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 a 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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