There can therefore be nopolicy reason for imposing a higher common law duty on builders,from which it follows that there is equally no policy reason forimposing such a high duty on local authorities.
A similar problem couldarise, if the Anns principle is to be treated as confined to realproperty, where a building collapses when unoccupied. Itseems a very strange result that the building owner should bewithout remedy in this situation if he would have been able torecover from the local authority the full cost of repairing thebuilding if only the defect had been discovered before the buildingfell down. First, it has to be borne inmind that neither in Anns nor in Dutton v. Bognor Regis UrbanDistrict Council [1972] 1 Q.B. They were merely the outwardsigns of a deterioration resulting from the inherently defectivecondition with which the building had been brought into being fromits inception and cannot properly be described as damage caused tothe building in any accepted use of the word "damage. The case would accordingly fall withinthe principle of. It is only the damage for the, house which requires consideration. In my opinion it must now be recognised that, although thedamage in Anns was characterised as physical damage by LordWilberforce, it was purely economic loss. Nodoubt its existence results in local authorities having to payincreased insurance premiums, but to be relieved of that necessitywould be to their advantage, not to their detriment. Reflection. 279; La Societe Anonyme deRemorquage a Helice v. Bennetts [1911] 1 K.B. If theplaintiffs had happened to discover the defect before any damagehad occurred there would seem to be no good reason for holdingthat they would not have had a cause of action in tort at thatstage, without having to wait until some damage had occurred.They would have suffered economic loss through having a defectivechimney upon which they required to expend money for thepurpose of removing the defect. The defendant council argued that the ruling in Anns v Merton LBC (insofar as it extended to pure economic loss) was wrong and should be departed from. 569; and (I citethese merely as illustrations, without discussion) cases about"economic loss" where, a duty having been held to exist, thenature of the recoverable damages was limited: see S.C.M. If it were to standas good law there is no logical reason why it should not extend todefective chattels thereby opening the door to a mass of productliability claims which the law has not previously entertained. I regard Junior Books Ltd. v. Veitchi Co.Ltd. ), The critical question, as was pointed out in the analysis ofBrennan J. in his judgment in Council of the Shire of Sutherland v.Heyman, common ground that a claim in contract was time-barred. The duty held to exist may beformulated as one to take reasonable care to avoid putting afuture inhabitant owner of a house in a position in which he isthreatened, by reason of a defect in the house, with avoidablephysical injury to person or health and is obliged, in order tocontinue to occupy the house without suffering such injury, toexpend money for the purpose of rectifying the defect. Reservationsabout it were expressed by myself in Governors of the PeabodyDonation Fund v. Sir Lindsay Parkinson & Co. Ltd. [1985] A.C.210, 240, by Lord Brandon of Oakbrook in Leigh and Sillavan Ltd.v. is no necessary bar to an action in negligence given the propercircumstances - in that case, what was said to be the "jointventure" interest of shipowners and the owners of cargo carried onboard - and if the matter remained in doubt that doubt wasconclusively resolved by the decision of this House in Hedley Byrne& Co. Ltd. v. Heller & Partners Ltd. [1964] AC 465 where LordDevlin, at p. 517 convincingly demonstrated the illogicality of adistinction between financial loss caused directly and financial lossresulting from physical injury to personal property.
Richmond P., after asking the question whetherdamage to the house itself gave rise to a cause of action, appliedthe principle of Donoghue v. Stevenson to a builder erecting ahouse as follows, at p. 410: "He is under a duty of care not to create latent sources ofphysical danger to the person or property of third personswhom he ought reasonably to foresee as likely to beaffected thereby. Suppose that the defect is discovered intime to prevent the injury. "This has been rightly criticised by academic writers although Iconfess that I thought that both my noble and learned friend and Ihad made it clear that it was a theory which was not embracedwith any enthusiasm but was advanced as the only logicallypossible explanation of the categorisation of the damage in Annsas "material, physical damage." In myopinion they may also include damage to the dwelling houseitself; for the whole purpose of the byelaws in requiringfoundations to be of a certain standard is to preventdamage arising from weakness of the foundations which iscertain to endanger the health or safety of occupants. These economiclosses are recoverable if they flow from breach of a relevantcontractual duty, but, here again, in the absence of a specialrelationship of proximity they are not recoverable in tort. This was clearly theview of Lord Denning M.R.
Lord Wilberforce went on, at pp. A builder who builds a house from foundationsupwards is creating a single integrated unit of which the individualcomponents are interdependent. This, whilst it goes noway towards resolving many of the difficulties arising from the. They issued a "stop work" order to prevent furtherbuilding until proper foundations had been provided. Two of these houses, nos.
Rather they seem to have beenbased either upon the remoteness of the damage as a matter ofdirect causation or, more probably, upon the "floodgates" argumentof the impossibility of containing liability within any acceptablebounds of the law were to permit such claims to succeed. Anns has been overruled, with the conclusion that a person who has a right has no duties implicitly attached to that right. Lord Wilberforce took the viewthat the principle of Donoghue v. Stevenson [1932] AC 562applied to the builder of defective premises, there being no soundreason why that principle should be limited to defective chattels.
Get the Firefox add-on to access 20,000 definitions direct from any website, Share your construction industry knowledge, D&F Estates Limited and Others v Church Commissioners for England and others, https://www.designingbuildings.co.uk/wiki/Murphy_v_Brentwood_District_Council. Aliakmon Shipping Co. Ltd. [1986] AC 785, 815 and by LordBridge of Harwich in Curran v. Northern Ireland Co-ownershipHousing Association Ltd. [1987] A.C. 718. In any event, these distinctions were only obiter as they would not impose liability on public authorities. Yet that must be thelogical result of the application of Anns, unless one is to say thatthe necessary relationship of proximity exists, not between theauthority and all subsequent owners and occupiers, but onlybetween the authority and the owners and occupiers who haveacquired a property for value. Jurists Mickey Dias and Hohfeld have shown that rights and duties are jural correlatives. Plaintiff, owner of one of houses, had to sell house for below market price as result. The minority, Laskin and Hall JJ.,were in favour of allowing recovery of that cost. In my opinion it is clear that Anns did not proceed uponany basis of established principle, but introduced a new species ofliability governed by a principle indeterminate in character buthaving the potentiality of covering a wide range of situations,involving chattels as well as real property, in which it had neverhitherto been thought that the law of negligence had any properplace. In Council of the Shire of Sutherland v. Heyman 157 C.L.R.424 the critical role of the reliance principle as an element in thecause of action which the plaintiff sought to establish is thesubject of close examination, particularly in the judgment of MasonJ.
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