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Stephen Clarke’s case notes

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  1. Hi!
    On the facts as stated – this must be flawed because the courts determined their decision based on a hypothetical scenario of “offering advice”. No one accused the contractor of offering advice – he was asked to build a chimney.The fact that where there is “AoR” liability occurs is not relevant to these circumstances – the matter under consideration is one of not fit for purpose – which the flue still is – and neither is it a claim for economic loss. In fact the contractor has the option to re-build it correctly.
    I can’t fathom how, when the contractor had already built one compliant flue, that he has not been negligent by building the second one defectively. He patently knew what he should do – but didn’t do it – and it’s not a “latent” defect, one that manifests itself after a period of time but is disqualified because it could/should have been discovered by reasonable inspection. It might have been built very well – but wrong.
    Not being a lawyer – but I thought there was a position of “an innocent abroad” in certain circumstance where caveat emptor just seems unfair – how could Mr. R. know his chimney wasn’t right.
    Seems to me the builder has been lucky not to end up on a manslaughter charge caused by carbon monoxide poisoning if the flue was not “drawing” sufficiently.
    Peter Lander (D&B Contractor)

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