A claim in negligence is not easy to prove because of the nature of the cause of action and the elements that need to be established. Negligence by a builder could be characterised as a subset of Negligence Law being “Professional Negligence”. This is because a person who retains a builder has retained him for the provision of a specialist service. The reliance on the unique knowledge and skill-set by the prospective owner of a building which is yet to be constructed can place a claim in negligence at a higher level. However, because this makes the negligence so much more serious, the difficulty in establishing the claim on evidence is more difficult.
The basic elements of a cause of action in negligence will include the following:
- Establish on the evidence that there was a duty of care. This is perhaps the easiest part of preparing a case in negligence. It requires looking at the relationship between the prospective owner and the builder and considering the provisions of the building contract. Where there has been a breach of contract, the facts relating to the breach may be grounds, in and of themselves, that establish a cause of action in negligence;
- Establishing the professional standard of the duty of care. This is a more nebulous aspect of the claim in negligence against a builder. It requires investigations of the industry and the standards that the public have come to expect from builders engaged in the activity that the accused builder has assumed under contract. Sometimes, inquiring with an industry representative body or a government regulatory organisation may shed light on this standard. Documents such as Codes of Ethics or policies relating to the conduct of builders and their work may be of assistance, even though these tend to be drafted in very general and broad terms. Here, legal research will need to be conducted to see how the Courts have interpreted such provisions in the past; and
- Establishing that the duty of care was breached. This will broadly require an investigation of the facts to prove causation. What will need to be shown is that:
- An act - something the builder either did which he/she should not have done; or
- An omission- something he/she failed to do which should have been done; and
- Establish loss or damage suffered by the innocent party suing the builder for negligence. This is essential in a claim under negligence. If there is no loss or damage, it will be nigh impossible to quantify the claim for damages or compensation.
Builders who are being sued for negligence should be very careful to not treat the litigation lightly. Once something is filed, legal advice should rapidly be obtained from a Building and Construction Solicitor. This is true even if the builder is only being accused of negligence. A mere allegation can have adverse effects on the business and reputation of the builder. If an accusation of negligence against a builder has been made, and has been found to be unjustified, the builder may in fact have a claim in defamation against the person making the allegation or accusation. A building negligence lawyer will be able to deal with matters crossing over into the area of defamation law at Navado.
Prospective owners of building who are thinking of suing a builder for negligence should also be careful how they approach their claim. For reasons already outlined above, they should be careful how they phrase their complaints against the builder, and a building negligence solicitor will be able to assist in drafting the appropriate documents for this purpose too. Legal advice for building negligence disputes should be obtained first before the building negligence lawyer commences preparing a claim against the builder. These can be complicated disputes and sometimes expert evidence may need to be obtained to support a case. These matters need to be considered in detail before formal action is taken.
If you require assistance with a negligence claim in your building and construction matter you may wish to contact our office by telephone on (02) 9233 4048 or send an email to email@example.com and make an appointment to see one of our solicitors in our Sydney CBD head office. By appointment, we can also make a time for you to see one of our lawyers in one of our branch offices. To view a complete list of our branch offices, please peruse our "Locations" tab.
This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.
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