Duty of Care in Contractual Chains: Have we Reached a Consensus?

Siân Mirchandani KC and Seohyung Kim

October 2022

A paper presented to a joint meeting of the Society of Construction Law and the Constructing Excellence Gloucestershire Club on 4th May 2022

This paper asks the reader to imagine a scenario where an employer client has asked for advice on who to sue following a catastrophic fire. The multi-party breach of contract claim first imagined is gradually worn away as the facts emerge, leaving a tortious duty of care claim the only option. The paper goes on to consider the restrictions and requirements for a successful claim in tort in the construction context, where a claim in contract is barred for a variety of reasons. The paper looks in particular at the recent decisions of Avantage v WSP, where an application for summary judgment brought by the fire engineer was dismissed and Multiplex v Bathgate, described by Mr Justice Fraser as a case with ‘classic duty of care issues’, where the claimant has no route via contract. The authors question why this is a perennial issue and comment on lessons learned and what the future might hold for such claims.

Introduction – Two recent cases – Duty of care and contractual chains – What principles are in play? – A practical approach to a claim for economic loss – Multiplex v Bathgate: overview – Avantage: overview – Lessons learned? – Impacts looking forward

The author: Siân Mirchandani KC and Seohyung Kim are barristers practising from 4 New Square.  

Text: 20 pages