Sustaining a Claim for Damages

Test to Establish the Sustainability of a Claim

There are certain generally applicable tests to establish whether or not a sustainable building-defects claim exists. In the first place, there must be a defect or fault in the work which gives rise to a loss. In the second place, the party which caused the defect must owe a duty to the party suffering the loss and must, in causing the defect, have been in breach of that duty.

There are therefore two distinct and related lines of investigation to establish the facts on which a building-defects claim can be established or refuted: one, into the relationships between those involved; the other, into the relationship between defects and loss.

Causes of Accrual of Action

In litigation, the act which gives rise to a legal action may be termed the ‘cause of accrual of action’. Perpetrators of the cause of accrual of action, where in breach of a duty owed, may be regarded as the culpable party and their delinquent actions may equally be called the ‘culpable act’. To bring a successful claim, the claimant must be able to convince a tribunal that:

the defect was caused by someone (the culpable party) doing something that they ought not to have done (the culpable act);
the culpable party was responsible for fulfilling an obligation to the claimant (duty);
the culpable act was a substantial failure to discharge this obligation or responsibility (breach);
the claimant has been harmed by the culpable act and is measurably worse off as a consequence (loss); and
this loss is a consequence of the culpable act (causality).

To sustain a claim for the cost of rectifying defects under English law both causal and legal relationships need to be established.

Liability under contract depends on the terms of the contract. Many liabilities may exist which are not expressed in it. These are referred to as ‘implied terms’. Broadly speaking, terms may be implied into a contract by statute or if they are necessary to give that contract business efficacy.

Claims may arise outside a contract, in tort. There may therefore be contractual or tortious claims dealing with express or implied terms.

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