55 / 482
GAZETTE
FEBRUARY 1989
Defective Building Work:
Who should pay?
Part I
Over the past decade or so, we have witnessed the British
courts lurching be tween conservative and liberal positions
in relation to the duty of care in negligence. In contrast to
the Supreme Court's gradual and consistent extension of the
scope of that duty, the House of Lords has moved a couple
of steps f o rwa r d, only to take flight when the implications
of that progress have become clear.
The most recent decision of the example, where a house was in
House of Lords in
D. & F. Estates
Ltd. -v- Church Commissioners for
England,
1
is of very great
importance for Irish practitioners, in
view of the issues at stake, as well
as its effective repudiation of the
liberal approach favoured by the
House of Lords in
Anns -v- Merton
London Borough Council,
2
and
Junior Books Ltd. -v- Veitchi Ltd.
3
The central question to be resolved
concerned the extent of liability in
tort for negligence in respect of a
product where expenses have
necessarily been incurred in
averting danger to persons,
property, or the defective product
itself.
The outcome of the case may be
attributed in part to the incoher-
ence of early judicial efforts in the
general area of builder's liability and
liability in negligence for pure
economic loss. It is easy to
sympathise with Lord Bridge's
decision not to engage on the
"daunting task" of reviewing most
of these cases when addressing
the issue raised on appeal.
Builders' Immunity Crumbles
A complicating element in the
development of the caselaw arose
from the fact that for several
decades after
Donoghue -v-
Stevenson,
4
the old immunity from
a duty of care in negligence
continued to apply to builders,
vendors and lessors of real
property.
5
As the courts began to
dismantle this immunity, they
recognised a distinction between
"dangerous"
and
"non-
dangerous" defects. The former
involved physical damage to the
person or to property as, for
such a state that it collapsed. The
latter involved no such danger; they
included cases where, for example,
doors would not close properly or
the walls or ceilings, while creating
no danger of physical injury to
persons or of collapse of the
building, were out of synchrony
with the plans.
By
William Binchy, B.L.,
Research Counsellor,
Law Reform Commission.
The Eclipse of Junior Books
In
Junior Books Ltd. -v- Veitchi Co.
Ltd.,
6
the House of Lords, by a
majority, accepted for the first time
that liability in negligence in
tort
(as
well, of course, as liability in
contract) could attach in respect of
a product with a non-dangerous
defect. That case was initially
regarded as a watershed decision,
since it opened up a potentially vast
new area of potential liability on the
part of manufacturers and others
not in a direct contractual
relationship with the plaintiff.
However, within a short time the
House of Lords showed signs of
running scared, and sought to
interpret
Junior Books
narrowly. In
D. & F. Estates,
this process of
retrenchment has gone about as far
as is possible short of actually
reversing
Junior Books
in express
terms. Lord Bridge stated:
"The consensus of judical
opinion, with which I concur,
seems to be that the decision of
the majority is so far dependent
upon the unique, albeit non-
contractual, relationship be-
tween the pursuer and the
defender in that case and the
unique scope of the duty of care
owed by the defender to the
pursuer arising from that
relationship that the decision
cannot be regarded as laying
down any principle of general
application in the law of tort or
delict."
He pointedly praised Lord
Brandon's dissenting speech in
Junior Books
for its "cogency and
clarity". Similarly Lord Oliver did
not consider
Junior Books
to be "of
any help in the present context".
He agreed with Lord Bridge that it
depended on so close and unique
a relationship with the plaintiff that
it was "really no use as an
authority on the general duty of
care", adding that "it rests, in any
event, upon the
Hedley Byrne
doctrine of reliance". So far as the
general limits of the general duty of
care in negligence were concerned,
he adopted what had been said in
Lord Brandon's dissenting speech.
There is something quite unsatis-
factory about this manner of
dealing with
Junior Books.
It
betrays a timidity and unprincipled
subtlety unworthy of an ultimate
appellate court. It is not true (as
asserted by Lord Oliver) that
Junior
Books
rested on the
Hedley Byrne
doctrine of reliance.
Junior Books
is
not a species of the
Hedley Byrne
genus. Of course, the reliance
element played a most important
role in establishing a sufficient
degree of proximity, on the
particul ar facts, between the
pursuer and the defender; but
nothing
in
Junior
Books
incorporated the
Hedley Byrne
"doctrine of reliance" as an
essential ingredient of liability in
every case involving a defective,
non-dangerous product. It is,
moreover, disingenuous to interpret
the majority speeches as involving
the application of no general
41