The Gazette 1986

GAZETTE

APRIL 1986

that the British Standard in Bridge Building No.540C (B.S. are normally taken as deemed to satisfy in Irish building bye-laws) is the only B.S. assuming a required nominal design life - in that case 120 years. The code also assumes ongoing maintenance and repair. On the other hand, a mineralised felt finish provided on a typical built- up factory roof would have only a one year guarantee as laid with perhaps a ten year life span. In essence the questions of durability and maintenance are integral and the building owner who neglects maintenance and repair is inviting minor latent defects to become major patent damage. The study of life cycle costing of buildings and materials is now advanced enough to offer a statutory defence based on the life expectancy of various building materials and methods of construction. The building industry can point to the Directive of the EEC Council of July 1985 regarding liability for defective products as an example providing for statutory defences. This directive will not include buildings but it will include some building materials and building products erected by sub-contractors on site. Article 7 envisages defences including a "state of the a r t" defence i.e. that the state of technical knowledge at the time the product was put into circulation was not such as to enable the existence of the defect to be discovered. This Directive, which includes a requirement that the Member States shall bring into force a national law within three years in order to comply with its provisions, contains alternative forms of possible national legislation of vital interest to the Irish building industry and its customers. Regardless of which alternative legislation is enacted (let Irish builders and sub-contractors be warned) the legal consequences on site could lead to further confusion given the present uncertainty on latent defects and the varying degrees of responsibility which the law imputes on members of the building team. The variation in the standard of care required on a typical commercial but non-housing development using the 1977 yellow Form of Contract (with quantities) of the Royal Institute of Architects of Ireland will then be on three levels as follows (a) for the Consultant designers the standard of care will be that of a reasonable member of his own profession and (b) the standard for the Contractor will be good work and proper materials and (c) the standard for certain as yet unspecified building materials supplied, fabricated, delivered and erected on site will be subject to future legislation which the EEC directive requires to be passed by July 1988. This legislation is likely to lead to a standard of care closer to strict liability for these products but statutory defences will be available as explained. It is easy to visualise a site situation where the Architect/Engineer designs and the Contractor builds into a fabrication supplied and erected by a sub-contractor in accordance with the design. This could arise for instance in building - in mechanical and electrical services- which of their nature have a shorter working life than the materials of construction such as brick and timber. Latent defects turning into discoverable damage in that situation is duly bound to create further disorder and uncertainty in the field of construction law. The existing legal circumstances in this area present an opportune time to introduce an imaginative Bill to accomodate an agreed solution to the problems outlined.

There will be no shortage of ideas. The building industry would be concerned if such legislation included the imposition of new duties based on a concept of "fitness for purpose" in non-housing contracts. Even with statutory defences avialable there is a fear that this could eventually lead to the acceptance of a building as " a product" in legal terms. Thus "fitness for purpose" today might mean strict liability tomorrow. "Fitness for purpose" is a concept borrowed from sl4 (1) of the Sale of Goods Act 1893 where it is an implied condition as to quality. The reported building cases leave no doubt that the concept means more than just providing a premises using good materials and p r oper workmanship. The term "fitness for purpose" itself denotes the giving of an implied assurance beyond the level of a duty to use a reasonable skill on the part of the designer and beyond the duty to use proper materials and workmanship on the part of the builder. Summons Servers Ltd. Internationally represented in over 40 countries. Summons Servers Limited is available for service of all Court Documents, Summons, Petitions, Citations, Probate, Debtors Summons t hroughout Ireland and under Order 11 R.S.C. for Out of Jurisdiction Cases on a wo r l dw i de basis.

Ri chmond Chambers, 101 Ri chmond Road, Drumcondra, Dubl in 3. Tel: 3 6 0 1 2 4 / 5 - 371906.

A subsidiary

of K Security

Private

Investigations

Ltd

Professional Information continued from page 102. Lost Title Deeds Premises: 72 Amiens Street, Dublin. Will anyone knowing of the whereabouts or having any information concerning the Title Deeds of the above premises pur- chased by the Trustees of Fianna Fail, Dublin Central Comhairle in or around 1955, please contact Devaney & Ryan, Solicitors, 53 North Strand Road, Dublin 3. Telephone: 746500. The Profession MARY M. FOLAN, B.A., H.D.E., Solicitor, Commissioner for Oaths, wishes to announce that she has commenced practice under the style of Folan & Co., at 33 Capel Street, Dublin 1. Tel.: (01) 786933.

Solicitors required for progressive new law firm. General Practice. Excellent prospects. Tel.: 694766 Unit 1201

94