Duties of Care in Construction Projects: 'Other Property' and 'Complex Structure Theory'

James Cross QC

February 2013

A paper presented to the Society of Construction law at a meeting in Southampton on 23rd October 2012

The author explains that this paper was prompted by the Linklaters litigation in 2010 and the consideration given to 'other property' and 'the complex structure theory'. In the context of the recovery in the tort of negligence for consequential economic loss (that is economic loss consequent on damage (or injury) to person or property), the property involved must be 'other property' or what the law treats as 'other property'. This paper considers what this means in practice and how the courts now regard these concepts, looking at the case law from Donoghue v Stevenson to the Linklaters cases and afterwards.

Introduction: consequential economic loss - 'The thing itself': legal orthodoxy (Muirhead - Aswan Engineering) - Complex structure theory: D & F Estates (Lord Bridge - Lord Oliver) - The theory reconsidered: Murphy (Lord Keith - Lord Bridge - Lord Oliver - Lord Jauncy) - Comments (Issues of fact - Intermediate examination - Status of judges' views) - Authorities after Murphy (Warner v Basildon Development Corporation - Nitrigin Eireann v Inco Alloys - Jacobs v Morton & Partners - Comments - Tesco Stores v Norman Hitchcox Partnership - Tunnel Refineries v Bryan Donkin - Bellefield Computer Services - Payne v Setchell) - The Linklaters litigation and after (Broster v Galliard) - Conclusions.

The author: James Cross QC is a barrister practising at 4 Pump Court, London.

Text 27 pages.