The Gazette 1989

GAZETTE

FEBRUARY 1989

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. In Batty -v- Metropolitan Property Realisations Ltd., 9 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 In 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

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. 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, 1 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. 8 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 The Cost of Avoiding Threatened Injury

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

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