The Gazette 1989

FEBRUARY 1989

GAZETTE

Defective Building Work: Who should pay? Part I

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

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

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.

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

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-

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