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Negligence and defective buildings: demolishing the foundations of Anns?

Published online by Cambridge University Press:  02 January 2018

Marianne Giles
Affiliation:
University of Kent
Erika Szyszczak
Affiliation:
London School of Economics

Extract

It was generally accepted that the House of Lords in Anns v Merton LBC introduced an ‘entirely new type of product liability’ into the law of tort by expanding liability in negligence in relation to the construction of defective buildings. The novelty of the action was to introduce liability in tort for the construction of the defective product itself and to allow a claim for economic loss resulting from the defect. The consequence was to blur some of the traditional boundaries between contract and tort claims and to cause controversy in relation to the nature of the allowable loss recoverable from the negligent act. In particular it led to the question of whether such claims fell into the category of ‘pure economic loss’: a loss not easily accepted in conventional tort jurisprudence.

Type
Research Article
Copyright
Copyright © Society of Legal Scholars 1991

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References

1. [1978] AC 728.

2. Per Lord Oliver in D & F Estates Ltd v Church Commissioners for England [1989] AC 177 at 211.

3. See Jaffey (1985) 5 LS 77; Markesinis (1987) LQR 354; McKendrick (1989) NLJ 354. Later cases blurred the tort/contract divide by taking into account a contractual relationship running parallel to the tort relationship: Greuter Nottinghum Co-op Society v Cemetation and Piling Foundations Ltd [1988] 2 All ER 971; Pacific Associates Inc v Baxter [1989] 2 All ER 159; Norwich City Council v Harvey [1989] 1 All ER 1180.

4. [1983] AC 520.

5. Supra, n 2.

6. [1990] 3 WLR 414.

7. [1966] 1 WLR 1234.

8. [1990] 2 WLR 944.

9. Council Directive 85/374/EEC OJ 1985 L 210/29.

10. [1970] AC 1004.

11. [1972] 1 QB 373.

14. [1964] AC 465.

13. [1990] 2 WLR 358.

14. [1972] 3 All ER 557.

15. A Casebook on Tort (Sweet and Maxwell, 6th edn, 1988) p 43.

16. Supra, n 12.

17. Supra, n 6, at 435.

18. [1978] AC 728 at 759.

19. [1983] 2 AC 1.

20. [1978] QB 554.

21. Incidentally, this is also a criticism of the complex structure arguent discussed below and one picked up by the House of Lords in Murphy.

22. The blurring of the issue stems from the desire of the Court of Appeal to impose liability in Dutton v Bognor Regis UDC [1972] 1 QB 373.

23. (1989) LQR 508.

24. Ibid.

25. Supra, n 20.

26. Applied to D & F Estates Ltd this explanation would make the builder liable for removing the plaster which was defective but not replacing it. Cf Portsea below, n 49 where this type of argument was accepted by Newey J.

27. [1989] 1 All ER 1075.

28. [1990] 2 All ER 943.

29. [1932] All ER 1.

30. Per Lord Bridge, supra n 6, at 438

31. As it happened the diminution in value did not exceed the estimated cost of repairs but both Ralph Gibson and Nichols LJ indicated (albeit obiter) that they did not discount the possibility of a successful claim which exceeded the estimated cost of repairs.

32. Supra n 6, at 440.

33. Curran v Northern Ireland Co-ownership Housing Association Ltd [19871 AC 718; Governors of the Peabody Donation Fund v Sir Lindsay Parkinson and Co Ltd [1985] AC 210. Cf the investigation into the statutory purpose of en auditor's duty to report in Caparo.

34. [1988] 2 WLR 761, see Dillon LJ at 778, ‘… the speeches of their Lordships [in junior Books Ltd] have been the subject of so much analysis and discussion with differing explanations of the basis of the case that the case cannot now be regarded as a useful pointer to any development of the law…’ See also Candlewood v Mitsui [1985] 3 WLR 381; Muirhead v ITS [1985] 3 WLR 993; Greater Nottingham Co-operative Society Ltd v Cementation Piling and Foundation Ltd [1989] QB 71.

35. [1983] QB 409.

36. [1990] 1 All ER 296.

37. [1989] 52 MLR 200.

38. (1988) 104 LQR 213.

39. [1988] AC 175.

40. But cf the outcome of Caparo.

41. [1988] 2 All ER 484, 497.

42. Supra, n 10.

43. Supra, n 6, at 439.

44. Supra, n 8, at 975.

45. Supra, n 8, at 975.

46. Supra, n 8, at 977.

47. Supra, n 14.

48. [1986] QB 507.

49. (1989) 6PN 43.

50. Supra, n 27.

51. Cf the solution offered by McKendrick, supra, n 3, and ideas are being mooted of establishing a ‘log book’ for houses identifying the names of suppliers of materials, builders etc, for any building work and alterations that take place, Independent on Sunday, 18 November 1990.

52. See for example, Peabody, supra, n 33, Yuen Kun Yeu, supra, n 39, and Hill v Chief Constable of West Yorkshire 119891 AC53.

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