Liability in negligence for building defects in Ireland, England and Australia. Where statute speaks, must common law be silent?

Author:Deirdre Ní Fhloinn
Position:Law School, Trinity College Dublin, Dublin, Ireland
Liability in negligence for building
defects in Ireland, England
and Australia
Where statute speaks, must common
law be silent?
Deirdre Ní Fhloinn
Law School, Trinity College Dublin, Dublin, Ireland
Purpose The purpose of this paper is to consider decisions of the courts of three jurisdictions: Ireland;
England and Wales; andAustralia, in relation to recovery of economic loss in negligencefor building defects
and to identify the extentto which the legal environmentof each jurisdiction has informed the approach of the
courts to the issue.
Design/methodology/approach The approach taken for this purpose is to review the extent of
legislative interventionin each jurisdiction to provide measures of protection for home buyers, and whether
that interventionhas limited the scope of what may be recovered in negligencefor defects.
Findings The ndings of the research indicate that the retreat from recovery for defects, led by the
courts of England and Wales through a series of cases in the 1980s and 1990s, may be regarded in part
as a product of their environment, and that legislative intervention in the area of remedies acted as a
limitation on the scope of the duties that the courts were prepared to impose.
Originality/value Although the issue of recovery for building defects in negligence has been covered
extensively in the literature and jurisprudence, the cross-referencing of the common law position with the
legislative contextin the jurisdictions considered provides insights intothe approaches of courts and why the
positionof the courts of England and Wales may not transpose comfortablyto other jurisdictions.
Keywords Construction, Liability, Residential, Defects, Negligence, Statute
Paper type Research paper
Tort law is a blunt tool with which to address the risks of defective construction. It enters
the picture sometime after completion of the building works, and at a point in time where
law can no longer deal with the risk of defects. It differs from regulation, in that it is
necessarily reactive and retrospectivein its application. Regulation, by contrast, can evolve
over time to incorporate lessons learned from poor construction and can introduce
procedures to minimiserisks of defects.
Few jurisdictions, however, recognise legal remedies for regulatory failure. The home
owner must turn to private law for such remedies. In most cases the source of a remedy for
building defects should be the original building contract. In Ireland, many owners of
The author wishes to acknowledge the postgraduate scholarship of the Irish Research Council which
is funding her PhD research.
This article is based on a paper delivered to the Construction Bar Association of Ireland Annual
Conference 2016. The author is grateful to Jonathan Fitzgerald, BL, and to Mark Sanfey, SC, for their
helpful comments on an early draft.
Received16 June 2017
Revised5 July 2017
Accepted14 July 2017
InternationalJournal of Law in the
Vol.9 No. 3, 2017
pp. 178-192
© Emerald Publishing Limited
DOI 10.1108/IJLBE-06-2017-0019
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