The Gazette 1978

GAZETTE

DECEMBER 1978

SOCIETY OF YOUNG SOLICITORS SECTION Report on a Lecture given to the Society of Young Solicitors in Wexford, at the 1978 Autumn Seminar DEFECTIVE BUILDINGS, LIABILITY OF BUILDERS, SUPERVISORY AUTHORITIES AND OTHERS IN CONTRACT AND TORT By Nial Fennelly S.C. which the purchaser should be able to discover from an inspection. The limitation period only begins to run "when the state of the building is such that there is present an imminent danger to the health or safety or persons occupying it"(per Lord Wilberforce in Anns Case) i.e. when the defects first appear.

The Dutton and Anns Cases deal with liability of local authorities for negligence in passing faulty foundations under their bye-laws when in fact the foundations did not comply with the authorities "bye-laws". The Problem was — did a subsequent purchaser come within the negligence principle of Donoghue v. Stevenson. The Court of Appeal decided that he did. However the House of Lords in Anns Case curtailed the scope of the actions by stating that in order to succeed against the Local Authority it must be shown that the powers of inspection were being exercised in order to ensure compliance with bye-laws. Therefore the default complained of must be a failure by the builder to comply with the bye-laws which was not discovered by the Local Authority inspectors. Architects and other professionals may be liable for negligent advice or misstatement under the principles of Hedley Byrne v. Heller as can be seen from the case of Clay v. A. J. Crump & Sons Ltd. This paper delivered earlier than anticipated is most informative and should not be far from the elbow of practitioners wishing to be up to date on this developing area of the law. REPORT OF TRIP TO BRUSSELS AND LUXEMBOURG 1978 The Society again returned to the Continent of Europe in an attempt to help us keep abreast of EEC developments. Forty eight persons participated. We left Dublin on Wednesday morning and received on Wednesday afternoon and Thursday six lectures from members of the Legal Service and other Directorates of the Commission. These varied in quality and interest but overall were thought worthwhile. Most interesting were lectures given on the Convention on the Enforcement of Judgments in Civil and Commercial Matters by Paul Leleux and on the Preparation and Presentation of a Case before the European Courty by Richard Wainright. The former made it clear that the Convention signed by Ireland on 27 September 1978 is already of relevance to those in litigation practices notwithstanding that it had not yet been ratified by Ireland. The transitional provisions of the Convention make it clear that provided the rules of the Convention in relation to jurisdiction are complied with at the commencement of proceedings, it will be possible to use the Convention to enforce judgments given after the date of ratification in proceedings commenced prior to the date of ratification. We understand that ratification is not expected for about twelve months. On Friday morning there was an innovation which proved very successful. We had a session on practical aspects of EEC Law with three Lawyers practising in

This paper presented by Nial Fennelly, S.C. examined the liability of builders' supervisory authority and architects for defective buildings both in contract and tort. The paper concentrated on liability in tort in the wake of such exceptional recent English decisions as Dutton v. Bognor Regis Urban District Council and Anns v. London Borough of Merton. The applicable maxim for Purchasers of any building is caveat emptor. "At Common Law there is no implied term in the contract for the sale of land that the land is. fit for any particular purpose . . . the maxim caveat emptor is applied rigoursly and it is for the buyer or his surveyor to inspect the house and make up his own mind as to its fitness" (Smith and Thomas, page 320). However where there is an actual misdescription of the premises by the Vendor or his Auctioneer the situation is different. Mr. Justice Kenny in Bank of Ireland v. Smith spoke of the "welcome tendency" ofmodern cases "to treat a representation as a warranty unless the person whomakes it can show that he was innocent of fault in connection with it". He also dealt with the argument based on the law with regard to negligent mis-statement developed in Hedley Byrne v. Heller by saying that the relationship necessary to give rise to a duty of care in making statements must be "if not fiduciary or arising out of a contract for consideration . . . equivalent in contract" and that "a contractual relationship between the Vendors' Auctioneers and the Purchaser does not exist". In Esso Petroleum Co. Ltd. v. Mardon it was argued on behalf of the Plaintiff that when negotiations resulted in a contract, the parties rights are governed by contract not by tort but this argument was rejected by Lord Denning and the Court. In view of the decisions in Esso and Dutton the Courts may not be prepared to allow Builders/Vendors to hide behind the Caveat Emptor maxim to escape liability. The building contractor would be liable for defective buildings as normally under the building contract there would be an implied warranty that the house would be fit for the purpose for which it is built. There are often exculsion clauses in such contracts but the doctrine of fundamental breach would afford some protection to the Purchaser in having the effect of such clauses diminished. The Dutton Case in the Court of Appeal as developed by the House of Lords in the Anns Case shows that Builders and Supervisory Authorities are now liable in tort for negligence in the construction of buildings. From the cases it is now clear that a builder is liable in negligence for defects in the building not merely in contract to his own purchaser but also in negligence to any subsequent purchaser. This liability would not seem to extend to minor defects such as disrepair or decoration

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