Can you claim against a contractor if what he has constructed turns out to be defective? A recent decision of the Court of Appeal indicates that your rights may be restricted to what you can claim under any contract you may have with the contractor; this decision will be particularly important when defects are discovered long after their construction took place.

In Robinson v. Jones decided on 18 January 2011, the contractor had constructed a house in the early 1990's and some 12 years later defects had been found in the flue run to the gas fires. Remedial works would be needed but the homeowner faced a difficulty. When he bought his house, then under construction, he entered into a contract with the contractor which provided that he would have no liability for any defect, error or omission in the completion of the work apart from that applicable under the contract itself.

He was too late to claim against the contractor for breach of contract but a claim in tort might still be possible based on the date of discovery of the defect. The crucial question arising was whether the contractor owed a duty of care in tort to the homeowner.

There had been a significant number of cases on this issue in the Technology & Construction Court and they reached differing conclusions. It was therefore necessary for the Court of Appeal to seek to resolve the differing views in the lower Courts on this issue. It concluded that a duty of care in tort could arise but, unless there was an assumption of responsibility, the duty would only extend to personal injury or damage to other property of the homeowner or another person and would exclude the house itself. The question of assumption of responsibility will depend upon the dealings between the parties.

Earlier cases had held that the contractor might have liability in tort on the basis of assumption of responsibility. The Court in this case was of the view that this might be an appropriate argument in the case of professional persons such as architects or engineers who advise on, and expect their clients to act in reliance upon, their work product, often with financial or economic consequences.

However, in the case of the contractor, the parties had entered into a contract which set out the contractor's warranties of quality and the homeowner's remedies, if the contractor was in breach of them. Even if the contract had not so limited the homeowner's rights, it is unlikely that an assumption of responsibility would have arisen but the wording of the contract put the matter beyond doubt.

The result of this case is that, as against contractors, it will probably now no longer be possible to proceed in tort for remedial work to correct defects where no other damage has been caused (and hence take the advantage of a longer limitation period) unless special circumstances apply, such as a documented assumption of responsibility. The case does not expressly deal with the position of design and build contractors and this issue may need to be decided in a subsequent case.