But beyond doubt, the architect and engineer would be liable. The council appealed. The House of Lords, following the Court of Appeal, set out a "three-fold test". The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. In order for a duty of care to arise in negligence: In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. Dutton v Bognor Regis Urban District Council (1976) 3 BLR 11. He suggested, therefore, that although the council might be liable if the ceiling fell down and injured a visitor, they would not be liable simply because the house was diminished in value. They are liable in either case. It had been regularly inspected by an insurance company, and passed as safe. and his colleagues in the Northern Ireland Court of Appeal held that a contractor who built a house negligently was liable to a person injured by his negligence. Yet they failed to protect them. This judgment was rejected in some Commonwealth jurisdictions, notably Canada, Australia, Singapore, and New Zealand, all of which preferred the two stage Anns test of proximity and policy. Was the relationship between them sufficiently proximate? and so forth. I would therefore dismiss this appeal. In short, we look at the relationship of the parties: and then say, as matter of policy, on whom the loss should fall. That is an impossible distinction. Applying the test laid down by Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562, 580-581 , I should have thought that the inspector ought to have had subsequent purchasers in mind when he was inspecting the foundations. Mrs Dutton sought to recover damages from a builder, Bognor Regis Building Co Ltd, and the local council, Bognor Regis Urban District Council, that certified her house was sound, when it emerged that her house's foundations were defective because it had been built on a rubbish tip. Add to My Bookmarks Export citation. In S.C.M. Co.) (C.A. Will it lead to a flood of cases which neither the council nor the courts will be able to handle? Grant v Australian Knitting Mills, is a landmark case in consumer and negligence law from 1935, holding that where a manufacturer knows that a consumer may be injured if the manufacturer does not take reasonable care, the manufacturer owes a duty to the consumer to take that reasonable care. But the question has always been there in the background. So much so that in 1936 a judge at first instance held that a builder who builds a house for sale is under no duty to build it carefully. Who ought in justice to bear it? It is at this point that I must draw a distinction between the several categories of professional men. (United Kingdom) Ltd. v. W. J. Whittall & Son Ltd. [1971] 1 Q.B. The Supreme Court of Illinois, by a majority, held that the insurance company were liable for the negligence of the inspector. The Court of Appeal held that Mrs Dutton could recover money from the council, as an extension of the principle in Donoghue v Stevenson. But I hold that the builder who builds a house badly is liable, even though he is himself the owner. Finally I ask myself: If we permit this new action, are we opening the door too much? All these considerations lead me to the conclusion that the policy of the law should be, and is, that the council should be liable for the negligence of their surveyor in passing work as good when in truth it is bad. 396-98), and Sachs L.J. Suppose that the defect is discovered in time to prevent the injury. Diplock L.J. There is no sense in maintaining this distinction. 458 . This case is entirely novel. 1990-08-09 cnplus They received public funds for the purpose. 337 , some of us thought that economic loss ought not to be put on one pair of shoulders, but spread among all the sufferers. Dutton v Bognor Regis UDC; E. Ebrahimi v Westbourne Galleries Ltd; H. Hill v CA Parsons & Co Ltd; Hussey v Palmer; I. The case concerned three parties; Chapman who drove negligently, Dr Cherry who assisted him on the side of the road, and Hearse who, in driving negligently, killed Dr Cherry while he was assisting Chapman. Grant v Australian Knitting Mills [1936] AC 85. If the owner of land built a house on it and sold it to a purchaser, but he did his work so negligently that someone was injured, the injured person could not recover: see Bottomley v. Bannister [1932] 1 K.B. The insurance company made these inspections gratuitously in order to promote their business. They held that if one of the parties to a contract was negligent in carrying it out, no third person who was injured by that negligence could sue for damages on that account. The insurance company made these inspections gratuitously in order to promote their business. But that case only dealt with the manufacturer of an article. 164, 179 , I put the case of an analyst who negligently certifies to a manufacturer of food that a particular ingredient is harmless, whereas it is, in fact, poisonous: or the case of an inspector of lifts who negligently reports that a particular lift is safe, whereas it is in fact dangerous. 82. They are both overruled. That 19th century doctrine may have been appropriate in the conditions then prevailing. It had been regularly inspected by an insurance company, and passed as safe. It sets a limit to damages for economic loss, or for shock, or theft by escaping convicts. So much so that in 1936 a judge at first instance held that a builder who builds a house for sale is under no duty to build it carefully. If he designs a house or a bridge so negligently that it falls down, he is liable to every one of those who are injured in the fall: see Clay v. A. J. Crump & Sons Ltd. [1964] 1 Q.B. First, Mrs. Dutton has suffered a grievous loss. But it was not suited to the 20th century. If he makes it negligently, with a latent defect (so that it breaks to pieces and injures someone), he is undoubtedly liable. Dutton v Bognor Regis Urban District Council. It was accepted that the analyst and the lift inspector would be liable to any person who was injured by consuming the food or using the lift. 253 and Blacker v. Lake and Elliot Ltd (1912) 106 L.T. Would it mean that they would be extra cautious, and hold up work unnecessarily? 46 . HC Deb 21 December 1971 vol 828 c321W 321W § Mr. Tebbit. Such considerations have influenced cases in the past, as in Rondel v. Worsley [1969] 1 A.C. 191 . Since that case the courts have had the instance of an architect or engineer. In some cases the law has drawn the line to prevent recovery of damages. This information is only available to paying isurv subscribers. But the result of them is to lessen the authority of that case and the observations in it. 221; Wing v. Moncton, ... APPEAL from a judgment of the British Columbia Court of Appeal 1981 CanLII 452 (BC C.A. If the manufacturer of an article is liable to a person injured by his negligence, so should the builder of a house be liable. 26 , Lord MacDermott C.J. He said that even if the inspector was under a duty of care, he owed that duty only to those who he knew would rely on this advice - and who did rely on it - and not to those who did not. Nowadays since Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 it is clear that a professional man who gives guidance to others owes a duty of care, not only to the client who employs him, but also to another who he knows is relying on his skill to save him from harm. But the foundations of a house are in a class by themselves. wurde n?mlich nicht nur der Court-of-Appeal-Fall Dutton v. Bognor Regis Urban District Council12 aus dem Jahre 1972, sondern aufgegeben wurden auch die rationes decidendi aus der im Jahre 1990 gerade erst 13 Jahre alten Entscheidung des House of Lords in Sachen Anns v… 533 . The builder was not liable for his negligence in the construction of the house. 665 . That is to say: a person who has a right has duties attached to that right. Such considerations have sometimes in the past led the courts to reject novel claims. Economic loss is a term of Tort which refers to financial loss and damage suffered by a person such as can be seen only on a balance sheet rather than as physical injury to the person or destruction of property. Was the injury direct or indirect? If a visitor is injured by the negligent construction, the injured person is entitled to sue the builder, alleging that he built the house negligently. In neither of those cases, strangely enough, was Robertson v. Fleming, 4 Macq. In the third place, the council should answer for his failure. 253 and Blacker v. Lake and Elliot Ltd (1912) 106 L.T. There is a fundamental distinction between pure economic loss and consequential economic loss, as pure economic loss occurs independent of any physical damage to the person or property of the victim. (aux pp. I should think those who were responsible. Judgment. Dutton v Bognor Regis Urban District Council [1972] 1 QB 373 is an English contract law and English tort law case concerning defective premises and the limits of contract damages. Dr Cherry was considered a ‘rescuer’ and his respective rights remained. It has been concealed behind such questions as: Was the defendant under any duty to the plaintiff? 403-4). I can well see that in the case of a professional man who gives advice on financial or property matters - such as a banker, a lawyer or an accountant - his duty is only to those who rely on him and suffer financial loss in consequence. It was disapproved by the House of Lords in Murphy v Brentwood DC and is now bad law[1] except in Canada and New Zealand.[2]. Hitherto many lawyers have thought that a builder (who was also the owner) was not liable. The idea of individuals owing strangers a duty of care – where beforehand such duties were only found from contractual arrangements – developed at common law, throughout the 20th century. 533. So also the council's inspector should not be liable for passing the bad work. But ultimately it is a question of policy for the judges to decide. After the lapse of 30 years this was recognised. We had a similar problem some years ago. ), per Denning M.R. [3] That is to say: if someone has a right, someone else owes a duty to them. The council would be protected by a six-year limitation, but the builder might not be. It was reversed by the Occupiers' Liability Act 1957, section 4 (1) . In the third place, the council should answer for his failure. The inspector must know this, or, at any rate, he ought to know it. If the owner of land built a house on it and sold it to a purchaser, but he did his work so negligently that someone was injured, the injured person could not recover: see Bottomley v. Bannister [1932] 1 K.B. Jackson [1977] QB 966; Masters v. Brent London BC [1978] QB 841. So here, the inspector has a right (to inspect), and the builder has a duty to let them inspect. 197, 203 . The very object was to protect purchasers and occupiers of houses. If it is, much the greater responsibility will fall on the builder and little on the council. 596-597. The reason is not because those injured relied on him, but because he knew, or ought to have known, that such persons might be injured if he did his work badly. Cavalier v. Pope (on landlords) and Bottomley v. Bannister (on builders) were considered by the House in Donoghue v. Stevenson [1932] A.C. 562 , but they were not overruled. The house fell down without any fault of hers. The inspector must know this, or, at any rate, he ought to know it. It would mean that a contractor who builds a house on another's land is liable for negligence in constructing it, but that a speculative builder, who buys land and himself builds houses on it for sale, and is just as negligent as the contractor, is not liable. Unless in each case he was a party to the contract. The council appealed. He said that such a professional man owed no duty to one who did not employ him but only took the benefit of his work: and that an inspector was in a like position. None of them would have known whether an architect or engineer was employed, or not. 197, 203 . If he makes it negligently, with a latent defect (so that it breaks to pieces and injures someone), he is undoubtedly liable. He referred to the recent case of S.C.M. Dr. Grant, the plaintiff, contracted a severe case of dermatitis as a result of wearing woolen underpants which had been manufactured by the defendants (Australian Knitting Mills Ltd). Such considerations have sometimes in the past led the courts to reject novel claims. The injured person will always have his claim against the builder. Hearse sought to reclaim damages from Chapman due to his alleged contributory negligence; Chapman was found liable to one quarter of the damages. He suggested, therefore, that although the council might be liable if the ceiling fell down and injured a visitor, they would not be liable simply because the house was diminished in value. It seems to me that it is a question of policy which we, as judges, have to decide. During the building of a court house, a lift plunged down six floors with 19 workmen aboard. In S.C.M. But I do not think it is good law today. The distinction between chattels and real property is quite unsustainable. But in the case of a professional man who gives advice on the safety of buildings, or machines, or material, his duty is to all those who may suffer injury in case his advice is bad In Candler v. Crane, Christmas & Co. [1951] 2 K.B. DUTTON v. BOGNOR REGIS UNITED BUILDING CO. LTD. They held that if one of the parties to a contract was negligent in carrying it out, no third person who was injured by that negligence could sue for damages on that account. ... Mt Albert BC v Johnson. The cl… Negligence is a failure to exercise appropriate and or ethical ruled care expected to be exercised amongst specified circumstances. That is an impossible distinction. In my opinion Bottomley v. Bannister [1932] 1 K.B. This was followed by Nield J. in Sharpe v. E. T. Sweeting & Son Ltd [1963] 1 W.L.R. Surely he is liable for the cost of repair. The Court of Appeal in Dutton v Bognor Regis District council ruled that there was no reason why this principle should not also apply to a builder building a house. He said that even if the inspector was under a duty of care, he owed that duty only to those who he knew would rely on this advice - and who did rely on it - and not to those who did not. Public Health Act 1936. Home Office v Dorset Yacht Co Ltd[1970] UKHL 2, [1970] AC 1004 is a leading case in English tort law. The plaintiff, who was aged 17 at the time, suffered very serious personal injuries when playing hooker in a colts rugby match, when a serum collapsed, and his neck was broken. Was it foreseeable, or not? The reason given was that the only duty of care was that imposed by the contract. Journal of the Society of Archivists: Vol. They received public funds for the purpose. In Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004 , we thought that the Home Office ought to pay for damage done by escaping Borstal boys, if the staff was negligent, but we confined it to damage done in the immediate vicinity. Dutton v. Bognor Regis United Bldg. Judicial creativity is fully in play when a previous decision is overruled. Dunlop Pneumatic Tyre v Selfridge & Co Ltd, Woodar Investment Development Ltd v Wimpey Construction UK Ltd, Contracts (Rights of Third Parties) Act 1999, Nisshin Shipping Co Ltd v Cleaves & Co Ltd, Miller v. South of Scotland Electricity Board. In Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004 , Lord Reid said, at p. 1023, that the words of Lord Atkin expressed a principle which ought to apply in general "unless there is some justification or valid explanation for its exclusion." The period of limitation (six years) then began to run. But the judges in those cases confined themselves to cases in which the builder was only a contractor and was not the owner of the house itself. 245 , we thought that as the owner of the family car was insured she should bear the loss. Time after time counsel for injured plaintiffs sought to escape from the rigour of this rule. Finally I ask myself: If we permit this new action, are we opening the door too much? Cavalier v. Pope [1906] A.C. 428 has gone too. If the landlord of a house contracted with the tenant to repair it and failed to do it - or did it negligently - with the result that someone was injured, the injured person could not recover: see Cavalier v. Pope [1906] A.C. 428 . He referred to the recent case of S.C.M. 46 . See Caveat Emptor in Sales of Land: A Consultation Paper from the Conveyancing Standing Committee of the Law Commission (1988) p. 4. In Gallagher v. N. McDowell Ltd [1961] N.I. ). Dutton v Bognor Regis Urban District Council [1972] 1 QB 373 is an English contract law and English tort law case concerning defective premises and the limits of contract damages. The damage done here was not solely economic loss. The later Murphy v Brentwood DC case revealed Denning's reasoning in Dutton to be flawed. In nearly every case the builder will be primarily liable. Mr. Tapp then submitted another reason for saying that the inspector owed no duty to a purchaser. Unless in each case he was a party to the contract. said that if the drains were not properly designed and built, "the damage from any breach of that duty must have occurred at the time when the drains were improperly built, because the plaintiff at that time was landed with property which had bad drains when he ought to have been provided with property which had good drains, and the damage, accordingly, occurred on that date.". He said that an inspector is in the same position as any professional man who, by virtue of his training and experience, is qualified to give advice to others on how they should act. It was physical damage to the house. The reason given was that the only duty of care was that imposed by the contract. I cannot accept this submission. But the question has always been there in the background. They said, at p. 779, that the defendant's liability "is not limited to such persons as might have relied upon it to act but extends instead to such persons as defendant could reasonably have foreseen would be endangered as the result of negligent performance.". Mr. Tapp submitted that the inspector owed no duty to a purchaser of the house. Dutton v Bognor Regis Urban District Council: CA 1972 The court considered the liability in negligence of a Council whose inspector had approved a building which later proved defective. Then I ask: If liability were imposed on the council, would it have an adverse effect on the work? 458 was still authority for exempting him from liability for negligence. It seems to me that it is a question of policy which we, as judges, have to decide. If Mr. Tapp's submission were right, it would mean that if the inspector negligently passes the house as properly built and it collapses and injures a person, the council are liable: but if the owner discovers the defect in time to repair it - and he does repair it - the council are not liable. Dutton v Bognor Regis Urban District Council [1972] 1 QB 373. Candler v Crane, Christmas & Co [1951] 2 KB 164 is an English tort law case on negligent misstatement. In previous times, when faced with a new problem, the judges have not openly asked themselves the question: what is the best policy for the law to adopt? Started with this decision. Contributory negligence on the part of the dock owners was also relevant in the decision, and was essential to the outcome, although not central to this case's legal significance. It was his job to examine the foundations to see if they would take the load of the house. There is no sense in maintaining this distinction. In Dutton v. Bognor Regis Urban District Councip the English Court of Appeal held that a local authority, exercising a power under its own byelaws to inspect the foundations of a house, owed a duty of care in negligence to the second purchaser of the house. It holds that the divide between a statement of opinion and fact becomes more factual if one holds himself out as having expert knowledge. 4, No. In neither of those cases, strangely enough, was Robertson v. Fleming, 4 Macq. But here I see no danger. Hence they were treated by the courts as being still cases of authority. 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