The DPA has been with us for more than 26 years. By now you would have thought that numerous cases would have licked every bone in the act clean and we would know exactly what the words mean. Not a bit of it.
See what you make of these words: “A person taking on work for or in connection with the provision of a dwelling owes a duty to see that the work which he takes on is done in a workmanlike or professional manner with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.” Concentrate on the first few words and ask whom it refers to and what is meant by “a person taking on work”. Does the builder “take on” work; does a subcontractor or an architect? And if you say “yes” to all of those, and if you are right, then a person with an interest in a dwelling such as an owner or occupier could sue anyone in that group if the dwelling is or becomes so lacking in an essential building quality that it is unfit for habitation.
Clayhill Building Supplies, in 1988, was a small builders merchant and DIY store in London. The owners decided to buy a house, do it up and sell it. The father of one of the owners of Clayhill got a builder and sparks and a plumber. All materials would be supplied to these folk by Clayhill. Father also arranged an architect and surveyor. The local authority building inspector had doubts about one wall, so it was demolished. The decision was to go down 1.5 m with new foundations to cope with the iffy London clay. The inspector thought a soil investigation would be worthwhile but no one went that far. In due course, the dwelling was sold off. I am not sure whether Mr and Mrs Mirza were the first buyers, but under the DPA it doesn’t matter whether it is the second or the umpteenth owner, since a complaint can still be raised under the act. The dodgy foundations came to light when, over four years, the hairline cracks started letting daylight through. Underpinning was vital otherwise it would fall down.
Mr and Mrs Mirza sued. The issue here is who, of all those involved, had taken on work and therefore owed a duty to the Mirzas to make the end product fit to live in? Was it the father? It was argued by the homeowner that the father had in effect been the main contractor. He gave directions to the builder, electrician, plumber. Or was it the builder who actually did the foundations? Or was it both? Or was it the architect and surveyor that took on work?
In 26 years of the act’s existence, it had not been made clear what the word “work” meant in the phrase “taking on work”. The act’s language is not satisfactory.
In 26 years of the act’s existence, it had not been made clear what the word “work” meant in the phrase “taking on work”
The judge said that “taking on work” could not mean the “arranging” of work. The father had not done anything more than taking on the organising. He gave general instructions to the builder and others to build according to the architect’s and surveyor’s plan. As for the builder, his job was to follow the instructions of the father. Further, it was reasonable, said an expert witness, for this builder to follow the recommendations of the building inspector. The judge could not find evidence that the builder had not carried out his work in a workmanlike manner. Nor could the judge point at the architect and surveyor failing to identify the problem themselves since it may have been by reason of their restricted instructions. The judge said, by the way, that he did not have enough information about whether the architect and surveyor had acted in an unprofessional way.
But remember that the focus here is on who had taken on work in connection with the dwelling. The judge decided that the meaning of “work” in the DPA was the overall scheme. The person who had taken on the work was the employer. He was the one with the duty to make sure he provided a dwelling without duff foundations. Otherwise, this person at the top could avoid his responsibility to ensure that the scheme was completed in a workmanlike and professional manner.
So, it looks as though the homeowner has to seek out the person who originally decided to take on the work. It is that person who has chosen to do the work and has the duty to ensure he chooses people to do everything properly.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or e-mail him on email@example.com.