The Gazette 1989

GAZETTE

FEBRUARY 1989

principles relating to the duty of care

in negligence, while enthusiastically

endorsing Lord Brandon's dissenting

analysis. In fact the majority

speeches are replete with a

consideration of general principles;

moreover, Lord Roskill's speech took

issue with Lord Brandon's dissenting ,

analysis and went some way to

answer his concerns; yet neither Lord

Bridge nor Lord Oliver mentioned this

attempted rebuttal.

The Cost of Avoiding

Threatened Injury

As has been already mentioned, the

central issue in

D. & F. Estates

related to the extent of liability in tort

for negligence in relation to a product

(or structure) resulting in expenses

necessarily incurred in averting

danger to persons, property or the

product (or structure) itself. That

question had arisen in 1973 in the

Canadian case of

RivtowMarine Ltd.

-v- Washington Iron Works,

where

the plaintiffs, who had hired a crane

manufactured by the defendent,

were obliged to take it out of service

for repair when they learned that

cranes of this type had been so

negligently manufactured as to

consitute a danger to the lives of

employees. The Supreme Court of

Canada was agreed that the plaintiffs

should be entitled to loss of profits

(in the logging business) resulting

from the withdrawal of the crane but

there was no similar unanimity on the

question whether they should also be

compensated for the cost of repairing

the defect in the crane. The majority

thought not, but Laskin, J.,

dissenting, thought that they should.

Laskin, J.'s approach received

support from the House of Lords in

Anns -v- Merton London Borough

Council.

Lord Wilberforce (with

whose speech Lords Diplock, Simon

and Russell agreed) said that he had

derived "much assistance" from the

judgment which, though dissenting

on this point, was "of strong

persuasive force".

Anns

did not

involve any issue relating to remedial

action; Lord Wilberforce, J. left for

some future decision resolution of

this issue, which he admitted could

"possibly [be] very difficult in some

cases . . . " ..

Addressing the question of when

the cause of action arises, Lord

Wilberforce considered that it can do

so only when the state of the

building is "such that there is present

or imminent danger to the health or

safety of persons occupying it". This

starting-point was conceived as an

alternative to the time of conveyance

of the defective house, which would

of course leave many injured

plaintiffs uncompensated. Never-

theless, as we shall see, it gives rise

to a good deal of difficulty.

Batty -v- Metropolitan Property

Realisations Ltd.,

the English Court

of Appeal invoked Lord Wilberforce's

statement in

Anns

regarding the time

of commencement of the cause of

action as authority for the imposition

of liability on builders for breach of

a duty of care to the plaintiffs who

had been subjected to imminent

danger of their health or safety by

purchasing from a development

company a house that was liable to

collapse at any time owing to

defective support from adjoining

land, this defect being discoverable

before the house was built. Megaw,

L.J. (Bridge and Waller,

L.JJ

concurring) said:

"Why should this not be treated

as being a case of imminent

danger to the safety and health of

people occupying the house? No

one knows, or can say with

certainty, not even the greatest

expert, whether the foundations

of the house will move and the

house perhaps suddenly tumble

tomorrow, or in a year's time, or

in ten years' time. The law, in my

judgement, is not so foolish as to

say that a cause of action against

the builder does not arise in those

circumstances because there is no

imminent

danger".

There is, of course, nothing

logically inexorable in the path

followed by Megaw, L.J. The

reference in

Anns

to the imminence

of the danger to the safety and

health of occupants of a house

related only to the

time of com-

mencement

of a cause of action in

negligence; Lord Wilberforce was not

deciding the issue of the scope of

duty of the type that arose later in

Batty.

D. & F. Estates: The Facts

D. & F. Estates,

the issue arose as

follows. Sub-contractors employed

by one of the defendants carried out

plaster-work on a flat in 1965 in

which the plaintiffs later acquired

interests. In 1980 it was discovered

that some of the plaster was loose,

and parts of it fell down. Remedial

work was carried out, involving the

stripping off of the defective

plastering followed by replastering.

The plaintiffs sued that defendant for

(inter alia)

damages for negligence,

claiming the cost of the remedial

work, the cost of cleaning carpets

and other possessions damaged or

dirtied by falling plaster, loss of rental

income

and

damages

for

inconvenience and distress. The trial

judge found that the plaster was

defective because it has been

incorrectly applied. He awarded

damages against that defendant for

lack of proper supervision of the

plastering work. The Court of Appeal

reversed, and the House of Lords

unanimously dismissed the plaintiffs'

appeal.

The Question of Supervision

On the question of supervision, the

House of Lords held that a main con-

tractor did not in general assume a

duty of care to any person who

might be injured by a dangerous

defect caused by the negligence of

an apparently competent sub-

contractor, and that thus the

defendant contractor was not in

breach of any duty to supervise the

sub-contractor's work. To impose

such a general duty "would

obviously lead to absurd results",

said Lord Bridge. If, however, the

main contractor, in the course of

such supervision as he chose to give

to the sub-contractor's work, dis-

covered that it was being carried out

in a defective and foreseeably

dangerous way, and condoned that

negligence, he would "no doubt

make himself potentially liable for the

consequences as a tortfeasor". Of

course, this approach by the House

of Lords gives the main contractor a

strong incentive to neglect to monitor

the sub-contractor's work in

progress.

The Curious Influence of

United States Admiralty Law

As we have seen, it is the broader

subject of recovery for economic loss

which makes

D. & F. Estates

such

an important decision. On this

matter, Lord Bridge presented the

most detailed analysis. Having

sought to isolate the majority

approach in

Junior Books

he derived

what he considered to be "powerful

support" for Lord Brandon's dissent

from the United States Supreme