Case in brief What's my duty? Negligence claims against contractors Ministry of Education v H Construction North Island [2018] NZHC 871
By Michael Taylor & Michelle Mau
Summary: This case showed the court's willingness to find that builders owe duties of care in negligence as well as contractual duties. This matters because there is often a longer time period within which the client can bring a claim for negligence. A builder wishing to avoid this outcome should use very clear language in the contract.
The plaintiffs sued the defendant contractor, formerly known as Hawkins Construction North Island Limited (Hawkins) in respect of construction defects in Botany Downs Secondary College constructed by Hawkins. The school was built between 2003 and 2009. The plaintiffs were therefore too late to bring claims in contract (such claims must be brought within six-years of the breach). However, the court found that Hawkins owed a duty of care in negligence, which it had breached in various ways, and that less than six years had passed from when the plaintiffs discovered (or could reasonably have discovered) the defects. These claims were in time, and succeeded. The plaintiffs were awarded over $13m. Duty of care This case has important implications for builders. It means that the duties they owe to clients will often go beyond those set out in the contract, and include a common law duty in negligence. The judge, Downs J, found that Hawkins owed a duty in negligence to exercise reasonable skill and care in the buildings' construction, including: • reasonable care and skill in the design, construction and supervision of building work; • an obligation to ensure building work was designed, constructed and supervised in accordance with the Building Code, and, that the work complied with the Code; • an obligation to ensure remedial work was undertaken to a reasonable standard of care and skill, and that the remedial work complied with the Code. The judge reached this conclusion partly due to other cases dealing with builders' duties of care (including Bowen v Paramount Builders (Hamilton) Ltd, Invercargill City Council v Hamlin, Spencer on Byron),