Elements D owed P a duty to take reasonable care D breached that duty by failing to take reasonable care D’s breach caused P injury or damage The injury/damage was not remote’ a consequence of the breach of duty ‘too What is a duty of care? Control mechanism Controls the circumstances in a person can be held liable for own careless actions Contract and Tort Duty of care can be owed in Tort Contract Suing in both Tort & Contract per Astley v Austrust Ltd Differences between contract and tort Elements Limitation periods Contract date of contract breach – Tort date suffered the damage – Can be timebarred under the contract but then sue in Tort i.e. cracked appear 7 years after building. Contract expired, but can sue in Tort Tests for remoteness Defence Existence of duty in contract does not preclude duty in tort of the contract exclude or modify a contract Limitation of liability clause By contract, limiting liability through all other aspects Contracts can limit tortuous duty Terms of contract can exclude/modify tortuous duty Limitation of liability Liability of nominated subcontractors to the Principal Junior Books v Veitchi Liability of subcontractors generally to the Principal Murphy v Brentwood District Council Must be nominated subcontractor by the principal if not then there is – not a duty to the principal Clause 10 AS2124 Liability of the Superintendent to the head contractor John Holland v Majorca Projects Pty Ltd Principal is liable to head contractor and not that of superintendent
Elements D owed P a duty to take reasonable care D breached that duty by failing to take reasonable care D’s breach caused P injury or damage The injury/damage was not ‘too remote’ a consequence of the breach of duty What is a duty of care? Control mechanism Controls the circumstances in a person can be held liable for own careless actions Contract and Tort Duty of care can be owed in Tort Contract Suing in both Tort & Contract per Astley v Austrust Ltd Differences between contract and tort Elements Limitation periods Contract – date of contract breach Tort – date suffered the damage Can be timebarred under the contract but then sue in Tort i.e. cracked appear 7 years after building. Contract expired, but can sue in Tort Tests for remoteness Defence Existence of duty in contract does not preclude duty in tort of the contract exclude or modify a contract Limitation of liability clause By contract, limiting liability through all other aspects Contracts can limit tortuous duty Terms of contract can exclude/modify tortuous duty Limitation of liability Liability of nominated subcontractors to the Principal Junior Books v Veitchi Liability of subcontractors generally to the Principal Murphy v Brentwood District Council Must be nominated subcontractor by the principal – if not then there is not a duty to the principal Clause 10 AS2124 Liability of the Superintendent to the head contractor John Holland v Majorca Projects Pty Ltd Principal is liable to head contractor and not that of superintendent
Construction_Law.docx