Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 116
care and a breach of section 1 of the DPA 37 relating
to inadequate speci昀椀cations and details, and failure
to carry out appropriate site inspections.
“… it seems more likely that they would require laminated
glass or a handrail in such circumstances, since the failure
of the glass would create the risk of fall to ground level.” 46
The Judge considered the experts’ evidence and held
that there was no evidence of a causal connection
between any design defect and the leaks that
occurred or any risk of future leaks.38 There was
no evidence that the brickwork was permanently
damp.39
On SCd using reasonable skill and care during their
inspections the Judge stated:
“… the weight of the agreed expert evidence is 昀椀rmly in
favour of the conclusion that it is visually obvious that
the glass is not laminated… and that is something that
SCd, exercising reasonable care and skill, ought to have
observed at some point…” 47
The Judge noted that the experts agreed that there
was no evidence of structural brickwork failure or
falling bricks40 and that Mrs Vainker’s case must
show “the condition of the brickwork at the time of
completion meant that it was susceptible to failure at a
later date to an extent that would make the property un昀椀t
for habitation.” 41
The Judge concluded that SCd’s failure to notice that
laminated glass had not been installed rendered the
House un昀椀t for habitation because of the inherent
risk posed to health and safety, and therefore, was a
breach of duty under section 1 of the DPA.48
The Judge noted that there was broad agreement
between the Experts on the risk of structural failure
arising from sulphate attack due to the brickwork
being permanently saturated.42
As it was unclear whether SCd had the opportunity
to inspect other aspects of the balustrade installation
which may have proven to be defective (such as the
stainless steel plate covers and packing pieces for
the glass balustrades) the Judge found that the
Claimants had not made their case and that SCd
could not be found to be in breach of contract or
duty of care in this respect.49 This underlines the
importance of making accurate records during site
inspections.
However, it was not clear whether there had been
any erosion of the mortar that was consistent with
sulphate attack.43 The Court therefore was not
satis昀椀ed that it was likely for further erosion or
for structural risk to occur as a result of design or
workmanship issues. The Court also decided that
the staining was an aesthetic defect which would not
make the house un昀椀t for habitation at the time of
completion44 and that SCd was not in breach of their
duties under section 1 of the DPA.
BDW v Ardmore [2024]
In BDW v Ardmore [2024], the summary judgement
focuses on the legal arguments challenging the
adjudicator’s decision and jurisdiction on deciding a
claim under DPA. But at the centre of the case is the
underlying allegations relating to 昀椀re safety defects.
The allegations BDW raised were “the unsuitable
nature of the Alumasc product and the omission of 昀椀re
barriers.” 50 These key allegations were subsequently
advanced in the adjudication. BDW’s Letter of Claim
identi昀椀ed Ardmore’s general obligations under both
the Building Contract and the DPA.51
Regarding the glass balustrade which were installed
at the 昀椀rst and second 昀氀oor terrace, and to the main
internal staircase of the house, it was alleged that
toughened and laminated glass panels should have
been installed, as per speci昀椀cation, rather than
just toughened glass panels. The installation of
just toughened glass panels was not in accordance
with the Building Regulations K2 requirements.
The installation of the incorrect and unspeci昀椀ed
glass panels should have been identi昀椀ed by SCd
(the architect) as part of their inspections, when
exercising reasonable care and skill.
The Adjudicator held that Ardmore had breached
its duties under contract and was liable under the
DPA.52 The Judge held the adjudicator’s decision, and
that the adjudicator had jurisdiction on deciding the
claims.53 While the summary judgement does not go
into the details of the allegations, it sheds a light on
what type of claims were brought under the DPA.
It was the Judge’s view that the Contract (including
speci昀椀cation and drawings) did call for bonded
toughened and laminated glass panels in all
the locations described and therefore Marbank
Construction Limited (“MCL”) were in breach as
they had failed to carry out the works in line with
the Contract.45 Therefore, the claim against MCL on
breach of contract was not time-barred.
BDW v URS [2021]
In URS v BDW’s Preliminary Issue trial, BDW v URS
[2021] EHWC 2796 (TCC),54 the Judge, Mr Justice
Fraser, considered the defects that present a health
and safety risk.55 It was alleged that the existing
structure of the buildings in Capital East and
Freemens Meadows were not safe following BDW’s
investigations. The lack of safety was said to be a
The Judge stated that there had been little
consideration at trial on the interpretation of the
Building Regulations, and it should be noted that:
EXPERT WITNESS JOURNAL
114
OCTOBER/NOVEMBER 2025
