The Gazette 1986

MARCH1986

GAZETTE

problematic than actions in contract. The Report concludes (d) that "There is scope for evolution of insurance policies ... but any radical solution must take full account of the likely ability of the insurance industry to respond at acceptable levels of premiums" because of the risk in construction of familiar failures such as multi- storey precast buildings or long span box bridges. This Report will be required reading for all concerned with latent defects because it sets out the range of insurances normally available in a standard-form building contract in a simple way and suggests where these could be improved to give greater cover. But more importantly it deals with the three insurance methods already available to provide a basis for latent defects protection insurance. These methods are (1) latent damage insurance cover held by the user of the building or (2) a form of guarantee insurance on the various elements of the building such as structure of windows held by the main contractor and (3) as project liability insurance held by each member of the building team whether their business was to design, supply, fabricate, deliver, erect or construct. This third arrangement would combine consultants professional indemnity insurance with contractors/sub-contractors defects liability insurance by including under one umbrella the products liability insurance on goods supplied and fitted into the building as well. These three methods of insurance provide different kinds of cover for (1) the user and (2) the building itself and (3) the building team in a complementary way which the Report suggests could be a foundation for latent defects protection insurance. If there is a criticism of this excellent Report to be made it arises from one proposed definition of the word "defect" itself. This relates (p.l 1) a defect to "Any feature ... which detracts from ... fitness for purpose".Such a definition incorporating a standard related to fitness for purpose is an invitation to extend litigation because "fitness for purpose" is a legal concept demanding a higher acceptance of design responsibility for the building than the prosaic everyday meaning the words suggest. In Morgan v. Park Developments Carroll J advanced a constitutional principle against a plaintiff losing his cause of action before he knew he had one. But is it breach of constitutional rights for a plaintiff to lose his cause of action before he knows he has one? Would this principle be upheld as a general unconditional statement of law in an appeal to the Supreme Court? It is arguable that it would not. For instance, an interesting comparison arises in the Statute of Limitations 1957 si3 relating to adverse possession. Carroll J in Morgan v. Park Developments Ltd. stated that "Whatever hardship there may be to a defendant in dealing with a claim years afterwards, it must be less than the hardship to a plaintiff whose action is barred before he knows he had one. The latter interpretation appears to me indefensible in the light of the Constitution". The Statute of Limitations 1957 however already contains situations where in certain circumstances a person can lose not just their right to sue, but their right of ownership of land itself with regard to land held through the doctrine of adverse possession. An example of this can be seen in the case of Murphy v. Murphy 8 a decision of Costello J. in the High Court and affirmed without dissent in the Supreme Court.

'Our Progressive and Professional Team' OUR PROFESS IONAL SERV ICES VALUATIONS RENT REVIEWS LEASE RENEWALS ARBITRATIONS CAPITAL GAINS AND PROBATE VALUATION RATING APPEALS AND INSURANCE VALUATION COMPULSORY PURCHASE ORDERS OUR VALUAT ION TEAM Anthony M. Sherry F.S.VA, F.IAV.I

Gordon H. Gill F.R.I.C.S. Philip G. Sherry A.R.I.C.S.

Sherry FitzGerald &Partners MERR I ON ROW, DUBL IN 2 Q 6 0 5 0 5 5 • 7 6 5 6 66