approach to economic loss tort for negligence in building work. The absence of a properly systematic recognition of a satisfactory allocation of risk and responsibility amongst all those involved in high-rise apartment developments… is a gap.’

The New South Wales (Australia) parliament is currently considering legislation to tackle a similar gap, in the shape of the Design and Building Practitioners Bill 2019, which would introduce a statutory duty of care to provide tort liability for professionals in the building industry. Bambagiotti said he hoped the UK parliament would consider introducing similar legislation, ‘to put the issue beyond question, and to bring a fair marriage between risk control and liability in the complex field of home and building construction’.