The Gazette 1989

GAZETTE

APRIL 1989

actual damage, a

fortiori

liability

should not attach for merely

causing the risk of such damage.

Lord Bridge's analysis leans both

ways. On the facts of

D. & F.

Estates,

the plaintiff would have to

lose under either approach. But

what would be the outcome of a

case with somewhat different facts

- where, for example, a plaintiff

was put to expense in preventing

physical injury to himself or his

family resulting from a defendant's

negligence in plastering a ceiling?

If Lord Bridge were to deny this

plaintiff compensation on the basis

that the case was one of pure

economic loss he could derive no

support from

East River Steamship

Corporation,

which limits immunity

to cases where a product self-

destructs (or, it may be presumed,

threatens

to self-destruct) rather

than causing (or risking) injury to a

person or other property.

"Comp l e x" and "S imp l e"

Structures

Another example reveals the

practical importance of the

question as to when a product or

a structure is of sufficient

"complexity" to fall within Lord

Bridge's scheme of liability. A man

buys a caravan manufactured by

the defendant. On account of

negligence in the design, the

caravan bursts into flames and is

consumed by fire. If the caravan is

a "simple" structure, the plaintiff

will have no claim in tort against the

manufacturer. If it is a "complex"

one, he will be entitled to succeed

to the extent, it seertis, that the

court isolates the separate parts of

the structure, the claim being

limited to the damage to the totality

of the structure minus the element

of damage attributable to the part

with the hidden defect, unless

(according to Lord Oliver, at p. 393)

the repair of that part is "necessary

to remedy damage caused to other

parts".

Lord Bridge gives tantalising hints

as to the nature of "complexity" of

products and structures. A garden

wall is "a very simple structure";

however, it "may well be arguable

that in the case of complex

chattels", one element of the

structure should be regarded as

distinct from another. He does not

therefore, commit himself unre-

servedly to the existence of such

complex chattels. Conversely he

does not commit himself finally on

the question whether a residential

structure attached to the ground is

sufficiently complex to be regarded

as having separate elements. As

we have seen, he goes no further

than to admit that, in comparison

with the garden wall, "more

difficult questions" may arise in

relation to a "more complex

structure" like a dwelling house.

"One view", he notes, "would be

that such a structure should be

treated in law as a single indivisible

unit". On this approach the

decision in

Batty -v- Metropolitan

Property Realisations Ltd.

would be

different - an outcome Lord Bridge

favoured. Nonetheless, he stressed

the argument against this char-

acterisation, and made it clear that

he was coming to no final view on

the question.

Lord Oliver's Speech

Lord Oliver's concurring speech is

also worthy of close attention.

Much of it is concerned with a

critical analysis, and narrow inter-

pretation of the scope, of the

holdings, in earlier decisions. He is

surely correct in finding in

Anns

statement of common law duty

which in fact reflected the statu-

tory context in which the question

of the liability of the builder and

local authority was debated. Lord

Oliver had great doubt as to

whether

Batty

had been correctly

decided, at least as far as the

builder was concerned. He con-

sidered that the decision in

Batty

might possibly have been justified

on the

Hedley Byrne

principle of

reliance had it been argued on this

ground.

Reverting to

Anns,

Lord Oliver

said:

"This much at least seems clear:

that in so far as the case is

authority for the proposition that

a builder responsible for the con-

struction of the building is liable

in tort at common law for

damage occurring through his

negligence to the very thing

which he has constructed, such

liability is limited directly to

cases where the defect is one

which threatens the health or

safety of occupants or of third

parties and (possibly) other

property. In such a case, how-

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