Design or construction at fault?Mr OÃÂMishin has designed a building and was occupied by his client in 1984. About 9 years later, heavy rain occurred and a box gutter overflowed which caused major damage and loses to the buyer Mr OÃÂFerdraft, he as a second buyer decided to sue the Mr OÃÂReally (the builder) and Mr OÃÂMishin (the architrct) after investigate the water down pipes were of thin gauge metal encased in concrete column and the gutter with no overflows outlets according to the details on the original drawings.
To my opinion, Ms OÃÂKay should not be appeared in the picture as she has not done any physical work for Mr OÃÂFerdraft. If I were the second buyer, I would first consult experience plumber to understand the cause of problems and follow by taking legal action against the architect and builder for insurance coverage without carry out any remedy work by him.
Design and construction defects are usually include any deficiency in the performing or furnishing of the design, planning, supervision, inspection, construction or observation of construction to any new building. As we can see from the investigation and report by third party, the water down-pipe discharge into the public drainage system indeed were under designed by the architect. Through further findings, one of the down-pipe was in fact squashed and failed to discharge rain water from roof as fast as the others. The builder with his expertise should always comment and proposed something which is durable and workable if he has found any deficiency in design.
Wrong choice of rain water down pipeGenerally there are two types of piping widely use in building industry. Namely cast iron metal pipe and PVC piping. Both are suitable and largely used in construction due to its characteristic and performance. Nowadays PVC piping is slowly over-taking the traditional cast iron pipe in this field.
Obviously this thin gauge of metal is not suitable for rain water down pipe encased in the column.
Avoidance of construction defectIn the construction field, the builders are trying their best to minimize risk through the avoidance of construction defects. Generally construction defects fall into four categories: design deficiencies, material deficiencies, construction deficiencies, or subsurface problems.
Design deficiencies are occurring when architects, engineers, or subcontractors do not perform their work as specified, either to cut costs or because of mistakes.
Material deficiencies are occurring when a contractor uses inferior building materials or materials with manufacturing problems.
Construction deficiencies, is caused by shoddy workmanship.
Subsurface problems, is caused by soil conditions, such as inadequate compacting before a subdivision is built, which can lead to problems like cracked foundations.
Therefore it is important for any builder to have risk management in the construction. As construction begins, the builder should work-out a regular and periodic inspections schedule by well-trained, qualified people. As these inspections occur, they should be documented in writing, which will protect them in the event of a legal claim. The inspector should also document periodic conversations with employees on the construction site and provide further detail on any formal process used to spot potential defects. (Managing Risk through Employer Management)Legal TheoriesThe typical construction defect cases is based on the contracts between the owner and builder and the contracts between the contractor and subcontractors, including suppliers, architects and engineers, involved in building industry. Or though in the construction industry, the contractual chain is long and often confusing, the goal is to require the party who is responsible for the defect to remedy the situation. The complaint against the defendants typically alleges negligence, breach of contract or warranty, strict liability, and in some instances fraud or negligent misrepresentation may be alleged.
NegligenceThe law imposes the obligation upon the builder/general contractor/ subcontractor to exercise the reasonable degree of care, skill and knowledge that is ordinarily employed by such building professionals. The duty of care is extended to all who may foreseeable be injured or caused damage to the property by the construction defect, including subsequent purchasers. Builder and general contractors are responsible for the negligence of their subcontractor.
Breach of ContractBuilding owners can sue the builder under theories based upon privity of contract, for breach of any obligation set forth in the purchase and sale documentation, and/or the escrow instructions. Typically, this is something that goes beyond a failure of the builder to build the project in accordance with the plans and specifications.
Breach of WarrantySimilar to breach of contract theories, the purchase documentation between the builder and the owner often sets forth warranties regarding the condition of the property. If there is an issue as to breach of an express warranty, the principles of contract apply.
Courts have held that builders and sellers of new construction should be held to what is implied, that the completed structure was designed and constructed in a reasonable workmanlike manner. A builder/vendor is subject to the theory that a building was built for sale to the public to be used for a specific purpose. Privity of contract is not always required under this particular theory of liability.
Strict Liability ClaimsThe theory of strict liability against a general contractor evolved from products liability law. In a strict liability case the plaintiff does not have to prove the general contractor or developer was negligent in the construction of the building. They do have to prove the defendant was involved in the mass production of building, a defect in the building exists, damages were proximately caused by the defect, and the defendant caused or created the defect. (Construction Defect Litigation)ConclusionIn order to avoid or to minimize the building defect in construction industry, builder and project manager should spend a fair amount of time learning and keeping updated on the latest laws and regulations affecting their industry. Any undetected construction defects or substandard work can lead to liability for the company.
The well-trained Project Manager can help to protect a company against lawsuits by watching for construction and building safety problems, and alerting the company to them. This can improve and helps with risk management in two ways: First, problems can be fixed before they lead to legal difficulties, and second, the company that spots a problem can take measures to remediate it (a properly documented remediation plan creates a stronger legal position when a problem does go to court).
Insurance is the key stone to adequate financial protection and basically is transfer the risk to others. Liability for accidents and damages can and is often developed through the contract chain. Therefore it is advisable for all professionals and contractors to have insurance programme to protect persons other than itself and to protect it from liabilities not legally its own. (1114 words) List of References Construction Defect Litigation viewed on 4 November 2007, retrieved from: http://www.sgblaw.com/pages/construction_defect.htm Managing Risk through Employer Management viewed on 4 November 2007, retrieved from http://www.buildings.com/articles/detail.aspx?contentID=3158