TORT in the

CONSTRUCTION
INDUSTRY (CAPUT DUO)
RMT 551 – LAW in PROJECT
MANAGEMENT

armanabdulrazak
REFELCTION....
• Almost 4,000 years ago, King Hammurabi of Babylon, Mesopotamia, laid
out one of the first sets of laws. Hammurabi's Code is among the oldest
translatable writings. It consists of 282 laws, most concerning
punishment. The code also includes the earliest known construction laws,
designed to align the incentives of builder and occupant to ensure that
builders created safe homes:
 If a builder builds a house for a man and does not make its construction firm, and the house
which he has built collapses and causes the death of the owner of the house, that builder shall
be put to death (Code 229)
 If it causes the death of the son of the owner of the house, they shall put to death a son of that
builder (Code 230)
 If it causes the death of a slave of the owner of the house, he shall give to the owner of the
house a slave of equal value (Code 231)
 If it destroys property, he shall restore whatever it destroyed, and because he did not make the
house which he builds firm and it collapsed, he shall rebuild the house which collapsed at his
own expense (Code 232)
 If a builder builds a house for a man and does not make its construction meet the requirements
and a wall falls in, that builder shall strengthen the wall at his own expense (Code 233)
RECAP ON TORT LAW
• A tort exists to protect rights. The
law of torts defines rights and
obligations when an individual
commits a wrong or injury against
another.
• Torts have been defined as an
injury other than breach of contract,
which the law will redress with
damages.
• Tort liability is intended to
compensate a victim/claimant by
forcing the wrongdoer to pay for
any damage done.
ELEMENTS
OF TORT LAW
• There are four
elements to tort law:
duty
breach of duty
causation
injury
• In order to claim
damages, there must
be a breach in the duty
of the defendant
towards the plaintiff,
which results in an
injury
MAIN TYPES OF
TORTS
•The three main types
of torts are:
negligence
strict liability (product
liability)
intentional torts
NEGLIGENCE
• Negligence is a tort which determines legal liability
for careless actions or inactions which cause
injury. Negligent conduct is that which falls below
an acceptable standard
• To prove an action of negligence each of the
following elements of the legal action must be
established:
 Duty - That the defendant owed the claimant a
duty of care
 Breach - That the defendant breached that
duty of care (that is, did not reach the required
standard of care)
 Causation - That the damage suffered by the
claimant was caused by the defendant's
breach of duty
 Damage - That the type of damage suffered is
not too remote from the defendant's conduct
ELEMENTS OF
•NEGLIGENCE
Duty of Care
The claimant has to show that he is owed a duty outside contract or other torts
to take reasonable care for his safety or whatever other interest of his has
been damaged. If he fails to establish this, his case will be unsuccessful no
matter how careless the defendant has been and irrespective of whether that
carelessness has brought about the damage to the interest in question.
The duty concept is being used here to keep issues of liability firmly under
control. It is a control mechanism enabling a court to say whether or not the
damage claimed for is legally recognized. Another way of expressing it is in
terms of immunity from suit. If there is no notional duty on a careless
defendant, then he is immune from action, despite his lack of care.
 Immunities are granted for certain types of loss, subject to exceptions, for
example, damage to financial interests. Lying beneath these significant
immunities are value judgments by the judiciary. The reasons for these
particular choices are often obscured by notions such as reasonable
foreseeability, proximity, what is just and reasonable.
ELEMENTS OF
•NEGLIGENCE
Breach of Duty
This element of negligence is the legal test which establishes a
link between the parties. A defendant is only liable in negligence to
a person to whom the defendant owes a duty of care. If this
element is not present, the action in negligence will fail.
The function of this element is therefore to limit or control the
liability of a defendant. As negligence is a tort which covers every
human association, its application could be limitless. It is therefore
necessary to contain negligence claims within reasonable levels.
Thus, even where a defendant has been careless and has caused
harm to a claimant, the tort of negligence may not be established,
since a duty of care may not exist. For example, a defendant who
sees an accident and fails to stop to help is not negligent, as there
is no duty of care owed by the defendant in that situation.
ELEMENTS OF
NEGLIGENCE
• Causation and Remoteness of Damage
Claimant in a negligence action has to establish that the defendant's breach of
duty caused the damage sustained by the claimant. This in itself comprises two
issues: causation and remoteness of damage.
The claimant must first of all establish that the breach physically caused or
contributed to the claimant's damage. This is sometimes referred to as
causation in fact.
If the answer to this question is positive in favour of the claimant, the second
question comes into play. Is the claimant’s loss too remote a consequence of
the breach? This is often regarded as a question of law as opposed to one of
fact, unlike the answer to the first question.
Remoteness of damage is to set limits to the liability of the defendant in the
interests of justice and fairness. To hold a defendant liable for all the
consequences which may follow from his faulty conduct is thought to go too far.
The defendant's negligence must cause or materially contribute to the damage
suffered by the claimant. There must be a causal link between the act of the
defendant and the claimant's injury.
DEFENCES AGAINST
TORT OF NEGLIGENCE
• The two principal defences
are:
contributory negligence –
that the claimant's own
carelessness contributed to
the damage suffered;
volenti non fit injuria – that
the claimant voluntarily
assumed the risk of the
injury.

This Photo by Unknown author is licensed under CC BY-SA.

CONTRIBUTORY
NEGLIGENCE
• Where a claimant has contributed to their injury or loss
through their own negligence, a defendant may utilize
the defence of contributory negligence.
• Contributory negligence is a partial defence, in that, if it
is successful, it will not deny the claimant's claim, but will
result in the amount of damages paid to the claimant
being reduced.
VOLENTI NON FIT INJURIA
• This defence is sometimes expressed as voluntary
assumption of risk and, if successful prevents the claimant
from recovering at all for the defendant's breach of duty. At
the outset, it must be stressed that knowledge of the risk
alone is not likely to be sufficient to establish the defence,
there must also be, it is said, agreement by the claimant to
accept that risk willingly.
• Volenti non fit injuria means that an injury cannot be done to
a willing person. In other words, an injury cannot be done to
a person who has voluntarily assumed the risk. This may be
a complete defence to a negligence action. In alleging the
defence of volenti non fit injuria, the defendant is arguing
that the claimant was aware of the risk of injury and had fully
accepted the risk.
KEY TORT
CASES